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Tuesday, June 30, 2020

How to become a legal writing professor

The new addition to the Baude/Chilton series on how to become a law professor comes from Rachel Gurvich (UNC) and Beth Wilensky (Michigan).

Posted by Howard Wasserman on June 30, 2020 at 03:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Third Circuit: Tinker does not apply off-campus

The Third Circuit held Tuesday that Mahanoy (PA) Area H.S.* violated the First Amendment by suspending a student (identified as B.L.) from the J.V. cheerleading squad for a snap showing the girl and her friends flipping the bird above the caption "Fuck Cheer." This is a great First Amendment decision.

[*] My wife's grandmother grew up in Mahanoy, which is why I bother to mention it.

The majority hit several important things.

    • The speech was off-campus. The student created the snap off-campus, on a weekend, on a non-school platform, and the fact that the comments were about the school or school personnel did not change its nature.

    • The First Amendment does not apply differently to extra-curricular activities or to students who participate in extra-curricular activities (unlike the Fourth Amendment or Due Process). Suspension from an extra-curricular activity (the punishment the school imposed) is not a lesser punishment subject to less-rigorous First Amendment scrutiny. Student-athletes are not subject to punishment for off-campus vulgarity to a greater extent than non-athletes would be.

    • Tinker does not apply to off-campus speech. This is huge, as this is the first court of appeals squarely to hold. Tinker is a "narrow accommodation" of the unique context of school, but makes little sense outside that context. School officials can control the spillover effects that make their way into school. But that has been true of off-campus real-world speech, so should be true of on-campus online speech. And while this leaves schools unable to regulate some crude, vulgar, or offensive speech, that is the point of the First Amendment, as Tinker recognized.

    • Outside of school and online, students have virtually full First Amendment rights, including to use profanity, which cannot be dismissed as "low value" or as expressing no message. "Fuck cheer," uttered by a frustrated high-school sophomore, has a meaning.

    • The student did not waive her First Amendment claims by agreeing to be subject to certain codes of student-athlete conduct.

The majority expressly does not resolve off-campus speech threatening violence or harassing particular students or teachers. Some such speech may be unprotected and subject to sanction and the school may have a sufficiently weighty interest in regulating that speech. The question of Tinker's applicability caused Judge Ambro to concur in the judgment. insisting there was no need to address the issue because the speech was obviously protected even under Tinker. Ambro is concerned about a broader swath of off-campus speech, such as  racially tinged speech or snaps reenacting and mocking victims of police violence.

The case does suggest that "Tinker" as a standard is different from the public school's regulatory authority. That is, the inapplicability of Tinker to off-campus speech does not divest a school of all authority to regulate that speech, leaving any sanction to government at large. The suggestion is that a public school has authority to sanction students for off-campus expression, but it must satisfy a different, more rigorous standard (strict scrutiny or a showing that the speech falls into an unprotected category). So perhaps a school could sanction a student for out-of-school true threats, rather than leaving it to the police and the courts. Perhaps a school could punish a student for out-of-school (constitutionally protected) racist speech, claiming a compelling interest in teaching racial justice or maintaining racial peace within the schoolhouse gates that society at large cannot claim. I have presumed that schools should have no power to regulate speech off-campus, that a student becomes an ordinary person outside of school. While affirming broad student rights, this opinion suggests otherwise.

And if that is true, what does it mean for universities, who generally are not governed by Tinker? Can a university claim a compelling interest in campus racial peace that might give it more power than society at large to sanction racist-but-protected speech?

Finally, an empirical question that I have not researched but that I would be curious if anyone knows the answer. The Third Circuit in the past half-decade has broadly protected student speech in several significant case, a seeming departure from the late-'90s/early-oo's, when schools routinely won cases involving online speech and t-shirts. Is the Third Circuit an outlier or have other courts come around?

Posted by Howard Wasserman on June 30, 2020 at 01:31 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Nonsense and sensibility: hybrid is not the answer

Since back in April, social media is filled with my warnings and exhortations, along with many other voices, about law schools pushing ahead to re-open in some hybrid form in the fall.  This parallels decisionmaking at the university writ large level, and the gauntlet was thrown down in this bigger space by notable announcements from opposite ends -- the presidents of Purdue and Notre Dame on the one hand, each insisting that this relative return to normalcy was somehow morally compelled, and the leaders of the California state university system (a giant system) and Cambridge University in the UK noting that there would be 100% online.  So far as law schools are concerned, the info continues to trickle out.  Harvard Law and Berkeley Law announced 100% online.  A few others in the so-called "T14" are proceeding either with a quiet hybrid scheme (my own law school, for example) or else are quiet, either because they are undecided or because they just don't want to say.

So, as I write this at the very end of June, there is a lot we still don't know about law school educational planning for the fall.  And, to say what is painfully obvious, there is a lot we do not know about the trajectory of the virus and therefore about what is realistic for schools to do any multiple scenarios.  As I have said elsewhere, I am dubious that even the most strategically savvy and well-informed law schools cannot know whether they will be able to follow through on their best laid plans to reopen in some form or fashion.

In all this discussion, I was struck by some observations by Prof. Deborah Merritt of Ohio State.  Readers of this blog, and other venues in which perspectives on legal education are shared, know that Debbie Merritt is one of our most thoughtful, rigorous legal educators, and someone who always puts students first in her thinking about legal education and its (dis)contents.  Here is what she had to say on Facebook about this predicament from the vantage point of her own law school:

"I listened today to a presentation on how our university will hold on-campus classes this fall. The on-campus venture is beginning to sound like the Ptolemaic model of the universe, with eccentricities and epicycles continuously added to address all the problems. First we decide to hold classes in super-sized rooms so that students can sit 6 feet apart. Then we require everyone to wear masks. Then we reduce the number of people in the building each day by having some classes alternate between in-person and online. Then we tell everyone to leave the building asap after class--no socializing in the hallways or other public spaces. I think it's time to realize that on-campus classes will not be the center of our universe this fall. We need to embrace a model in which online classes are at the center, with careful prep by professors over the next two months. Let students use their in-person time to be with friends and family, meet in study groups (1Ls), hold part-time jobs or externships (UL), and carry on their lives. What do they really gain from sitting masked in a classroom, separated from other students, and listening to a professor whose voice is muffled by a mask?"

And also this in a follow-up comment:

"Students, of course, are asking for tuition discounts given the compromised nature of this on-campus education. Universities, naturally, are rejecting that. Ironically, I think we would be in a better position tuition-wise if we said, "We are moving most of our fall classes online and the dean has directed faculty to spend the rest of the summer preparing first-rate online classes rather than conducting research. You can be confident that all of your tuition money is going towards maintaining a first-class legal education. We are also adding additional resources to externships and career services because we know those experiences and prospects are vital to students."

This is an honest reflection on a difficult issue, and I endorse it entirely. Prof. Merritt speaks simultaneously to the dilemma (and, potentially, the disaster) of reopening live and also the understandable angst of students who wonder "why exactly are we expected to pay 100% tuition for this experience?

What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this:  We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience -- excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.  Quite frankly, this doesn't answer completely the students' question about tuition.  That is a tough one for sure.  But, at the very least, the "best-foot-forward" online approach sends the sincere message that we are committed to excellent instruction and to the well-being of our students and their families and also our faculty and staff.  

Moreover, this commitment is even more urgent if, as I sadly predict, the hybrid/in-person plans will end up being scuttled in any event (maybe as early as July; maybe at the beginning of the term; maybe just as soon as there is an outbreak in a particular law school).  A message in, say, September that says:  "Well, this sucks, but we are going to have to reconcile ourselves to sub-standard online instruction for the balance of the semester, if not the year" is a sorry message.  Nor is it much better for law schools to tell their students that they are going to plan on this scheme for now, but might adjust quickly.  Students are making travel plans, signing leases, arranging for family circumstances, and assessing what their late summers and falls will look like.  Contingency planning is ill-suited to a situation in which the health circumstances are truly unknown, but the rather universal health protocols ensure that student and faculty day-to-day life will be really difficult in even the most modern facilities (to say nothing of those that are less well-suited and in law schools which face more serious financial constraints).  One quick word on this latter:  It has been said that law schools like Harvard and Berkeley are not good gauges, insofar as they are much wealthier than other law schools and so can more easily made these adaptations. But this strikes me as at least a red herring -- the expenses of online technology are coming down, and surely these jury-rigged adaptations (plexiglass protections, hotel rooms for quarantines, even porta-potties) come with comparatively greater expense (not even to mention the costs of hiring new part-time faculty if, as we can expect, full-time faculty become unavailable). What seems to motivating this response is something different, and that is the interesting and I think credible claim that the more prestigious law schools can afford to make adaptations without risk of student flight. Perhaps so. Yet this only reinforces Merritt's point, and also mine, and that is that even the less prestigious (however measured) law schools can speak in an unequivocally pro-student and imaginative way by championing their efforts to create a high-level, creative, and, yes, compassionate educational experience for the coming academic year.  This is what so many law schools outside of the so-called elite do regularly, by noting their differences from the T14, and their capacity and commitment to students first and students always.  Here too that imperative should rise to the surface, as online education is undertaken.

So, I think that, with the utmost respect for law school leaders who are working hard and a fully well-intentioned way to create schemes and structures to ensure that their students -- and especially their first-year students -- are going to get a good in-person experience in the new academic year, this is a fool's errand, one that does not truly account for the dismal experience that students will have in a setting that would give even the great MacGyver pause.  And it sells short our students' ability to comprehend and to adapt to a semester in which their faculty can develop through online methods a rigorous and creative educational and community-building experience.

