Sunday, October 25, 2020

"Zombie statutes," non-universality, and judicial departmentalism

The opening paragraph of this Fifth Circuit opinion by Judge Costa accurately describes judicial review (H/T: Josh Blackman):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

The opinion deals with what Costa calls "zombie statutes"--laws in one state that remain on the books but are unenforceable (at least judicially, more on that below) in light of SCOTUS precedent declaring an identical law from a different state invalid. The challenge here was to a Houston ordinance requiring initiative/petition circulators to be registered voters; SCOTUS in Buckley v. American Constitutional Law Foundation declared an identical Colorado law to violate the First Amendment. The Fifth Circuit held that the plaintiffs had standing and that the case was not moot--there was sufficient threat of enforcement despite Buckley and the city's addition of an Editor's Note to its code--stating that it would accept petitions from non-registered voters and provided a form for such petitions--was not sufficient to moot the case.

This "zombie law" concept is interesting. I wish I had it in front of me (or had thought of the term myself) when writing about the link between non-universality and judicial departmentalism. Because those concepts inform what makes a zombie law.

Because of non-universality, the concept should not be limited to the situation at hand--State B's law is a zombie because of a decision involving State A's law. State B's law can be a zombie because of a decision involving that law as to non-parties to the prior litigation. It also means we could have federal zombie laws. The point is the same in all--the prior judgment spoke to the challenged law and the involved party, not to any other law or any other party.

Because of judicial departmentalism, it is arguably unfair to call any law a zombie law. Because if the government believes, in its independent judgment, that the law is constitutionally valid, it acts within the full scope of its constitutional power in enacting or enforcing it, regardless of contrary precedent. In that sense, the law is alive and enforceable. On the other hand, maybe zombie is the right term because the laws are undead--they are alive in remaining on the books and in remaining enforceable by a departmentalism government, but the actual or threatened enforcement is DOA in court, where SCOTUS precedent binds and determines the outcome. On a third hand, maybe we need distinct terms to capture distinct concepts--law on the books but no intention to enforce v. law on the books with intention to enforce--rather than lumping everything as a zombie.

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, October 24, 2020

Symposium on Birch Bayh

The Fordham Law Review just published an excellent symposium issue on the legacy of Senator Birch Bayh, who was one of the most consequential legislators in modern terms. It's well worth your time.

Posted by Gerard Magliocca on October 24, 2020 at 08:12 PM | Permalink | Comments (1)

Update on Jewish World Series

I erroneously wrote that this year's Rays-Dodgers World Series had one Jewish player--Dodgers OF/DH Joc Pederson. But I forgot about Rays lefty reliever Ryan Sherriff, the grandson of Shoah survivors. Sherriff saw his first action in Friday evening's Game 3, pitching one scoreless inning, walking one and striking out one. This is the seventh World Series in which both teams have at least one Jewish player, the third in the last four.

We came close to a different first--a Jewish pitcher facing a Jewish batter.* Sherriff pitched the seventh and went to the mound to begin the eighth, with Pederson leading off. But Pederson does not bat against lefties, so he was pulled for a righty pinch-hitter in the Dodgers' regular platoon. At which point Sherriff was pulled for a righty pitcher.

[*] The linked article notes that Ken Holtzman of the A's faced Steve Yeager of the Dodgers in Games One and Four of the 1974 World Series, with Yeager getting two hits in five at-bats. But Yeager converted to Judaism after his baseball career, so this did not count at the time.

Posted by Howard Wasserman on October 24, 2020 at 02:41 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Friday, October 23, 2020

Hybrid Cases and Free Exercise

In Employment Division v. Smith, the Supreme Court stated that the case presented "a free exercise claim unconnected with any communicative activity or parental right." The Court distinguished Smith from "hybrid" precedents where a free exercise claim was made "in conjunction with other constitutional protections." In those "hybrid" cases, the Court said that the Constitution might require that an exception be given to a "generally applicable and neutral law" as applied to religious motivated conduct.

