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Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.

Standing

Jonathan Adler has a good takedown of the expanded standing analysis, in which Judge O'Connor continues to find injury from the existence of a law absent any risk that the law could be enforced against the plaintiffs. The court relies on the correct principle that a person need not violate a law to have standing, but ignores that those cases required the plaintiff to show at least a genuine threat that the law would be enforced against him and that some penalty would result. He insists that no case requires an assessment of whether the plaintiff is injured by "disregarding" the law. It is true that courts do not put it in those terms, but that is implicit in the requirement of a threat of enforcement, which is triggered by someone disregarding the law.

O'Connor relies on Steffel v. Thompson, in which standing derived from Steffel's stated intention to resume handbilling and the express threat of the police to arrest him for trespassing (as they had his friend) if he did so. He also relies on Clements v. Fashing, in which the plaintiffs (challenging a state law that deemed candidacy for one office as resignation of an existing office) did not announce their candidacy for office, because that announcement would be deemed a resignation. That is, the plaintiffs in both cases would be subject to some mechanism for enforcing the law and it was that enforcement mechanism that caused the injury. In no case did the court find injury based on a statutory obligation that provided for no means of enforcement and no consequences.

O'Connor also tried to get cute, noting that "Chief Justice Marshall never asked whether William Marbury would be injured if he ignored the law and began serving as a justice of the peace without an official commission from James Madison." But that is because Marshall recognized that had Marbury done so, court personnel would have ignored him, not given him a courtroom in which to work, not carried out his orders, and perhaps asked the the Marshals physically remove him from the premises. All of which reflects the enforcement of the challenged law.

Two additional thoughts on standing. First, in a prior post, Adler analogizes the mandate-with-no-penalty to 4 U.S.C. § 8, which provides that "no disrespect should be shown to the flag of the United States of America" and enumerates what civilians and civilian groups cannot do with the flag. Obviously, the law is unenforceable under Texas v. Johnson. But we never get there, because the U.S. Code provides no mechanism for enforcement and imposes no penalties for failing to follow those rules. No court would accord standing to a plaintiff who argues "I want to use the flag as a covering for a ceiling (prohibited by § 4(f)), but I am refraining from doing so because I do not want to break the law," because the plaintiff would suffer no enforcement and sanction for using the flag to cover the ceiling.

Second, standing was established in part because the ban, even if not enforced to keep these plaintiffs out of the United States, sent a message of religious exclusion and made them feel less than full members of the community because of their religion. Some critics of those decisions derided this as "snowflake standing"--the plaintiffs feel bad and are hurt in their delicate snowflake sensibilities. But that does not sound much different than what the plaintiffs are arguing here-they will feel bad (their delicate sensibilities undone) if they have to act contrary to what the written law, otherwise unenforceable, requires them to do.

Appellate Review

The point of these orders was to pave the way for immediate review of the declaratory judgment. All parties had asked for certification of interlocutory review under § 1292(b), but Judge O'Connor instead certified a final judgment on one-but-less-than-all claims. But on the Con Law listserv, Marty Lederman identified a problem--it is not clear that the court finally resolved even one claim. The plaintiffs asked for a declaration that the mandate is invalid and a permanent injunction prohibiting implementation or enforcement of ACA; the court granted the former, but never addressed or reached a conclusion as to the latter remedy. A judgment, even on one claim, may not be final if remedial issues remain on that count.

Another commenter on the listserv suggested two possible outs. One would be to deem the certification of finality as the denial of the injunction. A second would be to treat the improper Rule 54(b) certification as a § 1292(b) certification and proceed that way. Otherwise, the court would have to dismiss the appeal for lack of jurisdiction and send the case back to the district court to enter the injunction (thereby creating appellate jurisdiction under § 1292(a)(1)) or to certify under § 1292(b).

One question is why Judge O'Connor proceeded this way, since the parties all requested a § 1292(b) certification and not a 54(b) certification. One thought is that he did not want to certify that there could be "substantial ground for difference of opinion" as to constitutional validity or severability. O'Connor has gone to great rhetorical lengths in all of his opinions and orders to make this seem like an obvious, not-at-all-close case with one obvious result, in which defendants can prevail only by demanding that courts acts in an invalid, unlawful, illegitimate, impermissible activist way. Section 1292(b) would require Judge O'Connor to declare that it might be possible for a court, acting in a legitimate way, to reach a different conclusion. That he does not want to certify.

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Sunday, December 30, 2018

Northwestern Law Review Exclusive Submissions

Northwestern University Law Review will accept submissions from January 1 to January 15, 2019. For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor. All final publication decisions will be communicated to authors by February 5, 2019.

Participating authors agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision from the Northwestern University Law Review. Participating authors further agree to accept a binding publication offer, should one be extended.

Articles receiving a publication offer via this exclusive submission track will be published in Volume 114 in the fall of 2019. Though publication timelines can often be negotiated, participating authors agree to accept the publication timeline the Law Review offers.

If you are interested in submitting your Article, please email the manuscript as a Word document to our Senior Articles Editor, Kendra Doty at[email protected] during the submission window.

More information can be found on our website at http://northwesternlawreview.org/exclusive-submissions.

Posted by Howard Wasserman on December 30, 2018 at 04:59 PM in Teaching Law | Permalink | Comments (0)

Saturday, December 29, 2018

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, December 28, 2018

Tenth Circuit offers an interesting mix of Younger, Rooker, and jurisdictionality

An area of seeming confusion for courts is the collision between Younger abstention and lack of jurisdiction under Rooker-Feldman. The doctrines are similar, as they both limit the power of federal courts to interfere with state adjudicative proceedings. In theory, the line is sharp--RF prohibits actions that formally or functionally ask the federal court to review the state decision, while Younger prohibits federal courts from halting ongoing state proceedings. In practice, they seem to run into one another, especially when courts use Younger as the basis for dismissing challenges to non-final state orders.

