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Monday, July 31, 2017

Self interest or political stand?

One strand of criticism of media coverage of the 2016 election was that outlets such as CNN only called out Donald Trump's behavior when he started criticizing and attacking the press and its members. The institutional media, it was argued, was not a bulwark of liberty; it was a bulwark of the First Amendment, committed to criticizing attacks on free speech because they directly affected reporters and the press as an institution.

I had the same thought reading this piece by Dahlia Lithwick arguing that Trump's staunchest allies may be pushing back against his excesses, if not outright abandoning him. Her evidence: 1) the Boys Scout's apology for Trump's Jamboree speech; 2) the Joint Chiefs' announcement that they would give no effect to Trump's tweet announcing that transgendered people no longer could serve in the military; and 3) statements by the Suffolk County Police Department, and other departments and police associations, disavowing Trump's encouragement of unnecessary force against arrestees. Dahlia wonders whether "it's fair to ask whether everyone’s had enough of all this racist, homophobic, lawless, and violent “truth-telling,” and whether this trend of American institutions holding Trump to account for his spoken words might continue."

Bracketing the military example for now, it is difficult to view the others as examples of standing up to Trump as opposed to institutional self-interest and self-preservation. BSA issued a passive-voice sort-of apology ("sincere apologies to those in our Scouting family who were offended by the political rhetoric that was inserted into the jamboree"). It neither accepted responsibility for a predictable occurrence, assigned responsibility to the President for overstepping, nor apologized for behavior (e.g., booing the former President) that departed from the organization's avowed principles.  BSA did not abandon the President; it distanced itself from the negative reaction to his speech. This half-statement reflected the minimum necessary to assuage angry current members and to attract potential new members. As for the Suffolk County P.D. and other police organizations, their statements were necessary to avoid the appearance of endorsing excessive force in order to avoid legal liability, both for themselves as municipalities and for their officers. People recognized that speech might become an issue in future excessive-force cases; these statements were the minimum to rebut a suggestion of condoning what the President described and the officers cheered.

It is telling that none of these statements mentioned or criticized the President or his specific words or actions or the organizations' members. BSA did not say it was not ok to boo the former President; Suffolk County P.D. did not criticize its officers for cheering the use of force. The statements were abstract and passive--political rhetoric was asserted into the Jamboree, stories about using excessive force were told--designed to express disagreement with an idea, but not criticism of the idea or the person who expressed it. We will be where Dahlia suggests only when that begins happening. Until then, it strikes me as wishful thinking to see this as more than self-interest.

Posted by Howard Wasserman on July 31, 2017 at 08:51 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Governors and the Failure of ACA Repeal: Federalism as Safeguard Against National Partisan Politics

Now that the efforts to repeal ACA have come to naught, it is worthwhile reflecting on the role of governors and federalism in halting a national partisan movement. In an age of programmatic and polarized parties, governors managed to forge bipartisan coalitions to stop a dominant national party’s chief policy priority.

That is not supposed to happen. According to Jessica Bulman-Pozen’s theory of partisan federalism, states are just enclaves in which the national parties test their national policies. Republican governors ought to be staunch backers of ACA repeal, while Democratic governors ought to be cheerleaders for Schumer’s rearguard defensive maneuvers. As David Schleicher has explained, state politicians’ marching in lockstep with their national counterparts is predicted as well by the theory of second-order elections.

Why did Bulman-Pozen’s theory misfire? As David Schleicher explains, the theory of second-order elections is at its weakest when dealing with high-visibility executive officials who have the salience to craft their own political identity separate from national parties agendas. I would add that the task of street-level implementation allows executives to buck the slogans and memes of national parties. Sandoval and Kasich have lots of chances to make their reputations and build coalitions beyond a handful of roll call votes: They have less to fear from primary loudmouths and echo chambers.

Whatever the reason, I raise a glass to anti-partisan federalism. As I have elsewhere argued, the trans-partisan tendency of high state officials should be cultivated. In an age of increasingly kitschy, vulgar, empty-calorie identity politics of Coast versus Interior, the governors and mayors can bring the public’s attention back to policy outcomes and compromise. In a reversal of the Wechsler thesis, state politics, thank Madison, can be safeguards of the national government.

Posted by Rick Hills on July 28, 2017 at 11:46 AM | Permalink | Comments (1)

Wednesday, July 26, 2017

Why the "Plain Statement Rule" for Statutory Interpretation is Normatively Justifiable But Practically Impossible

As Will Baude and Ryan Doerfler note in their elegant and provocative essay, the “plain statement rule” for statutory interpretation is a puzzling idea. The puzzle arises out of the PSR’s giving lexical but not absolute priority to text. Under the PSR, extra-textual sources are excluded from consideration some of the time but not all of the time. So long as text is “unambiguous” (or “plain”), the PSR excludes any consideration of extra-textual materials (e.g., statutory title, preamble, purpose, or legislative history. If the text is “ambiguous” (less than “plain”), however, then the courts can bring in all of that excluded stuff to resolve the ambiguous term’s meaning.

Baude and Doerfler note that such a rule of lexical priority contradicts common sense. If the extra-textual stuff is helpful, then we should always consider it. If it is pernicious (e.g., misleading, confusing, excessively costly to collect and construe, etc.), then we should always exclude it. They canvas some possible rationales for this partial priority for text, come up with a few candidates, but note that all of these possible justifications require a lot of normative and empirical assumptions that few proponents of the PSR bother to defend, Their bottom line: Fish or cut bait: Either exclude the allegedly pernicious extra-textual stuff even when text is ambiguous (deciding cases, I suppose, by arbitrary tie-breakers such as a coin toss), or, if one is a purposivist, bring in the extra-textual stuff without limit, balancing it against text’s probative value even when the text is “plain.”

As I say, their essay is elegant and provocative, and it does not detract from my admiration that I think Baude and Doerfler may have left out a possible justification for the PSR – viz., the idea that doctrines of statutory interpretation have conflicting procedural and substantive goals. As I suggest after the jump, Baude’s and Doerfler’s arguments are not good against this process-based justification for the PSR. Nevertheless, I think that their bottom line is likely correct, because the psychological acrobatics required from judges by the PSR likely exceed any process-based gains that the rule of lexical textual priority provides.

1. The Process-Based Argument for the PSR

Suppose that courts want to encourage legislators to express their purposes in semantically plain statutory text for process-based reasons. Judges might believe that, because such text undergoes the deliberation and transparent voting allegedly insured by the U.S. Constitution’s procedures in Article I, section 7, legislators who express their purposes through such text ought to be rewarded with a “PSR premium”: Any legislative goals expressed in semantically “plain” text automatically trump rival goals expressed extra-textually (e.g., in legislative history, statutory title, statutory purpose, and the like). Legislators that want their goals to prevail in the courts, therefore, have an incentive to use such semantically plain text over rival and more oblique methods of expressing legislative policies (through, for instance, committee reports, floor speeches, statutory titles, findings in a preamble, and so forth).

The value of procedural formalities in law-making, however, is not infinite. Sometimes it is just too costly for Congress to reach consensus about the exact wording of statutory commands. In such cases, the PSR gives legislators the option of side-stepping formal procedures by using ambiguous language the interpretation of which requires extra-textual sources that have never been properly ratified. Legislators who take this option abandon procedural formality and give up the PSR premium, but this sacrifice of procedural formality does not mean that there are no other values that the courts might reasonably seek to advance. Those other values might include capturing the likely intentions of the legislature. With ambiguous text, therefore, courts reasonably bring in rival values that would otherwise excluded by the judicial award of the PSR premium – i.e., automatic victory to plain text. Lexical but not absolute priority for plain text is thereby justified, QED.

