Tuesday, January 19, 2021

A Zone of Twilight

I did a podcast  with Daniel Hemel on Section Three for Lawfare. As we were recording, I was struck by the fact that we really are in Robert Jackson's metaphorical zone of twilight here. There are few, if any, helpful authorities and we have to reason in a more general way on a very important question.

Couple of highlights as you listen. First, Dan pointed out that there are insurance cases on the definition of insurrection (presumably with respect to coverage issues in foreign nations). Second, he made the excellent point that there is a deep connection between the Section Three enforcement power that was in the First Ku Klux Klan Act (since repealed) and a reassertion of that power in response to a mob that contained white supremacists and carried the Confederate Flag. Third, I played around with the idea that Section Two and Section Three of the Fourteenth Amendment are linked (as I explained in my paper) but "insurrection" does not appear in Section Two. Can we draw any conclusion from that? I'm not sure. (Dictionaries back then, by the way, tended to define an insurrection as a brief rebellion, which is not a bad fit with what occurred at the Capitol and suggests that the difference between an insurrection and a rebellion is just a matter of degree.)

Posted by Gerard Magliocca on January 19, 2021 at 12:29 PM | Permalink | Comments (0)

Monday, January 18, 2021

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Posted by Howard Wasserman on January 18, 2021 at 11:02 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 16, 2021

Who Decides Who Presides?

This is uncertainty about who will preside over the Senate impeachment trial. Chief Justice Roberts, Vice President Harris, and Senator Leahy are all candidates. My initial question is who decides this when there is doubt?

One thought is that Chief Justice Roberts decides. If he thinks that he can preside and decides that he wants to do so, then he does. A second thought is that the Senate decides. If they do not invite the Chief Justice to preside, then he cannot do so. If they do, then he must. A third thought is the Senate and the Chief Justice must agree that he can and should preside for him to do so. If not, then the Senate must go with the Vice President. Then if she recuses, they must go with Senator Leahy.

Here's why this matters. Suppose the Chief Justice does not preside. Under the first theory, he should explain why decided not to do so. Otherwise, people could reasonably construe his absence as his conclusion that the Senate cannot hold an impeachment trial of an ex-President. Under the second theory, he need not say anything. If the Senate does not ask him to preside, then that the reason for his absence. Under the third theory, the Senate's lack of invitation would still be sufficient and he can be silent. (Note that the Senate will probably not invite him in this instance without first asking if he will accept. That way, there need be no disagreement between them.)

I'm not sure which of these three theories is correct. I'm inclined to say the third one. The Senate has the sole power of impeachment, which must include some power over determining the presiding officer in doubtful cases. At the same time, I'm not sure that the Chief Justice must accept the Senate's view of his own duty to preside if he thinks that the trial is unconstitutional. 

Posted by Gerard Magliocca on January 16, 2021 at 07:43 PM | Permalink | Comments (9)

Friday, January 15, 2021

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Continue reading "Facts, epithets, exams, and anti-racism (Amended)"

Posted by Howard Wasserman on January 15, 2021 at 05:25 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (22)

Couple of Thoughts About the Impeachment Trial

The upcoming trial will look rather different from last year's version in a couple of respects.

  1. There will a lengthy argument about whether the trial can occur at all. This is because of the argument that an ex-President cannot be tried by the Senate. If more than one-third of the Senate agrees with this legal argument, then the outcome will be certain--acquittal. This will therefore be an early tell for where things are going.
  2. If the trial goes forward, there will be witnesses. They will testify about what occurred at the Capitol. In theory, the ex-President himself could be a witness. Watching Chief Justice Roberts rule on objections to questions from counsel will be interesting, to say the least. As I pointed out in a post last year, he has never presided over a real trial before.
  3. Last year the Chief Justice commented at one point that he did not think that he had the power to break tie-votes, as Chief Justice Chase did in 1868. That seemed like a bit of trivia then, but that precedent will presumably bind the Chief Justice in this trial.

More broadly, there will probably more of an ebb-and-flow to this trial. Last year both parties were dug into their trenches. This time more Republicans will vote to convict, though probably not enough.

Posted by Gerard Magliocca on January 15, 2021 at 10:29 AM | Permalink | Comments (5)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Wednesday, January 13, 2021

Seminar with Educational Testing Service on the GRE and other issues

Working with ETS, we have put together an information seminar on Tuesday during which ETS leadership will discuss the GRE and law school admissions and a panel of deans and admissions directors will discuss key issues. There will be ample time for Q & A and for exchange among schools and ETS professionals. 

