Monday, November 11, 2019
John Oliver on SLAPP suits
John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.
The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.
[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?
Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.
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Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)
Sunday, November 10, 2019
Kentucky Law Journal: 2020 Symposium Topic Submissions
How to Submit
Kentucky Law Journal is now accepting symposium topic proposals for the 2020–2021 academic year. Please submit symposium topic suggestions following the instructions below no later than November 22, 2019 at 7:00 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]
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Posted by Howard Wasserman on November 10, 2019 at 11:02 PM | Permalink | Comments (0)
Friday, November 08, 2019
State-level universality
Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.
A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.
Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.
Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.
Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)
Wealth Taxes Are Not Unconstitutional
I want to make a point that is getting lost in the discussion of wealth taxes. Assume for the sake of argument that a wealth tax is a "direct tax" as defined by the Constitution. The Constitution does not say that direct taxes are prohibited. Rather, direct taxes must just be apportioned among the states according to their respective numbers. Thus, a wealth tax is not unconstitutional, though the way in which such a tax is applied can be.
Posted by Gerard Magliocca on November 8, 2019 at 03:23 PM | Permalink | Comments (4)
Leavenworth Ep. 3, Judgment
The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.
After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.
Continue reading "Leavenworth Ep. 3, Judgment"
Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink | Comments (0)
Law and Entrepreneurship Association - Call for Papers
The 14th annual meeting of the Law and Entrepreneurship Association (LEA) will be held on Friday, March 20, 2020, at the University of North Carolina School of Law.
The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy. Our annual meeting is an intimate gathering where each participant is expected to read and actively engage with all papers under discussion.
The LEA welcomes papers and proposals on all topics relevant to entrepreneurship. Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of the papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.
To submit a proposal or paper, please email Professor John Coyle at [email protected] by January 13, 2020. Please include the subject line: “LEA Submission – {Name}.”
The University of North Carolina is located in Chapel Hill, North Carolina, with easy access to Raleigh-Durham International Airport (RDU). For additional information, please email Professor John Coyle at [email protected].
Posted by Carissa Byrne Hessick on November 8, 2019 at 08:07 AM | Permalink | Comments (0)
Thursday, November 07, 2019
Two thoughts on the Socratic method (or whatever we call Q&A teaching)
1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.
At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.
2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.
Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)
Wednesday, November 06, 2019
Sport and speech, again (edited slightly)
Two items.
1) The Washington Nationals visited the White House earlier this week, down several players, including outspoken pitcher Sean Doolittle. Doolittle and others were criticized for politicizing sports; Rep. Crenshaw labeled Doolittle's actions juvenile and said "These ceremonies aren’t about your petty political sensibilities, they are about celebrating a great American pastime in the Oval Office." But the visit included one player donning a MAGA hat and receiving a presidential hug and another player heaping praise on the President. That sounds like more than a celebration of the great American pastime that happens to occur in the Oval Office--that sounds like a nakedly political celebration of the current occupant of the Oval Office. (We can debate whether MAGA is racist; there is no debate that it is an electoral message unique to one candidate). Which is fine, I suppose. But then the right of players to opt-out is more urgent--it is not a petty political sensibility, but a right not to be associated with a blatantly political message and a blatantly political event you find offensive.
2) The President will attend the LSU-Alabama game in Tuscaloosa this weekend. On Tuesday, the President of the Alabama Student Government Association sent an notice about increased security and the need to arrive early, then closed with "Any organizations that engage in disruptive behavior during the game will be removed from block seating instantly for the remainder of the season."*
[*] Alabama apparently has one home game left this season, against Western Carolina. Quite the threat.
The response was both unexpected and appropriate. By Wednesday, the SGA announced it "strongly affirms its beliefs in free speech rights and the rights of all students to express their opinions." (Good to know the student government strongly affirms the First Amendment). Of course, then it blamed the media for "assigning political context" to a message meant to be about heightened security--damn media for quoting the SGA's words. A later email did slightly better (no:
Some have misinterpreted my comment regarding ‘disruptive behavior.’ … By disruptive behavior, we are asking students to be respectful to all students and staff and avoid altercations . . . My email has nothing do with anyone’s First Amendment rights and I am sorry for any confusion. Please express yourself and especially your pride for the Tide.
But the explanation--we wanted people to avoid altercations and to show respect to staff--still beggars belief unless the SGA sends a similar message before every game. Which it clearly does not. It was obviously worried about people booing or protesting the President and did so in the ham-handed way we have come to expect from those with government power.
I like when sports/speech controversies are this easy and arise at public universities, where the application of the First Amendment is not in dispute.
Posted by Howard Wasserman on November 6, 2019 at 11:33 PM | Permalink | Comments (3)
Can Presidential Electors be Computers?
There are two common criticisms of the Electoral College. One is that sometimes a person who loses the national popular vote can still become president. The other is that presidential electors are not bound by the vote of their state and can, in close elections, change the result.
Let's think a little about the second point. Suppose a state with 10 electoral votes designated 10 computers as its presidential electors? The computers are told to vote in accordance with whatever state law says about presidential elections (e.g., whomever wins the popular vote in the state gets all of the electoral votes). They execute the program and send the votes to Congress. Would such a state scheme be constitutional?
Maybe. The Constitution says who cannot be electors (members of Congress and any person "holding an Office of Trust or Profit under the United States") but says nothing about who or what can be an elector. The Electors are then instructed to meet and vote. Can a group of computers meet? Sure they can. That just means "put them in the same room" or network them together.
Can they vote? Sure they can, unless vote means "exercise discretion." The last point is not so clear to me. The recent Tenth Circuit opinion on presidential electors suggested that giving them the power to vote meant that they could not be bound by a state to make a particular decision. Voting implies a free choice. A free choice is not compatible with an automaton. But is the Tenth Circuit correct in putting that sort of weight on the word vote in the Constitution? What if artificial intelligence is programmed in a way that allows some minimal level of discretion? Is that good enough? Just food for thought.
Posted by Gerard Magliocca on November 6, 2019 at 02:08 PM | Permalink | Comments (5)
Allen v. Cooper argument review
My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.
A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.
And, of course, I could not resist some pirate jokes.
Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)
Saturday, November 02, 2019
Leavenworth, Ep. 2: Casualties, part 2
The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.
The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.
Continue reading "Leavenworth, Ep. 2: Casualties, part 2"
Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)
Friday, November 01, 2019
Fun with diversity (Updated)
Two fun news stories on diversity.
1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.
So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?
2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.
I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.
What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.
Posted by Howard Wasserman on November 1, 2019 at 01:58 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)