Friday, May 23, 2025
The Origins of the Fourth Branch
Since administrative agencies are in the news, I thought I'd relate the origins of the term "fourth branch" to describe them. Sometimes the fourth branch (much like using the "Fourth Estate" for the press) is descriptive. But often the fourth branch is used as a rebuke. ("We have only three branches. Duh.")
As far as I can tell, the first significant use of the term came in 1937. It was in the Report of the Brownlow Commission, which was organized by FDR and argued for greater presidential control over the Executive Branch. Here is the relevant paragraph from the report's executive summary:
DANGER OF "FOURTH BRANCH"
The Committee on Administrative Management also condemns all other boards and commissions when used for management, and recommends that they be abolished and their work transferred to the regular departments, in which there would be set up, wherever needed, a commission or board to deal exclusively with the judicial phases of the work. The Committee points out that the independent commissions have been created one by one over the past 50 years, and that they threaten in time to become "a headless fourth branch of the Government, not contemplated by the Constitution, and not responsible administratively either to the President, to the Congress, or to the Courts.
Following on the heels of Humphrey's Executor, it's hard not to see this as a criticism of the decision. Worth pondering as that case now lies bleeding on the field.
Posted by Gerard Magliocca on May 23, 2025 at 07:24 AM | Permalink | Comments (0)
Thursday, May 22, 2025
Judicial departmentalism and the Shadow Docket
A judicial-departmentalist take on Trump v. Wilcox and the Court allowing Trump to fire members of the NLRB and MSPB pending resolution of the litigation. The majority hints that resolution will be in favor of Trump's power to fire any federal official (except perhaps the Fed Chair, for no good reason).
Kagan's dissent includes the following: "The current President believes that Humphrey’s should be either overruled or confined. . . . And he has chosen to act on that belief—really, to take the law into his own hands."
That last piece misses the import of some departmentalism. If a President who believes a precedent should be overruled or confined cannot act on that belief , how else can he present his argument that the Court should overrule or confine that precedent? The Court can only reconsider precedent in the course of resolving a new concrete case-or-controversy between the President and some adverse party. The President creates that case-or-controversy only by acting on his belief--in this case by firing Wilcox (NLRB) and Harris (MSPB); those officials pursue litigation to challenge their firings, allowing (eventually) SCOTUS to decide the continued vitality of Humphrey's in the course of resolving that dispute. If Trump never fires Wilcox or Harris, they never sue and SCOTUS never gets the opportunity to decide. Derogating these necessary steps as lawlessness--"taking the law into his own hands"--is unfair; it ignores the absence of any alternative mechanism for the executive (even one committed to following SCOTUS precedent) to change or create new judicial precedent. And this is without pushing the strongest form of judicial departmentalism, under which the executive may act on his independent constitutional judgment, regardless of its consistency with SCOTUS precedent.
The problem here is not Trump but the majority's behavior in resolving emergency issues on the shadow docket.
As I described judicial departmentalism, this case should proceed as follows--1) President fires the officers; 2) officers sue; 3) officers win in the trial court, which enjoins the firings under Humphrey's and allows officers to retain their jobs; 4) officers win in the court of appeals under Humphrey's allowing officers to retain their jobs; 5) case reaches SCOTUS, which either 6) affirms Humphrey's and allows officers to keep their jobs or 7) overrules Humphrey's and declares the firings proper, after which the officers lose their jobs. That is, Trump can act as he wishes in the real world; the courts stop those actions unless and until SCOTUS overrules the controlling precedent at the final step.
The majority instead has given Trump his victory at around step 3.5, by hinting at (and thus effectively producing) Humphrey's demise, without the full scope of litigation or briefing. Nevertheless, the problem is not what Trump did in firing these officers; that remains the necessary predicate for any request for SCOTUS to change precedent. The problem is the majority doing so too soon and outside of the ordinary three-tier litigation process.
Posted by Howard Wasserman on May 22, 2025 at 09:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
When is the Supreme Court Deadlocked?
Today's per curiam affirming by an equally divided Court raises a question. The Court heard the case in question last month. At the end of that week, they must have voted in conference. The per curiam came out a month later. One inference that can be drawn is that there is some internal norm at the Court that--in the event of a tie--the Justices get a month to persuade each other or change their minds before a "hung Court" is declared. This is not the only possibility, but as far as I can tell an "equally divided Court" opinion almost never comes out the day of a conference or on the Monday following.
Posted by Gerard Magliocca on May 22, 2025 at 01:42 PM | Permalink | Comments (0)
Wednesday, May 21, 2025
Universality, again
Judge Howell issued an order clarifying that a piece of the Perkins Coie injunction--prohibiting the EEOC from investigating law firms for DEI policies--applies only to Perkins Coie and does not stop the EEOC from investigating other firms.
This case demonstrates the key puzzle in the universality debate--finding the stopping point for when universality is appropriate without sliding into universality for most injunctions. Complete relief does not justify universality--Perkins Coie gets everything it needs regardless of whether the EEOC can investigate Jenner & Block. They cannot squeeze this into the New Jersey argument as to birthright citizenship. On the other hand, uniformity/Equality/Fairness would justify universality--it is not fair to subject Jenner to an investigation if Perkins is protected from investigation for the same activity. But then every injunction must be universal, at least where it involves broad federal policy.