Here is the summary from the invitation:

As the GRE® General Test becomes a more significant part of law school admissions, ETS is committed to engaging with law schools, providing insight into the empirical basis for the test’s efficacy in law school admissions, and to explore the ways in which ETS can support the law school community. 

Please join David Payne, Vice President and Chief Operating Officer of ETS’s Global Education Division as we open a conversation with law schools about ETS and the GRE® Program, allowing for a dialogue with participants.  Julie Shurts, Associate Director, Global Higher Education at ETS, will share an overview of the GRE General Test, including its content, format and validity, and GRE score use best practices. 

I can testify first-hand that ETS has been developing really interesting and innovative strategies to enhance law school admissions, including expanding diversity (race/ethnicity, gender, and academic background) and developing tailored strategies that improve our work.  The GRE is at the fulcrum of this, but there are other initiatives underway.  2021 promises to be a great year for these partnerships.

All of which is to say that I hope interested folks will join with us next Tuesday, 1pm EST.

Posted by Dan Rodriguez on January 13, 2021 at 07:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

Continue reading "Mootness and nominal damages"

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Some Reflections

Writing a paper on an obscure topic and then seeing that paper go viral (at least for an academic paper) is surreal, to say the least. One happy feature of this experience is that I know that I did not say anything in the paper with the events of last week in mind, because I wrote the entire draft before those events occurred. Bias along those lines is therefore impossible. Not so for the edits that I make between now and whenever the paper is published. This creates something of a dilemma about how (and how much) I should edit the paper, but I'll think about that later.

I am grateful for all of the thoughtful emails, questions, criticisms, and follow-up posts that I've received or seen about the paper. It's the academic and legal community at its best. Let me add that this all supports the idea that everyone should pursue the research that they want to do and that there is tremendous value in that. Not just for its own sake, but because you never know when what you are studying may become important for a contemporary issue.  

Posted by Gerard Magliocca on January 12, 2021 at 03:46 PM | Permalink | Comments (0)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Sunday, January 10, 2021

A Stroll Through Section Three of the Fourteenth Amendment As Applied to the President

Here is the language of Section Three of the Fourteenth Amendment:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Let's ask some questions about this language given current events:

  1. Is the Presidency an "office . . . under the United States?" and is the President "an officer of the United States?" The answer, I think, is yes to both, though it's a contestable point. (My draft paper discusses this issue briefly, but now I'll have to go back and revise.)
  2. If the President incited an insurrection, is that the same as having "engaged in insurrection" against the United States? This is a harder question that would require more thought about what insurrection meant in 1868, among other things. (Such as did he, in fact, incite an insurrection and was what occurred at the Capitol an insurrection?) 
  3. Is Section Three self-executing? Arguably not. Chief Justice Chase held on circuit in 1869 that Section Three is not self-executing. My draft paper criticizes his opinion, though, and I thought (before this week) that Section Three is self-executing.

If you answer any one of these three questions "No," then Section Three does not apply to the President action's on Wednesday. But if you answer all three of these questions "Yes," then you can reach this shocking conclusion: Donald Trump ceased to be President on January 6th. He is constitutionally ineligible to serve. 

I point this out because some litigant will probably argue that presidential actions taken after January 6th are invalid unless they are confirmed by the Biden Administration. Courts, therefore, may have to address this issue. (This could be particularly true for any last-minute pardons issued by the (ex?)President.) Likewise, if the (ex-?)President seeks to run again, courts will have to address the issue. Section Three claims are justiciable, as courts did address those claims in the 1860s and 1870s.


Posted by Gerard Magliocca on January 10, 2021 at 08:28 AM | Permalink | Comments (12)

Saturday, January 09, 2021

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Posted by Howard Wasserman on January 9, 2021 at 06:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SCOTUS takes up Assignor Estoppel - MINERVA SURGICAL, INC. V. HOLOGIC, INC.