2. Why Baude's and Doerfler's arguments Seem Ineffective (to me) Against the Process-based Justification for PSR

Baude’s and Doerfler’s essay considers a justification for the PSR analogous to the process-substance argument above. They note that the distinction between plain and ambiguous text could mark a trade-off between accuracy in capturing legislative intent and predictability in the law’s application. Plain text might not accurately capture legislative intent, but such text’s interpretation is so easy for regulated persons to predict that courts should enforce the plain letter over the more accurate spirit. As text becomes murkier, the value of providing clear guidance to regulated parties is no longer advanced by sticking with text alone, so courts reasonably focus on capturing the rival value of accurate legislative intent through extra-textual sources.

Baude and Doerfler are, however, skeptical about this “trade-off-between-rival-values” justification for the PSR, because the threshold between “plain” and ambiguous text is not itself so very plain. Ambiguity is the most ambiguous of concepts: The lexical priority of text can be turned off and on like a spigot by judges who simply declare by fiat that text is, or is not, “plain.” Thus, the PSR provides very little benefit for, and is therefore hard to justify by, the value of legal predictability to the consumers of law.

Conceding that Baude and Doerfler have knocked over a scarier-than-a-scarecrow argument, I nevertheless think that their rebuttal of the predictability-accuracy justification does not lay a glove on the process-substance justification. Even if the line between plain and ambiguous text is unpredictable, that line can provide an incentive for legislators to use plain(er) text. The value of the PSR premium will be discounted by the probability that courts will declare the text to be insufficiently “plain,” but a discounted prize can still be a big incentive for costly behavior (as any lottery ticket buyer can tell you).

3. Why Courts Do Not and Should Not Follow a PSR

So is the PSR defensible? I doubt it. The problem is that judges cannot really apply the PSR, because there is no effective system in place for insulating a textually minded judge from knowledge about a statute’s likely policy purposes. In making that threshold decision about whether text is plain enough to award that PSR premium, therefore, judges inevitably think about whether the text makes good policy sense. As Baude and Doerfler incisively note, “a court’s perception of what Congress is trying to say depends in large part on that court’s understanding of what Congress is trying to do.” Because lawyers make their arguments in the alternative, information about extra-textual stuff will always be available to a judge pretending to apply the PSR. The judge can adjust their finding of clarity or ambiguity based on her assessment of that extra-textual stuff without ever departing from the formal lexical priority of text. In their actions if not in their official justifications, therefore, courts evaluate textual clarity on a sliding scale, balancing it against the bad policy consequences that the allegedly plain text would inflict. (As Abbe Gluck notes, King v. Burwell has become the classic illustration of this sliding scale in finding ambiguity).

We have, in short, a Potemkin PSR. As Farnsworth, Guzior, and Malani note, the ambiguity of ambiguity insures that this PSR is likely honored in judicial boilerplate but not actual case outcomes. That does not mean that courts do not reward lawmakers for putting their preferred policies into statutory language. It means only that this reward is discounted by the court’s perception that those clearly expressed policies are not plausibly supported by extra-textual common sense.

In other words, we never really have had any PSR: We have always had an ill-defined presumption in favor of policies “clearly” baked into statutory text, a presumption that is always subject to challenge with extra-textual sources used sureptitiously to undrmine the text's clarity. But do not mourn the PSR: By providing such a well-written and creative dissection of this oft-cited and rarely followed "rule," Baude and Doerfler have helped us see why the its non-existence is likely a good thing.

Posted by Rick Hills on July 26, 2017 at 05:41 PM | Permalink | Comments (2)

Tuesday, July 25, 2017

Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?

In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.  

Supreme Court precedent is not entirely clear on how non-constitutional privacy protections should inform the scope of Fourth Amendment rights, and commentators have debated the issue. Under the “positive law model” proposed by Will Baude and James Stern, a Fourth Amendment “search” or “seizure” generally occurs if (and only if) the government takes an action that would be illegal if performed by a similarly situated private party. I have argued against that approach but suggested a related idea that I call the “positive law floor,” which holds that when nationwide privacy laws guard against intrusions by private parties, similar intrusions by the government should be presumptively unreasonable. Finally, Orin Kerr has argued against any doctrinal link between statutory privacy law and Fourth Amendment protection, whether as a ceiling or a floor.

This debate is particularly relevant to Carpenter because of the Wireless Communication and Public Safety Act of 1999 (WCPSA), which Susan Freiwald recently brought to my attention. Congress has provided that “[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.” 47 U.S.C. § 222(a); § 222(c). And the WCPSA defined “customer proprietary network information” to include “information that relates to the … location … of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” § 222(h). The WCPSA also established a special "express" consent requirement specifically for disclosure of customer location information. § 222(f).

There are certain statutory exceptions to these protections, see § 222(c) & (d), but the only one that seems applicable in Carpenter is a general reference to disclosure “as required by law.” In several cases, the government has argued that that exception allows for disclosure orders like the one in Carpenter. See 2012 WL 604860 at 29-30 (discussing 18 U.S.C. § 2703). But that kind of government-only exception is precisely what triggers the positive law model or floor: the point of those approaches is to provide a constitutional check on the government’s access to information that is denied to similarly situated private parties.

Further, the WCPSA is linked to a cause of action for individuals. See 47 U.S.C. § 207. That provision is important because government exceptionalism may not be enough to secure protection under the positive law model or floor: in addition to violating laws applicable to similarly situated private parties, the government may have to violate a personal legal right of the defendant himself. By treating locational information as a customer’s “proprietary information” and affording customers a cause of action, Congress seems to have signaled that the defendant did indeed have a personal right to locational privacy. 

This line of reasoning has come up before. In 2010, for instance, Judge Stephen Smith wrote an opinion that advanced a version of the argument outlined above; but that view was rejected on appeal in 2013, as critically discussed in this HLR comment. In that case, the United States argued in part (see 2012 WL 604860 at 30, also cited above) that treating the WCPSA as legislative evidence of reasonable privacy expectations would contradict Smith v. Maryland:

47 U.S.C. § 222(c)(1) protects not only cell phone location information; it protects all “individually identifiable customer propriety network information,” which includes dialed phone numbers. Thus, the Magistrate Judge Opinion’s reasoning suggests that even use of a traditional telephone pen register could violate the Fourth Amendment, as dialed telephone numbers are also protected by § 222. This result is inconsistent with Smith v. Maryland, and it should be rejected.

Readers who think Smith was wrong may not be troubled by that argument. In any event, a statutory exception applies to disclosures “to protect users … from … abusive, or unlawful use of … such services,” § 222(d), and the pen register in Smith arguably fit this exception, since it recorded threatening calls. So it’s not clear that reliance on the WCPSA in Carpenter would be inconsistent with the result in Smith.

But perhaps other provisions of positive law aid the government. In addition to authorizing disclosure orders under Section 2703, the Stored Communications Act (SCA) separately provides that covered providers “may divulge” non-content subscriber information “to any person other than a governmental entity.” 18 USC § 2702(c). However, that provision can be read as an “exception[ ]” only to liability under the SCA, rather than an all-encompassing permission to disclose customer information. And the WCPSA could be viewed as more specific in speaking directly to locational information.

Now, even if arguments from the positive law were accepted, they would not determine whether the government’s disclosure order under Section 2703(d) satisfied the Fourth Amendment’s bar on “unreasonable” searches. But it would be a major advance to set aside the third-party doctrine as applied to cell-site locational information. After doing so, the Court itself could conclusively address the issue of reasonableness, or it could invite further engagement by lower courts and the political branches. And the Court would also have opened the door to similar uses of the positive law in other contexts, such as healthcare or banking records.

The WCPSA argument may not ultimately prevail, and it may encounter challenges other than the ones that I (and the United States in prior cases) flagged above. But because the issue seems to warrant greater attention, I wanted to draw attention to it here. 

Posted by Richard M. Re on July 25, 2017 at 09:30 AM | Permalink | Comments (0)

Monday, July 24, 2017

Inazu responds to Horwitz's review of "Confident Pluralism"

A few days ago, Paul posted his review - "Positive Pluralism Now" (U. of Chicago Law Review) -- of Prof. John Inazu's still-recent book, Confident Pluralism.  What follows is a guest-post response, by John, to that review:

Is Pluralism a Good Thing? 