When the Court takes up Fulton v. City of Philadelphia in two weeks, one of the questions presented is whether Smith should be overruled. I wonder, though, whether the Court might just decide to read Smith more literally. Imagine if the Court said that exceptions are possible in free exercise cases so long as there is also a plausible free speech claim. That would cover many (though not all) cases where Smith is applied. The baker in Masterpiece Cake Shop made a free speech and a free exercise claim. The same two claims were made in Fulton (though the free speech claim was not appealed from the Third Circuit). Thus, Smith need not be overruled. It can be applied more narrowly consistent with what the Smith Court said.

The broader question is whether the Court wants to take on this balancing role. Masterpiece Cake Shop suggested that they did not, but maybe with Justice Kavanaugh and Justice Barrett things will be different. 

Posted by Gerard Magliocca on October 23, 2020 at 09:26 AM | Permalink | Comments (2)

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, October 20, 2020

NDAs and racial discrimination

I've posted in the past about how NDAs and the increased secrecy at work has not only silenced employees in general, but also specifically hurt women and prevented them from speaking up against systemic patterns of hostile work environment and harassments. The Wall Street Journal today has a well-researched article about how racial discrimination claims have also been silenced by the use of NDAs. I am quoted in the article, in particular about the enforceability of these clauses and how, regardless of enforceability, they have a chilling effect on speech.

Posted by Orly Lobel on October 20, 2020 at 09:35 PM | Permalink | Comments (4)

Panel: The Jurisprudence and Legacy of Justice Ginsburg

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., Friday, October 30. Register here. The event is open to the public.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Posted by Howard Wasserman on October 20, 2020 at 11:09 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Call for Submissions: AALS New Voices in Administrative Law and Legislation

Call for Submissions: AALS New Voices in Administrative Law and Legislation

The AALS Sections on Administrative Law and Legislation are pleased to announce their co-sponsored “New Voices in Administrative Law and Legislation” program for the 2021 AALS Annual Meeting, which will be held entirely online. The New Voices program gives junior administrative law scholars and junior legislation scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. While we have always welcomed the submission of early stage drafts, we want to highlight that our selection process this year will reflect our awareness that in this particular climate, many scholars face unusual and significant hurdles in finding time to do academic work.   We encourage eligible scholars to err on the side of submission.  As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.  

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law or legislation scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 4:15 to 5:30 p.m. Eastern time on Saturday, January 9, 2021.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Mila Sohoni at [email protected] by Friday, October 30, 2020, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program for either the administrative law or legislation section.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 11, 2020. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers

If you are interested in serving as a reviewer this year, please email Professor Kati Kovacs at [email protected] as soon as possible.

Please be aware that selected participants and commentators must register for the AALS Annual Meeting. This year, the AALS is offering a school registration rate. Faculty and administrators from law schools that do not accept the school rate will need to pay a $295 individual attendance fee.

Please submit any questions about the New Voices Program to Professor Kati Kovacs at [email protected].

Posted by Orly Lobel on October 20, 2020 at 12:57 AM | Permalink | Comments (0)

Monday, October 19, 2020

World Series set

The Dodgers (best record in NL) against the Rays (best record in AL), for the first time since 2013.

There is one Jewish player in the Series--the Dodgers' Joc Pederson, who is the left-handed platoon DH. Pederson had a terrible season, although this Series gives him a chance to tie or pass Alex Bregman for the lead in WS home runs (Pederson has four, trailing Bregman by one). I must confess to rooting for the Braves in the NLCS, looking forward to the stories of a WS team with a Jewish ace left-handed pitcher.

Now that things are set, of course, all Democrats will be rooting for the Dodgers.

Posted by Howard Wasserman on October 19, 2020 at 10:11 AM in Sports | Permalink | Comments (1)

New Article: "A Few Grains of Incense"

I recently posted on SSRN an article titled "A Few Grains of Incense: Law, Religion, and Politics From the Perspective of the 'Christian' and 'Pagan' Dispensations." It's coming out shortly in the Journal of Catholic Legal Studies. It's kind of a sequel to the journal's earlier symposium on Steve Smith's book Pagans and Christians in the City: Culture Wars From the Tiber to the Potomac. The journal's editors were extremely kind and patient with me and I am grateful.