Again, my prediction is that the hybrid approaches are going to be a bust in any event, given circumstances beyond our control. So why not use July to create valuable templates and strategies for a great, if highly imperfect, educational scheme?  So many of us have ideas about how best to do that, as clearly one size doesn't fit all.  But we need know from our law schools is a commitment to try.

UPDATE: Just saw this valuable post by Prof. Josh Blackman at S. Texas. He has posted on this topic a few times. 


Posted by Dan Rodriguez on June 30, 2020 at 12:34 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (6)

Espinoza, long projects, and doctrinal change

Today's decision in Espinoza is, for me, very welcome, but also prompts some strange feelings and emotions.  I have been working on (what I regard as) the cluster of school-choice/educational-pluralism/religious-freedom issues and questions for a long time.  (Here, for example, is an essay on "The Blaine Amendments" from 17 years ago.)  Professor Garnett the Greater (i.e., Nicole Stelle Garnett) was working to challenge state-law exclusions of religious schools from choice and scholarship programs with the merry band at the Institute for Justice in the mid-1990s, and I filed (unsuccessfully!) cert. petitions in Vermont and Maine cases raising the matter, with Prof. Michael Stokes Paulsen, back in 1999 (I think!). 

Clearly, the doctrine has evolved (for the better, I think) in this area.  From Lemon and Nyquist, to Zelman and Mitchell, and now to Trinity Lutheran and Espinoza, the rules have changed from (as I see it) "discrimination against religious schools and those who choose them is often required" to "discrimination against religious schools and those who choose them is rarely permitted."  It's fascinating to step back, a bit, and trace the development, follow the lines of argument, note the incremental steps.  We will see what the real-world policy effects and implications are, but my own hope is that they will include enhanced educational pluralism, increased choice and opportunity, and a brighter future for currently beleaguered ("in these complicated times") Catholic schools.  (I realize, of course, that many Prawfs readers and colleagues will disagree, which is, of course, fine.)

All that aside, there is a (for me) weird "what now?" (or, "now what?") feeling.  A development in legal doctrine that I have been hoping for, and fretting about, for a long time, has come about.  I don't have any illusions, to be clear, that I had anything to do with it and I certainly realize I'm far from being the only or first lawyer or law professor to have this feeling.    

Posted by Rick Garnett on June 30, 2020 at 12:06 PM in Rick Garnett | Permalink | Comments (0)

Monday, June 29, 2020

The APA and the Passive Virtues

Some of the Chief Justice's recent opinions lead me to think that Alexander Bickel's list of passive virtues should be updated to include finding an action "arbitrary and capricious" under the APA. I do not believe that Bickel discussed the APA, though my copy of The Least Dangerous Branch is in my office where I can't go right now.

In other words, the Chief Justice's decisions invalidating government action on APA grounds for the citizenship question on the Census or the repeal of DACA create no  real substantive precedent for future cases. It's not a decision not to decide at all, as a classic passive virtue such as mootness would be. But it's clos.

On a separate note, I am nearly done with the draft of my Bushrod Washington biography. When the draft is complete, I'll be ready to share more and pick up the blogging pace.


Posted by Gerard Magliocca on June 29, 2020 at 09:30 PM | Permalink | Comments (0)

Assignments and female voices

Someone pointed out that June Medical produced six opinions on the right to reproductive freedom, all by male Justices and none by any female Justice. But who is responsible for that?

The first question is who assigned the majority to Breyer. Assignment is by the senior-most Justice in the majority for a judgment/outcome at conference; that means the Chief assigned the opinion to Breyer, then declined to join and wrote on his own, leaving Breyer to write a plurality. But how specific do they get during the conference? Could it be clear at conference that his reasoning was so far from Ginsburg/Breyer/Sotomayor/Kagan that he was not part of that group? For example, suppose G/B/S/K made clear the view that the Louisiana law was broadly invalid while Roberts made clear that he was going along with Whole Women's purely on stare decisis grounds. How does that affect the assignment? This would have made Ginsburg senior-most, meaning she assigned the opinion to Breyer rather than keeping it or giving it to one of her female colleagues.

All three also chose not to write a separate opinion, I presume to maintain a clear plurality (if not majority) voice. Even at the loss of a female voice.

Posted by Howard Wasserman on June 29, 2020 at 08:48 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN)The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

Posted by Howard Wasserman on June 29, 2020 at 01:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 27, 2020

So you want to be a law professor? (Updated and moved to top)

At Summary, Judgment, Will Baude and Adam Chilton have a conversation on law teaching and advising people who want to enter law teaching. The conversation is inspired by Jason Brennan's Good Work If You Can Get It: How to Succeed in Academia, applied to the unique species of the legal academy. The first posts (in order of posting, rather than order they appear on the blog) are here, here, here, and here.

Update: The topic produced a number of posts, including one guest post on becoming a clinic professor. The remaining posts (in order on the blog) are: here, here (this one is for everyone, not only budding prawfs), here, here, and here.

Posted by Howard Wasserman on June 27, 2020 at 01:46 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, June 26, 2020

Anti-racism and the First Amendment

Jaden McNeil is a student at Kansas State and the head of America First Students, an organization that believes Turning Point USA is too liberal. Yesterday, McNeil sent a tweet congratulating George Floyd on being drug-free for a month. The tweet drew responses and condemnation from several K-State football players, followed by further condemnation from the head coach, athletic director, and university president. Several players called on the university to do something to "handle" this, while another promised not to play for the school if it "tolerates ignorance such as this." The university president promised to review its "options."

But there do not seem to be any options for a public university to handle this. McNeil is an asshole and deserves (but probably does not care about) public opprobrium, but his tweet does not seem to fall within any unprotected category of expression. Universities are in a bind. They can develop anti-racism in their curricula and institutional activities, they can counter-speak to racist messages (as they have done), and they can adopt and promote anti-racist messages. But under current doctrine, they cannot stop individual students from being racist and from saying racist stuff in public spaces. And they cannot design codes of conduct and anti-discrimination policies that can stop individual students from being racist and saying racist stuff. Athletes are developing their voices and discovering their leverage, which is a good thing and a long time coming. But that leverage and the university's desire to field a football team cannot compel the university to ignore the First Amendment.

Like the 1960s, this period of protest and change could be remembered as much for the First Amendment activities and developments as for Fourteenth or Fourth Amendment developments (ideally all three). But that is a two-edged sword--the First Amendment may impose a barrier to some of the broadest intellectual goals of anti-racism and the broadest desires of those who want to stop racism. Unless the pressure of this moment compels a change in free speech doctrine, which seems unlikely and would be unfortunate.

Posted by Howard Wasserman on June 26, 2020 at 05:29 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Posted by Howard Wasserman on June 26, 2020 at 12:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, June 25, 2020

Meat Market cancelled, alternative hiring conversations

AALS canceled the Faculty Recruitment Conference out of concerns for COVID, although it will serve as information clearinghouse for candidates, including running the Faculty Appointments Registry, for schools that will run a hiring process remotely. (Brian Leiter wrote about changes making the FAR form more candidate-friendly).

Latisha Nixon-Jones, a VAP at Oregon, is starting a listserv for VAPs/Fellows to share information about the upcoming hiring season. Candidates interested in joining the listserv can complete this survey by June 30.

We will have our usual assortment of hiring-related posts and perhaps we can rerun some of our greatest hits. Although query how well advice about doing a good job talk translates to doing a good job talk via Zoom.

Posted by Howard Wasserman on June 25, 2020 at 09:18 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Wednesday, June 24, 2020

They didn't vote for you, they voted against the other guy

Republicans in and out of government have attacked the legitimacy of the last two Democratic presidents. To be clear, in talking about "legitimacy," I do not mean simple policy disagreements and opposition to proposals. I mean a rhetoric of "you do not legitimately hold the office or wield the legal authority; that is why you should not be able to appoint your preferred judges or executive officials and why your policies should not be enacted."

For Clinton, it was that he never won a majority of the popular vote (ironic, given how Bush II and Trump governed in their respective first terms despite losing the popular vote). For Obama, it was that he was never eligible for the presidency because he was not born in the United States, plus he was pushing an un-American agenda.

What will it be if Biden becomes president? Trump is obviously trying to lay the groundwork for claims of election fraud, although I do not believe that will stick for long, at least outside the fringe. I think it will be something along these lines:

The People did not vote for you, they voted against Donald Trump. You did not really win the presidency, the other guy lost it. So you do not legitimately wield presidential authority. Had you run against someone who was not so wildly unpopular (who we, of course, now disavow all connection to), you would not be President. So you lack the full legitimacy necessary to exercise the full powers of the office.

I am thinking of this after reading this Jonathan Chait piece arguing that Biden is doing a lot right in his low-key campaign. The reality is that the polls reflect at least some number of people supporting "Not Trump" (or "Any Functioning Adult," as my neighbor's law sign says) and translating that into reporting support for Biden in polls. This is not uncommon--some piece of Trump's support was "Not Hillary." But I can see it being weaponized for the next four years.

Posted by Howard Wasserman on June 24, 2020 at 05:22 PM in Howard Wasserman, Law and Politics | Permalink | Comments (10)

Mandamus issues in Flynn prosecution (Updated)

A divided D.C. Circuit panel granted Michael Flynn mandamus and ordered Judge Sullivan to remove the appointed amicus and to grant the government's uncontested motion to dismiss the charges. This is a brutal decision that leaves little meaning to the "leave of court" language in FRCrP 48(a), turns a presumption of regularity of prosecutorial decisions into a mandatory conclusion by precluding any inquiry into those decisions, and grants mandamus relief before the district court has had an opportunity to decide the motion or to do anything that might so imperil anyone's rights or interests. Mandamus is a weird duck, with judges reciting the high standard for granting, then finding that standard satisfied in the cases they want (but no others). The court also does not really address the unique element of this case--government dropping charges after the defendant twice pleaded guilty in open court--and how it might differ from a decision to drop charges at the outset. The decision also functionally prevents the district court from considering perjury charges against Flynn because there is no amicus to investigate.