Paul Horwitz has written a thoughtful and engaging review of my book, Confident Pluralism, for the University of Chicago Law Review.  Paul is an ideal interlocutor, having written widely about pluralism and the First Amendment.  I have a few comments in response, most of which have to do with his definition of pluralism. 

Paul notes that the term “pluralism” is “susceptible of multiple understandings—and to one big distinction: between pluralism as purely descriptive and pluralism as a good in itself.”  I tend to think of the “big distinction” somewhat differently: there is pluralism as a fact of the world (let’s call this Definition 1) and there is pluralism as a political response to that fact of the world (let’s call this Definition 2).  One can have normative views (positive or negative) about either of these meanings of pluralism. . . .

[More after the jump]

Paul calls himself a “positive pluralist” and suggests that positive pluralists seek “a shift away from thinking about pluralism as a fact to be managed . . . and toward a view of pluralism as a positive value and a good in itself.”  He suggests that I may be, or at least should be, a fellow traveler.   But I’m not so sure, in part because I’m unclear about what Paul means by pluralism being “a good in itself.”

Let’s start with Definition 1.  If positive pluralists view pluralism as a fact of the world as a “good in itself,” then I am not a positive pluralist.  As I write in the introduction to Confident Pluralism:

Not all of our differences are problematic. Most of us think some difference is good, that this variety of perspective makes life more interesting. I think the world is a better place because I pull for the Duke Blue Devils and some of my friends cheer for lesser basketball teams. March Madness would be less interesting if everybody liked Duke and nobody cheered against them. We might reach a similar conclusion about beauty, taste, and humor. Some of these differences enrich our lives. Some of them lead to sharper thinking and greater creativity.

On the other hand, most of us do not think that all difference is good. We can all name things that we think the world would be better off without. This is especially true when it comes to our moral beliefs. We might prefer a society in which everyone agreed about what counts as a justifiable homicide, a mean temperament, or a good life. To complicate matters, we also disagree over the nature of our disagreements, and over how much disagreement is a good thing. Moreover, at least some of our most important beliefs cannot be reconciled with one another. It cannot be the case that the act of abortion is both morally acceptable and morally intolerable. It cannot be the case that God exists and that God does not exist. And these differences matter far more than basketball allegiances.

My normative views about Definition 1 also come through in my characterizations of tolerance (which “does not impose the fiction that all ideas are equally valid or morally harmless”) and humility (which “should not be mistaken for relativism” and “leaves open the possibility that there is right and wrong and good and evil”) (pp. 88-89). 

Here’s another way to make the point: I would be perfectly content if everyone in the world were persuaded to share my views of right and wrong, good and evil, and ultimate things.  That doesn’t mean that I think everyone should hold all of my views about everything.  As I mentioned above, I think that some beliefs and preferences do not implicate morally significant questions.  And on some morally significant questions, I lack the information or wisdom to have reached a view with confidence.  But there are at least some questions about which I think I hold the correct view, enough to orient my life around the implications that follow from that view.  Because I believe the correct answers to these questions matter a great deal, and that they matter ultimately for everyone, I do not think that different views about them is a good thing.  In other words, at least with respect to many of our differences, I think Definition 1 is normatively bad—the fact of our deep differences is indeed a “problem to be managed,” rather than a “good in itself.” 

Let’s turn to Definition 2, which is pluralism as a political response to the fact of our differences.  More specifically, Definition 2 is a set of political arrangements that maximizes our ability to live peacefully given the fact of our deep differences.  Paul suggests that positive pluralists should be “forthright about advocating pluralism for its own sake, rather than as a kind of conflict resolution device.”  If this is right, then I am not a positive pluralist under Definition 2, either.  Pluralism “for its own sake” sounds like a positive pluralist would find Definition 2 intrinsically valuable.  My view is that Definition 2 is instrumentally valuable as what Paul calls “a kind of conflict resolution device” (or more precisely, conflict management, or conflict mitigation).     

One reason that I find instrumental value to Definition 2 is that I doubt we will overcome our deep differences short of transcendent intervention.  And left to our own devices, the method of engagement across difference matters to me.  Like many people, I prefer persuasion over coercion, even if that preference decreases the short-term likelihood of reducing the aspects of Definition 1 that I think are normatively bad.  And I am generally wary of state power, based both on my own family’s history (to which Paul alludes in his review) and the influence of intellectual mentors, including the theologian Stanley Hauerwas (whose connections to the law I explore in this volume of Law & Contemporary Problems).

Note that both the positive pluralist and I can view Definition 2 pluralism as normatively good.  For example, Paul writes that positive pluralists of an earlier era “saw smaller groups and institutions within the nation as having a value of their own, rather than wanting to set universal rules that would had a final victory to one side or the other.”  And he suggests that positive pluralism “moves away from . . . an overly state-centered approach to our social and political structures” and encourages “the possibility that the ‘official’ legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.”  I think that both of these political arrangements are instrumentally valuable insofar as I believe that both of them facilitate our ability to live together across our deep differences.  But I would not characterize either as “a good in itself.”  I advocate for strong protections for the private groups of civil society, but not because I think the diversity of beliefs and practices represented in those groups is a good thing.  To the contrary, I think some of the private groups of civil society are terrible, and I think the world would be better off without them.  But I also think we need something like confident pluralism as a kind of mutual nonaggression pact.  I’m worried about the people in power, whoever they are, and whether they are closer to “my side” or “the other side.”  And I think a great strength of our country has been its capacity to check the people in power and work to persuade rather than coerce those with whom we disagree.   That doesn’t mean we always get it right.  Like Paul, I recognize that Definition 2 pluralism has at times been abused in the course of the American political experiment.  But I prefer it to other political alternatives.

There’s much more to Paul’s review, and I encourage you to read the whole thing.

Posted by Rick Garnett on July 24, 2017 at 11:51 PM in Rick Garnett | Permalink | Comments (3)

Saturday, July 22, 2017

Update on late-game fouling and the "Elam Ending"

In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.

Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (11)

CFP: National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan ([email protected]). For logistical questions or to register for the conference, please contact Bernadette Wilkinson ([email protected]). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Register here.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Howard Wasserman on July 22, 2017 at 11:19 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sponsored Post: Introducing students to legal research

The following post is by Robert C. Berring, Jr. (Berkeley) and is sponsored by West Academic

The first-year law student encounters a daunting task. If she did not spend a few years working as a legal assistant or did not grow up in a family of talkative lawyers, she will be at sea. Where does one begin to approach the legal system? In the common law courses the student is expected to work with the judicial system and its complex authority structure from day one. Civil Procedure calls upon an understanding of statutory sources. Research and Writing classes help, but their task is equally challenging. Mostly focused on writing, such courses may include a lecture or two on the workings of the system, but things move fast and such courses can hardly be expected to start from the very beginning. Much like someone who arrives late for a movie, our neophyte law student seems to be missing some plot points. Of course, she can pick things up as she goes, but it is a waste of precious student and professor time.

If you want your students to do some research as part of your course, but you don't have time to teach them the basics, our new book and videos, The Legal Research Survival Manual with Video Modules, 2d can help get your students off to a good start. The new student needs a simple, straight-forward explanation of how the system works. If she understands the structure of the court system, how a judicial opinion is written, how to check the authority of that opinion, how a statute becomes law and how secondary sources work, she stands a fighting chance of putting the bits and pieces of casebook opinions and statutes together into something more coherent.

This information is the spinach of legal education. Good for one but well, it can be boring. The answer is a tool that presents the essential information in a form that stands a chance of being read and watched by a student in the second decade of the century. It has to be short, glib and to the point. That led us to create a short, readable book accompanied by short, pithy streamed lectures.