This Tenth Circuit case offers a different side of the collision.The federal plaintiff, the defending party in a state attorney-disciplinary proceeding, argued in federal court that the state bar lacked jurisdiction to discipline him, since he is not barred in that state (he maintains an office in the state, but practices only in federal court and federal immigration proceedings there). The district court abstained under Younger. But by the time the federal case reached the Tenth Circuit, the Colorado Supreme Court had suspended the plaintiff, ending the disciplinary proceeding. So the Tenth Circuit reversed the Younger dismissal, because the end of the state proceedings means the first prong of the Younger analysis (ongoing proceeding) is not satisfied, so the plaintiff can bring an action for a D/J action that the state tribunal lacked jurisdiction over him (because he is not barred in Colorado). The Tenth Circuit explained:

Consider our options. On the one hand, "if we were to reverse the dismissal," Plaintiff could (obviously enough) renew his already-filed claim before the district court. Id . On the other hand, "if we were to affirm the dismissal," Plaintiff could immediately refile in any event "because the dismissal was without prejudice." Id . "In these circumstances, we vacate dismissal . . . and remand these claims to the district court so that it can reconsider them without the need to abstain now that the state proceedings have ended." Id

This seems wrong on several levels.

First, the point of Younger is to eliminate federal interference with state proceedings; that interference remains after the state proceeding ends, if the federal action seeks to undermine or undo the results of that state proceeding. This is the point of Wooley v. Maynard (the "Live Free or Die" license plate case). Maynard had been convicted of traffic offenses three times for covering the motto on his plate; all three proceedings were over. The Court held the federal suit not Younger-barred only because he did not challenge or affect the results or consequences of those prior convictions and sentences; he sought only to prevent future enforcement of the law against him. The implication is that had Maynard sought to undo the past convictions, Younger would have barred the action. This federal action seeks to do what Maynard did not--invalidate the result of the state proceeding; that seems  inconsistent with "Our Federalism."

Second, even if Younger does not bar the federal action, Rooker-Feldman should. The plaintiff challenges the order of a state court suspending him from the practice of law and a federal judgment in his favor would declare that order as erroneous. In fact, attorney discipline is one of the most common situations for RF. And there is no "state court lacked jurisdiction" exception to RF.* The Tenth Circuit may have wanted to punt that issue to the district court. But this action should not go forward.

[*] In any event, I would argue that the plaintiff's argument as to the state proceeding is not that the state courts lacked jurisdiction, but that state law (attorney regs) does not apply to him because he is not barred in Colorado. That is a merits challenge to the reach of state law, not a jurisdictional challenge to the power of the court.

Posted by Howard Wasserman on December 28, 2018 at 01:30 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, December 24, 2018

Winter Break Reading Recommendation

During the winter break, I always find myself with more time than usual for pleasure reading.  My usual fare is relatively light and escapist.  But, based on a recommendation, I recently picked up The Woman at the Washington ZooThe Woman at the Washington Zoo is a collection of writings by Marjorie Williams.  Williams made a name for herself writing political profiles for the Washington Post and Vanity Fair.  The book contains several of those profiles, as well as more personal essays about parenthood, the death of her mother, and her own battle with cancer.

Even though I finished the book a week ago, it has really stuck with me.  The profiles provide a fascinating glimpse into the political world of the late 1980s, 1990s, and early 2000s.  Although many of the names and events were familiar to me, as someone who graduated from law school in 2002, I found the inside-the-beltway chatter about these people and events to be a great revelation.  I didn’t pay any attention to politics until the 2000 election, and so my understanding of the political landscape from the 1980s and 90s is limited and based mostly on present day sources.  But the current view of that landscape is quite different than the contemporaneous view. 

For example, Williams remarks, essentially in passing, that people in Washington did not think highly of Ronald Reagan’s presidency; they worried that he was beholden to the far-right and that he was a passive player in the White House.  That does not match up at all with the description of Reagan that one encounters in modern public discussions.  Reagan is one of many examples.  The essay on Barbara and George Bush was also surprising, as the picture that it painted of the 41st President was not particularly consistent with the many profiles about him that appeared in the wake of his recent death.

Of these political writings, I found William’s essay about Bill Clinton and the Monica Lewinsky scandal to be the most thoughtful.  Williams frames her essay by asking why feminists are unwilling to criticize Clinton for his affair with an intern---a question that has gained new prominence in light of the #metoo movement.  Although the essay was clearly written at the time of the scandal, the perspective that Williams brings to the question is so fresh that it could have been written today.

The book is more than just political profiles.  It also contains essays about life and parenthood.  I wish I had an electronic copy of her essay about the magazine “Real Simple”---I’d like to send it to all of my friends who are also parents to small children and talk to them about it over a glass of wine.  (It is, in some ways, a more thoughtful, but less funny, version of the recent SNL skit about family that has been such a big hit with my cohort.)

Not to ruin the ending—but it gets sad at the end.  As I mentioned above, Williams was diagnosed with cancer, and she ultimately died.  The book was edited and published after her death by her husband, Timothy Noah, who is an editor at Politico.  Normally, I don’t like to read anything that is particularly sad.  I don’t like sad movies or television shows either---I like my pleasure reading and watching to serve as a light-hearted diversion from everyday life.  But William’s brings the same thoughtfulness and perspective to her essays about her illness as she does to her essays about politics:  She is writing about cancer, but she is also writing about life, family, and ideas.