My guess is that, like the decision on the tax subpoenas, the panel opinion will not survive long; the court will take it en banc and deny mandamus. Then on to SCOTUS?

Update: Orin Kerr compares this decision to Bush v. Gore for a variety of reasons, most prominently in telling a lower court to stop what it was doing, out of distrust that the lower court would conduct ordinary procedure in any appropriate way. I would add an additional similarity--both are "good for this trip only" decisions; I expect that in the next case, Judges Henderson and Rao will remind how extraordinary mandamus relief is and how high the standard is and how harm to non-parties is not a basis for relief.

Posted by Howard Wasserman on June 24, 2020 at 02:08 PM in Howard Wasserman, Judicial Process | Permalink | Comments (7)

State § 1983

Colorado has enacted the Enhance Law Enforcement Integrity Act, a comprehensive police-reform measure that includes body cameras and rules for recording, detailed reporting, prohibits rehiring officers who have been convicted of certain crimes, limits the use of tear gas and non-lethal projectiles in response to protests and demonstrations, guidelines for use of force, and other matters. Whether it will do anything is anyone's guess, since many policing problems have less to do with formal law and more to do with action and discretion on the ground.

Section 3 of the law creates a state equivalent to § 1983 for actions expressly against peace officers, using similar language. It eliminates existing statutory immunities, pronounces that qualified immunity is not an available defense, and allows for attorney's fees. The statute provides for indemnification of the officer, unless the department decides that the officer did not act in good faith and a reasonable belief in the lawfulness of his actions, in which case he is personally liable for 5 % of the judgment or settlement, up to $ 25,000. Note that the standard for losing indemnification is more-or-less the standard for losing qualified immunity; so the bill keeps reasonable belief in lawfulness as an issue, but going to who pays rather than denying a plaintiff all recovery.

Posted by Howard Wasserman on June 24, 2020 at 08:58 AM | Permalink | Comments (1)

Tuesday, June 23, 2020

Traces of Grammar

To go off the beaten track for a moment, I want to say something about how education can leaves an imprint on a person's writing style. 

I took four years of Latin in high school. I've always thought that this was very helpful for my vocabulary and was a good decision. One feature of Latin grammar is that sentences often use reflexive pronouns. For example, "she herself" said or "he himself" wrote.

It took me years to realize that my writing style was influenced by this grammar structure. I often like to say "Joe himself" or "Jane herself" by way of emphasis, but it's also just something I must have unconsciously picked up from Latin. I'm sure non-native speakers of English have similar traces of their first language in their writing (and probably more so).

Posted by Gerard Magliocca on June 23, 2020 at 09:48 AM | Permalink | Comments (7)

Monday, June 22, 2020

No qualified immunity (updated)

The Court denied cert in Cooper v. Flaig, the 12th of the 13 petitions that were pending in mid-May. The remaining case is Davis v. Ermold, the sole case not arising from police misconduct. Not sure what they are waiting for on that one.

SCOTUSBlog's Petitions We're Watching includes three qualified immunity cases. One asks whether an appellate court can raise QI sua sponte and whether to overrule Pearson and another asks for clarification of the standard for how analogous precedent must be to clearly establish a right.

Posted by Howard Wasserman on June 22, 2020 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 20, 2020

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Posted by Howard Wasserman on June 20, 2020 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, June 18, 2020

University of San Diego is in Search of a New Dean!

come be our bosses! If you might be interested in leading our excellent institution or know of anyone who might interested, please email me or Michael Devitt [email protected] who is chairing the search committee. And spread the word around!


Posted by Orly Lobel on June 18, 2020 at 05:20 PM | Permalink | Comments (2)

What next on DACA?

The following post is by Juan Carolos Gomez of FIU, who runs the Carlos A. Costa Human Rights Immigration Clinic and has worked on behalf of DACA recipients.

The Supreme Court’s finding that the Trump Administration’s revocation of Deferred Action for Childhood Arrivals (DACA) was reviewable and that how the decision to revoke DACA was made violated the APA is a temporary victory for DREAMERS and other immigrants. Chief Justice Marshall’s heirs (or a least a majority with a twist of plurality of them) stood up for Article III courts’ authority to check the actions of the executive branch. Today’s decision is more of a victory for those believe in limiting the power of any administration to avoid or to limit judicial review, than it is for immigrant rights advocates.

We need to see what Congress and the Administration will do now as to DACA and Temporary Protected Status (TPS).  In addition to the approximately seven hundred thousand with DACA, there are approximately three hundred thousand persons from El Salvador, Honduras, and Nicaragua who have TPS and who are in a similar situation to the DREAMERS with DACA. I say DREAMERS with DACA because there are many others who would qualify for a work permit and protection under DACA but have been prevented from filing applications for DACA under the revocation policies. These numbers also do not include those who were too afraid to apply because of fear or lack of resources. To a degree the authority to review portion of today’s decision helps those with TPS in their fight.

The Supreme Court’s decision does not bar the Administration from attempting to revoke DACA again. Some will argue that it is free to do so as long as it does it in compliance with the APA. I suggest that reasonable and humane people quickly look for solutions to the problems faced by the over a million persons caught in legal limbo under DACA or TPS.  Individuals with DACA or Temporary Protected Status are safe for the moment only because of various court decisions. These courts could declare that TPS is over on other grounds. We know that we should expect the Administration to keep attempting to revoke. The Administration kept testing the legal waters with various versions of the travel ban until it was able to get the Supreme Court to accept a revised travel ban. Do not be surprised if the decision to revoke DACA is not being edited as you read this post.  

As long as the immigration policies of this Administration are being driven by anti-immigration forces , no one who is subject to immigration laws is safe. As we focused on the Supreme Court decision this month, the Department of Justice reassigned pre-Trump members of the Board of Immigration Appeals (the highest administrative appellate body on immigration issues) and issued proposed asylum regulations that would almost eliminate the possibility of winning asylum. The proposed regulations include a mechanism for immigration judges to permanently bar asylum applicants from the United States if that immigration judge believes the application was baseless. While we focus on the Supreme Court’s decision, the Department of Homeland Security is free to do what it wants to do with aliens whose cases will never be heard by an Article III court or possibly even an immigration judge who is expected to meet quotas worthy of a factory production line. Most immigrants are unrepresented. In isolated detention centers across the country the actions of the Executive Branch go unchecked.

While today’s decision gives hope to many, there is a need for  remedies for those whose lives have been destroyed by unfettered and arbitrary use of power by the Administration.

Posted by Howard Wasserman on June 18, 2020 at 05:08 PM | Permalink | Comments (0)

Avoiding universality, again

The DACA decision again avoided the scope-of-injunction issue and the propriety of universal/non-particularized injunctions, in a clever way. The Court consolidated three cases--two (from New York and the Second Circuit and California and the Ninth Circuit) had entered universal injunctions prohibiting enforcement of the rescission order, while one (from the D.C. Circuit) had vacated the DHS order rescinding DACA. Only the Ninth Circuit decided the appeal and affirmed the injunction (the others were taken on cert before judgment) and the Ninth Circuit was the "lead" case in the caption. But the majority focused its review on the D.C. case that vacated the rescission under the APA without issuing an injunction. Affirming vacatur of the rescission order meant there was no rescission order, therefore nothing to enjoin. It became unnecessary to consider the propriety of the "nationwide" (unfortunately) scope of the injunction.

This may mean that resolution of the scope-of-injunction question is not on imminent, as I am not aware of any cases on SCOTUS's horizon squarely presenting the question. A reader points out that scope-of-injunction is at issue in Little Sisters of the Poor. If--as happened today and in the census case--the Chief joins the four liberals to hold that the Trump Administration messed up the APA, universality may be unavoidable.

Posted by Howard Wasserman on June 18, 2020 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Wednesday, June 17, 2020

Why the Ought Intersects with the Is So Quickly in Law School Teaching Job Advice

At the "Summary, Judgment" blog, as Howard notes, Will Baude and Adam Chilton are offering a series of posts on how to get a job in legal academia. I'm not sure the subject is as neglected as their introductory posts suggest. There is at least one book on the subject, and it has been blog fodder for years, along with things like Brian Leiter's "Paths to Law Teaching" page, which has been around for over a decade. But no doubt there is room for more (and more recent) advice, and of course there's a lot less available on this subject than on getting jobs in other (and larger) disciplines or academic sectors (such as the humanities). Certainly I find the advice they have offered so far fair and useful. But....

In one interesting post, Chilton writes that the advice he plans to give will honor the point that "giving advice and debating reforms are different conversations. My experience has been that people often quickly pivot from advice about how to succeed in legal academia to debating how legal academia should be reformed." He also suggests, in a way that I think is dimly related to this point, that one reason it is (in his view) hard to get good advice about how to become a law professor is that aspiring professors in other fields get the best advice from their peers, such as fellow grad students, and from professors in social environments, and that both of these things are rarer in legal academia.

I wonder if there aren't some very good reasons why it's hard to separate the is and the ought when it comes to law school advice, or at least why the question of reform is likely to spring to mind so quickly in the law school context. Take as an example Chilton's latest post, on "how to spend your time in law school if you want to be a law professor." The advice is sensible enough: attend lunch talks, take paper classes as well as exam classes, sign up for academic workshop courses, hit the necessary targets (law review, clerkship) but don't wait on them before taking other steps toward your goal of teaching. But not every school has significant numbers of lunch talks, student attendance is very rare at most of those schools, and many schools don't have academic workshop courses. Some schools are heavy with paper courses, and others are not.

