PrawfsBlawg

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 16, 2021

Checking on the Koufax Curse

What is the latest on the Koufax Curse? Which Jewish players played on Yom Kippur 5782 and how did they and their teams do?

Continue reading "Checking on the Koufax Curse"

Posted by Howard Wasserman on September 16, 2021 at 12:01 PM | Permalink | Comments (0)

Wednesday, September 15, 2021

Devin Nunes wins a small victory, for now

To show I can write about something other than SB8: This terrible Eighth Circuit opinion. The court holds that Devin Nunes did not sufficiently plead actual malice against Esquire and Ryan Lizza over publication of an article about Nunes' family's farm, because he had not sufficiently pleaded actual malice. (Nunes acknowledged he had not done so--he asked the court to reconsider the standard, which it obviously cannot do). But the court reversed dismissal of a claim against Lizza for retweeting a link to the story two months Nunes filed his original complaint. Retweeting constitutes republication. And because Lizza retweeted after the lawsuit denied the story, it was "plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"

This cannot be right. The denial or contesting of allegations, without more, cannot plausibly establish knowledge or reckless disregard as to truth of the statements, presumably in the face of other reasons to believe the story (which is why they published it). The implication of this is that a defamation claim can survive 12(b)(6) by alleging that someone retweeted the disputed story knowing that the target of the story has sued or otherwise contested its truth. Or, one step further, a plaintiff could survive 12(b)(6) by pleading that the reporter published the story despite pre-publication denials of the content. Either of those puts the defendant on notice of the denial, which raises the same plausible inference the defendant "purposefully avoided" the truth.

I doubt Nunes survives summary judgment, because I doubt he can establish evidence beyond his denial for Lizza to disbelieve the article. That is not enough to establish actual malice by clear-and-convincing evidence, as required. Still, letting this get beyond 12(b)(6) is not good. It raises again whether plausibility should account for a higher standard of persuasion, as it does on summary judgment.

And just to tie this back to SB8, because that is my life right now: No one seems to believe that Lizza was denied judicial review of his First Amendment rights by having to defend a lawsuit.

Posted by Howard Wasserman on September 15, 2021 at 06:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

SCOTUSBlog review of "Painting Constitutuional Law"

Amanda Frost (American) published a nice review on SCOTUSBlog of Painting Constitutional Law, my edited volume with M.C. Mirow on Xavier's Cortada's series May It Please the Court.

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

Tuesday, September 14, 2021

Kentucky Law Journal: Exclusive Submissions

The Kentucky Law Journal is opening an exclusive submission track for Fall 2021, with an expedited review process. We are accepting manuscripts from all areas of law, though we are particularly interested in scholarship focused on tort law. Authors who submit to our exclusive submission track agree to accept a binding publication offer, should one be extended. The accepted Article will be published in Volume 110 of the Kentucky Law Journal, with final publication around April 2022. The KLJ will provide a publication decision within 7 days of submission. The final manuscript will be due shortly after we accept the article for publication. 

Authors interested in submitting to the exclusive submission track for Fall 2021 should email their CV and manuscript to Editor-in-Chief Kelly Daniel at [email protected], and Managing Articles Editor Samuel Weaver at [email protected] with the subject line "Exclusive Article Submission."

Posted by Howard Wasserman on September 14, 2021 at 04:33 PM in Teaching Law | Permalink | Comments (0)

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Chronicle of Higher Ed reveals its biases

The Chronicle of Higher Education has an article on the rankings obsession among colleges. They begin the story with three examples--University of Houston, Washington State, and us. The top of the piece contains a photo with an array of pull-quotes from strategic plans--we are the only school mentioned by name. Also garnering mention in the story are Clemson, Oklahoma State,  and Oregon State. Apparently the only schools obsessing about rankings are non-flagship public universities, two of which are urban and some of which serve significant numbers of non-white students. My colleague Louis Schulze has some thoughts about the biases reflected in the editorial framing choice.

Posted by Howard Wasserman on September 14, 2021 at 01:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 13, 2021

THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions

The George Washington University Law School invites applications for up to five tenure-track or tenured faculty appointments. The appointments will be made at the rank of Associate Professor or Professor and will begin as early as Fall 2022. The school may hire faculty in any subject area or category based on a candidate’s overall strength. Areas of particular interest include all large 1L classes (torts, contracts, criminal law, civil procedure, property, legislation & regulation, and constitutional law), professional responsibility, family law, health law, intellectual property, government procurement, international law, environmental law, and civil rights law. The University and Law School have a strong commitment to achieving diversity among faculty and staff.  We are particularly interested in receiving applications from members of underrepresented groups and strongly encourage women, persons of color, and LGBTQ candidates to apply for these positions.