Anyway, as I said, the book left a mark.  And so I thought I’d share.

Posted by Carissa Byrne Hessick on December 24, 2018 at 03:39 PM in Books, Carissa Byrne Hessick | Permalink | Comments (0)

Thursday, December 20, 2018

Ipse Dixit on the Infield Fly Rule

On Thursday, I did an interview with Brian L. Frye (Kentucky) for his Ipse Dixit Podcast on my new book on the infield fly rule. It was a fun conversation.

Posted by Howard Wasserman on December 20, 2018 at 05:21 PM in Books, Howard Wasserman, Sports | Permalink | Comments (0)

JOTWELL: Campos on the Bolch Institute on class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing  the Bolch Institute at Duke University's guide to best practices in class actions.

Posted by Howard Wasserman on December 20, 2018 at 08:55 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, December 19, 2018

A different take on the purpose of the Infield Fly Rule

Baseball historian (and paralegal) Richard Hershberger for the fall 2018 issue of SABR's Baseball Research Journal argues that the infield fly rule developed from the difficulty of defining and determining when an infielder had caught the ball. He traces the 20-year evolution of the definition of catch, including the development and use of a "momentarily held" standard for only infield-fly situations (the batter is out if the infielder "momentarily held" the batted ball). This marked an "expansion" of when the batter is out, removing for baserunners, umpires, and infielders confusion over when the ball was caught and thus over whether they were forced to run. The ultimate Infield Fly Rule took this to its logical conclusion, but rendering the batter out no matter if, how, or how long the infielder touched the ball.

I am sorry this paper was not out while I was writing the book; I would have enjoyed discussing and responding to it in the book.

Posted by Howard Wasserman on December 19, 2018 at 07:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

CoOp and Prawfs, Blogging and Twitter

Adding to Howard's post, I was sorry to hear of the announced demise of Concurring Opinions. Given its history, it's hard to read the news without thinking of our departed friend Dan, who I'm sure would have been sorry too and have had something more useful and eloquent to say about it than I do. (I also suspect, however, to foreshadow the subject of this post, that Dan would certainly have spent time on Twitter.) 

One of the things that kept CoOp going toward the end, as the commenters there noted appreciatively, was all the hard work of Gerard Magliocca. In that spirit, I should note on this, the first occasion on which I have blogged in months, that everyone at Prawfs is hugely indebted to Howard Wasserman, our de facto senior partner, who continues to blog with frequency and energy and bears a disproportionate amount of the burden of administrative work as well as providing content. My thanks are accompanied by a mea culpa and a vow that I will post reasonably regularly during the spring semester--not good news for anyone in particular, to be sure, but certainly a token of gratitude to Howard and a recognition of my obligation to him and the blog (and to Dan).

Howard has also been responsible for bringing on board many of our guests, and to them and to him again we are grateful. One of the characteristics of Prawfs has always been that it is in part about being a law professor, and especially, in its early days, about being a young or junior law professor. I loathe the term "pre-tenured," which is indicative of problems with the tenure system and of excessive politeness and its effects on the English language, and prefer the old-fashioned "untenured." That is what most of us here were in the early days of Prawfs, and our excitement about this ridiculously fun and rewarding job and the need to discover things about it as we went contributed to our writing about these things. (In my case, there was the added view that every activity, including law and legal teaching, is as much a sociological, institutional, and economic as an intellectual endeavor and should always be examined in that light, from both an internal and an external perspective.) Years ago, I was reminded recently, I joked that eventually our discussions of law teaching would turn into posts about, say, lumbago and law teaching. Given that we are now more senior, our guests keep us fresh and remind us of the questions that occur to all of us as we start out in teaching. I hope those questions extend beyond placement angst and gossip about when journals are taking submissions and the like, and include teaching especially. I'm grateful to our continuing flow of guests both for their writing on particular serious topics and for reminding us of our pre-"get off my lawn" experiences as teachers and scholars, and to Howard for bringing them on board. People who are interested in spending a few weeks here, to discuss a particular project, legal question, or aspect of life as a law professor, are welcome to contact Howard or any of the rest of us. So are folks who used to belong to now-moribund blogs and would like to have the chance to still blog occasionally.

Howard's post and the interesting comments there discuss some reasons for CoOp's demise and general changes in legal blogging, including what Howard calls "the broader migration of this sort of legal writing to Twitter and Facebook." I would amend that to just Twitter, since I think people are using Facebook less. Although some questions were raised about Howard's statement, I think he's right. Indeed, although I hate Twitter, I post on it more than I do on the blog these days. Since I don't care much about having a "social impact" or something of the sort and would rather not have a large readership on Twitter--it seems to me more often to have a negative than a positive influence on those who do--the fact that I write more there certainly doesn't have to do with a desire for influence. And my overlong writing is perfectly ill-suited for Twitter. So why Twitter rather than the blog, both on my part and for legal writers using social media in general? A few thoughts follow.

First, as Howard notes, some blogs are still very active and some of those seem still to be widely read, although it may be that blogs like Take Care (which I don't read) and the people who write there have more influence through Twitter than directly through the blog. And a couple blogs are still mainstays. The legal academy and people interested in new legal scholarship still benefit immensely from Larry Solum's Legal Theory Blog in particular. (One aspect of that blog that is noticed less often but is more necessary these days is its weekly book recommendation, which is vital in an age in which there are more books by law professors but fewer notices and reviews in law journals. The St. John's Law and Religion Forum is also great on this and quite catholic in its book recommendations.) But it does seem to be the case that bloggers are less active and blogs are read less routinely. 