Posted by Howard Wasserman on July 22, 2017 at 11:15 AM | Permalink | Comments (0)

Friday, July 21, 2017

Hiring Committees 2017-2018

Please share in the comments the following information related to the 2017-2018 law school faculty hiring season:

(a) your school;
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or
(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 21, 2017 at 02:35 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (64)

Thursday, July 20, 2017

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public.  It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day.  Not so anymore.  Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times.  And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements.  Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority.  When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion.  And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted.  Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements.  I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation.  I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule.  (I personally find those sorts of opinions a little tedious and somewhat presumptuous.)  But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty.  It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us.  Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite.  But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes.  The law professors that I admire the most are those who have changed their minds.  For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others.  Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement.   I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive.  It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post.  Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way.  A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions.  In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences.  This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable.  That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions. 

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.)  But we should assume that our colleagues are smart enough and honest enough to have done this themselves.  And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions.  I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

Posted by Carissa Byrne Hessick on July 20, 2017 at 09:12 AM in Blogging, Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink | Comments (2)

Wednesday, July 19, 2017

The lawyer, the addict, and the law professors

What did people think about The Lawyer, the Addict in last weekend's New York Times? The piece was written by the ex-wife of a lawyer who died of an overdose; in investigating her husband's drug use and death, the author found a legal profession with high rates of substance abuse.

For now, I want to focus on one small section of the piece, sub-titled "The Law School Effect," which suggests that law school is part of the problem. Prior to law school, future law students are healthier than the general population--they drink less, use less drugs, have less depression, and are less hostile; they also begin with a stronger sense of self and values. Then it all changes in law school, which "twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility." Following the start of law school, students show "a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction."

The piece points to a few factors. One is the way law school encourages students to remove emotions from their decisions. Another is the focus, and the shift in student focus, to status, comparative worth and competition, looking at things such as grades, honors, and potential career income, and away from the idealism that had motivated them to come to law school. The result is that young lawyers succumb to substance abuse when "the reality of working as a lawyer does not match what they had pictured while in law school."

I focus on this because it is the one part of this I might affect in my professional life. But I wonder what we as law professors can or should do about this. Start with the three big things mentioned in the article:

   • I am not sure law school encourages students to remove emotion from their decisions as much as to learn that emotion cannot be the basis for the decision. I like when students feel passionately about something. The problem--and the thing law school must teach--is that the whole of the analysis cannot be emotion and emotion cannot get in the way of everything else; they must move past emotion and go where the law does, can, or should lead, which is what I think law school tries to do. I also believe many professors and courses try to get students to think not only descriptively but also prescriptively about what the law should be or about how they would counsel a client to behave. But if it is all emotion--this is how I feel it should be--we are doing cable news or Twitter, not law.

   • Is law school more focused on grades, honors, and career income than other professional schools? Also, is this focus coming from law schools or from the profession? And, in any event, what can we do about it? Students go to law school to get jobs as lawyers--a central criticism of legal education is that we are producing too many lawyers who will not get jobs (or at least not good jobs) as lawyers. So career focus seems seems built into the education process. As to grades and honors, those are the signals that the job market uses in giving out jobs as lawyers. I suppose it would be nice not to give grades (grading is every prof's least-favorite part of the job), but that obviously is not happening. Students are aware of the import of grades and honors because they know they are the keys to getting jobs. At least within the curriculum, most professors are focused on students learning the subject rather than getting good grades, although the two ideally run together.

   • Loss of idealism is inevitable and, by definition, unrealistic. This is not unique to law or law school. (The author's ex-husband worked  as a chemist before law school, but found the work tedious--I imagine it departed from what he expected when he went to grad school for chemistry). Loss of idealism seems akin to the removal of emotion--idealism should not be eliminated, but it cannot control the game. We live, and will practice law in, the real world.

Another obvious factor, not mentioned in the article, is that law school is a lot of work--a lot of reading, a lot of preparation, and a lot of assignments going on at once. And it is not structured passively, with students sitting and listening to us lecture, so it is difficult to just skate by (at least in first year). Again, however, so is legal practice. Even if one wants to argue that the traditional law school classroom is ineffective and should be replaced by other methods, those other methods still require to read and be prepared for class, so the amount of work and preparation does not change. And, again, is law school more work than med school, engineering school, etc.?

So what can law schools and legal education do to not be a gateway that, by its nature and structure, starts students into this potential danger (according to the article)? (In answering, we must assume no changes to the legal profession or what life is like for practicing lawyers--law schools cannot make unilateral changes that would create more of a disconnect between education and the profession).

Posted by Howard Wasserman on July 19, 2017 at 12:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (33)

JOTWELL: Lahav on Kessler on the rise of legal adversarialism

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.

Posted by Howard Wasserman on July 19, 2017 at 11:11 AM in Article Spotlight | Permalink | Comments (0)

Sunday, July 16, 2017

Firearms, Federalism, and Full Faith & Credit: Can Congress subject everyone to the "concealed carry" laws of gun-lovin' states?

Those of you who pay attention to the politics of firearms might be familiar with either H.R. 38 or S.146, the House and Senate versions respectively of the Concealed Carry Reciprocity Act of 2017. If you are a federalism nerd (I plead guilty), then you might also be familiar with the Full Faith & Credit argument in favor of this bill, a theory championed by Stephen Sachs, Randy Barnett, and Will Baude, based on Stephen Sachs' erudite and creative Virginia Law Review piece analyzing the history of Article IV's FF&C clause in the pre-constitutional period, the ratification debates, and the congressional debates of the early republic.

You might not, however, have thought very much about whether or not either the CCRA or Sachs' Theory of Congress' Article IV, section 1 power present any practically sensible theory of federalism. Should Congress have unlimited power to declare that any state's laws, licenses, permits, and so forth, can govern conduct in other states? If not, then how should the Constitution limit Congress's power to define the effects of one's state's rules and actions in other states? Outside of DOMA (where the issue had its fifteen minutes of law review fame), the practical justifications for Congress' Article IV power has not been discussed much by law reviews or judicial decisions, simply because Congress rarely uses its Article IV power.

We should, therefore, be thankful for both CCRA and Sachs for giving us a great opportunity to think about this perplexing issue. After the jump, I will offer my reasons for thinking that, at least as used to justify the Concealed Carry Reciprocity Act, Sachs' theory is not a very persuasive way to keep Congress' powers within reasonable bounds. The problem springs from what I take to be a more general problem with originalism (whether the "New" textualist version of Solum & Co. or the older more intentionalist variety): The focus on very specific semantic or historical sources does not leave much room for explaining why the theories it unearths make any pragmatic sense. Sachs' theory (if I am reading it correctly) seems to give Congress virtually unlimited power to declare the substantive "effect" of states' "public acts, records, and judicial proceedings" in other states. By allowing Congress (for instance) to export libertarian "concealed carry" rules to (for instance) New York City, Sachs' view of Article IV would destroy any meaningful limits on Congress' power to impose a single, uniform law on the nation, even w.r.t. areas like criminal law where the needs for subnational diversity would seem to be obvious. It is impossible for me to imagine why the U.S. Constitution's framers and ratifiers who were deeply skeptical of national power would adopt such a view -- but, even if my imagination were better, it is absurd to think that we should live under such a preposterously centralized regime without a thought about the practicalities of such rules for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.

1. What does the Concealed Carry Reciprocity Act of 2017 provide?

As an entry point into the practical problems with Sachs' theory, it is useful to start with the Concealed Carry Reciprocity Act, becauuse the CCRA provides a good illustration of senseless centralization. The CCRA provides that anyone is entitled to carry a concealed handgun in any state that authorizes any sort of "concealed carry" permit if such a person either (1) has a "concealed carry" permit from any other state or (2)"is entitled to carry a concealed firearm in the State in which the person resides." Thus, a resident of a libertarian state that hands out "concealed carry" permits with minimal oversight is entitled by the CCRA to carry their concealed handgun into a state that heavily regulates "concealed carry" permits, allowing such permits only under very limited circumstances. In effect, such a migrant would not only carry a gun with them wherever they traveled but also their domicile state's gun laws as well.