Continue reading "THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions"

Posted by Howard Wasserman on September 13, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, September 12, 2021

Sports nomenclature

Novak Djokovic lost in the finals of the U.S. Open today, ending his attempt to complete the first Grand Slam by a male player since Rod Laver in 1969 and by any player since Steffi Graf in 1988.

Much of the writing about this will describe Djokovic as missing the "Calendar-Year Grand Slam," a qualifier distinguishing what became known as a "Serena Slam" in which a player holds the four titles at the same time measured from some arbitrary point in time. For example, a player wins Wimbledon and the U.S. Open in Year One and the Australian and French Opens in Year Two; measured during the month between French and Wimbledon in Year Two, that player has won a "Slam" over the last 12 months.

This is stupid. Had Djokovic won, he would have captured a Grand Slam, unmodified and unqualified. The Serena Slam is not a thing and we should not mention it. A Serena Slam is equivalent to saying a baseball player who hit 37 home runs in the last 81 games of Year One and 37 home runs in the first 81 games of Year Two holds the record by hitting 74 homers in 162 games (the length of a season). Or a hockey player who scored 46 goals in the final 41 games of Year One and 47 goals in the first 41 games of Year Two holds the record by scoring 93 goals in in 82 games (the length of a season). Season records are measured in a season, not the number of games that comprise a season, measured from arbitrary points over multiple seasons.

Tennis has a season that follows a calendar year and contains four Grand Slam tournaments in order. It begins in January leading to the first Slam tournament in Australia in late January and ends in November with round-robin tournaments featuring the eight best men (played in Italy) and women (played in China), two months after the fourth and final Slam event in New York. If winning the four tournaments is a thing, it must be within that "season," meaning a calendar year. Anything else looks like an attempt to create a special achievement when the real achievement proved too rare.

Posted by Howard Wasserman on September 12, 2021 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

John Marshall's "Life of Washington"

I'm going through Volume 2 of John Marshall's biography of George Washington. (Volume 2 covers GW's life from 1781-1799). It's a remarkable book, both for what we learn about the Chief Justice and for its style.

First, consider that Marshall (while Chief Justice) wrote in detail about political controversies during the Washington Administration. These occurred only a decade before the book was written and were not ancient history by any means. Yet Marshall does not shy away from sharing his opinions on various matters, including the role that Jefferson played in some of these disputes. It would be hard to imagine John Roberts writing, say, a book about the Bush 41 or the Clinton Administration. (In the second edition of the book, Marshall added one note that directly responds to comments that Jefferson made about the first edition.)

Second, Marshall does not mince words when discussing the various wars fought between the United States and the Native American Tribes. He uses the word "savages" more than once to describe the Tribes. Perhaps scholars of Marshall's Native American decisions should take a look at Life of Washington to see if that sheds any light on those decisions.

Third, Marshall gives his views on various early constitutional controversies. Some of these are ones that came before the Supreme Court later, such as the validity of the national bank. Others never did, such as the Decision of 1789 or some of the fights over foreign policy during the 1790s. What he had to say about these issues is worth examining, though maybe not enough for a paper of its own.

Fourth, Marshall talks about the XYZ Affair but never mentions that he was one of the diplomats involved in the Affair. Maybe he was being modest, or maybe he assumed that his readers would just know. It's odd though.

Posted by Gerard Magliocca on September 12, 2021 at 03:27 PM | Permalink | Comments (2)

Saturday, September 11, 2021

Universal injunctions are back, baby

I predicted that, with the change of presidential administrations, Republicans and conservative activists would discover that universal injunctions are permissible and essential to the rule of law. I did not know what would trigger the new arguments. Now we do.

Litigation is on the horizon challenging the coming OSHA vaccine mandate. I can hear it now.: "It is not enough to stop the government from requiring the plaintiff to get vaccinated. The mandate applies to all employees across the country. If it is unconstitutional to make A get vaccinated, how can it be constitutional to make B get vaccinated. That violates the rule of law. Federal law must be uniform."