Some of this comes down to exhaustion and other such factors. I wrote about this and other influences on long-term blogging in a post some time ago. I won't repeat all I wrote there. I will note a couple of things, though. The bloggers who remain most active and can keep it up over years are often those who have a particular topic they are moved to write about, either something directly in their field or a personal hobby-horse or both. Generalists find it harder to keep it up long term; and although we all have our hobby-horses, some of us don't want to ride them too often and repetitively. There is still good reason to read and write specialist blogs, and it's harder to dig deeply into those issues as easily on Twitter, even if the blog post becomes more of an occasion for linking and then talking about it on Twitter. Those who aggregate, like Larry (although he clearly puts work into reading as well as aggregating pieces), and those who have a particular topic or hobby-horse that is an ongoing passion, will find it easier to keep going over the long haul and may find that not all of their needs are satisfied on Twitter. For those of us who, as I said in the earlier blog post, also want to write about the positive aspects of the first two Star Trek reboot movies and the dreadful nature of the third, or about (this semester's amateur fascinations for me) jazz, jazz history, jazz drumming, the great Steven Wilson, Epictetus and esoterica and Confucius, it's easier to do so on media like Facebook (or Twitter, although my sense is that for the writers I'm thinking about this happens less often there, to my regret, because people are still thinking about something like their "brand" and also because wider audiences and the culture of the medium may make one-off twits, especially jokes, more perilous on Twitter; I save most of my humor, which is not perfectly safe or reverent, for Facebook, where my "friends" are used to my sense of humor and tend both to enjoy and to understand and discount it, and even there I occasionally trim my list of "friends" with that in mind).   

Some writers no doubt want to have "influence," and specifically influence in what we might call the political world rather than the academic world. If that is one's goal, it's understandable that one would spend more time on Twitter. Some of those writers are honest brokers and gain reputations for being reliable and fair. Others, it seems to me, have large numbers of followers despite the fact that--or, really, because--they are highly partial, partisan, and sometimes overly emotional writers on Twitter. They satisfy some general readers' need for solidarity and to have their priors reinforced and ready-made arguments for their cause supplied. In some or many cases, general readers may believe that because these arguments come from academics or experts, they are reliable and authoritative, although others in the field might suggest otherwise. This is not the place--I mean, who wants to read a long blog post?--to discuss arguments about academics' professional or ethical duties on Twitter, if any such duties exist. I think they do. But in any event, one can always rest on the notion that there are irreducible moral or ethical obligations on everyone's part, and perhaps especially on the part of "experts," that attach to everything they do and certainly to their public and political statements and interactions, whether we think of them as having anything to do with academic ethics or not. If one seeks influence by trading on authority, if it's not a fair and honest trade it can reasonably be seen as questionable behavior. For those who value integrity and care above propaganda or sophistry, nothing trumps one's fundamental moral and ethical obligations of honesty, fairness, candor, nuance, and so on. I feel sure that given today's coin of the realm, Richard Rich would have found a way to get a blue checkmark on Twitter, and that one could have raised the same questions about this that Thomas More asked about Rich's being made Attorney General for Wales. For myself, I worry that I have too many followers on Twitter as it is, although gaining a large number is never going to be an actual problem for me. 

For me, at least, the reason I am more likely to post something on Twitter than on the blog is a somewhat perilous combination of ease and immediacy. The Twitter platform makes it easier to write something quickly and put it up instantly. Even a multi-twit post, which most of mine are, is easier to knock out from one's phone while walking the dog. I don't write blog posts on my phone, so I need to pull out a laptop or sit at my desk to write a blog post. The Typepad platform is perfectly friendly, and no doubt so is its app, but to write a blog post that is not a simple one-sentence link ("Interesting." "Highly recommended." "Hmm." "Problematic!") takes at least a little time and effort. And for those of us who favor an endless number of caveats and nuances and a parade of commas, dashes, parentheses, and semicolons, it takes still more time. Twitter feels easier, more immediate, and less consequential--although, as many have learned, in our polarized, combative, and punitive culture the last is certainly untrue. The very fact that you are reacting (it is indeed frequently a reaction) to the news of the day makes it easier to feel that little turns on your tweet, that it's a grain of sand on the beach, and that you need not (and cannot, given character limits) say much and can always post again, or simply let your earlier twit fade into obscurity, when it turns out that the story was more complicated than the first take suggested.

One might say something similar about reading it. Although I have an aversion to Twitter, I find it easy and addictive to turn to when walking the dog, even when I bring a book along, as I generally do, and even though I generally only read the Twitter pages of 3-5 people rather than plunging through the entire swamp. My spending more time there as a writer than I do on the blog, and spending some time there as a reader (although I spend time on my diminished number of go-to blogs), thus has less to do with the fact that the conversation has "migrated" there or the amount of content there, although those are contributing factors, and more to do with the ease of access and its suitability to short-term reading and reaction. And I might add something about emotion and about the outrageous story or anecdote of the day (or hour). Whatever your predilections and prejudices, you can more quickly and easily find some item there--fourth-place candidate in obscure local primary race says horrible thing, single unimportant professor at unknown university speaks outrageously or is treated outrageously, major gas planet loses rings, president of large and powerful country animadverts excitedly or boasts idiotically, etc.--to pique your interest and stoke your outrage. Since blogs are generally more selective and less immediate and emotional, you'll find fewer such links there. Twitter is a much better place to excite one's feelings that the world has collapsed, that you are losing your side of the culture war, or whatever else gives you a form of immediate pleasure or sensation.

