Wednesday, April 21, 2021
Taking Constitutional Conventions Seriously: Biden's SCOTUS Commission and the Futility of Comprehensive SCOTUS Reform
Tomorrow evening at 8 PM Eastern Time, I am joining four other profs (Neysun Mahboubi, Eric Segall, Marin Levy, and Tom Ginsburg) and two journalists (Dahlia Lithwick and Emily Bazelon) to discuss Biden’s SCOTUS Commission on Clubhouse. (If you have an iOS device, sign up for the app and drop in).
It is a little difficult, however, to get very excited about a Commission that most likely will have few consequences for SCOTUS’s future. Section 3(a)(i) of Biden’s Executive Order creating the Commission calls for “an appraisal of the merits and legality of particular reform proposals.” Partisan realities, however, make it unlikely that Biden will have any appetite to act on that “appraisal.” Democratic Party rank-and-file have little interest in comprehensive and non-partisan reforms to weaken the SCOTUS, and purely partisan proposals to “pack” the SCOTUS with Biden appointees are toxic for Senators elected from reddish states like Manchin and Sinema. For Biden, therefore, the Commission’s main value would be to provide political cover for him to do nothing.
The Commission’s probable futility, however, points to a constitutionally interesting fact: The very fact of partisan polarization among SCOTUS’s justices that makes comprehensive reform of SCOTUS desirable also make it impossible. As Ganesh Sitaraman and Dan Epps noted two years ago, the degree to which justices now divide along partisan lines is not only unprecedented but also threatening to the Court’s legitimacy. Those partisan divisions, however, are reinforced by analogous divisions in Congress that will stymie reform legislation. Proposals that overlook this partisan obstacle assume the ladder needed to get out of the hole. Put more technically, such reform proposals suffer from what Eric Posner and Adrian Vermeule have called the “inside/outside fallacy.” Such proposals diagnose a problem from the “outside” the causes of which are ignored by the proposals’ recommended “inside” solutions.
After the jump, I will use the half-century of Republican ascendancy over SCOTUS from 1885 to 1932 to illustrate how partisan distrust blocks comprehensive overhauls of SCOTUS’s powers. The almost half century of GOP ascendancy over SCOTUS suggests that the large-scale changes pressed by Sitaraman & Epps as well by Eric Segall (my co-participant in the Clubhouse event) are practically impossible. Even assuming that the Democrats take over the commanding heights of the Presidency and Congress, rank-and-file Democrat are more likely to train SCOTUS’s cannons on their enemies than spike them. The best one might hope for from Congress, therefore, would be narrowly partisan limits on SCOTUS’s jurisdiction like the Norris-LaGuardia Act.
This does not mean that comprehensive reform is impossible — just that it probably has to come from within SCOTUS itself. Using James Bradley Thayer as an example, I will suggest that the more formalistically inclined profs on the Commission (Caleb Nelson, Will Baude, Tara Leigh Grove, and Michael Ramsey) might play a useful role in nudging Justice Gorsuch to adopt a more Thayerian version of the textual formalism to which he is already prone.
Posted by Rick Hills on April 21, 2021 at 07:47 AM | Permalink | Comments (1)
Monday, April 19, 2021
Drake Law School - Visiting Position Spring 2022
Drake University Law School invites applications for a temporary appointment as Visiting Assistant/Associate/Professor of Law, to teach Legal Writing II in Spring Semester 2022. Currently, the Law School plans for these classes to be offered in-person rather than remotely, subject to health and safety considerations, and candidates should be willing to teach in-person and qualified to teach in either format. Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see www.drake.edu/law. Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to Associate Dean Andrew W. Jurs, [email protected]. Applications will be reviewed on a rolling basis, with a priority deadline of May 7, 2021.
Posted by Sarah Lawsky on April 19, 2021 at 08:27 PM | Permalink | Comments (0)
Bad state action arguments (Updated)
MyPillow, facing a billion-dollar defamation lawsuit by Dominion Voting Systems over Mike Lindell's post-election nuttery, has sued Dominion (note: It is a new action, not a counterclaim--not sure why). It asserts claims for violations of the First Amendment and due process.
How? Here is ¶ 89: "Defendants, at all times relevant hereto, were performing and fulfilling a traditional and exclusive state and governmental function of administering public elections, pursuant to state statutes, ordinances, regulations, customs, rules and policies established thereunder, and as such, were acting under color of state law."
Administering elections qualifies as a traditional-and-exclusive public function, when the government delegates or turns control over the election machinery to a private entity, such as the Democratic Party in Jim Crow Texas. It does not apply to government contractors who support the government in performing those traditional-and-exclusive government functions. So this argument is silly and doomed to fail. Although I suppose it at least has a better doctrinal base compared with those arguing that Twitter, YouTube, et al. act under color because managing a "speech forum" is a public function or because § 230 immunity makes them the government or because saying they are committed to free expression makes it the government.