Posted by Howard Wasserman on September 11, 2021 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Anticipating Mandatory Vaccination--10 Years Ago

Ten years ago, I was blogging at Concurring Opinions (R.I.P.) and Balkinization, where I still post. Here is a post that I wrote in October 2011. I wouldn't write this in exactly the same way now, but I think it's still of interest.

Posted by Gerard Magliocca on September 11, 2021 at 08:19 AM | Permalink | Comments (11)

Friday, September 10, 2021

5th Circuit allows appeal in SB8 case

The 5th Circuit denied motions to dismiss the appeals and stayed the district court proceedings in the WWH SB8 case. The court of appeals had jurisdiction under the collateral order doctrine over the state officials'  claims because all were denied 11th Amendment immunity when the district court found that Ex Parte Young claims could proceed against them despite their not being proper defendants. The court had pendent appeallate jurisdiction over the appeal by Mark Lee Dickson, because the claims against him are inextricably intertwined with the claims against the judges and clerks. A stay was proper because the defendants were likely to succeed on their appeal, because they are not proper defendants under SB8.

On the likelihood of success, there is some language in the order that will help with the paper. The court labeled the claims against judges as "specious," citing Ex Parte Young and cases from the Fifth Circuit and other courts to make the argument we have been making--judges acting in an adjudicatory capacity are not proper defendants in lawsuits challenging the constitutional validity of a law, as the judges (and the clerks who accept pleadings) are "disinterested neutrals" engaging in adjudication rather than enforcement. The court cast doubt on the "indirect enforcement" claims against executive officials. Rocky and I argue that this could work, although the remedy would be limited to providers and licensing proceedings, doing nothing to stop private lawsuits. But the court read SB8's no-enforcement provision to bar any enforcement based on any SB8 violations.

I think the court was wrong about the Dickson. Pendent appellate jurisdiction is supposed to be limited to situations in which resolution of the COD issue resolves the PAJ issue. For example, the first prong of qualified immunity (violation of a right) is inextricably intertwined with the violation prong of municipal liability. But that is not true of the claims against the judges/clerks and Dickson. The issue as to the judges is whether they are proper Ex Parte Young defendants; the issue as to Dickson is whether he intends to bring suit. I guess if the judges are proper defendants and can be enjoined then Dickson cannot pursue his claims. But the propriety of the injunction is not on this appeal, only whether they can be defendants. Pendent appellate jurisdiction is problematic in extending COD beyond a "narrow class of cases." This proves the point.

I know this is bad for abortion rights and for women needing reproductive-health services in Texas. And I accept Andy Koppelman's argument that it would be bad for constitutional rights if this type of law proliferates. But, for better or worse, procedurally the court is correct.

Posted by Howard Wasserman on September 10, 2021 at 09:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) [and also - employment and labor law is a central field of scholarship!]

The 16th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) is being held at Vanderbilt U, Friday, October 15 & Saturday, October 16, 2021 - TBD whether in person or not. you can Submit an abstract and/or paper for consideration. The deadline to submit a paper/abstract is Monday, September 13.

On a related note: Leiter's lists on "most cited scholars" in various fields are coming out -- they've never, and still don't, include a list of employment and labor law scholars -- though it is a very strong and large scholarly and practice area, which includes employment contract theory, labor law, wage and hour, gig economy and classification, worker health and safety, employment discrimination, harassments, pay equity, employee mobility, whistleblowing, speech, privacy, worker comp, unemployment insurance and job training, pensions and retirement policy, and much more. 

Posted by Orly Lobel on September 10, 2021 at 05:31 PM | Permalink | Comments (0)

Teaching While Masked

Now three weeks into teaching I can say that all my fears that: 1) I would feel suffocated lecturing four hours in one day while masked. 2) my students would not be able to hear me. 3) students will not be compliant with our all-masked, including the vaccinated (and vaccinations are mandatory at USD for all students, faculty and staff, as well as any visitors, like guest speakers) 4) I wouldn't be able to hear my students speak -- all of these fears have proven to not realize. I forget after a short while that I am wearing a mask, the students are happy to be back in person and engaged in lively conversation and discussion. I project my voice, and yes, I have to sometimes remind the students in the back rows to speak up louder especially since we keep the lecture hall doors open, but overall - we can hear each other! We do take a break in the middle of class because our policy is no eating or drinking in the classroom. 