Despite all this there are, of course, useful aspects to Twitter and useful writers or threads there. Many of them, in fact, although unless one is highly selective and resists the baked-in addictive qualities of that medium and the many temptations to lose oneself in trivia and outrage, they are harder to find or more easily outweighed by all the trash and ephemera. I intend neither to bury Twitter (quite) or to praise it. But given some of the factors above, along with things like the large potential audience (for those who care about this), the sensation or illusion that it is read more frequently and avidly, the number of serious people on it (whether they behave like genuinely serious people on it or not), and the sense of engagement it exudes, it's understandable that it's often easier and more tempting to turn to that medium than to a blog. Especially for those of us who are not hobby-horse riders or fear becoming hobby-horse riders, it's easier to get some thought off one's chest quickly by using Twitter. The same impulse might fade and die by the time one got around to opening a computer and drafting a blog post (which is almost certainly a point in favor of blogging). 

People who insist on the value of things like immediacy, audience, currency, letting no news slip by without comment, "engagement," and other such factors will find much to like about that platform. They will find less to like about blogs, which may have seemed immediate once upon a time but, like the difference between having both morning and afternoon editions of newspapers and having access to a 24-hour news channel, now seem slower and more antiquated by comparison. And the network effects--the smaller number of people writing regularly on blogs and the larger number of people twitting regularly--will encourage more migration. Such is life.

But, as most of what I've written above suggests, these things also have costs and perils. Virtually everything I have described as a possible virtue of Twitter is quite obviously also a potential vice. It is not an especially healthy culture or discourse. The relentless focus on the immediate makes a decent perspective on what is real news and what is trivia or ephemera unlikely, and outrage or similar emotional responses the usual and often disproportionate response to everything. It's far from clear that keeping up to date on the news is an absolute good, especially when it is measured in intervals of seconds, minutes, and hours rather than days, weeks, and years. In general I learn more that is useful about the contemporary world by reading Epictetus or Dostoevsky than by reading about some event that happened seconds ago. The number of news stories devoted to reprinting Twitter debates (stories that are cheap and easy to produce and guaranteed to find readers) rather than, say, careful investigative reporting (expensive, time-consuming, demands more expert and thus more expensive reporters, not guaranteed to result in a lot of content or much readership) encourages stenography and pot-stirring rather than serious reporting, and is one more example of the way in which both technology and the desperate urge to stay alive in an inhospitable environment have harmed journalism rather than enlivening it. Nor is it necessarily good even for serious writers and thinkers who take advantage of Twitter, and/or law professors and other academics. The desire for general "influence" is understandable but not a clear positive good for academics. That desire may encourage the political rather than the expert and disinterested character of academics' public writing. And, as I've suggested elsewhere, we should consider the possibility that despite the insistence that one's scholarship and one's public and political activities are separate and unrelated or are pursued in different ways, one's twitting may affect or infect one's actual scholarship and/or its perception.

One could go on about Twitter's potential vices and their relationship to vices or sicknesses in our general culture. None of this is surprising. There are very few unalloyed and unqualified enthusiasts about Twitter. Even most of those who think the platform as such is epiphenomenal and not much related to its content or to the culture (I disagree), or who think it is much more of a good than a bad thing, or think that criticisms of Twitter easily tend toward exaggeration or hysteria (possibly true) readily acknowledge its faults. Somewhat more interesting to me is how many people, whether critics or fans of Twitter, think and worry about contemporaneity, "relevancy," and especially immediacy itself and their downsides. But that question is hardly unknown either. And although I have not seen all the responses I would like--in particular, major and somewhat conservative changes in institutional print journalism--clearly the rise of various platforms like Medium and other sites for longer-form writing by various writers suggests a recognition of these problems and some attempt to balance them with other forms of communication. 

I offer no prescriptions or predictions. I think blogs have faded and will continue to do so, that they will not necessarily die, and that there is still definite value in them. That's especially true of the more subject-specific blogs but also of mixed blogs like this one. I think the migration to Twitter will continue, whether I like it or not. Even though doing so rests completely in my own hands, I suspect that even when I know or think that some piece of writing is better suited to this medium than to Twitter, and even if I conclude that Twitter is awful and harmful, that (unless I quit it altogether) I will still turn to it to post rather than to the blog, at least unless I devote meaningful and consecutive time to blogging (which might be better spent, not twitting, but doing more scholarly writing or other useful activities) and avoid absolutely the temptation of short takes and immediate reactions--a temptation that is part of what makes Twitter successful, addictive, and arguably deforming of individual and social character. But there's still a place for what we do here too. I hope to do more of it next year. In the meantime, my condolences to CoOp and my thanks to Howard for his role here at Prawfs.   

 

  

Posted by Paul Horwitz on December 19, 2018 at 12:36 PM in Paul Horwitz | Permalink | Comments (5)

Tuesday, December 18, 2018

Standing in the ACA case

Good analysis from Nicholas Bagley (Michigan) about the standing problems for the two individual plaintiffs in the ACA litigation. A few additional thoughts.

• This illustrates how enforcement is the trigger for constitutional litigation, not the existence of a constitutionally defective law. An invalid legal obligation that will not be enforced cannot be the subject of litigation. An invalid legal obligation that will be enforced through a tax penalty of $ 0 is, functionally, a legal obligation that cannot be enforced. It still would be better if we discussed this as a question of merits and not jurisdictional thresholds. If these plaintiffs are not injured because the law cannot be enforced against them in any way, then their substantive constitutional rights are not being violated.

• The plaintiffs' argument that they are injured because they believe following the law is the right thing to do (even when that law is not enforceable) is the flip side of requiring government officials to act lawfully  or refrain from acting unlawfully (e.g., reservists in Congress, non-natural born citizens serving as President). Neither is a basis for standing.

