Tuesday, August 03, 2021

FIFA as state actor and other bad arguments

Another entry in the "Bad § 1983 Takes" File: Siasia v. FIFA in the Southern District of New York. Samson Siasia is a U.S. citizen and international soccer coach who got caught up with a match-fixer while trying to land a coaching job in Australia; FIFA imposed a lifetime ban from coaching, which the Court for Arbitration of Sport in June reduced to five years, backdated to 2019. The Complaint alleges a due process violation in the FIFA proceedings and that FIFA acted under color by performing the traditional and exclusive government function of investigating and adjudicating bribery and imposing a sanction (the complain says "punishment" over and over).

This fails on so many levels.

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Posted by Howard Wasserman on August 3, 2021 at 12:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Terms limits and judicial reputations

At last week's hybrid SEALS, I moderated an excellent discussion group on court reform. Tom Metzloff (Duke) raised an issue for term-limits proponents--what do we lose or gain by cutting long-serving Justices' careers in half. Among historically great or significant Justices who served way more than 18 years, how much of their greatness or significance occurred within the first 18 years and how much in the back end of their tenure? Alternatively, how much did their later years add or detract from their achievements in those first 18 years?

Tom plans to do more with this, but I wanted to muse on a few names in skeletal fashion; there is a lot more to say in a lot more detail. Two observations. First, how we remember any Justice depends in part on historical vagaries and how those changes alter that Justice's role on the Court. Second, politics and partisan preferences affect whether we see those latter-half achievements or actions as good or bad.

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Posted by Howard Wasserman on August 3, 2021 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, August 02, 2021

SB8, racist speech, and partisan presumptions

Concerns about the process of SB8--privatizing enforcement, preempting offensive pre-enforcement litigation, and pushing rights-holders into a defensive posture--come from the left. So do fears that this could catch on. In urging the invalidity of this enforcement framework, the Whole Women's Health Complaint argues:

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.

But is this limited to conservative attacks on liberal rights-holders, as the complaint offers (other than the gun-rights example)? Could liberals use private enforcement and would the political alignments and arguments flip?

Imagine a state wants to eliminate racist speech. It prohibits the oral, written, non-verbal, or symbolic expression degrading or dehumanizing a person based on race and creates a private tort action for damages and attorney's fees for "any person" offended or bothered by such expression. This law violates the freedom of speech as currently judicially interpreted to the same degree that SB8 violates the right to reproductive freedom. But a would-be racist speaker (e.g., someone who wants to burn a cross on his own lawn or  display a "White Lives Matter" sign or stand on the corner and shout that only white people should be allowed to vote) could not bring an offensive action to declare the law invalid or stop its enforcement. As with SB8 actions, there is no one causing the racist speaker an injury, no one to sue, and no one for the court to enjoin. Such a racist speaker must continue to engage in his racist speech, get sued by that random "any person," and raise the First Amendment as a defense. Or he will refrain from speaking from fear of suit and liability. Either way, the point of the law is to chill or sue racist speakers into silence.

Would those on the left objecting to SB8 object to this strategy of silencing racists and racist speech? If not, is the reason that liberals favor the right to reproductive freedom affected by SB8 while opposing or wanting to limit the right to engage in racist speech? And can that be an acceptable distinction?

Posted by Howard Wasserman on August 2, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 30, 2021

Hiring Announcement: FIU College of Law (multiple positions)

South Florida’s public law school in Miami, Florida International University College of Law, invites applicants for multiple tenure, tenure track, and contract positions to begin no later than the 2022-2023 academic year.  In particular, we seek candidates to teach environmental law and courses in other priority areas, such as cyberlaw, torts, wills & trusts, health law, family law, and administrative law. A typical package might include two environmental law courses and at least one (preferably two) in our identified priorities. International experience, academic entrepeneurship, and acumen in grants and external funding are welcome but not required.  Given our growing focus on interdisciplinary collaboration, some of these positions may involve joint appointments with other academic units at FIU.