So assuming universality is necessary in the birthright-citizenship case and not here: What are the limiting principles, so we avoid the conclusion that every injunction (or at least every injunction against a federal law) must be universal. What, if any, are the relevant differences? Some might include: Number of people affected; whether affected non-parties have the practical ability to vindicate their own rights, especially through access to counsel; the imminence of the injury to unprotected persons if they cannot go to to court to vindicate; other opportunities to assert their rights aside from the injunction. (Note that all of these sound in the balance of equities prong of the injunction, which someone (maybe Justice Barrett) suggested might be the appropriate place for these considerations).
I am not sure any of this should matter as to the scope-of-remedy. But this is the ground on which the arguments must occur.
Posted by Howard Wasserman on May 21, 2025 at 03:39 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Judge Ho's Supreme Court Nomination Campaign Continues
I knew Judge Ho in college, corresponded with him for a while afterwards, and supported his nomination to the Fifth Circuit. I must say, though, that he's trying really hard to get in the pole position in case a Supreme Court vacancy opens this year. Check out this new concurring opinion. In recent months, Judge Ho has also written an op-ed in the WSJ, at least one other concurring opinion, and given public statements on various current controversies that are notable.
He's a lot savvier at politics than I am. More power to him if he's awarded the brass ring.
Posted by Gerard Magliocca on May 21, 2025 at 02:02 PM | Permalink | Comments (0)
Speech or Debate Confusion (Updated)
The Supreme Court granted an injunction pending appeal in a Maine legislator's challenge to the sanctions imposed on her by the body in response to her anti-trans comments. Justice Jackson dissented (Sotomayor noted her dissent but did not join the opinion), identifying the many unresolved issues, most surrounding legislative immunity and the application of the First Amendment to the internal rules of state legislatures.
An injunction pending appeal is appropriate only when the right to relief is indisputably clear. Jackson emphasizes all the open questions in the case. I do not understand why it is not the opposite--it is indisputably clear that the claim here fails under well-established law and that she succeeds only if the Court undertakes a major change in the law. Legislative immunity applies to § 1983 actions. And a legislature's establishment of internal rules and procedures and imposition of internal sanction for violation of those rules constitutes core legislative functions--“anything generally done in a session of a House by one of its members in relation to the business before it." Unless there is some First Amendment exception to legislative immunity--again, a new idea--this case should be easy. It certainly should not be a basis for emergency relief.
The timing of the decision is ironic--less than a week after Libby's campaign against trans athletes hit the news because the girl who finished second in a race published a letter to the editor calling Libby out for bullying children.
Update: Will Baude points me to Bond v. Floyd (1966), where the Court never even mentioned legislative immunity in holding that the Georgia legislature violated the First Amendment in refusing (twice) to seat Julian Bond. I have no good answer. And it is of a piece with random recent cases--for example this Ninth Circuit case ignoring immunity and allowing a First Amendment claim to proceed against the legislature that required a member to provide advance notice before entering the chamber as a sanction for the member's speech.
We might explain Bond (along with Powell v. McCormick three years later as not applying immunity* to challenges to a body's refusal to seat a member, as distinct from rules and punishments once the person has been seated and sworn as a member of the body. And the Court decided Bond and Powell before it dug into the legislative immunity beginning in the early '70s. I otherwise cannot reconcile the idea that § 1983 incorporates legislative immunity with suits allowing members to challenge the body's rules.
[*] Powell held that Speech-or-Debate protected House members but not the Sergeant-in-Arms who enforced the exclusion decision. But recent cases have rejected that make rules/execute rules distinction for internal legislative rules; the creation and internal execution of the body's rules constitute legislative acts.
Posted by Howard Wasserman on May 21, 2025 at 01:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, May 20, 2025
Questions on Burton
Many questions and comments from Gerard's post on Burton:
1) Did Hand include the photo in the opinion? And how does that change how we litigate, decide, teach, and think about cases when it unquestionably would be in modern technology?
2) Would the case come out the same way post-Sullivan?
3) Did Crowell try to argue that the optical illusion did not damage but, in fact, enhanced (sorry) Burton's reputation? Would that argument fly more in 2025 than 1936?
4) This is what the tort of false light was designed to reach--false but not negative or disparaging speech.
5) I agree that defamation is more relevant than it was a decade ago, for unfortunate reasons.
6) Do you have any fear for bad student reaction to a case that has sexual overtones and is titillating in a Beavis-and-Butthead sort of way. I tend to ignore such things. But I know other profs take a different approach.
Posted by Howard Wasserman on May 20, 2025 at 11:33 AM in Howard Wasserman | Permalink | Comments (0)
The End of the Supreme Court's Summer Vacation
After the universal injunction arguments on Thursday, media reports typically said that an opinion would come by the end of June. That's been the norm for decades, but I wonder if that's about to change.
Emergency applications are going to keep coming. The Court could choose to go on vacation and not deal with those during the summer. This is what they do with cert. petitions. Maybe there will then be two Long Conferences in September, one for the cert petitions and one for the emergency petitions. (Or, I suppose, a Super Long Conference that does both). But you can also imagine that the Court will just have to start working through the summer by addressing these motions on the papers or by holding the odd summer argument.
Furthermore, there is no particular reason why an emergency docket opinion must be done by the end of June. They heard argument later than usual and it's not part of the standard docket. Why not July or September? Traditions die hard, so I would expect this opinion to come out in June. But change is in the air.