Indeed, the kind of school Chilton is talking about is, really, a top 20-ish law school. Even then, the advice is probably most fitting to the 15 or so schools in the top ten. Even so, all this advice is still a stretch at some of those schools. And even where it applies, it may not be of much use. Sarah Lawsky's hiring report tells the story every year, and it is largely the same story: a lot of Yale, a lot of Harvard and Stanford, a fair amount of Chicago and Berkeley and NYU, then a quick drop-off to such undistinguished also-rans as Columbia, Michigan, and Georgetown. (Plus Hebrew U! It does very well indeed--although all the Hebrew U grads covered in this year's report took a doctorate from a fancy-pants American university.) There are indeed hires every year who come from other schools, including US law schools "below" the top ten-ish. Most of those hires (but not all of them) have doctorates. There is credentialism in other fields, of course. But for various reasons, including a stronger disciplinary base and the much larger number of schools involved, compared to American law schools those fields look pretty darn good.  

I don't mean to discourage anyone who is not already taking a lead-off from third base from aspiring to a law teaching job. (I went to a [very good] law school outside the US, but also had an LL.M. from the typical fancy American school and various other elite credentials, and still encountered a lot of resistance beyond the amount of resistance I richly deserved. I'm glad I persisted.) Given the remarkable, mechanical credentialism and path-dependence of the American law school hiring process, however, it is probably fair to say that the first and most important piece of advice to any law student who is thinking about a law teaching job is "Be at the right law school in the first place." (Of course I'm sure Chilton knows this, and the point is made by Baude in an earlier post.)

And people who are already at the right law school usually already have a great deal of social capital of the kind that goes unremarked because almost everyone who is part of the discussion already has it. They already know, for example, that for whatever reasons it's a good idea to be at Harvard or Yale--a point that is far from well-known to all even if one leaves out family commitments and things of that sort. They already know that there are some schools that, to quote Chilton's post, are especially helpful for getting a job in "private equity" (if they know what that is--I'm not entirely sure I do) or "politics" (albeit not so much the useful kind of political position, like city councillor or school board member, and more the less-useful kind, like member of Congress). They probably already know that it's to their advantage to cultivate professors and other useful figures rather than avoid them, and have been doing it so long it feels natural and as if it has nothing to do with self-interest. And so on. Of course there's a lot more they can learn, both in order to get a job as a law professor and--no less important, albeit this is a normative rather than descriptive point--to learn how to be a good (as opposed to succesful) teacher and scholar, one who serves his or her institution and discipline, and understands and exemplifies academic virtues and values. (One does occasionally encounter people who have enough brains and facility to become successful law professors, and who do just that, but who do not have an academic vocation as such. They like the job, or the platform, or the perceived prestige, and the teaching and scholarship are something of a means to an end.)

Baude and Chilton are quite clear that their goal is to provide practical advice and not recommendations for reform. But one can understand how quickly one's thoughts turn from one to the other. It is simply hard to hear certain words of advice coming out of one's mouth without quickly becoming critical--or cynical. (I think the same thing is true of advice on how to publish successfully.) At least that is true if one voices, or at least recalls, the often-unspoken presumptions. "Cultivate an interest in scholarship" is sound and not terribly troublesome advice. "While attending Harvard, cultivate an interest in scholarship" is sound advice that, one hopes, leaves a somewhat sour taste in the mouth. I'm sure that choosing the right luxury yacht is a difficult decision involving many complex factors, and that good advice can be given on the subject. But I wouldn't be terribly surprised if many a writer for SuperYacht World ended up confronting some nagging thoughts, and started thumbing Piketty or Veblen on his or her lunch hours.

I don't disagree that giving advice and debating reforms are different discussions. But it seems to me that in this area, at least given the glaring nature of the presumptions and prerequisites involved, that "pivot" is hard to avoid--and, if we want academically sound and virtuous as well as successful aspirants, perhaps we shouldn't avoid it.    

Posted by Paul Horwitz on June 17, 2020 at 11:54 PM in Paul Horwitz | Permalink | Comments (0)

Ordinary Meaning vs. Literal Meaning

One dividing line between the majority and the dissent on the interpretation of Title VII was whether the ordinary meaning or the literal meaning of the text should govern. Justice Kavanaugh argued that the ordinary meaning should apply and that the ordinary meaning of "because of . . . sex" did not include sexual orientation or transgender status.

I'm not so persuaded by this argument, though I thought his dissent was better than Justice Alito's. I think that ordinary meaning is the correct standard for interpreting the Constitution. After all, the Constitution is higher law. The text was ratified in a special process that generates unusually high public attention. And the Constitution, as FDR famously said, should be understood as "a laymen's charter, and not a lawyer's contract."

Statutes, though, are technical legal documents. They do not have a special popular flavor. Try reading some. They are directed at lawyers, judges, and administrative agencies. I do not see, therefore, why would apply "ordinary meaning" to them anymore than you would to an administrative regulation or a tax provision.

One possible response is that the Civil Rights Act of 1964 is no ordinary statute. It is either a "super-statute" or an act of popular will comparable to a constitutional text. Maybe then the ordinary meaning should apply. This was not Justice Kavanaugh's argument though.

Posted by Gerard Magliocca on June 17, 2020 at 09:58 PM | Permalink | Comments (7)

FIU/UM Zoom Brown Bag

This summer, FIU and UM organized a joint Zoom-based brown-bag series--a two-hour workshops, one speaker from each school. We held the first on Wednesday, with Scott Norberg (FIU) presenting an empirical study of law-student borrowing and Caroline Mala Corbin (UM) presenting a piece on Barnette and parental opt-outs. It was an engaging hour.

My thoughts on online/distance education are well known. But I will say that distance scholarly workshops work pretty well. We lose something not being in the same room, in terms of communication, engagement, and sociability. But it is a good second option that allows scholars to talk with one another.

Posted by Howard Wasserman on June 17, 2020 at 03:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

What Moral Standards Should We Apply to Historical Figures? (Guest Post by Tarunabh Khaitan)

[Introductory note: Below is a guest post by Tarun Khaitan, Professor of Public Law and Legal Theory at Oxford, Law Professor at Melbourne University, a Global Visiting Professor at NYU this last term, and author of A Theory of Discrimination Law. Tarun’s post is, in part, a response to my earlier blog post on the question of morally evaluating historical figures, especially in regard to decisions about erecting or taking down statues and other commemorations].

Edward Colston. Seventeenth-century English philanthropist and parliamentarian. Commemorated in several landmarks in his native city: Colston Tower, Colston Hall, Colston Street, Colston Avenue. Several schools bearing his name. His public statute was pulled down and unceremoniously dumped in Bristol harbour this Sunday during protests sparked by George Floyd’s murder. Colston made most of his money in the trans-Atlantic slave trade. On the same day, Winston Churchill’s statue was graffitied ‘is a racist’, probably because of his hostility towards Indians and his adamant refusal to change the British policy of diverting food stocks from Bengal to Europe, even as between two and three million Bengalis starved to death in the 1943 famine.

What we should do with public statues of such complex figures requires a call on a multitude of issues. One such issue is this: how should we judge historical figures like Colston or Churchill? Or Cecil Rhodes, British imperialist in South Africa, whose ill-gotten fortune has funded a world-class education for thousands—including many like me, who would have had no chance of getting an Oxford education otherwise. What moral standards should we apply to judge historical figures? That is the question I seek to address in this post.

Two caveats before I attempt a response:

(i) Moral evaluation of a person in relation to particular acts is not the same thing as the moral evaluation of that person’s entire life and character. Good people do bad things and think evil thoughts. Bad people do good things. I have argued elsewhere that ‘A life’s overall success is to be judged across its entire span, and not in relation to a particular moment in time or in the context of any particular event(s)’ and ‘holistically from the point of view of the person whose life it is, in light of the resources and opportunities available to her.’ This post is only concerned with the narrow question of judging historical persons for specific actions they took or beliefs they had. A holistic, overall, judgment may be kinder or harsher to them, depending on what else they did or believed.

(ii) Whether a public statue should be allowed to stay, removed, or re-contextualised requires a complex all-things-considered judgment. The moral quality of a person portrayed, and those of her actions, is surely relevant to that judgment. So is the expressive meaning of that statue and its manner of display in our times. And any lingering effects of the actions of the person in question. And many other factors besides. This post does not say anything about which statues should remain and which ones should go, if any.

Back to my question then: how should we judge the actions of historical figures?

One starting point most of us could all agree upon: it is unfair to blame someone for a wrong they committed in moral ignorance. Just as we excuse crimes committed by small children or people with certain types of mental disability, the suggestion is that applying our standards to historical figures without making any allowance for their moral culpability is unfair.

But being fair when judging is not the same thing as refusing to judge entirely. Those who demand that we withhold our judgment of historical figures are often trying to rationalize the denial of racist legacies that linger today. They are also frequently hypocritical—they only demand that we refrain from adverse judgment. Praising powerful historical figures, as Churchill is often praised, is frequently not seen as problematic.

Between these two extreme positions of making no allowances for moral ignorance and not judging at all, Professor Rick Hills of NYU Law School argues that we should judge historical figures by the moral temper of their times (‘historical relativism’). Washington’s slave-ownership, on this view, should be judged harshly by us only if most people around him would have viewed slave-ownership as immoral. On this view, if our moral standards broadly accord with those of our herd, we are off the hook.

Before I criticise this view, let us be clear about one thing: Professor Hills is only discussing how one should judge wrongdoers, not the wrong itself. He is absolutely not arguing that slavery was ever morally permissible, let alone in eighteenth-century America. A five-year old who fires a gun to kill it not at fault, despite having committed a wrong. The right question to ask, then, is this: do Colston, Rhodes, Churchill, or Washington have an excuse for their racist actions/views?