• I have not seen any good argument that the 20+ States have standing. But the court skirted that question through the "one good plaintiff" rule--because someone had standing, the case could proceed without having to consider anyone else's standing. Update: In a companion piece, Bagley doubts that the 20 states have standing, which should mean the court cannot enjoin the Administration from enforcing the law as to him; in Bagley's words, the judge has "tied his own hands."

• Standing and jurisdiction have always been dicey in the ACA litigation; this case represents the latest and weakest effort. I wonder if the Fifth Circuit (or SCOTUS if it gets that far) will use that as the basis to get rid of this case, without having to touch the bizarre merits.

• Bagley describes standing doctrine as "near and dear to the hearts of the conservative legal establishment," so that even conservative judges on the Fifth Circuit (and Roberts and Kavanaugh on SCOTUS) will be unlikely to allow this sort of case to go forward. But the doctrine developed when the conservative legal establishment was trying to stop environmentalists from preserving the Nile crocodile, lawyers from challenging unwarranted surveillance of their foreign clients, and atheists from challenging states' creative ways to give government funds to parochial schools. This is the ideological drift of standing--the doctrine may not be so near and dear when it prevents "two guys from Texas" from taking down the nation's health-care system.

Posted by Howard Wasserman on December 18, 2018 at 04:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Stay tuned!

Posted by Rick Garnett on December 17, 2018 at 08:50 AM in Religion, Rick Garnett | Permalink | Comments (3)

Sunday, December 16, 2018

Sad law-prof blogging news

Concurring Opinions is shutting down at the end of the year. This is sad news. CoOp spun out of Prawfs in its earliest days and I experienced them (as reader and then as author/guest-author) as companion sites, covering similar issues of law and legal education with a similar sensibility. The posts containing the table of contents from new issues of law reviews will be missed. And this closing reflects the broader migration of this sort of legal writing to Twitter and Facebook.

Gerard indicated that there would be some farewell posts over the next two weeks.

Posted by Howard Wasserman on December 16, 2018 at 10:31 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Saturday, December 15, 2018

A quick word on the remedy in the ACA case (Updated)

Sam Bray (as always) beat me to exploring the remedy issues in the district court's declaration on the constitutional invalidity of all of DACA. The court declared ACA invalid in its entirety, but declined to issue an injunction and provided only a declaratory judgment. Here is the wind-up to the post, with which I entirely concur.

In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. *

I also want to flag this language from Marty Lederman's post: "[C]ontrary to almost every media account you've read in the past few hours (come on, New York Times!) Judge O'Connor did not "strike down" the "entire Affordable Care Act" (something he lacks the power to do, in any event) . . ." A federal court cannot erase or eliminate or remove a statute, so it would be wonderful if that term could be removed from the lexicon.

Update: The other procedural/remedial issue is what happens next. The court granted what it called partial summary judgment on one claim (or one issue in one claim) and entered a declaratory judgment, but no injunction (although that is what the first count of the complaint requested). But it is not clear what is appealable here and how. There is no injunction, so § 1292(a) is not in play. Section 2201 says a "declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such," but the view among limited cases is that this assumes the decision is otherwise-final in the sense of disassociating the district court from the case and leaving it nothing to do but execute the judgment. With other claims remaining in the case, this D/J is not final. An appeal would seem to require certification under § 1292(b) or Rule 54(b).

Then there is a question of who can appeal. The United States agrees with the plaintiff states' basic constitutional argument about the zeroed-out penalty and that some provisions are not severable, so it is unlikely to appeal that; it disagrees with severability as to the rest of ACA, so it may appeal that. But what about the core constitutional issues? States were allowed to intervene to defend the parts of the law that DOJ would not, but under Hollingsworth an intervenor that would not be subject to the force of the order would not have standing to appeal. The House likely will intervene come January 3 and would have standing under Windsor, but that would be too late to appeal for § 1292(b), which requires appeal within ten days of certification. Maybe DOJ will appeal the declaration as a whole, then limit its legal arguments, with the states again intervening in the Fifth Circuit to pick up the slack.

Posted by Howard Wasserman on December 15, 2018 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, December 14, 2018

9th Circuit taps the brakes (slightly) on universality

The ever-harrowed Ninth Circuit tapped the brakes slightly on district courts issuing universal injunctions. In affirming on the merits an injunction barring enforcement of religious opt-out rules from the contraception mandate in an action brought by five states, the court held that the district court abused its discretion in having the injunction extend beyond the plaintiffs.

The court hit a few important notes. It emphasized that universality is generally disfavored and especially disfavored absent class certification. It highlighted the problems with universal injunctions, including the loss of percolation of issues, the effects on non-plaintiffs, and the risks of forum shopping. And it applied the "complete relief" principle to conclude that a particularized injunction gives states complete relief from the economic harms the opt-out rule would impose on them. That other states may suffer similar harms did not affect the plaintiff states.

The court made clear that universal injunctions are not prohibited, but must be limited to cases in which broad relief is necessary. And it said the issue (as with an earlier case rejecting universality as to sanctuary cities) was a failure to develop the record as to other states, suggesting that building a better record may justify universality. 

But the court grappled with the scope question, a step back from recent hints from that court that universal injunctions were becoming the default, at least in certain cases.

Posted by Howard Wasserman on December 14, 2018 at 07:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, December 08, 2018

Are politically motivated crimes by racists hate crimes?

James Alex Fields, Jr., who drove his car into a crowd of people in Charlottesville and killed counter-protester Heather Heyer, was convicted on Friday of first-degree murder, along with eight counts of malicious wounding. Sentencing begins Monday.