2. Why is the rule of the CCRA ridiculous?

Pause for a moment to imagine the strangeness of such a choice-of-law regime. Two people carry identical handguns into Times Square. One person is from Texas, where oversight of concealed firearms is minimal. The other is a New York resident, where the right to a "concealed carry" permit is much more restricted. Under the CCRA, the Texan would be absolved of the normal duty to comply with the penal laws of the territory where she is present: She would carry Texas's libertarian regime with her like a little personal rain cloud floating over her head. The New Yorker would still have to obey New York law. In effect, two sets of criminal laws would vie with each other on precisely the same street corner. The NYPD could collar their own resident for illegal possession but would have to let the Texan go.

3. What's the Article IV, section 1 argument that Congress can export any state's rules to all other states in the name of "full faith and credit"?

To justify this congressional power to export one state's legal regime into the territory of another, Sachs, Baude, and Barnett rely on Article IV, section 1, which confers on Congress the power to "prescribe the manner in which [other states' public] acts, records, and proceedings shall be proved, and the effect thereof." Apparently, they take the position that Congress has pretty much unlimited power to define what "effect" one state's laws should have in the territory of another. Their suggested statutory language, for instance, seems to endorse the view that Congress can require one state to give full faith and credit not merely to a "concealed carry" permit issued by another state but also to the "public acts" of other states. Suppose, for instance, that I travel to NYC from a "constitutional carry" state like West Virginia where individuals have the right to carry a concealed firearm if they have the right to bear arms, hidden or overt, at all. Even though I have no specific permit with my name on it authorizing me to bear any weapon, my West Virginia driver's license suffices to allow me to defy NYC's rules on concealed carry.

This sort of logic goes far beyond gun permits. If Congress really has an Article IV power to authorize any person to export their state's libertarian regime to other states, then Congress could decree that a Texan could move to NYC from Houston (where there is no zoning) and demand that the New York City Planning Commission give "full faith and credit" to her Texas property rights, which allow a skyscraper to be built anywhere permitted by covenants and nuisance law. Congress could likewise confer on Nevadans the right to hire prostitutes in Mississippi or give Coloradans the right to toke up a blunt on the streets of a village in Alabama.

Did the framers of Article IV, section 1 really believe that Congress could confer any effect whatsoever on the "public acts" of one state in the territory of all the others? So far as I can tell, Sachs', Baude's, and Barnett's position contains no limit on Congress to avoid such absurdities. To be fair, Sachs' article (at page 1207, note 27) expressly (and wisely) disclaims any view about Congress' power to require each state to enforce the "public acts" (meaning statutes) of other states: Sachs is focused only on "records" and "judgments." Sachs', Baude's, and Barnett's letter does not contain any such limit. If one is a textualist invested in "original public meaning," however, it is difficult to explain any distinction between Congress' power to define the effects of a permit and the effects of a statute: Both are just nouns in the same sentence of Article IV, section 1. Moreover, putting the text to one side, it is not obvious why it makes any sense to give more extra-territorial effect to a permit than to a statute. Suppose that a state automatically hands out "concealed carry" permits to anyone who has reached the age of 18 and is otherwise eligible to bear arms. Why should this bit of individualized paper be entitled to more legal weight in another state than a general statute enforcing a "constitutional carry" regime without requiring individual permits?

4. Does Sachs', Baude's and Barnett's view make any functional sense?

From my decentralization-loving perspective, Sachs, Baude, and Barnett have announced a congressional power that seems senseless from any functional point of view. Most criminal laws follow the choice-of-law rule of lex delicti because the harm against which they protect is territorial. For that reason, the SCOTUS has long held that each state is normally free to enforce its own laws in its own courts if the underlying conduct bears some substantial connection to that state's citizens or territory. The idea that the criminal (or zoning, or liquor, or other regulatory) measures of one state should be given extra-territorial reach into the territory of another state is so absurd that no one has bothered defending such a view -- at least, not until Sachs, Baude, and Barnett wrote their letter to Representatives Amash, Hudson, and Gowdy.

If the text of the Constitution were crystal-clear that Congress had such an utterly unlimited power, then I guess I would swallow hard and enforce the letter of the law. Absent such a plain statement, however, I am inclined to abandon formalism and ask whether any sensible framer would ever dream of conferring such a power on any national legislature. Given its originalist and historicist commitments, there is not a word about such practical considerations in Sachs' article. Instead, Sachs gives us a really interesting narrative about how politicians and lawyers thought about Mills v. Duryee between 1813 and 1822.

Don't get me wrong: I have an antiquarian lawyer's love for this stuff. Sachs' article is a fascinating read. But I cannot imagine any republic (except, perhaps, a republic consisting solely of law profs and historians) consenting to being governed by such arcana, when the practical consequences of the congressional power that is apparently being defended are so odd. Surely there ought to be a page or two spared for the question, "does Congress' power to prescribe the effects of each state's 'acts' have any limits consistent with some sort of functionally defensible theory?"

Posted by Rick Hills on July 16, 2017 at 08:35 PM | Permalink | Comments (30)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a "state-related" university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania's state-related schools do not enjoy Eleventh Amendment immunity.

This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes--that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.

I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by--you guess it--the former football coach. Haywood included three claims--two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university's status for § 1332 purposes.

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

"Positive Pluralism Now": A Review of John Inazu's "Confident Pluralism"

I'm grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu's fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable "list". What's more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election. 

First, although this is a critical review of John's book, it's not a dismissive one. I write: 

If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book. 

What I find especially important about the book is

the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.

Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be "managed" as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:

I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.

That said, I have two questions or criticisms about the book, one specific to John's project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue--against my own intuitions and desires, to be sure--that "pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself." On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors' books, John's book has received a wide, enthusiastic, and eager reception--although one may worry that it has reached only the kind of "reasonable" audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the "confident pluralism" he describes.

The second question, one that in fairness was beyond his doing, is one of timing. I write:

From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .


A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call "one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump." Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu's book might be now, it is less likely to find ready takers:

Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.

There is a lot in the review about culture wars, "political correctness" (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the "meaning" (if any) of Trump's election, and the (short-lived?) recommendation to abandon "defensive crouch liberal constitutionalism." There are very few answers. I hope some of you read it and even enjoy it--and I hope many more of you take a look at John's excellent book.





Posted by Paul Horwitz on July 11, 2017 at 09:25 AM in Paul Horwitz | Permalink | Comments (3)

Horwitz & Smith on accommodation, pluralism, religion, and disagreement

Two new (to me!) papers to read this morning:  Here is Paul Horwitz reviewing John Inazu's recent bookConfident Pluralism, and here is Steve Smith's contribution -- "Against Civil Rights Simplism:  How Not to Accommodate Competing Legal Commitments" -- to a conference at Yale last January.

Posted by Rick Garnett on July 11, 2017 at 07:58 AM in Rick Garnett | Permalink | Comments (0)

Monday, July 10, 2017

Posner on Aging Judges: Again Much More Right Than Wrong

Between more productive uses of my time, I'm hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark's best posts, I consider it interesting, provocative, and well worth reading-- even or especially if I disagree with it, as I do in this case. 

For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: "I believe there should be mandatory retirement for all judges at a fixed age, probably 80." (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly "taken aback" by Posner's musings, so much so that he uses the fierce ejaculation "Jeepers."

A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline--a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as "taboo." That's trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner's comments in the dialogue has suggested that Posner's comments reinforce his point about the need for mandatory retirement. 

I note my own previous questions about Posner's aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges "have served with great distinction into their 80s." He writes: "I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, 'The life of the law has not been logic: it has been experience.'" He asserts that "in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty." And he winds things up with this: "I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined." 

With all due respect to Rakoff, these statements are classic examples of what Posner likes to call "Law Day rhetoric"--the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers' vital importance . It's not that there's nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don't tell us much about either. I would much rather live in a society with whatever "the rule of law" is than in one without it. But I'm not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right. 