Being slow to judge is a virtue. Generosity and deliberation are key requirements for sound judgment; so is a willingness to subject oneself to the same standards as one demands of others. But Professor Hills is too generous to the accused. Sharing the moral standards of our herd can, at best, mitigate the harshness of our judgment. It cannot absolve us of blame. Ordinary Germans who were complicit in Nazi atrocities were not permitted the defence that they were mere moral sheep, following their herd, and rightly so.

Rather than asking whether they acted in accordance with the moral beliefs of their herd, the correct test we should apply to determine whether to blame historical figures for their racism is this: was the morally correct view discursively accessible to them? It is irrelevant what most people around Colston believed in relation to slave-trade. What matters is whether Colston had the opportunity to be confronted by the view that race-based slavery (or, for that matter, any form of human slavery) was wrong. This moral confrontation could arise in any form—in a conversation with a friend, through an article in a newspaper, on a pamphlet shoved into your hands, in a passage in a religious text, via an angry denunciation by a slave he was selling.

Moral confrontation is an opportunity to rethink, to revise, and to repent. A person opposed to same-sex marriages in early twentieth century Europe may have had the excuse of unchallenged moral ignorance; not so in early twenty-first century. We may be excused for following our herd’s flawed moral outlook unthinkingly only if there arose no opportunity for us to reflect upon it and revise it. If we hold on to our flawed moral inheritance despite being challenged by morally correct views, we can no longer claim the excuse of moral innocence. Our generation should, consequently, also prepare for being judged harshly in the future for our attitudes and actions in relation to animals and the environment—for we can no longer claim we didn’t know any better.

Sometimes, it may be difficult to know if a historical figure was in fact faced with the correct moral view. At the very least, Rhodes and Churchill would clearly have been confronted about their racism—the anti-colonial movements they sought to suppress would themselves have provided ample opportunities for moral reflection. Colston and Washington too, despite being further removed from us in history, are likely to have had access to counterarguments. Their refusal to revise their views, despite the opportunity to do so, should be an important factor, among others, in deciding how we remember these complex, flawed, and sometimes great historical figures.

In his email rejoinder to a draft of this post, Professor Hills argued that ‘discursive availability’ standard sets the bar for moral criticism too low, and that the ‘herd morality’ standard is more appropriate. He gives the following example:

“A medical doctor who relies on bleeding in the 18th century is not guilty of malpractice even if there are widely publicized tracts suggesting that the four humors of the blood are mythical (there were, by the way). So too, a moralist is not guilty of malpractice for relying on the weight of their fellow humans’ mistaken views to reject outlying arguments that practices like slavery—or, perhaps, the eating of meat—are morally abhorrent.”
The parallel is attractive, but ultimately fails. There is a key difference between truths that are amenable to expert authority and truths that are not. Truths about medicine, the natural world, of the occurrence of an event require specialist knowledge of experts or witnesses. In such cases, unless a person has access to superior expertise or information, it is not only morally permissible but may even be morally required to accept the weight of extant mainstream expert opinion (short of having reasons to suspect the veracity of such opinion). The doctor in the example above is, therefore, fully excusable for relying on bleeding to cure a patient.

Moral truths, on the other hand, are not amenable to determination by any authority. Our notions of personal moral responsibility would become meaningless if they were. It is a defining feature of persons that when faced with moral choices in relation to a given set of non-moral facts, they are capable of choosing correctly without needing expert advice. This is why we should accept the ‘discursive availability’ standard. Being slow to judge requires us to excuse those historical figures who genuinely lacked the opportunity to overcome their moral ignorance. Others should be fair game.

Posted by Rick Hills on June 17, 2020 at 12:11 PM | Permalink | Comments (9)

Tuesday, June 16, 2020

So you want to be a law professor?

At Summary, Judgment, Will Baude and Adam Chilton have a conversation on law teaching and advising people who want to enter law teaching. The conversation is inspired by Jason Brennan's Good Work If You Can Get It: How to Succeed in Academia, applied to the unique species of the legal academy. The first posts (in order of posting, rather than order they appear on the blog) are here, here, here, and here.

Worth keeping an eye on over the coming days and weeks. I will link to posts periodically.

Posted by Howard Wasserman on June 16, 2020 at 03:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Bostock: What took so long?

The following post is by my FIU colleague Kerri Stone, who teaches and writes on employment discrimination.

Civil rights champions everywhere rejoiced on Monday morning as the Supreme Court decided Bostock v. Clayton County, holding that an employer who terminates an employee because she is homosexual or transgender violates Title VII’s prohibition against discrimination “because of” sex.

The simplicity and clarity of this analysis makes one wonder, as so many have, how this question could possibly have remained open for debate and disagreement for the past 56 years since the statute’s enactment. And yet, as the Court observed, those who drafted and enacted Title VII “might not have anticipated [that] their work would lead to this particular result.” For, despite the fact that the plaintiffs’ arguments were undergirded by a long history of jurisprudence that made clear that evidence of sex stereotyping is, in fact, evidence of sex discrimination, this country has seen longstanding and widespread discriminatory animus and callous indifference towards the LBGTQ community.

As the Court noted, however, the evolution of antidiscrimination jurisprudence made this conclusion more or less inevitable. With the advent of so-called “sex-plus” claims that have been recognized as viable, whereby a distinct group within a protected class—like mothers of small children—can claim protection, has come the recognition that “because of” subsumes sometimes nuanced traits and actions of groups within groups that have been viewed through a different lens than they otherwise would have been because of their sex. With the Court’s recognition—more than two decades ago—that a viable claim for sexual harassment could lie where the victim and the harasser were both members of the same sex, came the understanding that no artificial, spurious bars would be placed upon protection where the “because of sex” requirement was concerned. And so decades of social and ideological momentum simply outpaced decades of irrational denial because, as the Court posited, “When the express terms of a statute give us one answer and extra textual considerations suggest another, it’s no contest.”

Considering how rare it is that the Supreme Court addresses itself the scope and contours of Title VII, when it does so, its words are parsed vigorously.  There is much in this opinion that remains, over the coming days, weeks, and years to be parsed and harnessed to address still open questions. For now, it is enough to mention but a few highlights. The Court made much of the capaciousness of the term “because of,” and thus of the concept of causation to be read into the statute. This is, of course, due to Congress’s 1991 declaration of a “more forgiving standard,” whereby plaintiff could “prevail merely by showing that a protected trait like sex was a ‘motivating factor’ in a defendant’s challenged employment practice.”

The Court also takes pains to break down the query before it to define prohibited sex discrimination as occurring when “an employer . . . intentionally treats a person worse because of sex such as by firing the person for actions or attributes it would tolerate in an individual of another sex.” It takes this approach to looking at the individual and what would have befallen her but for her sex, reminding us that the statutory language, itself, uses the work “individual” no fewer than three times. And it takes this approach even as it rejects the conception of actionable discrimination as only consisting of an “employer’s treatment of groups rather than individuals,” and Title VII as “simply with ensuring that employers don’t treat women generally less favorably than they do men.” The law has wrestled with these dual conceptions of its protections since its inception, despite, among other things, a Supreme Court case that explicitly rejected a “bottom line defense” for an employer who, after using discriminatory tests and criteria in its employee selection, claimed to have nonetheless ultimately recruited an amply diverse set of candidates. Excepting the “bottom-line defense” would have permitted the favorable treatment of a protected class to excuse individual instances of discrimination and accordingly provide a shield against a disparate impact suit. The message was crystal clear: Title VII does not merely protect entire classes from exclusion; it protects individuals from being winnowed out at any stage of the game because of their protected class status.

The Court is explicit about laying out the lessons that it extracts from precedent that makes its holding an inexorable conclusion. First, the Court peeled back the characterizations of discrimination. How often have we heard, “It’s not about sex; it’s about homosexuality/pregnancy/motherhood?” Discrimination is discrimination, irrespective of “what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Second, the Court says, “the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.” Lastly, “an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”

The Court is thus led to the inexorable conclusion that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” And it deftly answers the employers’ and dissents’ arguments that range from the textual (these are not enumerated protected classes), to the legislative-intent-based (Congress opted not to amend the statute), to the logical (an employer could, theoretically, discriminate against a job candidate based on homosexual or transgender status whose sex she didn’t even know).

The majority fires back, noting that, groups within enumerated protected classes can still be distinctly discriminated against because of sex, highlighting the example of mothers of young children. Moreover, it asserted, speculation about why Congress failed to act to amend the statute, whether it did so out of a belief that a broad construction of the statute obviated amendment or out of complacency, “offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt,” and also because legislative history is only to be consulted where an ambiguity presents itself in the course of statutory construction.

But the Court is strongest in its robust mental jousting with the dissents as to what makes for the soundest jurisprudence. Essentially, it says, though an employer may explicitly disavow sex discrimination, this doesn’t mean that when you unpack the implicit discrimination inherent in the larger rationale, (“Women are fine; it’s just pregnant people that are a problem”) you don’t find sex discrimination:

Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s hose is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.

          Finally, the Court rails against the notion that just because one could discriminate against a candidate because of sexual orientation or transgender status without knowing the candidate’s sex, this discrimination cannot possibly be discrimination because of sex. This is essentially a restatement of the argument that an employer can discriminate against a homosexual man and a lesbian at the same time and essentially be discriminating against no one because of sex. As the Court recites, this is simply not true; that would actually be properly viewed as two cases of sex discrimination. This is because the individual’s sex, known or not, and the way that they are being treated when their trait or action is viewed through the lens of their sex, is integral to the thought process that is occurring. As the Court says, it is an impossible task to explain sexual orientation or transgender discrimination, unpacking what it actually means to be gay or transgender, without making reference to individuals’ sex status.