Fields also faces multiple federal hate-crime charges under § 249 for causing death or bodily injury because of the "actual or perceived race, color, religion, or national origin of any person" and under § 245 for using force to interfere with person's enjoyment of protected activities on the basis of race.

My question: How is what he did a racially motivated hate crime? The one person killed was white, as were many of the people injured. The DOJ press release announcing the indictment (from June) described Fields driving into a "racially and ethnically diverse crowd," seeming to suggest that Fields was targeting African-Americans and a group of people affiliated with African-Americans. But did he target that group because of their race (or the race of some of them)? Or did he target them because they were counter-protesters holding certain beliefs about racial, religious, and ethnic equality? The latter is not covered by either § 249 or § 245. And it would seem to stretch "perceived race" to cover people who are not part of some group but support rights and equality for that group.

At best, this crime seems politically motivated--Fields appears to be a racist and he picked victims who disagree with his positions. But is that a race-base hate crime?

Posted by Howard Wasserman on December 8, 2018 at 02:53 PM | Permalink | Comments (9)

Friday, December 07, 2018

Comments Fixed

I understand there had been some problems with the Comments sections. That problem has been resolved and comments can be made on all open posts.

Posted by Administrators on December 7, 2018 at 11:18 AM | Permalink | Comments (5)

Thursday, December 06, 2018

Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule

978-1-4766-6715-7I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.

Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.

Posted by Howard Wasserman on December 6, 2018 at 09:31 AM in Books, Howard Wasserman, Sports | Permalink | Comments (3)

Wednesday, December 05, 2018

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Alan Trammell, Demystifying Nationwide Injunctions, which uses preclusion principles (including arguing that offensive non-mutual preclusion should be available against the government) to support the power to issue broader injunctions.

Alan's paper just came across SSRN yesterday, so I look forward to reading and citing it. My initial thought is that the preclusion analogy (even accepting that Mendoza is wrong) runs into the fact that allowing non-particularized injunctions allows the issue court to police the effect of its own judgment, whereas preclusion ordinarily is the bailiwick of the second court. This is sort of the issue in Nevada v. Dept of Labor and the private attorneys held in contempt for violating the injunction of one court (based on privity principles) by representing a plaintiff in a different lawsuit in a different court . To the extent the injunction binds these private attorneys, it would be through preclusion, which would be for the second court to determine, not the issuing court.

Posted by Howard Wasserman on December 5, 2018 at 09:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 04, 2018

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Posted by Howard Wasserman on December 4, 2018 at 09:01 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Backing off universality, at least for sanctuary cities

Judge Ramos Southern District of New York enjoined DOJ's sanctuary-city policies in an action brought by New York, Connecticut, New Jersey, Rhode Island, Washington, Virginia, Massachusetts, and New York City.  (H/T: Ilya Somin, who analyzes the substance of the decision).

Ramos declined to make the injunction universal, although not per se rejecting universality. He emphasized that no sanctuary-city injunctions have remained universal through appellate review and that recent decisions have stayed any non-particular application. The court did extend the injunction to each state's municipal subdivisions, concluding that subdivisions suffer the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions." This is the converse of the  Ninth Circuit extending an injunction from party San Francisco to non-party California, because some grant funds sent to California were then distributed to San Francisco. Here, I presume, the state would have to cover any budgetary shortfall caused by the municipality's loss of DOJ funds. Either direction is consistent with the complete-relief requirement. But the court did not accept or apply the broader argument that some states and cities have urged (and that one AG presented during Q&A) that because DOJ has a limited pool of money and the size of the grants varies with the number of applicants, the injunction must be universal so that funds are not disproportionately allocated to non-sanctuary jurisdictions in a way that leaves nothing for sanctuary jurisdictions by the end of litigation.

In any event, this court's approach is a far cry from that of the Ninth Circuit in the DACA litigation, where the court seemed to approach universality as the default.

Posted by Howard Wasserman on December 4, 2018 at 06:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 03, 2018

Guest Post: Come On, Justices Gorsuch and Kavanaugh! Doctrinal (and Intemperate) Error in the Timbs v. Indiana Oral Argument

The following post is from Rory Little (UC-Hastings and SCOTUSBlog).

It’s bad enough when a Supreme Court Justice expresses sarcastic impatience with an advocate; even experienced advocates are on edge when they appear in the nation’s highest court. Perhaps even worse when the advocate is a sovereign state’s Solicitor General.  But it really is inexcusable when the sarcasm is based on doctrinal error and thus wrong.  Here’s why that happened in last week’s oral argument in Timbs v. Indiana.

Background on the Timbs case and the Doctrine of Incorporation

The State of Indiana sought to forfeit Tyson Timbs’ $42,000 Land Rover after Timbs use it to transport small amounts of heroin to drug deals.  The Indiana Supreme Court declined to consider whether this violated the Eighth Amendment’s “no Excessive Fines” clause, because the U.S. Supreme Court has never definitively said that that clause is “incorporated” against the states (via the Fourteenth Amendment’s “no state shall” deny Due Process clause).  Whether or not Timbs should lose his vehicle, the Question presented in Timbs may seem easy: the doctrine of incorporation, developed only in the 20th Century, is well-accepted. Most recently the Court ruled in 2010 in McDonald that the Second Amendment’s “right … to keep and bear arms” is incorporated and thereby governs state as well is federal actions.  Although it is surprising to many, the Bill of Rights was originally intended to apply only against the federal government, and for our first 100 years or more it was said to have no application to state actions.  However, after a century of litigation, all rights that are found to be “deeply rooted in this Nation’s history and tradition,” “so as to be ranked as fundamental,” are now said (McDonald) to be “incorporated” against state action as part of due process.  This includes most – but see below, not all – of the Bill of Rights provisions.