Posted by Orly Lobel on September 10, 2021 at 05:21 PM | Permalink | Comments (0)

KCon 2021 - Contract v. Competition, October 1 via zoom

For all contract lovers -- see this free and open to all event - https://lawprofessors.typepad.com/contractsprof_blog/2021/09/announcing-a-kcon-zoom-panel-employment-2021-k-v-competition.html with speakers Eric Posner, Evan Starr, John Harris and myself.

Post-employment restrictions are in the news. President Biden mentioned them in his July 9 executive order.  In July, the Uniform Law Commission approved a uniform act governing covenants not to compete.  Illinois, Nevada, and D.C. have recently enacted legislation.

Should competition law should play a role in regulating such terms?  This panel will generate wisdom in that regard.

Employment 2021: Contract v. Competition
Which Should Govern Freedom to Work?
A KCON Zoom Panel

Friday, October 1, 2021
2 p.m. to 4 p.m. Central Time

Unconscionability in Contracting for Worker Training
Jonathan F. Harris
Associate Professor of Law
Loyola Law School, Los Angeles
@LawProfJHarris

Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Non-Disclosure Agreements and Externalities from Silence
Evan Starr
Associate Professor
Robert H. Smith School of Business, University of Maryland
https://sites.google.com/site/starrevan/home

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance
Orly Lobel
Warren Distinguished Professor of Law
University of San Diego School of Law
https://www.orlylobel.com/

Remarks

Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law
Arthur and Esther Kane Research Chair
University of Chicago Law School
Author of How Antitrust Failed Workers (and a batch of related articles)

Questions and Comments from the Floor

Please direct questions to Val Ricks, South Texas College of Law Houston, organizer and moderator, at [email protected].

To reserve a spot, please register in advance:

https://stcl.zoom.us/meeting/register/tJElcuGqrjooHtKMInJraeWfyac7cuWsfDdh

After registering, you will receive a confirmation email containing information about joining the meeting.

Posted by Orly Lobel on September 10, 2021 at 05:13 PM | Permalink | Comments (0)

Call for Submissions: AALS New Voices in Administrative Law 2022

via my wonderful colleague Mila Sohoni:

Call for Submissions: AALS New Voices in Administrative Law 2022

The AALS Section on Administrative Law is pleased to announce the “New Voices in Administrative Law” program for the 2022 AALS Annual Meeting, which will be held entirely online. The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. While we have always welcomed the submission of early stage drafts, we want to highlight that our selection process this year will reflect our awareness that in this particular climate, many scholars face unusual and significant hurdles in finding time to do academic work.  We encourage eligible scholars to err on the side of submission.  As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.  

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 4:45 to 6:00 p.m. Eastern time on Thursday, January 6, 2022.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Jamelle Sharpe at [email protected] by Friday, October 29, 2021, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 10, 2021. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers
If you are interested in serving as a reviewer this year, please email Professor Mila Sohoni at [email protected] as soon as possible.

For All Participants

Please be aware that selected participants and commentators must register for the AALS Annual Meeting. This year, the AALS is offering a school registration rate. Faculty and administrators from law schools that do not accept the school rate will need to pay a $295 individual attendance fee. Please submit any questions about the New Voices Program to Professor Mila Sohoni at [email protected].

Reminder: Nominations Due for the Emerging Scholar Award by Sept. 30, 2021

In January, the AALS Administrative Law Section presented Joy Milligan its first Emerging Scholar Award. Nominations for this year’s award are due by September 30, 2021. Self-nominations are welcome! Full-time faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are eligible. To nominate someone, please send an anonymized version of their work to Professor Kati Kovacs at [email protected] by September 30, 2021. (Any reasonable effort to strip identifying information is fine. Kati will pass along nominations to the selection committee, adding another layer of anonymity.) The work may be on any topic related to administrative law, although the award selection committee may favor works with greater general applicability. Any substantial scholarly work—whether a law review article, monograph, or chapter—published between September 1, 2020, and August 30, 2021, is eligible. We will present the award at the AALS Annual Meeting in January. Please direct any questions to Kati Kovacs.

Posted by Orly Lobel on September 10, 2021 at 05:11 PM | Permalink | Comments (0)

Guest stint at Volokh Conspiracy

Rocky and I will be guest-blogging about our SB8 article (now forthcoming in American University Law Review but very much a work in progress) at the Volokh Conspiracy over the next week. Our first post is here.

Posted by Howard Wasserman on September 10, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

CFP: The Future of Food

The Business, Entrepreneurship, and Tax Law Review Symposium at the University of Missouri School of Law: The Future of Food.