Posted by Gerard Magliocca on May 20, 2025 at 10:48 AM | Permalink | Comments (0)
Mary Leary on Flannery O'Connor and the Criminal Law
My Mirror of Justice colleague Prof. Mary Leary (CUA) has posted a fascinating paper, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law." I love O'Connor, and I teach Criminal Law, so I guess my enjoyment was overdetermined. In any event, here is the abstract:
This year marks the 100th birthday of one of America’s most influential writers in history – Flannery O’Connor. Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence. This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival. It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable. O’Connor herself noted that she often used violence to capture her audience’s attention in an effort to ultimately bring them to her point. This paper explores that influence on her work through original research at the Flannery O’Connor Archives.
However, as these original documents demonstrate, with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events. With many of these criminal events, the law played a critical role in the violence, often acting as its catalyst. Furthermore, as with many criminal events, the poor and vulnerable suffered at the hands of an uncaring society. O’Connor saw this and utilized the criminal law to comment upon this societal reality. This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character. More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction.
This symbiotic relationship between the criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing. But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates.
O’Connor’s vocational approach to her writing has much to offer the modern justice system’s advocates. Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy. The modern criminal justice advocate finds herself similarly challenged. Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and to understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment. Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred. O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task.
This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice. It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.
Posted by Rick Garnett on May 20, 2025 at 09:40 AM in Rick Garnett | Permalink | Comments (0)
Monday, May 19, 2025
Burton v. Crowell Pub. Co
I'm teaching Advanced Torts this Fall. I've not taught this course for a dozen years, so I decided to start from scratch. One topic that I will cover for the first time is libel. It's more relevant now than it was a dozen years ago. In putting together my syllabus, I came across Learned Hand's opinion in Burton v. Crowell Publishing Co. I'd never heard of this case before. Boy, was I missing out.
The case involved a minor celebrity who was paid to appear in a cigarette ad. One of the photos that was used in the ad contained an . . . unfortunate optical illusion. The celebrity sued for libel and Hand concluded that the action could go forward even though the ad did not impugn plaintiff's character in the way that a traditional libel or slander did. The ad held plaintiff up to widespread ridicule. That was sufficient, especially when the photo was viewed in connection with the ad's slogan.
Of course, describing the case without the ad would take away all the fun. Below is the ad in question. It's a good reminder that you should also insist on seeing photos before they get published or disseminated.
Posted by Gerard Magliocca on May 19, 2025 at 09:34 AM | Permalink | Comments (0)
Sunday, May 18, 2025
Types of injunctions
A point to elaborate on following the argument and a lot of commentary (including from Nick Bagley in The Atlantic) on the birthright-citizenship case: I still do not believe everyone agrees or understands what we are talking about.
Bagley's summary of the states' argument tees this up. The states (via the NJ SG, former Kagan clerk Jeremy Feigenbaum, who did an excellent job) argued they needed an injunction prohibiting all enforcement as to all people everywhere because people move and New Jersey would have trouble administering programs not knowing whether or when a person is a citizen. This echoes Texas' argument as to DACA--"people move into the state and we would be forced to expend money to give them licenses and other state benefits if the could get status outside of Texas." Bagley points out that, as framed, this is not a universal injunction; it is a broad party-protective injunction.The plaintiff needs that breadth (it argues) to obtain complete relief. By contrast, Bagley argues, a true universal injunction is one that is "not necessary to provide complete relief to the plaintiffs, but [is] needed to protect non-plaintiffs."
I think we can identify four types of orders four types of orders
1) A party-protective injunction that is no broader than necessary to accord complete relief to the plaintiff--it stops the government from doing X to the plaintiffs.
2) A party-protective injunction injunction that incidentally protects non-parties because it is impossible to protect parties without protecting non-parties. This is the polluting factory, raw-sewage in prison, and legislative districts--ordering the state to create a valid legislative district places every person who lives there the benefits of a valid legislative district. It is not (contrary to what SG Sauer argued at pp. 14-15) school desegregation; schools could remedy the harm to one plaintiff by ordering the school to admit him (but only him) to an otherwise-white school. David Marcus has shown that the 1966 amendments to FRCP 23(b)(2) responded, in part, to courts narrowing the remedies; class actions demanded a broader remedy in which all members be admitted, thus requiring integration.
3) An injunction that protects non-parties because that extra protection is necessary to accord complete relief. This is where New Jersey believes it sits, as Bagley describes.
So # 2 arises when it is logically or practically possible to give the plaintiff relief that does not accord relief to everyone else. That injunction is still non-universal, however, because the incidentally benefited non-parties cannot enforce the injunction (by presenting non-compliance to the court or by seeking contempt). # 3 arises when it would be possible to split the parties from non-parties; the plaintiff then must show that the more-limited remedy does not accord complete relief and that it only gets complete relief with the broader injunction (placing it in the functional position as # 1).
4) An injunction expressly protecting (without actual or purported class consideration) parties and everyone similarly situated, where the defendant's action is not indivisible (# 2) and relief to non-parties is not necessary to remedy the parties. (# 3). That is, the arguments for non-party protection are grounded in considerations of fairness, equality, and uniformity--it is unfair, unequal, and disuniform to to give the benefits to parties and not to similarly situated non-parties.*
[*] Although, as Sam Bray pointed out, they are not similarly situated--one person got an injunction and the other did not.