Update: Fleshing this out a bit following an email exchange with a reader.
First, none of this matters to the present action. Even if Dominion acted under color in performing election-related functions, it does not act under color for all purposes. The allegation in this action is that Dominion violated the First Amendment by publicly criticizing and suing MyPillow for defamation. Dominion is not under color in doing that, because it is not wielding any authority derived from government. The claim is not saved by the argument that Dominion was responding to MyPillow criticisms of Dominion's allegedly under-color election conduct. The chain of causation does not extend so far. Devin Nunes--an actual government official--does not act under color when he sues cows for criticizing how he performs his (under color of law) government functions.
Second, Dominion's supposed malfeasance was all over the place in the post-election litigation and various Kraken and Kraken-adjacent complaints were loaded with allegations of how Dominion voting machines helped throw the election to Biden. No one thought to include Dominion in any of those suits on this theory?
My presumption in these arguments is that Dominion's role is limited to selling/renting the machines to the government, installing them, training government officials on them, and providing technical support where necessary; Dominion is not more actively involved in running the collection and counting of votes. This makes Dominion like the company that provides tasers or handcuffs for police--even if those devices somehow contribute to the constitutional injury, providing them does not alone create state action. A greater level of joint cooperation with government officials might change the conclusion, creating joint participation and a nexus because government enables the private misconduct. (The example from a reader is police hiring private security to provide additional crowd control at a public event). The complaint does not provide any facts showing a greater level of engagement by Dominion.
Posted by Howard Wasserman on April 19, 2021 at 04:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Academic Feeder Judges
Academic Feeder Judges, my study of where legal academics clerked, has been published at Judicature.
Posted by Howard Wasserman on April 19, 2021 at 03:57 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Thursday, April 15, 2021
Sponsored Post: An Active Learning Approach to Teaching Civil Procedure
The following post is by Rory Bahadur (Washburn) and is sponsored by West Academic.
It is easy to get overwhelmed when reading the copious literature on good teaching. The literature is replete with pedagogy recommendations that can appear hyper technical and unattainable. For example, active learning, flipped classrooms, facilitating cognitive schema formation, pretesting, providing more formative and summative assessment and engaging students in large classrooms. In addition to unattainability and hyper technicality, implementing these pedagogic techniques appears to require a massive and labor-intensive revamping of what we already do and are comfortable doing in the legal classroom. That is until I began experimenting with a directed reading approach to teaching law.
Continue reading "Sponsored Post: An Active Learning Approach to Teaching Civil Procedure"
Posted by Howard Wasserman on April 15, 2021 at 05:26 PM in Sponsored Announcements | Permalink | Comments (0)
Wednesday, April 14, 2021
The Suez Canal Blockage
I don't often get to post about Admiralty issues, but the recent traffic jam in the Suez Canal opens the door. Egypt has seized the vessel that got stuck in the canal and is seeking $900 million in damages from the vessel, the vessel owner, and the firm that chartered the ship. They will, though, get nothing close to that.
Admiralty law typically caps liability for wrongdoing to the value of the vessel and its contents. The Egyptian government was within its rights to seize the vessel and can auction off whatever is there. "Piercing the veil" and going after the corporations that owned or used the vessel is very difficult, especially in a case like this where there was no loss of life. Ordinary vicarious liability rules do not apply. Egypt would have to show that the vessel got stuck due to some instruction or policy by the corporate masters, which is rather unlikely. Potentially there could be a claim that the captain and/or crew were hired with knowledge that they were untrustworthy. The Exxon Valdez oil spill is an analogous example, as Exxon knew there that Captain Hazelwood was an alcoholic. But I also doubt that there is sufficient proof on that score in this case.
A limitation of liability action has been filed in the UK. This is a maritime suit that seeks a declaratory judgment stating that liability for an accident is capped at the ship's value. That action will probably succeed.
Posted by Gerard Magliocca on April 14, 2021 at 11:30 AM | Permalink | Comments (1)
Tuesday, April 13, 2021
"Working as Equals" Conference
This, via Larry Solum's blog, sounds like a very interesting conference:
If we’re equals, then how come you’re my boss? This question lies behind a growing wave of ethical criticism that is directed at hierarchical workplace structures and deploys various ideals of relational (or social) equality. Can workplace hierarchy be justified, and how can this justification be squared with the ideal of relating to each other as equals? The Working as Equals workshop seeks to illuminate the moral dimensions of today’s workplace relations. It also aims to bring into focus the promise and limitations of the relational turn in ethical theory, using the workplace as a lens.
