Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (9)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Can you sue a psychiatrist for malpractice?

A divided Eleventh Circuit declared invalid a Florida municipal ordinance prohibiting conversion therapy. The court treated the ordinance as content- (indeed, viewpoint-) based and failing strict scrutiny. On one hand, this is not surprising, as the court had previously declared invalid a Florida statute prohibiting pediatricians from asking patients (and parents) whether they kept guns in the home. If anything, that law could have found stronger footing as an incidental regulation of a medical check-up.

The Eleventh Circuit rejected that possibility with the conversion-therapy ban. This is not speech incidental to medical conduct. Rather, "[w]hat the governments call a 'medical procedure' consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy 'is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.'”

If so, can a therapist be successfully sued for malpractice for the harmful effects of talk therapy (put aside medical issues, such as prescriptions)? Imagine a therapist who bullied and shouted at her patients, worsening their emotional and mental problems. If the "treatment" is entirely speech, then a malpractice claim would impose liability for speech. The majority insists the decision does not go so far and "does not stand in the way of '[l]ongstanding torts for professional malpractice' or other state-law penalties for bad acts that produce actual harm." The court distinguished this broad prophylactic rule prohibiting speech from tort rules imposing accountability for actual harm to children. But I do not understand why that matters for First Amendment purposes--the law would be regulating "entirely speech" in either situation.

Posted by Howard Wasserman on November 23, 2020 at 09:31 AM | Permalink | Comments (5)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, November 19, 2020

Congressional Authority over the Federal Judicial Docket

In the First Ku Klux Klan Act, Congress provided that actions brought to enforce Section Three of the Fourteenth Amendment "shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court." 

Here's my question for civ pro and federal court folks out there. How often has Congress done this? Are there any current examples?

Posted by Gerard Magliocca on November 19, 2020 at 01:11 PM | Permalink | Comments (5)

Wednesday, November 18, 2020

Procedure matters

Civ Pro is a spring class at FIU, so I do not get them until January. But I hope they are paying some attention to the Trump litigation campaign, particularly the case in MDPa. That mess shows how much procedure matters, if only to getting the court to take you seriously as a competent advocate and thus your claims seriously as presented. But Giuliani (and other's) complete lack of understanding of how litigation operates at the level of a basic Civ Pro class--when leave to amend must be sought, what claims and allegations are or not in a case, the meaning of pleading standards--has been stunning. Grasp of procedure also marks the difference between legal and political activities, which supports news reports that Giulian's gambit is entirely the latter and none of the former.

Posted by Howard Wasserman on November 18, 2020 at 08:38 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 17, 2020

Northwestern University Law Review Exclusive Submission Track


From the Northwestern University Law Review:

Exclusive Submissions

The Northwestern University Law Review Exclusive Submission Track will open on January 1, 2021 and close January 15, 2021 at 11:59 PM CT. For all Article that have been submitted by January 15, 2021 in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor and a final publication decision on or before January 30, 2021.


Continue reading "Northwestern University Law Review Exclusive Submission Track"

Posted by Sarah Lawsky on November 17, 2020 at 10:20 AM in Law Review Review | Permalink | Comments (0)

The New Citizenship Test

A new citizenship test was recently unveiled. Take a look and see how you would do. 

One thing I always find amusing about the tests is that way that the group of acceptable answers is limited. For example, there is a question that says "Name one document that influenced the drafting of the Constitution." Suppose I said "Magna Carta." That is wrong according to the test. Why? I have no idea--it just didn't make the list of correct answers.

Another question that is getting attention is the one about who Senators represent. The old answer was "all of the people of a state." The new answer is"all of the citizens of a state." I'm not clear what this is correct. If a legal permanent resident in a state asks his or her Senator for help, are they not entitled to help? Citizen children don't vote for Senators, but Senators still represent them. Why not legal permanent residents?

Then, of course, there is "How are changes made to the U.S. Constitution?" If I said, "sometimes by the Supreme Court," I would be wrong. Maybe I would just do poorly on the citizenship test.

Posted by Gerard Magliocca on November 17, 2020 at 08:12 AM | Permalink | Comments (5)

Sunday, November 15, 2020

Legal Indeterminacy and Robert Jackson

I've been working with some of Justice Robert Jackson's writings recently. One theme that connects them is his conclusion that the text he is considering is something of a mystery. In his famous concurrence in Youngstown, he explained that there were almost no helpful authorities on the separation of powers between the President and Congress. In developing the Feres doctrine barring members of the military from bringing a negligence action against the United States, he said that he had no idea what Congress intended in the Federal Tort Claims Act for service members. In both cases, Justice Jackson followed up with a pragmatic or policy-based argument to fill the gap.

Jackson's view is very much at odds with modern jurisprudence. Judges and scholars today are much more confident that they can know what a statutory provision means by parsing the text or purpose of the law. Likewise, they are often sure that they know what the original public meaning of a constitutional provision is. Rarely do you see someone write an opinion that says something like "I have no idea what this means, so we need to construct a sensible meaning from other sources." (Richard Posner was probably the closest modern counterpart to Jackson in this respect.) I'm not sure if there is any bigger payoff to this observation, but I'm thinking it over.


Posted by Gerard Magliocca on November 15, 2020 at 08:01 PM | Permalink | Comments (7)