The “deeply rooted in this Nation’s history and traditions” test might be well-satisfied by the Eighth Amendment’s command that “excessive fines” shall not be “imposed” -- although the common practice in the early days of our Union of forfeiting entire ships used to run contraband might give an Originalist pause regarding whether a rule against the forfeiture of vessels of crime is in fact so “deeply rooted.”  (As Chief Justice Roberts noted at the Timbs argument “I certainly understand the argument that … with respect to forfeiting instrumentalities of the crime, … [i]t’s always proportionate since it’s the way the crime is accomplished.”)

But one thing is doctrinally clear: not all the rights specified in the Bill of Rights have been incorporated against the States.  For some rights, like the “no Excessive Fines” clause, this might merely be an accident of history.  (One can find a good discussion of “why hasn’t the excessive fines clause already been incorporated?” in the November 26 episode of “First Mondays” with Professors Beth Colgan and Dan Epps”)

The Fifth Amendment’s Grand Jury right has, and for good reason, not been incorporated

But for one Bill of Rights provision in particular – the Fifth Amendment’s right to be charged by a Grand Jury for any “capital or otherwise infamous crime” – the decision to not incorporate is long-standing and quite considered.  Every student and professor of Constitutional Criminal Procedure understands this intentional anomaly.  Yet, as recounted below, it appears to be a “blank spot” in the doctrinal understanding of the Court’s two newest Justices, Gorsuch and Kavanaugh.

By way of quick summary, in 1884 in Hurtado v. California, the Supreme Court ruled in no uncertain terms that the Fifth Amendment’s grand jury provision need not bind the states.  The progressive 1879 Constitution of the young state of California had provided a new system, one viewed as more protective than the old grand jury system, permitting the charging of criminal defendants by a prosecutorial “information.”  California’s then-new Penal Code -- unlike secret, non-judicial, one-sided grand jury proceedings -- permitted the prosecution’s information to be immediately tested by a preliminary hearing, presided over by a judge, providing counsel for the defendant and allowing for cross-examination.  When Joseph Hurtado was charged with murder (and ultimately sentenced to death) based upon an information rather than grand jury indictment, the U.S. Supreme Court viewed it as a “question … of grave and serious import” whether the Fifth Amendment’s grand jury rule should be required, under the Fourteenth Amendment, to apply against the state.  In a thorough opinion (while certainly sounding different in some ways from today), the Court ruled that “progress [and] improvement” is not forbidden by the Fourteenth Amendment, and that California’s information system, with all its additional protections for a defendant, was at least as protective of “principles of liberty and justice” as the grand jury system.

Hurtado has well stood the test of time.  Critics of the federal grand jury system are many.  Meanwhile, over half the states allow criminal charging by information rather than grand jury; and two states (Pennsylvania and Connecticut) have abolished the use of criminal charging grand juries entirely.)  Thus the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause.

Intemperate Doctrinal Error at the Timbs oral argument

This brings us, finally, to Justices Gorsuch and Kavanaugh at the Timbs oral argument (transcript is here).  Justice Gorsuch lit into Indian’s Solicitor General Thomas Fisher (who I do not know) from the start.  He demanded agreement that “the Excessive Fines Clause is incorporated against the states.”  When Fisher resisted (unsurprisingly, since that is the Question Presented), Justice Gorsuch persisted:

 I mean, most of the incorporation cases took place in like the 1940s.” [– this is an erroneous account in itself as virtually all the criminal procedure incorporation case were products of the 1960s Warren Court –]  And here we are in 2018 still litigating incorporation of the Bill of Rights.  Really?  Come on, General.

The audio on this last statement (audio of the argument is here) is undeniably harsh: Justice Gorsuch’s tone is, frankly, unbecoming.

Fisher politely stood his ground, and Justice Kavanaugh took up Gorsuch’s point -- although he at least had the courtesy to pose his view as questions, a fortunate method since in fact he and Justice Gorsuch were wrong:        

Isn’t it too late in the day to argue that any of the Bill of Rights is not incorporated? … [A]ren’t all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?

As you now know, these rhetorical questions and accusations – “Come on, General” -- are flatly, doctrinally, incorrect.  Hurtado stands in their way, fully and after 134 years of careful consideration. 

Conclusion

Why does any other this matter, you may wonder?  Errors must happen all the time even in Supreme Court arguments, right?  Why single these four pages of transcript out?

Two reasons.  First, my perhaps old-fashioned view is that a little bit of humility is a good thing for at least new Supreme Court Justices, especially regarding areas of the law in which they may not have deep experience.  Neither Justice Gorsuch or Kavanaugh has any substantial background in criminal law, and at the D.C. Circuit at least Justice Kavanaugh’s criminal law exposure was not extensive.

Second, and far more important, one must point out doctrinal errors if one can before they leak into published Supreme Court opinions, not after.  It would be a grave error to say, sarcastically or otherwise, that all the rights in the Bill of Rights have been incorporated.  And it would be a far more serious error to suggest that a carefully considered procedure such as criminal information-followed-by-preliminary-hearing charging is somehow in danger of being wiped out by slapdash dicta in a Supreme Court case not even presenting the question.  It is for that reason, and with all respect for the understandably challenging task of being elevated to the Nation’s highest court, that the foregoing is published.

Posted by Howard Wasserman on December 3, 2018 at 11:12 AM in Constitutional thoughts, Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (0)