1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff  gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn't show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn't prove that this is effective and sufficient, and doesn't distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.  

2) The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they "gain a broader perspective" with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of "perspective" and, to use the word from Holmes that he quotes, "experience" over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it's a pretty privileged and princely cloister. It didn't take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called "Your Honor" by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn't even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually "see the woods instead of the trees" is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it's especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That's a recipe for hubris and judicial overreach, not "perspective." (Perhaps unfairly after that sentence, I note that Rakoff's relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)  

3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff's generalization about lawyers being "in the forefront of confronting despots and promoting liberty" might best be viewed in that light. Posner responds, "I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous." Preposterous? I don't know. Almost certainly vastly overstated? Definitely. And Rakoff's peroration about "a love of the law and a love of liberty" tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.

Posner has drawn the most heat for this statement in the dialogue: "It’s not true that . . . a decision must be supported by 'reason,' whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to 'reason.'" I don't know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual "reasons." I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue--especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner's work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for "reason" into idolatry, to  think the "reasons" themselves do or mean more than they actually do, and to treat "reasons" as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical "reasons" are not necessarily reasonable.) 

Given that I've criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong  to ask such questions, I'm happy to find him in such excellent form in this dialogue. 

* As a side note, Posner was slated (so to speak) to be part of Slate's Supreme Court Breakfast Table this year, at least according to the first post. Unless I've missed it, I don't think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the "Table," I was sorely disappointed by his absence. 

Posted by Paul Horwitz on July 10, 2017 at 12:11 PM in Paul Horwitz | Permalink | Comments (15)

Symposium Conclusion: SCOTUS OT 2016

Thanks to all our June/early-July guests for their participation in the End-of-Term Symposium.  I hope to make this an annual event, especially as future Terms prove less quiet and undramatic.

All complete posts (in reverse chronological order) can be found here.

Posted by Howard Wasserman on July 10, 2017 at 09:31 AM in 2018 End of Term | Permalink | Comments (0)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, July 06, 2017

Why would a mayor abdicate his own city's powers?

If you are a NYC resident with an interest in local politics, then you know that the City tends to be hamstrung by the tendency of state judges to take an oddly narrow view of the City's legal powers that contradicts sensible readings of state law. Even odder, City leaders themselves sometimes take the view that state law leaves them powerless to act even when the text of the relevant state statutes flatly contradicts such claims of impotence.

Mayor de Blasio's unilaterally surrendering the City's power over its own roads and bridges Provides a case in point. Five years ago, I pushed the idea that New York City had authority under existing state statutes to toll its own bridges and roads as a means of reducing traffic congestion and funding mass transit. The argument is summarized in this op-ed in Crain's by myself, Fritz Schwarz, and Eric Lane: To summarize, the state legislature enacted what is now codified as section 1642(a)(4) of the state's Vehicle & Traffic Law (VTL) in 1957 conferring power on the City the power to "charg[e] tolls, taxes, fees, licenses or permits for the use of the highway or any of its parts, where the imposition thereof is authorized by law." The term "law" here can only be sensibly construed as meaning "either state or local law": Any other reading of the statute turns into into a meaningless tautology providing that state law authorizes tolls when state law authorizes tolls. Moreover, the historical context of the '57 statute indicates that it was enacted in response to a Blue-Ribbon Commission's urging that the City's revenue powers be increased to save the City's transit system. My view of the law has been endorsed not only by Fritz Schwarz (who chaired the charter commission responsible for drafting the City's current form of government) and Eric Lane (who was that commission's director and counsel) but also Richard Briffault (Columbia Law School), Clay Gillette (NYU), and Nestor Davidson (Fordham), all experts in local government law. (You can read the Memo laying out the argument in tedious detail that these luminaries endorsed here).

Yet Mayor de Blasio's Administration adamantly asserts that the City lacks the legal power to toll its bridges as a reason to refuse to study congestion fees. As I argue after the jump, the apparent politics behind a mayor's unilateral surrender of his own city's legal powers suggests that paper law, however plain, is insufficient to overcome a legal and political culture destructive to city home rule.

Consider three reasons why mayors might adopt positions that practically abdicate legal powers of their own city.
1. Political cover: De Blasio does not especially want to deal with congestion fees. Although Move NY's "home rule" plan has sensibly appealed to a wide array of interests, there are always interests on the other side. Rather than being forced to choose, it is convenient for de Blasio to plead powerlessness. Ducking for the cover of city powerlessness is just a specific instance of Daryl Levinson's more general observation that, far from seeking to build empires, officials often want to avoid blame through inaction.

2. Choose the most inattentive master: In New York, the mayor of NYC can enjoy powers as an officer of the state even if the City lacks power as a chartered city. A case in point is the mayor's control of city schools -- a power drawn from the state Education Law that bypasses City Council and other institutions in NYC's charter. The mayor might prefer to exercise state powers without being confined by city charter institutions, because state oversight might actually be weaker than Council oversight. After all, the state legislature is hampered by a bicameral structure, a governor, an Upstate agenda, and two political parties. By seeking authority through a special state statute courtesy of Albany, the mayor can strengthen his own executive power at the expense of the local legislature, the community boards, and other pesky overseers of mayoral power provided by the charter.

3. Choose the path of least resistance: If there is a general background norm of going to Albany to do anything unusual, then that norm can create expectations that are costly to defy, even when some specific law theoretically allows the City to defy them. Congestion fees are a case in point. I have been repeatedly asked by politicians and reporters why Mayor Bloomberg went to Albany for authorization to impose such fees if the City already had the power to enact a local congestion fee law under the existing VTL. Of course, lacking inside knowledge, I cannot answer the question definitively, but I can make an educated guess: Everyone expected Mayor Bloomberg to go to Albany, because the City generally always goes to Albany to do anything remotely novel. To resist the force of habit would be to be a bit of affront to Albany's leaders and risk having the state legislature repeal the very statutory authority on which the City could theoretically rely. That the state legislature enacted a statute permitting the City to act on its own back in 1957 might have done little to appease former Albany power brokers like former Assembly Speaker Sheldon Silver: That power had lain unused for a half-century, the occasion for its ratification and indeed its very existence long-forgotten. Especially since Bloomberg had reason to believe that he had the votes in Albany to get what he wanted, it made good political sense for the Bloomberg Administration to follow the well-worn path up north for a new statute regardless of what existing state statutes might say.

That rationale for following political habit rather than the actual law, however, has an unfortunate if inadvertent effect: It sends the implicit message that the mayor has conceded city powerlessness. That, at least, is the most common comment I have gotten from by journalists and politicians doubtful of the city's statutory power, even when such power is staring straight at them from the statute book.

In this way, the plain letter and spirit of actual law is overwhelmed by a conventional wisdom nonetheless powerful for having no defensible normative basis. It is the quasi-law of conventional wisdom that passes for the law in New York and plagues the City with gratuitous trips to placate politicos in Albany, even when the vast majority of affected people reside right here in the five boroughs. That it is nonsensical for city leaders to go hat in hand to beg assemblymen from Rochester and Cortland County for permission to toll a bridge that none of their constituents will ever cross does not matter. The blob of conventional wisdom, created by habit, political cowardice, or mayoral tactics obscures what the actual law really says.

Posted by Rick Hills on July 6, 2017 at 06:01 PM | Permalink | Comments (2)

What is "principled federalism"?

The Washington Post's "Daily 202" has an article praising Republican State Secretaries of State for their "principled" stance in resisting Chris Kobach's demand for voting data. "They are demonstrating ideological consistency in an era of rampant tribalism," gushed the article.

But are they? What exactly does it mean to be a principled federalist? The difficulty posed by this question is that "federalism," like "liberalism" or "conservatism," "equal protection" or "freedom of speech," is an essentially contested concept. There are many different conceptions of such concepts, each with a distinctive ideological spin. Federalism, for instance, comes in a "vote-with-your-feet" free-market promoting variety and a "cooperative federalism," grant-funded variety. The former is libertarian in requiring states to rely on own-source revenues; the latter tends more Left, supporting block grants and general revenue sharing.