This covers marriage equality; it covers efforts to strip sanctuary cities or universities of funds. And it should cover individual (as opposed to state) challenges to the birthright-citizenship EO--an injunction guaranteeing U.S.-born X's citizenship gives X complete relief, even if Y's citizenship remains in doubt. Only equality and uniformity concerns (U.S.-born X is a citizen but U.S.-born Y is not) push against that conclusion.
We will see if the Court can keep these straight when it decides the case.
Posted by Howard Wasserman on May 18, 2025 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday, May 17, 2025
Saturday Music Post - Let the Good Times Roll
"Let the Good Times Roll" has been the title of several songs, perhaps best known today as the lead track on BB King's 1999 album of the same name. That version, originally recorded by Louis Jordan in 1946, was written by Sam Theard and Fleecie Moore (Jordan's wife). Shirley Goodman and Leonard Lee had a 1956 hit with a completely different "Let the Good Times Roll," often covered in concert by the Grateful Dead. Sam Cooke's 1964 "Good Times" is sometimes titled "Let the Good Times Roll." Don't miss Memphis Slim's "Let the Good Times Roll Creole" at the bottom of today's post on The Faculty Lounge.
Posted by Steve Lubet on May 17, 2025 at 05:50 AM | Permalink | Comments (0)
Friday, May 16, 2025
Goldsmith on judicial supremacy and universal injunctions
In my comments on the universal injunction arguments, I mentioned the prominent assumption or acceptance of judicial supremacy (really SCOTUS supremacy) by the Court (unsurprising) and the SG. Jack Goldsmith dives into this, concluding that the "government realizes that the price of getting rid of universal injunctions is to pledge respect to Supreme Court precedent so that the Supreme Court, at least, can ensure that government illegality can be stopped in full." That is, judicial supremacy is the cost of non-universality.
I am not sure that is the normatively correct answer. But it correctly describes the state of play in the odd posture and context in which the Court is considering these issues.
Posted by Howard Wasserman on May 16, 2025 at 02:27 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Advisor or Adviser?
Where do people come down on this? I use advisor. The copyeditor on my new book insisted on adviser. That's fine, though (unlike a rule of grammar) I'm not sure how you can determine the correct spelling of a word when two seem acceptable.
Posted by Gerard Magliocca on May 16, 2025 at 09:50 AM | Permalink | Comments (0)
Thursday, May 15, 2025
The ABA standards and regulatory modesty
This post is from Prof. David Yellen of the University of Miami Law School. Yellen has served as the dean at Miami, Loyola-Chicago, and Hofstra law schools. He has served on the ABA's Standards Review Committee and on the ABA Task Force on Legal Education, in addition to other leadership positions.
I’d like to add a few thoughts to Dan Rodriguez’s recent posts about the accreditation work of the Council of the ABA Section on Legal Education. Like Dan, I have viewed calls for the replacement of the Council as law school accreditor as misguided. As Barry Currier argues compellingly, having a national “approver” for bar licensing purposes is essential. https://barrycurrier.substack.com/. Despite what I view as a very mixed record by the Council, I have no reason to think that a newly constituted entity would represent a significant improvement, to say nothing of the enormous transition costs involved. And I certainly have no confidence in the Trump Administration’s approach to accreditation “reform”.
That said, some of the Council’s recent actions makes defending it difficult. Derek Muller has explored some of the Council’s overreach. https://excessofdemocracy.com/blog/2025/5/inside-the-abas-relentless-quest-to-make-law-school-accreditation-more-tedious-and-more-expensive . Most notably, the Council has sent out for notice and comment two proposals that, taken together, would represent the most radical intrusion into the operation of law schools that I can recall. One is a proposal to double the number of required experiential learning credits from 6 to 12. The other is to mandate tenure or tenure-like protections for all full time law faculty, including clinical faculty, legal writing faculty and academic support/bar preparation instructors.
To start with the “terms of employment,” while I personally support long term contracts and voting participation for clinicians and legal writing faculty (to be honest, I have not thought much about the issue regarding academic support/bar instructors), I have never seen this a legitimate accreditation issue. It is worth noting that no other accrediting body in the U.S. has any similar provision. And the proposal may be counterproductive: to maintain flexibility, I can see law schools switching from full time to part time faculty in some of these areas, even if they do not believe that makes sense pedagogically.
It is more appropriate for the Council to consider regulations regarding the academic program itself. I share the view that experiential learning is essential and believe that requiring 12 credits as a school-based goal is desirable and attainable (by way of disclosure, a bit over a decade ago, as a member of the ABA’s Standards Review Committee, I voted in favor of the current 6 credit requirement). But the case for a uniform national mandate doubling the current requirement has not been made.
The Council claims that “legal education is significantly behind other professions that require experiential learning.” As a matter of accreditation policy, however, this is not correct. It is true that student doctors, dentists and veterinarians, for example, are required to engage in much more experiential learning than are law students. But this is not because of accreditation rules, and the sources cited by the Council memo do not support their position. Instead, other professional schools require more experiential learning because of culture and licensing requirements.