MINERVA SURGICAL, INC. V. HOLOGIC, INC. - this is an exciting development - the assignor estoppel doctrine is an equity court developed rule that bars an inventor who sells his patent rights from later claiming the patent was wrongly granted. A few years ago I wrote that this rule is problematic in general, and in particular in the realities of corporate innovation which mean that most individuals pre-assign their future innovation, without knowing whether/when/for what their employer will apply for an invention. In The New Cognitive Property, Texas Law Review, I write:

The assignor estoppel doctrine, a recently developed doctrine in patent law, constitutes a post-employment restriction over the cognitive abilities of employees. The assignor estoppel doctrine is a rule of equity that prevents the assignor of a patent from raising the defense of invalidity in case of a suit of patent infringement. The doctrine of assignor estoppel was originally developed by courts to prevent unfairness in circumstances in which an owner of a patent right sells the right to her patent and later denies the value of the very thing from which she profited. The logic is analogous to landlord-tenant situations and estoppel by deed of real estate. The courts viewed an “intrinsic unfairness in allowing an assignor to challenge the validity of the patent it assigned” because of “the implicit representation of validity contained in an assignment of a patent for value.” This logic however is flipped on its head when we shift our inquiry from patent law to human capital law and examine the application of the doctrine in the context of pre-invention assignment in the employment relationship. As we saw, assignment clauses refer to future innovation rather than a patent-in-suit. The invention can be very different than what had been assigned. Indeed, the United States Patent and Trademark Office (USPTO) often determines that a filed patent application must be divided into two or more patents, expanded, or modified. Thus, assignment of future innovation is always done under conditions of uncertainty. Put differently, in the context of human capital, the representation of the assignment in contracts assigning future innovation is made by the employer rather than the employee. Thus, the landlord parallels the employer and the tenant parallels the employee. The analogies that served as the basis for the development of the assignor estoppel doctrine do not simply fail, but are reversed.  In practice, the assignor estoppel doctrine operates to place a former employee and his new employer at a great disadvantage compared to all other competitors because their legal defenses are dramatically diminished. Because invalidity is a major defense in patent litigation, in essence, assignor estoppel penalizes a former employee and thus creates a powerful disincentive for competitors to hire an employee who has experience in the field. Essentially, anyone who already has human capital in the hiring company’s field becomes a liability for the new company. The following has become a prevalent scenario: an employee, as part of his employment agreement, assigns an invention to the firm (Firm A). The employee moves to a competing firm, Firm B. After the employee leaves Firm A, Firm A files for a patent on the former employee’s inventions. This can happen without the employee’s knowledge or consent regarding the claims issued and the scope of the filed patents. Frequently, claims are filed post-employment and without the former employee’s control over the filed claims. During this period after the employee began working at Firm B, she works on innovation for Firm B. If Firm A sues Firm B for patent infringement, Firm B is estopped from attacking the validity of the patent because it has hired a former Firm A employee and used her skills to continue innovating in her field of expertise. The perverse result is that the most productive and experienced employees, who are already engaged in inventive activities in their industry, become untouchables. The hiring of these employees who are already in the field creates an immense risk. Aberrantly, the more experienced an employee, the less employable they become. The assignment agreement coupled with the assignor estoppel doctrine becomes a de facto trailer clause, both tantamount to a post-employment non-compete.

In fact, I also served as an expert witness in a patent case on the topic, where I opined about the harms of assignor estoppel on regional talent pools and post-employment mobility in Juniper v. Palo Alto Networks -- you can find my expert report on Westlaw. Mark Lemley has led an amicus on this case and has also written an important paper on the doctrine here


Posted by Orly Lobel on January 9, 2021 at 02:49 PM | Permalink | Comments (1)

The Disqualification Clause

If there is a Senate impeachment trial, one pressing question will be whether the Senate can actually bar the President from serving again as President. (Assuming Section Three of the Fourteenth Amendment does not so bar him.) The issue was raised in the trial last year but was never addressed. Does the Disqualification Clause for impeachment extend to the Presidency?

One thought here is the Chief Justice may be asked, as the presiding officer, to rule on this point. Let's say he does and says that the Disqualification Clause can be applied by the Senate to the presidency. You could understand that as a final judgment that the federal courts may not review. Another thought is that--no matter what the Chief Justice says--the Senate's conclusion on that point is final and may not be reviewed. In other words, whatever arguments there may be against applying the Disqualification Clause to the President, they present nonjusticiable political questions. (Remember only a Senate majority votes on the penalty imposed for a conviction.)


Posted by Gerard Magliocca on January 9, 2021 at 01:01 PM | Permalink | Comments (3)