The paper operates from within the Christian/pagan typology Smith uses in the book. (Note that the terms should not be taken wholly literally, at least as he uses them in the modern era, but largely refer to a distinction between what he calls transcendent and immanent views of meaning.) I have my differences with that framework, but I also find aspects of it useful in thinking about the culture wars and about law and religion in something other than a standard religious vs. secular or left vs. right way. In any event, for purposes of the article I was interested in developing certain ideas from within that framework rather than critiquing the framework. (I often find, in workshops and job talks and so on, that I get more personal mileage out of adopting the author's framework and exploring its implications, some of which an author may accidentally or studiously neglect or avoid, than from going at it frontally.)

My goal, which is somewhat of a piece with a couple of other semi-recent articles of mine, was to think about and add some detail to our understanding of the dynamics of culture wars in general and with respect to law and religion in particular. It does not offer any proposals for reform. Although I offer some speculations about the conditions under which rapprochement are most likely, I don't offer much reason to believe that those conditions currently exist, and would add that there may be factors, such as the combination of polarization and social media with epistemic closure and separate social and institutional fiefdoms, that make those conditions less likely to appear. I would also note that since the article was written, some of the observations at the end of the piece about the ways in which the war over religious symbols that Smith describes actually extends beyond religious symbols alone have become somewhat more pertinent.

Here's the abstract:

This Article attempts to provide a schematic look at the dynamics of contemporary culture wars around law and religion in the United States. It proceeds from the framework provided by Steven Smith’s recent book Pagans and Christians in the City and engages with that book, sometimes positively and sometimes critically, but taking Smith’s framework as a given. A key insight provided by Smith is that the Christian-pagan conflict, past or present, had less to do with the belief that the other side was dangerous than with the view that it was obstinately unreasonable in refusing the terms of coexistence offered by the ruling dispensation. Culture wars of this sort thus start not with immediate conflict but with failed compromises. Differing premises and worldviews lead to a misunderstanding of what constitutes a large or small sacrifice, start a cycle of distrust, and lead each side to seek power so that it may be the side to set the terms of compromise rather than the one faced with accepting or refusing it. I examine this dynamic in two areas discussed in Smith’s book: religious accommodation, and wars over symbols. I conclude with an examination of the circumstances under which culture-war peace is most likely to occur, and find little reason for optimism that either currently applies.     

Posted by Paul Horwitz on October 19, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, October 18, 2020

Breyer as assigning justice

A fun one-off thing to watch for this Term--will  Justice Breyer have an opportunity to assign a majority opinion as senior-most associate justice in the majority? It would take an odd line-up: TheChief and Thomas in dissent and Breyer leading a majority of himself and four of Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Trying to imagine the case that would produce that lineup with the Chief.

Posted by Howard Wasserman on October 18, 2020 at 08:02 PM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, October 16, 2020

Hamilton: The Legal Text

A fun new book from Cornell University Press, Hamiton and the Law: Reading Today's Most Contentious Legal Issues Through the Hit Musical. It is the brainchild and edited by Lisa Tucker (Drexel) with a great group of contributors.

Posted by Howard Wasserman on October 16, 2020 at 12:34 PM in Books | Permalink | Comments (0)

Prawfs' moment in the sun

One drawback to paying zero attention to the Barrett confirmation hearings: I missed that Barrett did a guest stint here in March 2008 (I was doing a semester-long guest stint at that time that led to Dan inviting me here permanently). Her six posts are listed among her "Opinion, Editorals, and Letters" section in her CRS bio. One post, about potential retroactivity problems in eliminating the crack/powder distinction, was the subject of an exchange with Sen. Booker; Booker asked why she did not discuss the injustice of the distinction--a stupid question justifying the amount of attention I devoted to the hearing. (H/T: Josh Blackman, who pays more attention than I do). (If you want to subject yourself to it, it is around the 7:17:00 mark).

Booker described us as a "well-known legal academic" blog, which is nice. Barrett called us "LawPrawfsBlawg." Oh, well.

Posted by Howard Wasserman on October 16, 2020 at 08:16 AM in Blogging, Howard Wasserman, Law and Politics | Permalink | Comments (9)