This is not a small point. There are many reasons, both good and bad, that legal education developed in a way that did not originally emphasize practical training. In recent years, law schools have been evolving to place greater value on experiential learning and I hope that trend continues. Others may disagree. And perhaps bar licensing agencies should/will require more practical training. In fact, there are some wonderfully creative alternative licensing paths being tried that may eventually send the bar exam to the ignominious end it deserves. But these developments are happening as the result of thoughtful advocacy and discussion, as well as market forces, not the heavy hand of an accreditor.
What is the impetus behind the Council’s accelerating overreach? Some consider it to be “regulatory capture." I resist that label. I greatly respect most of the people I have known who have served on the Council. I am confident that they sincerely believe that they are helping to improve legal education.
However, in my view, the Council too often seems to disregard the limited nature of the accreditation function. As someone who serves on another accrediting body and who has worked with a handful of other accreditors at the university level, I urge the Council to adopt a posture of regulatory modesty and restraint. The Standards should be limited to rules that are reasonably necessary to ensure a quality legal education experience. They should not be a formalization of what some believe to be best practices. Judged on that basis, the Standards are dramatically more detailed and intrusive than the rules governing any other professional education field. The ABA Task Force on the Future of Legal Education, on which I served, had it right over a decade ago when it urged that “a number of the Standards be repealed or dramatically changed.” The Standards too often burden law schools in ways that raise costs and inhibit innovation. They need to change direction before it is too late.
Posted by Dan Rodriguez on May 15, 2025 at 08:46 PM in Life of Law Schools | Permalink | Comments (0)
A different scope-of-injunction puzzle
Florida made it a state crime for an undocumented person to enter the state. Plaintiffs obtained a TRO against Attorney General James Uthmeier, the appointed statewide prosecutor, and the state' attorneys for each of Florida's 67 counties, as well as their agents and officers and anyone in "active concert or participation" with them (standard language from FRCP 65(d)(2)). Uthmeier sent a letter to law enforcement agencies, stating that he interpreted the court order not to prohibit law enforcement from arresting and detaining people for violating the law (and presumably turning them over to ICE). The judge then extended the TRO to specify that it reached "any officer or other personnel within any municipal or county police department within Florida, the Florida Department of Law Enforcement, or the Florida Highway Patrol, and any other law enforcement officer with power to enforce" the challenged law. The court then entered a preliminary injunction matching the scope of the extended TRO. And she ordered Uthmeier to show cause why he should not be held in contempt for his cramped reading of the original TRO. For his part, Uthmeier insists that the court's injunction is impermissibly overbroad.
So the question is whether law enforcement necessarily act in active concert or participation with prosecutors. Two issues in this case turn on that: 1) Whether the extended injunction is valid at all and 2) Whether Uthmeier's initial interpretation was so unreasonable as to be contemptuous.
On one hand, stopping "enforcement" of the law means stopping prosecutions; police are not part of the prosecution process. In theory police will not arrest anyone under the law, knowing that the prosecutors cannot pursue charges and thus the arrest is pointless. On the other hand, that is not true in this case. The point of the law is to authorize state enforcement of federal immigration law; police thus are happy to arrest people under the law not for state prosecution but to turn them over to ICE. And even outside this case, police have an incentive to arrest and detain people even if the case will not go anywhere; there is a harassing and chilling effect I am sure they welcome.
Posted by Howard Wasserman on May 15, 2025 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thoughts on the universal injunction argument (Updated)
Transcript here. Lee Kovarsky live-Blueskied the argument and gave a quick end-of-argument summary. I agree with Lee that Justice Gorsuch seemed more open to some universal relief in some cases than expected and that he and Barrett might join Sotomayor, Kagan, and Jackson to allow universal relief in some situations. But it really was impossible to predict. Lee is also adamant that Rule 23 cannot bear the weight non-universalists would put on it.
Other thoughts after the jump:
Continue reading "Thoughts on the universal injunction argument (Updated)"
Posted by Howard Wasserman on May 15, 2025 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, May 14, 2025
State action on remand
The Ninth Circuit decided Garnier v. O'Connor-Ratliff, holding that the school board member acted under color in blocking people from her Facebook and Twitter feeds. This was the companion to Lindke v. Freed, where SCOTUS set the (in my view too narrow) approach to public officials' social-media pages. The Court GVRed this case in March 2024.
Lindke adopted a two-step approach: 1) Whether the official had formal authority to speak for the government and 2) Whether it did so on that page; the Ninth Circuit found both prongs satisfied as to O'Connor-Ratliff's pages. Board members (especially the Board President) possessed authority to make public pronouncements about the Board's activities. O'Connor-Ratliff's pages looked official, as she identified herself as a Board member and did not include any indicia or disclaimers of the pages being private (as in Lindke). And she regularly made official announcements on there, including the announcements on which plaintiffs sought to comment and for which O'Connor-Ratliff blocked them.
The opinion suggests more play in Lindke's joints than I thought. See if it holds up.