The basic assumption I make about academic conferences is that they may have a thesis or orientation--they seem increasingly to do so but perhaps that has always been the case--but, God willing, they will not have not proved or assumed its truth and value in advance, and will make plenty of room for exploring the nuances, critiques, and costs of that thesis. I assume that is the case here, and I should think there would be plenty of room for exploring the costs of some of the theses advanced in the abstracts, which of course have differences but pull roughly in the same direction. (There will be commentators, who no doubt will engage in some of these explorations.)
My own view, for which evidence arises nearly every day, is that the greatest general crisis of our time, which takes in all sorts of territory and all sorts of frequently focused-on terms ("norms," for instance), is institutional, and that institutions, their purposes, trust in them, and commitment to them as projects need to be shored up at least as much as they need to be reformed and far more than they need to be eliminated. No doubt some or all of the papers here will point to useful elements of institutional critique and institutional reform. So they should, and any institutionalist should welcome those elements, while insisting that it is a mistake for institutions to be everything (and thus nothing), or to "reimagine" them into something else entirely.
The papers will no doubt, as the conference description promises, be as focused on the limits as on the hopes of the general approach. But the papers also, from what I can tell from the abstracts (an imperfect indicator, admittedly), leave plenty of room to worry in advance about projects that treat hierarchy as such as "disconcerting," not just within the stereotypical modular workplace but within such institutions as churches and the military; that seem in turn disconcertingly focused on individuals and autonomy; that are disconcertingly confined to the unpoetic vocabulary and useful-but-limited tools of liberal egalitarian theory; and that seem disconcertingly suspicious of social organizations that "shape[] individuals more than [they are] shaped by them." Isn't that all of them? Or isn't it at least the case that all social organizations shape individuals as much as they are shaped by them? How alienating would it be not to be shaped by one's associations, including one's workplace? One might paraphrase Augustine: "O Lord, let me stand naked and alone before You--but not yet!"
Two more passing thoughts. First, are modern "reforms" of the university egalitarian and conducive of a greater atmosphere of non-hierarchical relational equality, to use the language of the conference? Or are they closer to the opposite? In their twinned and inseparable urge both to advance sincerely held reforms and to cave at the slightest hint of adverse publicity to the most vocal segments of their fee-paying consumer base, are university administrators being egalitarian--or are they asserting a striking, if seemingly obseisant, degree of authority, hierarchy, and power? (One, in fairness, that faculty have yielded up to them by slackening in their governance duties and in their own sense of the institution as an institution.) Second, I am reminded that the worst workplace I ever experienced was one in which my employers said, and at least sometimes meant, that we were a "family." An op-ed writer in the Times--not, admittedly, a place one goes for deep or useful thought--wrote recently, in the words of the sub-headline, that after working at Google she had "learned the hard way that no publicly traded company is a family." True enough, but oddly limited in scope; no company is a family, and I would much rather work at a company, public or private, that is clear about not being one than one that purports to be. There are surely places in this world where it is far more important to know where one stands than to be loved or cherished.
These are all critical questions and reflections, and I think they are fair in light of the conference description and abstracts. But they are not the conference itself, where I am sure all these questions and more will be fully aired by an impressive set of speakers and commentators. It sounds well worth attending, the better to appreciate and, as it were, apprehend it.
Posted by Paul Horwitz on April 13, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)
The Reconstruction Amendments: The Essential Documents
Today I received my two-volume set of this treasure edited by Kurt Lash. In the parlance of patent law, a Reconstruction collection was a long-felt but unmet need. And like Max Farrand's work on the Constitutional Convention, Lash's edition will become standard fare for judicial citations, briefs, and scholarship. I'll have more to say about the collection after I read the documents.
Posted by Gerard Magliocca on April 13, 2021 at 10:48 AM | Permalink | Comments (4)
Monday, April 12, 2021
Panel: The Law and Politics of the 2020 Election and its Aftermath
FIU College of Law will host a panel, The Law and Politics of the 2020 Election and its Aftermath, from 1-2:15 EDT on Tuesday, April 13 (tomorrow). Panelists are Carissa Byrne Hessick (UNC and PrawfsBlawg), Ellen Katz (Michigan), Brian Kalt (Michigan State), Genevieve Lakier (Chicago), and Steve Vladeck (Texas and formerly PrawfsBlawg). It should be a great discussion.
Posted by Howard Wasserman on April 12, 2021 at 11:12 AM in Howard Wasserman | Permalink | Comments (2)
Sunday, April 11, 2021
Universality in Tandon v. Newsom
Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.
Continue reading "Universality in Tandon v. Newsom"
Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Thoughts on Caron Nazario lawsuit
Here is the complaint. A few thoughts.
• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.
• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically is tough to show. But the camera footage helped in framing that claim.
• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.
Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)