From a social justice perspective, the implications of this opinion cannot be overstated. This express conferral of rights is so widely seen as overdue that even Justice Kavanaugh, who dissented because he could not get to the holding jurisprudentially, and felt that it would be incumbent upon Congress only to expand the construction of the statute as the majority did, reaffirmed:

the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

As with all monumental Supreme Court opinions, this one leaves us with more questions than answers, and more thoughts about its potential reach than surefire predictions and applications. Other statutes that regulate discrimination in things like housing and education also prohibit discrimination because of or on the basis of sex. Justice Alito admonishes in his dissent that the case’s holding may very well “threaten freedom of religion, freedom of speech, and personal privacy and safety.” Indeed, the majority acknowledges that some now posit that “under Title VII itself . . . locker rooms, and dress codes will prove unsustainable after our decision today.”  Moreover, as the Court said, “employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.” Irrespective, the Court responded, these concerns are not attendant to the cases decided now, and these questions are thus best left for another day.

At the end of the day, a look back on this opinion after having read it takes one back to its perhaps initially cryptic opening lines about how “sometimes small gestures can have unexpected consequences,” but “[major] initiatives practically guarantee them.” This was Justice Gorsuch’s way of stating, from the outset, that this holding would not necessarily resemble anything ever necessarily contemplated by Title VII’s architects or the Congress that passed it. And this, Justice Gorsuch wants us to know, will be no impediment whatsoever to a result that is clear and readily derived from the statute, its treatment by courts for over fifty years, and common sense. This opinion enshrines in the law what had already been called for, derived and intuited by jurists, scholars, and advocates nationally for decades.

Posted by Howard Wasserman on June 16, 2020 at 12:25 PM in Constitutional thoughts | Permalink | Comments (0)

Quick Civ Pro Thought after Bostock

A quick thought about teaching Civ Pro (not until January) following Bostock: One of my go-to illustrations of 12(b)(6) legal insufficiency and dismissals with prejudice has been a Title VII claim for sexual-orientation discrimination. I need to find something new.

Posted by Howard Wasserman on June 16, 2020 at 09:40 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Bad (and Pedantic) Legal Takes

I am not on Twitter but I lurk on public accounts, mainly to find news stories and events. One of my favorite is Bad Legal Takes, a collection of stupid statements (one cannot call them arguments) people make about law. It is refreshingly bipartisanly stupid. For every "Trump gets a third term because the impeachment undermined his first term" and "HIPPA prohibits Costco from making me wear a mask" there is a "you can't shout fire in a crowded theatre" and "Trump and Russia colluded, so Trump's SCOTUS appointments are null and void."

Here is one from yesterday, following Bostock, from user Jordan Brooks: Just a reminder, Supreme Court decisions are only binding to the parties before the Court. At the risk of being pedantic and rescuing Mr. Brooks' take from a meaning he likely did not intend or understand, he is sort of right if ultimately wrong. Either way, it is more complicated. And it shows why Kevin Walsh is right that judicial departmentalism reflects the way courts actually operate.

Brooks is correct as to the Court's judgment. The judgment allows three Title VII claims--Zarda's Estate against Altitude Express, Stephens' Estate against Harris Funeral Homes, and Bostock against Clayton County, Georgia--to go forward. And there is no guarantee any of the plaintiffs will win, given the difficulties all Title VII plaintiffs encounter. The judgment does not compel anyone else to do or refrain from doing anything. It does not stop another private employer from discriminating against an LGBTQ employee. It does not stop Clayton County from firing another LGBTQ employee. It does not compel the EEOC to begin pursuing sexual-orientation discrimination claims.

Brooks is sort-of correct as the Court's opinion. The opinion does not bind the EEOC in its internal operations. If the EEOC were to change its interpretation of Title VII and decline to pursue sexual-orientation discrimination as sex discrimination, the opinion would not prohibit that move. Nor does it compel other parts of the executive branch to adopt this understanding of sexual-orientation-as-sex for purposes of other laws. Nor, standing alone, does it compel Clayton County or another employer to act or refrain from acting in some way.

Where Brooks goes off the rails is that the Court's opinion does bind someone besides these parties--every court in the United States, federal and state. So Clayton County or another employer could fire an LGBTQ employee because they are LGBTQ. But they will be sued and they will lose in a lower court that is bound by the Bostock opinion as the controlling interpretation of Title VII.

So let's credit Brooks with a mediocre legal take rather than a bad legal take.

Posted by Howard Wasserman on June 16, 2020 at 09:36 AM in Howard Wasserman | Permalink | Comments (1)

Statutes of Limitation

In Ogden v. Saunders, Chief Justice Marshall and Bushrod Washington clashed on the issue of how statutes of limitation should be understood. One of Washington's leading arguments in Ogden was that a prospective bankruptcy law could not be distinguished from a statute of limitation. In both cases, the state was saying that a contract could not be enforced under certain circumstances. Since statutes of limitation were constitutional, why not a bankruptcy law?

Chief Justice Marshall's response in his dissent was that a statute of limitation was really a rule of evidence rather than a substantive law. He said that the statute of limitation was a presumption (in a contract action) that no breach occurred. In other words, if no suit was brought after a certain number of years, you could assume that no breach occurred. In his notes on Odgen, wrote to himself that this was wrong because statutes of limitation were, in fact, political choices and were substantive.

I'm pretty sure that nobody today thinks that a statute of limitations is properly construed as a rule of evidence. If it were, then the Federal Rules of Evidence should include them, but they do not. What the right answer was in 1827 is harder to say, but I think Marshall was wrong and Washington was right.

Posted by Gerard Magliocca on June 16, 2020 at 09:30 AM | Permalink | Comments (1)

Monday, June 15, 2020

Two Brief Thoughts on Bostock

Whenever the Court next cites Obergefell, I wonder if that case will be reclassified as a sex discrimination case. Such an explanation (as many said when the case was argued) makes more sense than the rationale that Justice Kennedy gave.

My other observation is that the stakes for the ERA are now higher. If Congress ever decides to repeal the expired ratification deadline and declare the ERA part of the Constitution, that amendment could well read as prohibiting discrimination on the basis of sexual orientation or transgender status. 

Posted by Gerard Magliocca on June 15, 2020 at 08:03 PM | Permalink | Comments (2)

Justice Kavanaugh foresees 2020 Blue Wave and other thoughts on Bostock

I have asked my colleague Kerri Stone to write something about today's decision holding that LGBTQ discrimination is sex discrimination; I hope to post that later today. I add a couple of points/questions.

The open question will be whether this means discrimination based on LGBTQ status is sex discrimination for purposes of the 14th Amendment (triggering intermediate scrutiny) and other statutes such as Title IX, Equal Pay Act, public accommodations, etc. The answer would seem to be yes; Gorsuch's major premise is that one cannot discriminate against a person on the basis of sexual orientation without discriminating against that person on the basis of sex. Even if the reason the employer targets the plaintiff because of who she is attracted to or her sex at birth, the mistreatment must pass through sex. And those other provisions protect individuals not groups, the other premise of Gorsuch's analysis.

That question could affect the outcome when an employer argues that the First Amendment or RFRA displaces Title VII, something the majority leaves for another day. If LGBTQ discrimination is sex discrimination deserving of greater scrutiny, does that mean the government's interest in preventing that discrimination (through Title VII) is compelling for RFRA purposes? Does it receive more deference than an interest in prohibiting a form of discrimination receiving rational-basis review? The assumption by even the SG in Masterpiece Cake Shop is that the religious-freedom argument could not fly as to race discrimination but it could as to LGTBQ discrimination because that received lower scrutiny. What happens in the middle?

Gorsuch's writing in this opinion reminds me of Kagan in its informality, with a lot of "imagine if you will" hypotheticals and illustrations.

A lot will be made of the Chief joining this opinion, especially in light of his dissent in Obergefell. He recognized the sexual-orientation-is-sex argument in that case, asking counsel about it during argument. But it did not persuade him with respect to marriage and he did not address it in his dissent. Did he change his mind? Does he see this statute as different than the Fourteenth Amendment (and perhaps other statutes)?

Two interesting theories floating around Twitter (which may fit together). Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader. Marty Lederman speculates (based on October case assignments) that the Chief kept this opinion for himself to rule against the plaintiffs, while Gorsuch was undecided; when Gorsuch would not join that opinion, he wrote his own going the other way and the Chief came on board. Both moves can be explained by the Chief's desire to hold the assignment. Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board (a very Brennan/Stevens move).

The Chief's switch from Obergefell to today may explain the final paragraph in Kavanaugh's dissent:

[i]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.

Compare this with the final paragraph of the Chief's Obergefell dissent:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Finally, the piece that prompts the title of this post: Here is the first paragraph in the conclusion to Kavanaugh's dissent:

It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

This can be true only if "in the next few years" (meaning this year, really) the Democrats gain unified control of the political branches, including likely with a filibuster-proof Senate majority. No Republican-controlled body would pass and no Republican President would sign such a bill. I am certain Kavanaugh's does not want this to happen. But I hope he is right.

Posted by Howard Wasserman on June 15, 2020 at 02:24 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

SCOTUS not helping on qualified immunity

Eliminating qualified immunity does not alone solve the problem of police misconduct or within the criminal justice system, although it is a good start. It appears that start will not come from the Court. As of early May, 13 petitions challenged qualified immunity in application or in concept. The Court denied cert in three last month and denied cert in another eight on Monday. Baxter v. Bracey drew a solo dissent from Justice Thomas, repeating the arguments from his Ziglar concurrence on how neither the objective "clearly established law" or subject good faith matches 19th-century common law. Not even Justice Sotomayor, who has offered other objections to qualified immunity, joined Thomas or expressed disagreement with the denial.

Two cases remain from the original 13--police killing an unarmed man by tasing him nine times during an acute mental-health episode and Kim Davis refusing to follow Obergefell.