Posted by Howard Wasserman on May 14, 2025 at 05:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
ABA proposed accreditation rule on increasing experiential learning requirements: An idea whose time has not come
Less than a week after a short post urging the ABA Section on Legal Education to keep up its generally good work and encouraging external folks to avoid major changes that could well throw out the baby with the bathwater, the Section has announced its intention to consider a very bad idea from the Standards Committee. This “very bad idea” is the doubling of the required number of credits of so-called “experiential learning” for students to graduate. While I associate myself squarely with those who value the curricular programs, run mainly through law school clinics, and who encourage students to pursue opportunities for experiential learning during my time in law school, the insistence on this once-size-fits all requirement is a bad idea coming at a bad time. First, the imposition of curricular mandates is to be usually disfavored, and especially disfavored in our current times of turmoil. Such mandates are expensive, clinical programs being especially so, given how the labor-intensive work that typically goes into such courses. Given the pressures faced by legal education and, more to the point, by students embarking on their legal careers with the prospects of high levels of debt to meet the tuition demands of law schools, adding to the costs of legal education seems, in a word, foolish. Second, and as has been pointed out before, there are myriad goals law students have in their curricular choices, not limited to bulking up on courses that give students experience in advising and representing clients in traditional criminal and civil disputes. For example, building skills through cumulative learning in a particular subject matter, given their particular professional goals, might be a priority. So too might be following their plan of fashioning an academic career or some sort of career that is not ordinary legal practice, so maybe a business-centered career for which legal education is a major asset, but one not mainly about client representation. Law student curricular choices are zero-sum choices. Curricular mandates have the effect of limiting student options; they simultaneously have the effect of driving law schools to configure their curriculum to meet the conditions of these mandates, with the effect of limiting the supply of other, non-experiential courses.
One potential area left on the chopping block — anticipating a post I have in the works for later — is the area of law & technology, this made up of courses (some experiential, but not all, and maybe not most). This is a burgeoning area of importance and interest and, to a commendable extent, law schools have been introducing into their curriculum courses and opportunities focusing on AI, machine learning, law-tech as part of modern schemes of research, and, interestingly, the ways in which technology can be deployed to help close the access to justice gap. One fears that the insistence on experiential learning which, as the Section has explicitly said, is focused on client representation in a rather traditional sense, will crowd out these novel courses, leaving law schools to play catch up as developments in AI and other aspects of law-tech are changing the way in which law is practiced.
Taking this somewhat away from political strategy, there is the added good sense that would come from reshaping the accreditation system from command-and-control to an iterative dialogue with various stakeholders, starting first with the law schools themselves and including others with whom the ABA Section needs and should want to work with on redesigning its accreditation system for this modern world. And let’s be frank, “this modern world” is one in which there is major skepticism about how educational institutions are managing their business and making their choices. We can believe (as I do) that law schools and universities are for the most part well-intentioned; they design and implement their programs with the best interests of the students and of the profession at heart. At least most of us do and at most times. But we should still believe that there is room for improvement in our programs and there is much room for improvement in how we communicate our values, processes, and strategies to an external world that sees and highlights our mistakes and would hold us accountable for certain choices made and roads not taken. In this hothouse of skepticism, it is exactly the wrong time for the ABA Section to be doubling down on controversial, and I would say essentially misguided, curricular mandates.
Take a beat; take some time for considered reflection on the values and purposes of accreditation; and look for creative ways to work with diverse stakeholders. And in this time, give heavy-handed mandates for what some constituencies insist its The Only and Best Way Forward a rest.
(Reprinted from Daniel B. Rodriguez Substack. You can subscribe for free on that site)
Posted by Dan Rodriguez on May 14, 2025 at 04:17 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)
Do the Justices Have CVs?
Here's a question I've long pondered. At what point are you so well-known in your field that you no longer have or need a resume? For instance, does the President have a CV? A former President? How about Supreme Court Justices or federal Circuit Judges? You could ask the same question about, say, Steven Spielberg, Yo-Yo Ma, or Tom Brady.
And how do more modest government officials handle this? Did Todd Blanche update his CV the other day to say "Acting Librarian of Congress?" Does Marco Rubio list "Acting National Security Adviser" and "Acting Archivist of the United States" on his resume now?
This is what I do when I want a break from grading exams.
Posted by Gerard Magliocca on May 14, 2025 at 11:40 AM | Permalink | Comments (0)
More on State Ratification Records
I noted yesterday the poor coverage of state legislative debates on federal constitutional amendments. Couple of more thoughts on that point:
To some extent, there is a nationalist bias in the ratification sources after 1787. People focus on what was said in Congress. Of course, people also look at newspaper commentary and other sources. But the most state-centered source is generally missing.
The Twenty-First Amendment is a partial exception to my observation about the incompleteness of the state sources. The conventions that ratified Prohibition's repeal did generally keep transcripts. Indeed, this was an advantage of the convention method under Article V that I had overlooked until now. That wouldn't matter today, though, as all state legislatures comprehensively record their debates.
In any event, I'm still going to go through what there is to see what I can find.
Posted by Gerard Magliocca on May 14, 2025 at 08:29 AM | Permalink | Comments (0)
Tuesday, May 13, 2025
Score One For A.G. Sulzberger
I don't read many book-length works by newspaper reporters, for the same reason I read fewer law review articles than I used to: At my age, I consider it reasonable not to suffer through more bad writing than is strictly necessary. Even so, I have long had a pre-order in for Jake Tapper and Alex Thompson's book Original Sin, and today's review in the Times is certainly a nice amuse-bouche before the main event. Discussion of the book takes my recollection back to a briefly popular media-centered discussion from Biden's presidency, centering on whether the Times was being tough on Biden about his age because its publisher, A.G. Sulzberger, refused to give the Times a sit-down interview. Although the whole thing will befuddle those who think, with or without specific reasons, that the Times was always easy on Biden, the Biden administration and some of its apologists were convinced otherwise.