Suppose state Republicans "consistently" resist demands for voter data because they generally distrust the feds when it comes to citizen privacy. (One sees a similar attitude of some Red States towards DHS's efforts to standardize drivers' licenses under the REAL ID Act). Suppose that the very same Republican politicians enthusiastically cooperate with the feds on enforcement of immigration laws, entering into section 287(g) agreements to assist DHS in deporting unlawfully present persons. Suppose that they even ban their cities from refusing to honor DHS detainer requests. Are those Republicans just on-again-off-again fairweather federalists, or are they "principled" adherents to a particular vision of federalism in which immigration is said to be an especially "national" issue but citizens' voting, a more "local" issue? Or suppose that a Republican demands that the subnational regulation of guns be limited by SCOTUS on the ground that the Second Amendment right to bear arms is a "national right" but supports the decentralization of abortion regulation on the ground that the Fourteenth Amendment's Due Process clause has nothing to say about abortion. Such a stance on decentralization can be given a general theoretical account (i.e., "the definition of 'national rights' is properly centralized"). Does such an account count as "principled" or "opportunist"?

Since no reasonable person supports the decentralization or centralization of all issues, principled politicians must always exercise some sort of selectivity about which issues are decentralized. So here are two non-rhetorical questions, with no post-jump theory providing you, gentle reader, with any guidance on any answer. (1) Given that every theory of federalism must be selective in what it decentralizes, how do we determine whether any particular theory of federalism's selection of decentralized issues is "principled" or not? (2) If one cannot answer (1), then should one simply dispense with "federalism" talk?

Posted by Rick Hills on July 6, 2017 at 01:21 PM | Permalink | Comments (4)

Wednesday, July 05, 2017

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.


For example, many arguments I’ve seen are openly prudential. They argue that upholding (or denying) jurisdiction in such-and-such a case would be a good policy idea, that it would make the legal system better rather than worse, that it would open courthouse doors to sympathetic plaintiffs or lift heavy burdens from sympathetic defendants. But the law does lots of things that are terrible policy ideas, in all sorts of ways: just think of the tax code. So it’s not clear why we should feel confident that any particular good idea would be the right answer on the law—or that any given bad idea is therefore the wrong answer on the law.

Other arguments root themselves in judicial doctrine: personal jurisdiction is present or not because the courts have so held, or because the best reconciliation of their past decisions would so hold, or (to be more Holmesian) because that’s what they’re most likely to hold in the future. On the most extreme account, personal jurisdiction is whatever the courts say it is, so it’s impossible for the courts to be wrong. But many people who deploy these arguments seem to use them to criticize judicial decisions—as if the courts have somehow made mistakes in predicting their own rulings. And even paying due respect to accumulated doctrine, what the courts seem to be saying here is that personal jurisdiction isn’t whatever they say it is: they keep rooting their jurisdictional holdings in other legal rules, with sources external to judicial doctrine alone.

Usually courts root their holdings in the Due Process Clause, ostensibly as generous here as elsewhere (“Turn it over, and turn it over, for all is therein”). But here, too, there’s little effort spent on identifying what counts as a good due-process argument—on what makes claims about jurisdiction-being-consistent-with-due-process true or false. It might involve the defendant’s burden, or the state’s legitimate interests, or fundamental fairness, or a political-theory concept like sovereignty, or history-and-tradition, or some complicated weighted sum of the above. (And over all of these looms the ghost of Pennoyer, which still casts its dark shadow over the U.S. Reports no matter how often academics declare that it was killed off, once and for all, by Insurance Corp. of Ireland or by International Shoe.)

Put another way, the same inattention to truthmakers that we see in con law debates shows up in personal jurisdiction too. This makes some sense, because personal jurisdiction is all about the scope of the powers exercised by various state or federal officials; that’s a topic in small-c constitutional law, whether or not it’s actually resolved by the contents of the U.S. Constitution. But it also explains some of the pathologies of personal-jurisdiction scholarship, because members of different schools will insist loudly on particular priors—the role of interstate federalism, the needs of plaintiffs, the apparently prophetic authority of von Mehren and Trautman—without trying to explain why other people ought to be convinced of them too, on grounds that they might share. There's no escape for civil procedure folks, who often imagine their field to be more rigorous and determinate than that of their con-law colleagues down the hall, from stating and defending their constitutional commitments.

The best way to understand the current confusion is probably to see where it came from. On my reading of the history, the phrase “due process of law” wasn’t supposed to enact substantive standards for jurisdiction—as opposed to a means of enforcing standards supplied by other sources, such as general and international law. Trying to squeeze detailed jurisdictional rules out of those four words is like trying to squeeze blood from a stone. So it shouldn’t surprise us that, after nearly a century of misattributing complex general- and international-law rules to a single phrase in the Constitution, we’d find our underlying jurisdictional principles hard to state or explain—much less to apply to new circumstances, or to ground in more general understandings of the law.

Likewise, it’s not surprising that standards derived from older doctrines of general and international law might prove somewhat awkward, from a policy perspective, in an era with more extensive cross-border activity. That’s why jurisdiction might be an area most properly addressed by statute. Looking to some future decision of the Court to sort everything out for us is a false hope: nine Justices and their clerks don’t have enough time to work out good policy solutions for all of America, and they also lack the legal authority to try. Congress may have the right to make certain kinds of arbitrary compromises, in pursuit of rough justice, that courts in our system don’t. Failing that, the courts will continue to muddle through. I wouldn’t call this pessimism, so much as appropriate caution about what judges and courts can properly achieve.

But it would help, in the meantime, if we who think and write about the subject were better about clarifying our terms, and about trying to argue with rather than against one another. If we think a result is bad policy, we should say that it’s bad policy. If we think that a holding is inconsistent with the deep principles of International Shoe, we should say that instead, and defend why those principles should matter to those who view them with indifference. And if we think that a particular decision is wrong on the law, we should be clear about what we mean by that, and on the sources of the legal rules that we invoke. Doing all this may not lead to consensus or agreement, at least not right away; but at least we’ll be talking about the same thing, which is the first step to understanding it.

Posted by Stephen Sachs on July 5, 2017 at 11:43 AM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Legal Theory | Permalink | Comments (3)

Sunday, July 02, 2017

Libertarians' self-defeating attacks on inclusionary zoning

Over at Market Urbanism, Emily Hamilton lays out the argument that inclusionary zoning violates SCOTUS's Nollan/Dolan standards for exactions. Hamilton has helped write an amicus brief submitted in 616 Croft Avenue v. City of West Hollywood, a case with a cert petition pending before SCOTUS. After the jump, I will explain why I believe that this brief has got the law wrong. But I am much less interested in legal doctrine and much more interested in how these sorts of attacks on inclusionary zoning can, as a matter of politics and economics, be a self-defeating policy if the ultimate goal is to loosen zoning restrictions.

Inclusionary zoning is the practice of demanding that developers rent some percentage of their housing units at below-markets rates as a condition for permitting the developer to build market-rate units. As Bob Ellickson noted thirty-five years ago, such demands can effectively reduce the supply of affordable housing, because those inclusionary requirements may cause developers to build fewer units of market-rate housing, thereby accelerating the upward "filtering" of existing housing (aka "gentrification"). Put simply, if developers do not build new luxury condos in New York City, then buyers who would otherwise bid on those condos will instead bid on existing brownstones, causing the latter's rents to rise even faster.

Using Nollan/Dolan to restrict inclusionary zoning, however, limits the bribes with which state and local governments can induce the neighbors to agree to loosen up zoning restrictions. Neighbors do not give up the limits of their zoning laws lightly. Inclusionary requirements give those local politicians a bit of political cover by making the link between market-rate and affordable housing more apparent. If Emily Hamilton's and her colleagues' brief succeeds in persuading the SCOTUS to apply a higher level of scrutiny to inclusionary requirements, the result will be that local governments will simply impose unconditionally restrictive zoning rules: Federal constitutional doctrine will have obstructed deals that actually made everyone better off relative to a baseline that federal takings doctrine does not affect -- the baseline of unconditionally restrictive zoning.