I wonder if the recent events and the introduction of legislation prompted the Justices to wait. Although they made this mess, Congress is moving to clean it up, letting the Court off the hook.

Posted by Howard Wasserman on June 15, 2020 at 10:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Friday, June 12, 2020

Law Within Congress

I recommend that people read a new article in the Yale Law Journal on how the House and (especially) Senate parliamentarians function. You can the link here.

Here is the Abstract:

Procedure has long shaped how Congress operates. Procedural battles have been central to legislative contestation about civil rights, the welfare state, tax policy, and presidential impeachments. In these instances and many others, procedural disputes often turn not on written rules but on parliamentary precedents. These precedents constitute a hidden system of law that has received little scholarly attention, despite being critical to shaping what goes on in Congress.

This Article explores parliamentary precedent in Congress. Parliamentary precedent mostly resembles judicial precedent: both are common-law systems that rely on the arguments of adversarial parties. But the two systems differ in key respects. Parliamentary decision-making employs an especially strong form of stare decisis, is minimalist in the extreme, and relies freely on legislative purpose and legislative history as tools of interpretation.

These seemingly legal dynamics play out in the shadow of congressional politics. Understanding parliamentary precedent requires understanding the institutional positions of the parliamentarians, the nonpartisan officials who resolve procedural disputes. The parliamentarians’ distinctive jurisprudence reflects their tenuous positions—namely, that they can be removed, overruled, or circumvented by the majority party. Drawing on novel interviews with parliamentarians and the legislative staffers who work closely with them, this Article illuminates the intersection of law and politics in the making of parliamentary precedent.

A better understanding of parliamentary precedent contributes to our understanding of how Congress operates and the fault lines that emerge in an age of polarization and hardball. These dynamics also hold lessons for public law more broadly. First, the parliamentarians’ efforts to protect themselves from the political fray shed light on efforts by other governmental decision-makers (in all three branches) to do the same. Second, the development of parliamentary precedent provides insight into the relationships between positive law and common law and between law and politics. Third, understanding parliamentary precedent, like understanding other elements of Congress’s internal workings, can inform statutory interpretation.

Posted by Gerard Magliocca on June 12, 2020 at 04:14 PM | Permalink | Comments (1)

Thursday, June 11, 2020

Handing Down A Sentence

Below is one of the few recorded sentencing statements by Justice Washington. The case, United States v. Lowrey, involved three armed men who threatened to kill a federal marshal who was attempting to serve process on them. 

Morrow Lowrey, Andrew Lowrey, John Lowrey! You severally stand convicted, two of you by juries composed of your fellow citizens, and the third by confession in open court, of a successful though temporary opposition to the laws of your country, by resisting the legitimate authority of an officer in this court in the regular discharge of his duty. You have experienced on your trials every indulgence which the court could grant, and have had the assistance of able counsel to defend you. Every objection in point of law which had the semblance of plausibility was urged in your behalf: for, unfortunately for you, no circumstance occurred in the evidence, which could cast a doubt over your guilt, or extenuate its enormity. Is it possible that you could for a moment have entertained the expectation, that it was in your power to obstruct, with effect, the streams of justice, which give life to the political body, and by which that liberty which we all profess to love, is refreshed and invigorated? Did it never occur to you, that if a few interested and misguided men of your neighborhood sanctioned your lawless conduct, that a better intelligence and superior interest would nerve, if necessary, the arms of a thousand fold your number to crush you? Guarded as she is by all the power of this nation, justice sits securely on her seat, and issues her lawful mandates, which no force can successfully resist, but such as is strong enough to overthrow the whole fabric of the constitution. From the nature of our government, it must be so. The courts of justice are the sanctuaries of the law; and it is through the law that our government speaks and acts. Impair, by any means, the power of these tribunals in the lawful exercise of their functions, and you attack the majesty of the law, and sap, most essentially, the foundations of the republic. The government, in a degraded state, may survive the shock, but it ceases to be a government of laws; and liberty expires when force, the only remaining alternative, becomes necessary to coerce obedience to the will of the nation. Recollect that the state of Pennsylvania, powerful and respectable as she is, forms but a small part of the United States; and that the district of Erie, though it were united in a common effort inimical to the tranquility of the whole nation, is but a spot on the map of the state. What folly then could tempt you, when with your associates, if you have any, are I trust an inconsiderable minority in your district, to raise your hands against the government of your country, acting lawfully through one of its constitutional organs? You might for a day or a month impede the administration of justice in your particular cases. But it was utterly impossible that your triumph could be more than temporary, and with a certain loss of possessions which were not legally yours, you doomed yourselves to imprisonment, and to loss of property to which you were entitled. Should you deem too severe the punishment which the law decrees for your offence, reflect for a moment what had been your situation had the officer persisted in his attempt to do what prudence forbade (but which the laws would have sanctioned,) and you had executed the threats which you wickedly denounced against him. Your lives must then have atoned to your country for her violated laws; but where was the circumstance to extenuate your guilt in the eyes of an offended God? Suppose you could have influenced numbers to assist you in opposing the execution of the law, how would your guilt have been increased by the treason and punishment of those you had deluded! I mention these circumstances with a view to impress upon your friends the conviction of this truth, that the highest crimes, against the laws of God and of society, are in the train of the offence of which you are guilty. There is every reason to believe, that had the officer been less prudent, you had, in acts at least, been more criminal. The court has carefully perused the papers which you requested to be read, with a view, as was supposed, to extenuate your offences, and mitigate your punishment. We have to regret, however, that in these documents we discover nothing but an effort, which ignorance only could have suggested, to justify rather than to excuse yourselves. You complain that the judgments in ejectment upon which the process of execution issued were not sanctioned by the principles of law, were rendered by an incompetent tribunal, and were unfairly obtained. Were we for a moment to admit that these objections were well founded, were there no other means by which you could be redressed, but by a resort to force? If the judgment of this court were erroneous in point of law, it was subject to the correction by a higher tribunal, as capable, as it would have been ready, to rectify our mistakes. To this tribunal an appeal was made in a case resembling yours in its essential features, for the purpose of obtaining a just exposition of the law of 1792, the great point in the cause, and there it was investigated by professional talents which would do honor to any country. The decision was against your title, and it became the duty of the presiding judge of this court, who had entertained a different opinion, as it was certainly yours, to submit to this high authority. The question of jurisdiction in your particular cases was decided in this court, how correctly in point of law, it would ill become me to say, but I dare aver that the judgment was influenced by no considerations which could impeach its purity. That the trial, so far as came within our view, was fairly conducted, can be attested by those whose evidence would not be suspected. That it was ably and faithfully managed by your counsel, no man will doubt, who knows who your counsel were. The declaration imputed to the judges of the court, which it is said misled you, is not true; the opinion given in the cause was in direct opposition to the pretended declaration, and it is absurd to suppose that declaration could have been at variance with the former. I should not have condescended in this way to vindicate the justice and integrity of this court, did I not feel a sincere desire to satisfy you, if I can, how grossly you have been deceived by others, or have deceived yourselves, and how totally groundless were the pretexts which led to your misconduct. That you have been misled I can readily believe. Your conduct has evinced either great ignorance or great depravity. Charity teaches us to impute it to the former; and influenced by this consideration, we are induced to diminish your punishment, which would have been otherwise extended as far as the law would sanction. We feel less reluctance on this occasion, in exercising to your advantage the discretion which the law reposes in us, from the hope that when you return to your families, you will carry with you more correct notions of the duties which you owe to your country and its laws, and that the punishment, mitigated as it is, will prevent the repetition of similar offences by yourselves or others. The law authorizes the court to condemn you to twelve months imprisonment, and the payment of three hundred dollars.

Posted by Gerard Magliocca on June 11, 2020 at 09:01 PM | Permalink | Comments (3)

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 10, 2020

Testing fan speech

NASCAR has barred Confederate flags from races, events, or properties, including those displayed or waved by fans. But who owns and controls the various tracks? And if the government, what is the connection between the government and NASCAR and is there enough of a connection to make NASCAR a state actor and to trigger the First Amendment? This is the first instance in which a private professional league issued a blanket ban on fan expression.

Posted by Howard Wasserman on June 10, 2020 at 07:30 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Lawyers doing lawyering

Good legal work from lawyers for CNN and and NY Times calling out bad arguments. David McCraw of The Times has been down this road.

Posted by Howard Wasserman on June 10, 2020 at 04:27 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, June 09, 2020

The Rod Carew of ________

Rod Carew's Jewish connections are well known. Less well known, but discussed following his death in May, was Little Richard's connections to Judaism, which include not working or attending parties on Shabbat or Rosh Hashanah. (H/T: Spencer Waller).

So, who are the Rod Carews (Rods Carew?) of other fields? Looking for someone who is not Jewish, adopts Jewish practices, and is widely but erroneously believed to be Jewish.

Have at it.

Posted by Howard Wasserman on June 9, 2020 at 09:31 AM in Howard Wasserman | Permalink | Comments (9)

Monday, June 08, 2020

Calling the NFL's bluff

Roger Goodell is an incompetent liar. So I hesitated to rejoice over his video from last week in which he said, among other things, "We, the National Football League, admit we were wrong for not listening to NFL players earlier and encourage all players to speak out and peacefully protest." It never mentioned the flag, kneeling, or Colin Kaepernick, so I wondered how much he was committing to and how much wiggle room he tried to leave the league and himself so as to avoid displeasing the President and a segment of the fan base.