This Politico story gives much of the background. It is relevant, perhaps, to both current criticism of the press for "covering up" problems with Biden and retrospective understanding of how and why the administration did its own covering up, to note that the Politico story, which was published a couple of months before the disastrous June debate, describes administration anger at the Times for Peter Baker's "unrelenting focus on Biden’s advanced age." It is likewise now noteworthy that the story notes Biden staffers' view that the Times's perceived harshness was especially wrong given an upcoming election that they viewed as "a matter of democracy’s survival." So did I, more or less, and I sure do now--and Biden and his staffers could not have failed that test more completely.
One striking element of the so-called feud between Biden and the Times was the Times's push for a sit-down, on-the-record interview with Biden and the Times. As the Politico piece notes, every president since Roosevelt had sat for such an interview--except Biden, who had "sat for interviews with only two print reporters in more than three years" and never did so for the Times. The story notes:
Getting the president on the record with the paper of record is a top priority for publisher A.G. Sulzberger....But the pleas for an interview have gone nowhere. As Sulzberger often tells colleagues and as he and Kahn have stressed in private conversations with the administration, every modern president since Franklin Delano Roosevelt has done an interview with the Times. That, however, is an argument deemed uncompelling by Biden aides and one that, to some White House officials, smacks of entitlement....In Sulzberger’s view, according to two people familiar with his private comments on the subject, only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.
The whole story is worth reading or rereading, for those who are litigating or relitigating all the Biden/age/press issues. Much press criticism is like most cultural and political debate: it starts with the desired conclusion and works backwards. So views on the contretemps tended to follow political lines. But it's certainly worth noting that a great many people took the Biden administration's side, thinking it hoity-toity of the Times to insist on an interview and accusing Sulzberger of bending coverage against him because of it. (Unsurprisingly, one of those people was Margaret Sullivan, a former Times public editor and a terrible press critic. And here's a two-fer, with Sullivan and Dahlia Lithwick. And one from another terrible press critic, Dan Froomkin. Pardon the pun, but those views didn't age well.) Sulzberger denied directing coverage, while insisting that, "For anyone who understands the role of the free press in a democracy, it should be troubling that President Biden has so actively and effectively avoided questions from independent journalists during his term....Mr. Biden has granted far fewer press conferences and sit-down interviews with independent journalists than virtually all of his predecessors." (Another bad press critic, Jeff Jarvis, called the first sentence a "hissy-fit.")
I'm not a big fan of Sulzberger; the Times is not the paper it should be, and Sulzberger dishonored the paper when he caved to pressure and fired James Bennet. But one must give him his due on this one. The Times and other media outlets will get their share of criticism for possible failings to more aggressively investigate Biden's condition, just as they do and will for failing to more aggressively investigate Trump's condition. But it's hard to do a good job investigating the condition of a man who deliberately shielded himself, and was shielded, from public exposure to anyone who might be unfriendly, or at least indifferent to his wants. Sulzberger was right to push.
I hope this adds a nail to the coffin with regard to the usual euphoric writing about why the partisan, under-resourced, and under-trained "citizen press," or "non-corporate journalists," or whatever you want to call them are a fine and fitting successor to the more staid but more professional standard-issue press. More importantly, I hope it is a useful reminder that every time administrations, from Obama on, have talked about wanting to "speak directly to the people" and not have to communicate through an arrogant, non-substantive, or old-fashioned press, what they actually mean is that they prefer to propagandize in an unmediated fashion. (This is why, although I give Trump favorable marks for speaking to the press regularly, despite his administration's general lack of transparency, I take a star back for his administration's elevation of social-media worshippers, whose fawning questions embarrass even his fans.)
Posted by Paul Horwitz on May 13, 2025 at 08:33 PM in Paul Horwitz | Permalink | Comments (0)
MLB removes deceased players from permanent ineligible list
General announcement here and letter from MLB Commissioner Rob Manfred to Pete Rose's attorney here. The decision covers Pete Rose, Shoeless Joe and the other Black Sox, and eight other players.
MLB's position has been that permanent ineligibility ends upon death. In the letter to Rose's attorney, Manfred explained that a dead person no longer threatens the integrity of the game and thus his continuance on the list does not serve the purposes of Rule 21. His new move was affirmatively removing Rose and other dead persons from the list, a move to align MLB's rules with the Hall of Fame rule regarding Hall eligibility of people on MLB's list. Because Rose, Jackson, et al. no longer on MLB's list, they are eligible for Hall consideration. The Hall announced that the players would be considered by Classic Baseball Era Committee (pre-1980) for 2027 voting and 2028 induction.
I remained in the no-Hall camp for Rose until his death last fall. But I can live with posthumous induction: "Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize--being a living Hall Member."
Posted by Howard Wasserman on May 13, 2025 at 07:12 PM in Howard Wasserman, Sports | Permalink | Comments (0)
A Note From Justice Souter
In 1999, I had a clerkship interview with Justice Souter. Some time later, I received a thoughtful note from him explaining that he did not pick me.
Until the other day, I assumed that all or most Justices did this for clerkship interviewees who were not selected. But now I'm wondering if Justice Souter was unusual in this respect. I'd be curious to know if other Justices send or sent rejection notes.