Why cannot libertarians see that these Nollan/Dolan attacks on inclusionary requirements undermine libertarian goals?

One reason may be an ideological commitment to challenging faulty economic reasoning. It may simply irk libertarians to read "nexus" studies purporting to show that the construction of market-rate housing will deplete the supply of affordable housing, because the former will attract wealthier people to the city. Such studies, typically thrown together by consulting firms like Keyser Marston, are treated with contempt by academic economists, and with good reason: They are rooted in a crude planning model that ignores new market-rate housing's "filtering effect" -- that is, the possibility that existing residents will move into new market-rate units, thereby opening up existing housing that otherwise would be occupied by newcomers. Even the California Legislative Analysts' Office, hardly a libertarian think-tank, has accepted the obvious point that new market-rate housing retards rather than accelerates gentrification. The contrary notion that market-rate development causes gentrification indeed seems just as silly as the idea that umbrellas cause rainstorms.

As a matter of land-use politics, however, this quest for judicial validation of sound economics is self-defeating. If cities must choose between unconditionally permitting new market-rate housing or unconditionally excluding it, then they are likely to choose the latter. Since Nollan/Dolan does nothing to restrict unconditional prohibitions on new housing, the effect of these lawsuits is simply to encourage such unconditional restrictions. Cities like Berkeley, San Francisco, Walnut Creek, and other hyper-restrictive jurisdictions will be delighted to shut down housing markets altogether with their absurdly restrictive limits on multi-family housing. Inclusionary requirements provide a bit of political cover for local politicians seeking to loosen the zoning envelope, Bar those conditions, and you likely leave housing markets even more regulated.For the sake of deregulation, then, I hope that the SCOTUS denies cert in 616 Croft Ave.

Putting aside practical politics, what about legal doctrine? The difficulty with applying Nollan/Dolan to $500k in fees imposed on Croft Ave's 11-unit condo development is that none of those fees looks like an unconstitutional condition. The California Supreme Court was likely correct California Building Industry Association v. San Jose to argue that Nollan/Dolan applies only to those conditions on construction that are plausibly unconstitutional takings if imposed unconditionally. Demands that developers rent units at below-market rates (or donate firetrucks, plop part, playground equipment, or even cold cash to the zoning authority) are not unconstitutional if imposed unconditionally, so making compliance with such demands a condition for getting a building permit likely falls outside of Nollan/Dolan's "rough proportionality" test. Of course, Koontz complicates the analysis, but Koontz's limit on monetary exactions is best read as limiting only fees that are the equivalent of a forced dedication of specific real estate. As I have argued elsewhere, any other reading would draw the federal courts into an intractable quagmire of policing land-use conditions that are the routine prices for new construction in the United States today.

As I say, however, my focus is politics and economics, not law. These attacks on inclusionary requirements will likely put at risk the very goal that the attackers seek to advance -- a less regulated housing market.

Posted by Rick Hills on July 2, 2017 at 11:20 PM | Permalink | Comments (8)

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2018 End of Term, Howard Wasserman | Permalink | Comments (6)

Saturday, July 01, 2017

SCOTUS OT16 Symposium: The Future of Personal Jurisdiction

Thanks to Howard and the Prawfs crew for having me as a June guestblogger. I wanted to finish out my month by concluding with a few final thoughts future of personal jurisdiction at SCOTUS. 

After a 20-year hiatus where the Court heard no personal jurisdiction cases, the Supreme Court decided six personal jurisdiction opinions in the last six years. In each case, the Court reduced the scope of personal jurisdiction, and thus reduced the number of forum choices available to plaintiffs.  In most of the cases, there was a surprising level of agreement between the judges.

So what's next? The Court hinted in both BNSF and Bristol-Myers that it was considering whether the 5th amendment placed limits on Congress's power to authorize personal jurisdiction, an issue that Stephen noted in his earlier post on BNSF

That issue is squarely presented in the case of Sokolow v. PLO, and on June 26 the Court called for the views of the Acting Solicitor General. It's a great case to keep an eye on for next term; I think there is a good chance it will be granted. The House of Representatives has already filed an amicus brief in the case, which is not something you see every day. 

Other than potentially hearing the 5th amendment question in Sokolow, I would guess that the Court is likely to take a break from personal jurisdiction and will leave some of the thornier “relatedness” questions to the lower courts for awhile. Interestingly, after the Court issued its Bristol-Myers Squibb opinion, the Court denied cert in TV Azteca v. Ruiz, rather than GVR'ing it in light of Bristol-Myers, as I would have expected. The case arose in Texas, and the Texas Supreme Court allowed a Texas plaintiff to bring a libel suit against a Mexican broadcaster and TV anchor who had broadcast from Mexico (though due to inadvertent spillover, people in Texas along the Mexican border could watch the broadcast). The case raised interesting questions about what is required for purposeful availment, how closely the cause of action must relate to the defendant's purposeful contacts, and the scope of the effects test after Calder. It also had great facts, arising from the story of pop star Gloria Trevi, who was accused of grave misdeeds and spent years in jail before being released for lack of evidence. (And Trevi has some great earworms: Habla-bla-bla is impossible not to sing along with, and Psicofonío is a wonderful story-song about a ghostly love affair). The case shared amici with BSM; petitioner's amici argued that in both cases, the courts had overstepped the bounds of jurisdiction, and asked the Court to consider the cases together. Nevertheless, even after reversing BSM, the Court simply denied cert in TV Azteca rather than issuing a GVR for reconsideration in light of BSM.  

Posted by Cassandra Burke Robertson on July 1, 2017 at 09:10 PM in 2018 End of Term | Permalink | Comments (3)

The Cult of Nina Totenberg?

Dahlia Lithwick offers advice to the White House Press Corps. on how to do the job without cameras, now that the White House has barred recording of press briefings. The piece is mainly tongue-in-cheek (she urges TV news organizations to adopt John Oliver's dog-centered visuals), but I want to push back on two of her serious points.

Dahlia urges the press to stop covering the press gaggle, to "cover what happens, as opposed to the spin." I agree that the press should stop covering these briefings, which have become forums for lying and obfuscation, exacerbated by the inability of many reporters to ask effective and direct questions (as opposed to convoluted multi-part questions that enable obfuscation). She likens the press briefings to the "drama and theatrics" of oral argument, which the SCOTUS Press Corps. has learned to ignore in favor of focusing on the opinions as the "work product that emanates from the Court." Two problems. First, the SCOTUS Corps. does not ignore oral arguments, in-depth, as displays of the Justice's personalities and styles and with the attendant tea-leaf reading. Second, I am not sure how practices in covering the Court translate to covering the White House, because much of what happens in the White House never produces concrete "work product" that the reporters can read, parse, and analyze. The alternative to the press briefings is more informal interaction with WH staffers and more speaking with people off the record, as well as more reporting on the President's latest tweets. Which is not a bad thing, as it produces a more honest picture of what is happening.

Dahlia also urges WH reporters to be nerds, like the SCOTUS reporters: Ego-free, writing about the opinions, and not striving to be among the "competing cults of personality" that "tower over the news in America." There is no Cult of Jess Bravin (who covers the Court for the Wall Street Journal). But there long has been a Cult of Nina Totenberg (especially during the '90s, when she did double duty at NPR and ABC) and there long was a Cult of Linda Greenhouse--they were as known as much as personalities and commentators as for the cases on which they reported. The journalists who cover the Court do a marvelous job, and I have no reason to doubt that it is a "kind" and "ego-free workplace." But in writing about the Court, they offer not only cold analysis of the case, but opinion and commentary, which makes them as much a part of the story as are WH reporters.

Posted by Howard Wasserman on July 1, 2017 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)