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Posted by Howard Wasserman on July 30, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, July 29, 2021

The Gun, The Ship, and the Pen

Part of my vacation was spent reading Linda Colley's terrific new book on global constitutionalism. Anyone with an interest in the political side of constitutions should read The Gun, the Ship, and the Pen. I may have more to say about the book later, but here's one implication that hit home for me.

Colley's account undercuts Heller. If you are persuaded by her thesis that the rise of constitutionalism was driven by the need to fight wars effectively (in Europe and in the United States), then the individual right Heller said was part of the 1791 understanding of the Second Amendment is far less plausible than the collective right identified by the Heller dissenters. (Granted, you could defend Heller on other grounds, but the Court focused on Founding-era materials.) Colley does not make this argument, as she's not interested in the issue. But I am.

Posted by Gerard Magliocca on July 29, 2021 at 09:44 PM | Permalink | Comments (5)

Putting racists in a bind

The new Olympic sport for the Crazy Coalition is rooting against the men's basketball and women's soccer teams ("too woke and anthem-kneeling") and Simone Biles ("weak," "selfish socipath," "shame to the country," not tough). The other sport is waiting for that "true champion  . . . who perseveres even when the competition gets tough." That true champion who reflects what makes America great and in whom real Americans can be proud.

Fortunately, they found someone to do what Biles could not in the Women's All-Around, someone strong whom these real Americans can get behind.

Or not.

Posted by Howard Wasserman on July 29, 2021 at 04:02 PM in Howard Wasserman, Sports | Permalink | Comments (1)

"Hunters" is back in production

Hunters, an Amazon show about Nazi hunters in 1977 New York, is in Season 2 production. The Forward; many Jewish leaders, educators, and advocates; and I are not happy to hear this news.

Posted by Howard Wasserman on July 29, 2021 at 08:24 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 28, 2021

Marquette Law Review Expedited Submission Period

The Marquette University Law Review seeks additional articles for its Winter issue. We will consider submissions beginning immediately and will conclude the process on August 20, 2021 at 11:59 PM CT. For any article submitted by August 20, 2021 in accordance with the instructions outlined below, the Marquette University Law Review guarantees a final publication decision within 48 hours of submission. As a condition of submission, authors agree to accept a binding publication offer, should one be extended. The editing process for the Winter issue will commence on September 4. Interested authors may submit articles via email to [email protected] to be considered in this expedited submission process. Authors should also submit (1) their name, article title, word count, phone number, and email address in the body of the email and (2) a CV or résumé. Please use “Expedited Submission Process” in the email subject line. We will also be reviewing submissions for later issues through the usual process. Questions may be directed to Jennifer Knackert, editor-in-chief, at [email protected].

Posted by Howard Wasserman on July 28, 2021 at 01:32 PM in Teaching Law | Permalink | Comments (2)

Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 26, 2021

NBC has learned nothing

Bela Karolyi earned fame as the coach of U.S. gymnastics because of his outsized reactions to the athletes' performances, which NBC cameras showed and commentators discussed, elevating his profile above that of his female athletes. We now know what was going on behind the scenes.

Apparently, NBC has learned nothing. Australian swimmer Arirne Titmus won the 400-free style, beating American Katie Ledecky. NBC cameras showed, repeatedly, her coach, Dean Boxall, losing his shit celebrating Titmus' win from the stands. As with Karolyi and the gymnasts, cameras and announcers focused on his sideline histrionics more than the athlete. I am not suggesting that Boxall mistreats Titmus or other athletes or that his well-documented intensity crosses lines. But it is hard not to notice the parallel focus on the male coach with an intense personality over the female athlete.

Posted by Howard Wasserman on July 26, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

AALS Section on Fed Courts: Best Article

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2022 AALS Annual Meeting.

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Posted by Howard Wasserman on July 26, 2021 at 09:31 AM in Civil Procedure | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)