Posted by Gerard Magliocca on May 13, 2025 at 02:54 PM | Permalink | Comments (0)
Same-sex marriage and universal injunctions
A further thought on universal injunctions: Sam's first post unpacks the question of when universal injunctions started, both for the historical pedigree (whether non-party relief has some basis in historic equity or common law) and for when the issue burst on the modern scene.
I cannot prove causation. But I want to make a pitch for the same-sex marriage litigation from 2012-15 as a turning point. Although those cases involved challenges to state law, this was a nationwide litigation campaign of challenges in multiple states. And it exposed the atomized nature of constitutional litigation.
An injunction enjoining enforcement of one state's SSM ban guaranteed marriage licenses to the three or four couples who brought the suit but did nothing for non-party couples. Many states agreed to grant licenses to non-parties, voluntarily complying with judicial precedent giving the injunction universal effect if not force. Alternatively, new couples sought to join cases as plaintiffs and to expand the existing injunction to protect them and guarantee them licenses. Either required steps beyond the original injunction.*
[*] Either move suggested chaos had SCOTUS resolved marriage equality the other way--states undoing valid-at-the-time marriages or states having a small class of married same-sex couples while able to deny licenses to such couples going forward.
The marriage-equality campaign also introduced zombie laws into the mix. The Eighth Circuit affirming the invalidity of Oklahoma's SSM ban did nothing to stop Kansas officials from enforcing that state's ban as to anyone--the decision zombified Kansas' law but did not produce (yet) a judgment prohibiting Kansas officials from enforcing its ban. Binding precedent dictated the result of that litigation--a district court in Kansas would declare that law invalid. But its injunction guaranteed licenses only to the named couples and not beyond. The cycle repeats--other couples must undertake new-or-expanded litigation or states must voluntarily comply with new precedent.
All of this raised the complaints of inequality and unfairness that universalists fear and that drive current calls for universality in some contexts--officials must grant licenses to the plaintiff couples but could deny them to other couples without violating the court order; Kansas officials could continue to deny licenses despite binding court of appeals precedent (based on Oklahoma's law).
Posted by Howard Wasserman on May 13, 2025 at 12:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Judicial departmentalism and universal injunctions
Sam Bray has a series of posts on universal injunctions in advance of Thursday's arguments on the emergency motions in the birthright-citizenship cases, which are likely to focus mostly on scope-of-remedy. I agree with Sam on pretty much all of this. But I want to riff on one thing. He writes:
In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.
SCOTUS's resolution is not "universal" in the sense of protecting all people. It resolves one case, affirming or reversing lower courts and compelling them to enter some judgment--a remedy that, per Bray's arguments, is limited to the parties. SCOTUS's declaration of the law establishes universal precedent for lower federal and state courts. In a judicial-supremacist world, it also establishes universal precedent for other actors, having "resolved" the constitutional issue.
Judicial departmentalism complicates this story. Its key premise is that SCOTUS precedent does not bind non-judicial actors; the executive can continue to act contrary to SCOTUS precedent. And because SCOTUS' judgment (or the judgment it orders the lower court to enter) is non-universal, the executive does not violate a court order in acting contrary to that prior case. In effect, we start over--new litigation from the new (actual or potential) enforcement targets, new non-universal judgments from the lower courts (bound to apply SCOTUS precedent), new non-universal SCOTUS affirmance (also applying its precedent). The executive keeps losing, of course (barring a change in precedent). But people must litigate to get there. And we do this as long as the executive has unprotected people to target.
This complicated process might offer a further justification for universality. The federal courts (or at least SCOTUS) must be able to grant universal remedies, otherwise no one is safe from an executive willing to pursue new enforcement against new people (not protected by the existing judgment) in the face of certain judicial defeat. At a minimum, the process is the punishment--the executive achieves something by forcing new and repeated litigation, even if he loses at the end of the day. Especially if some enforcement succeeds (in the moment) against those who are not party to any round of litigation.
On the other hand, non-universality helps prevent judicial departmentalism from collapsing into supremacy. The courts get the final word in any case--the judicial view of the Constitution prevails and the executive loses under existing precedent. But nothing stops the other departments from creating and pursuing new cases.
Posted by Howard Wasserman on May 13, 2025 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
The Dismal State of State Legislative Records
In 1970, Illinois wrote a new state constitution (the current one). Article IV, Section 7(b) states:
"Each house shall keep a journal of its proceedings and a transcript of its debates. The journal shall be published and the transcript shall be available
to the public."
Before this change, the Illinois Legislature did not keep transcripts of its debates. This only started in the latter half of 1971. This leads to a
rather astonishing conclusion: We have no official records on how the Illinois Legislature viewed any constitutional amendment that was ratified.
When I said the other day that I would start looking at the ratification debates on the modern amendments, I didn't realize that the record-keeping was this bad.
I shouldn't have been surprised, I suppose. Many state legislatures even now are part-time. Transcribing the proceedings was much more expensive before video
(let alone) artificial intelligence. Still, I thought that since a few states did keep more detailed records in the nineteenth century, surely more would have done so
in the twentieth century.
State legislatures kept journals, of course. But these rarely included speeches. For example, I looked at the Hawaii Legislature's Journal from 1971. One speech on the
26th Amendment is there (Was that the only speech? Maybe.) How many states fully recorded legislative debates in 1971? I don't know yet.
Posted by Gerard Magliocca on May 13, 2025 at 07:28 AM | Permalink | Comments (0)