Details here.

Posted by Howard Wasserman on September 10, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, September 09, 2021

Demanding Ivermectin--what legal right?

Several state trial courts have entered TROs compelling hospitals to give patients Ivermectin, despite the view of the hospitals and staff doctors that it is in inappropriate treatment.

These suits have bothered me because I could not figure out the cause of action or legal right being asserted. What legal right did a patient have to a particular treatment from a doctor contrary to the doctor's best judgment, to say nothing of a right that would allow the court to compel that treatment. A doctor who refused a particular treatment, involving an unapproved use of a drug, could not be liable for malpractice so long as his treatment was otherwise within the ordinary standard of care. So how could the court order treatment that a doctor would not be liable for failing to provide. It turns out, none, according to an attorney at Reed Smith.

My guess is that something like the following happened: The court focused entirely on the irreparable harm to an ill patient who might die without what some regard (wrongly, but well . . .) as a life-saving treatment and the high burden on the plaintiff in the balance of equities. That overcame what should have been an incredibly small likelihood of success on the merits, since there was no legal right to enforce and thus no right on which to succeed.

Posted by Howard Wasserman on September 9, 2021 at 07:52 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

US v. Texas

Filed in the Western District of Texas. I have no idea whether this overcomes the problems that, in my mind, plague individual suits--no state official or person working for the state enforces this law. Therefore there is neither traceability nor redressability in standing terms and no constitutional violation in merits terms (since the law, apart from enforcement, does not violate rights). Paragraph 8 defines Texas as including "all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8," contemplating every person who might sue, even if not imminent. Will that work?

There has been so much scrambling at the expense of the simple (if not ideal) solution--violate the law, get sued, defend in state court, appeal to SCOTUS. The prevailing theme is that this is insufficient. Paragraph 4 of the complaint insists that the law has thwarted "traditional mechanisms of federal judicial review," while ¶ 15 describes Texas attempting "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights," But how is defending in state court and appealing to SCOTUS not a traditional mechanism of federal judicial review According to a study by Arthur Hellman, prior to the mid-'70s most judicial review occurred this way; the shift to more offensive litigation happened towards the end of that decade. And if having to litigate federal issues in state court strips citizens of the ability to invoke federal courts, then the Well Pleaded Complaint Rule and Younger are constitutionally invalid. I don't think the government meant to say that.  My guess is that if this gambit fails, someone will violate the law and get sued, realizing that is the only way.

On the issue of whether the U.S. can, on behalf of its citizens, bring a broader lawsuit and obtain broader relief: I might be comfortable with that fact. The idea between having a combination of private and public enforcement of federal rights (especially civil rights) is that the federal government can pursue a broader suit (including by naming a sovereign) and get broader relief. But the inherent limits on government enforcement--resources, political will, competing demands--mean that the federal government will not and cannot puruse every case. They only go after the big ones--"more bang for the buck." And this is that singular huge issue that prompts government action.

Update: Will Baude offers a version of what my co-author calls a special standing solicitude for the United States. Unlike individuals, the U.S. can sue all of Texas and everyone who does anything with respect to a law--enacting, enforcing, adjudicating. So the U.S. can do more in that rare, big case it decides to pursue. I still believe this is a simple case in which simple defensive litigation is an option. But maybe this is the huge outlier case in which unusual government action is appropriate.

Another Update: I forgot to mention the strategic forum choice: This could have been filed in SCOTUS on original jurisdiction as a controversy between the United States and a state. At least Justices Thomas and Alito would have accepted the bill of complaint, as both are on record that SCOTUS' original jurisdiction is not discretionary. And like a suit challenging the validity of voting-age rules under the VRA, this would seem to be the type of uniquely huge national controversy involving state-law perogatives demanding speedy and original review by SCOTUS.

Posted by Howard Wasserman on September 9, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 08, 2021

Upcoming Talk on "Bushrod Washington and the Marshall Court"

My first live lecture in two years will come on Tuesday at 5PM my law school. I hope to turn this talk into a paper, as part of the run-up to the publication of my biography of Justice Washington in 2022. Hope to see you there if you are in Indianapolis.

Posted by Gerard Magliocca on September 8, 2021 at 08:33 PM | Permalink | Comments (0)

Tuesday, September 07, 2021

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.

Posted by Howard Wasserman on September 7, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (3)