We may find out. Just before midnight, the President* tweeted "Could it be even remotely possible that in Roger Goodell’s rather interesting statement of peace and reconciliation, he was intimating that it would now be O.K. for the players to KNEEL, or not to stand, for the National Anthem, thereby disrespecting our Country & our Flag?" Imagine the NFL returns and players kneel and the President and the Trumpier team owners object. I can envision Goodell insisting that he meant that players were encouraged to participate in the ongoing protests or to speak on Twitter and other outlets; he did not mean they were encouraged to bring it onto the field.

[*] Or someone working his account. The use of "intimating" suggests it was not the President himself.

Posted by Howard Wasserman on June 8, 2020 at 01:28 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Saturday, June 06, 2020

The Evolution of Language

I learned something new today. On Bushrod Washington's memorial at Mount Vernon, the following is inscribed:

"Firm in every honorable purpose and pursuit. Yet gentle, humane, and condescending."

Condescending? What the .  . .? So it turns out that condescending was meant as a compliment back then. Basically, it meant "talking to people of lower social rank as if they were equals." Jane Austen, apparently, used the word this way in one of her novels. The assumption, of course, was that the person being condescending really was superior and was being modest or affable in talking to say, the servants. Interesting to see how words can change their meaning over time, in this case dramatically. 

Posted by Gerard Magliocca on June 6, 2020 at 09:58 PM | Permalink | Comments (7)

Friday, June 05, 2020

No vehicles in the park

No explanation needed.

Posted by Howard Wasserman on June 5, 2020 at 10:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Last act of a desperate man (or first act of Henry V)?

Many have pointed to the differences in how police responded to the George Floyd protests compared with the anti-shutdown protests. It is especially glaring to see police respond with resistance, impatience, and ultimately often-discriminate force and arrests of largely peaceful Floyd protests on public parks and sidewalks, while calmly de-escalating or ignoring heavily armed people in paramilitary gear in a space (the halls of the statehouse) they did not have a right to be in. Photos and videos show the latter protesters being as shouty and as in the officers' faces. And there were more explicit threats of unlawfulness, given that some protesters had military-grade weapons and were threatening government officials. Yet police stayed calm, used little force, and made few (if any?) arrests.

This is not new. In January 2017 (boy, does that seem like decades ago), I wrote about the lack of force and arrests in the first women's march and the airport protests following the first Muslim Ban. At the time I wondered why--whether it was as simple as the race of the protesters (or at least the racial valence of the protests, since many of the protesters and victims of police violence have been white).

One commenter suggested that the subject of the protests mattered: Police do not remain neutral and play peacekeeper when they and their misconduct are the targets of the protests, as opposed to President Trump or governors and their shutdown orders. Events of the past two weeks support that idea. Police in Minnesota were loaded for bear from the outset, prepared for confrontation and looking to stifle the assembly, before anything turned violent and before it spread to other cities; when people in other cities began protesting, police started from a confrontational, escalatory pose with the goal of clearing the streets. We have seen little of the patience and leeway accorded to other protesters. Videos making the rounds show police looking for an excuse to get physical and, once things have become physical, to clear the crowd. One video from Seattle shows a bike officer riding on the sidewalk and trying to squeeze into a narrow space between a person and the pushes; when he and the citizen unavoidably bump, the cop uses that as an excuse to make an arrest. Videos I have seen from yesterday in Buffalo, Philadelphia, and elsewhere show police determined to clear a space and taking out anyone in that space, regardless of whether they are peaceful and whether they are doing anything wrong.

It is telling that we have seen so many incidents of indiscriminate, unnecessary, and arguably excessive police force in response to protests against excessive force by police. And it is significant that we have seen so many incidents of police force despite officers knowing they are being filmed by every protester with a phone, not to mention media covering these events. One explanation is that police do not care; they are confident that nothing in the videos will cause them to lose their jobs or their qualified immunity. Another is that they are, intentionally or not, asserting power by showing what real excessive force looks like--"stop crying or I'll give you something to cry about"--and proving the protesters' point.

A third, more speculative explanation is that we are at the end of an era, that significant changes to policing and police impunity are coming. And at least some officers are trying to get in their last shots before it is too late. I hope reform is coming.

Posted by Howard Wasserman on June 5, 2020 at 12:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Thursday, June 04, 2020

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

Posted by Howard Wasserman on June 4, 2020 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Commemorating Tiananmen Square: A Case Study in the Failure of “People Power”?

Today is the 31st anniversary of the Chinese Communists’ repression of the student protests at Tiananmen Square. After thirty-one years, a memory, like a person, ought to be subjected to middle-aged reflection. I will, therefore, treat this anniversary as an opportunity to reflect maturely and even a little bit coldly on the lessons of Tiananmen Square. One of those lessons, I’ll argue below, is how “people power” fails when it is completely disconnected from the institutions it seeks to displace. So understood, Tiananmen is a grim reminder to current protestors, from Hong Kong to the streets of the USA, that crowds and chants without programs, institutions, and establishment alliances do not have a great track record of success in improving government.

By “people power,” I mean the idea that spontaneous crowds of people, unified only by their disgust with the injustice of an incumbent regime, can both topple that regime and bring about lasting desirable change in government. People Power played a significant role in the wave of democratizations that crested in the 1980s. Mass protests over Benigno Aquino’s murder in 1983 and Ferdinand Marcos’ stealing the 1986 election from Cory Aquino, Benigno’s widow, drove Marcos out of power in the Philippines. Mass mobilization helped enforce the results of the 1988 referendum against Pinochet in Chile. And, most memorably, 1989 saw mass demonstrations herald the beginning of the end of the Soviet-backed Communist regimes of Eastern Europe. Tiananmen Square’s repression, indeed, occurred on the same day that Lech Wałęsa‘s Solidarity Movement won the second largest bloc of seats in Poland’s Sejm in free elections brought about by Solidarity’s mass strikes and demonstrations a year earlier. The students’ protests at Tiananmen were supposed to be part of this great wave of democratic victories sweeping the globe. Alas, Tiananmen ended with a massacre, not an election.

This contrast between Solidarity and Tiananmen suggests how People Power succeeds and fails. The Solidarity movement was more than just a “movement”: It was an institution with the ability to negotiate with Wojciech Jaruzelski’s government, bargaining over those free elections that eventually led to the defeat of the Communist Party. By contrast, the students camped out at Tiananmen Square had no organized decision-making structure, no alliances with anyone in the PRC government, and no capacity to strike compromises. With the more iconoclastic student factions denouncing even reformist Communists like Dai Qing as “neo-authoritarians,” the students gave the Chinese Party the choice of killing itself or killing the students. Naturally, the CCP chose the latter option.

There are grim lessons here for the United States’ “George Floyd” protests and Hong Konger protestors. Pure People’s Power is likely to fail, as peace activist and scholar April Carter has argued, because unfocused mass grievance cannot negotiate with incumbent officials by making limited demands that the latter are prepared to accept. Hong Kong protestors boast that their crowds follow Bruce Lee’s advice to “be water” By adopting a fluid, leaderless mass the police cannot arrest and courts cannot try and imprison. True enough — but a mere flood leaves nothing behind but mud and wreckage, inviting incumbent officials to rally support with the grim warning, “après nous, le déluge.” (Law-and-order Republicans might get an electoral boost in 2020 from such fears of disorder).

What would it mean for People Power to become more institutionalized? Consider three ways that the power of the street could be connected to the power of institutions.

First, the rank and file protestors need some ongoing loyalty to leaders and institutions that can bargain on their behalf. Police unions are politically powerful impediments to reform precisely because the members are part of an electorally powerful organization that can bargain on the officers’ behalf. Consumers of police services — the public — need similar loyalty to similarly durable “unions” that can bargain on their behalf.

Second, the organized opposition needs to be prepared to strike bargains and not make merely intransigent, unilateral demands. Incumbent officials, after all, also have supporters (some of them very well-armed, like the People’s Liberation Army) that provide those officials with political clout. Those officials will make concessions exactly proportionate to the balance of power, a balance that the negotiation process reveals. Demanding that the Hong Kong chief executive be directly elected by universal suffrage, for instance, is a good opening gambit — but it cannot be last intransigent word. Hong Kong protestors should be prepared to dicker over the precise composition of that “broadly representative nominating committee” (“广泛代表性的提名委员会“) provided by Article 45 of the Basic Law. Those protestors, after all, do not hold all of the cards: They can win the value of what’s in their hand, not what’s in their dreams.

Third, the street should be coordinated with the bargaining table: Mass protestors should press demands in chants and signs that their representatives can press in the smoky room. It would be a huge sign of progress, for instance, if New York protestors chanted “repeal 50-a” as a way of nudging politicians towards getting rid of the state law that bars public disclosure of police disciplinary records. (Mayor de Blasio apparently still needs a nudge)

Creating institutions is not easy, especially when the government does its best to prevent their creation by arresting opposition leadership. But replacing mere People Power with institutions that can harness, but are not captives of, mass mobilization should be reformers’ top priority. Otherwise, this latest round of protests will likely end up like Tiananmen Square — just one more sad memory to commemorate rather than celebrate.

Posted by Rick Hills on June 4, 2020 at 11:22 AM | Permalink | Comments (6)

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 03, 2020

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Posted by Howard Wasserman on June 3, 2020 at 12:02 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

Posted by Howard Wasserman on June 3, 2020 at 10:39 AM in Article Spotlight, Civil Procedure | Permalink | Comments (3)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Kolber Signs Off

It was great guest blogging at Prawfs during the month of May. My thanks to Howard and his Prawfs colleagues, to all those who participated in the Legal Discontinuities Online Symposium, and to viewers and commentators like you. Here's a link to my posts during this stint and a link to the posts from the symposium.

Lastly, here's Cal Newport writing in favor of blog resurgence (but maybe I'll tweet here occasionally).

Posted by Adam Kolber on June 2, 2020 at 11:13 AM in Adam Kolber | Permalink | Comments (2)