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Thursday, October 29, 2020

JOTWELL: Smith on Davis on public standing

The new Courts Law essay comes from Fred Smith (Emory), reviewing Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019), analyzing state and local governments as plaintiffs.

Posted by Howard Wasserman on October 29, 2020 at 12:22 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (2)

Wednesday, October 28, 2020

Zombie laws and trigger laws

The other day I discussed zombie laws--laws that remain on the books and are enforceable by a departmentalist executive, but any effort to enforce would fail in court--and wished I had thought of the term. What is the opposite of a zombie law? Trigger laws--laws that are on the books but are presently unenforceable by their terms, but become enforceable upon some triggering event.

With a definite 5-4 (if not 6-3) SCOTUS majority in place to overrule Whole Women's Health, if not Roe and Casey, the statutory landscape of abortion illustrates the various forms this can take. According to a report from the Guttmacher Institute and translated into this terminology:

   • Nine states have pre-Roe zombie laws--pre-Roe abortion restrictions that cannot be successfully enforced--and no intent and/or effort to enforce them. You might try to guess from the list of states which ones are not enforcing because they do not want to* and those not enforcing because they know they will lose when it reaches court.

[*] New York had one such law that it repealed in 2019.

    • Ten states have post-Roe trigger laws that ban all or most abortions and become effective on the triggering event of an overruling of Roe/Casey and the allowance of complete regulation of abortion.

    • Nine states have post-Roe zombie laws--post-Roe restrictions that they intended or attempted to enforce but were enjoined. These states will ask the court to dissolve the injunction, citing the overruling of Roe/Casey as the change in legal landscape making the injunction improper. Once the injunction is lifted, the laws are enforceable.

    • Three states have nothing on the books, but have expressed intent to enact new post-overruling laws to restrict abortion to the extent permissible.

    • Fourteen states have complete statutory protection for abortion, either throughout pregnancy or pre-viability. These laws match or exceed current constitutional protection.

Posted by Howard Wasserman on October 28, 2020 at 04:12 PM | Permalink | Comments (2)

Panel: The Jurisprudence and Legacy of Justice Ginsburg (Moved to Top)

This is a reminder that FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30. Register here. The event is open to the public; please join us for what should be a great conversation.

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

Moderator: Michele Anglade (FIU College of Law)

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


            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Posted by Howard Wasserman on October 28, 2020 at 12:32 PM in Howard Wasserman | Permalink | Comments (0)

Tuesday, October 27, 2020

12th Annual Lesley K. McAllister Symposium on Climate and Energy Law & the McAllister High-performing Passive House

Our beloved colleague Lesley McAllister left an environmental legacy that continues to impact scholars and policymakers around the world. At USD law we hold out annual climate and energy law symposium in her memory - this year online - Nov 6 and 13 - register here.

Her husband and beautiful kids have moved into a new home that is innovative and shares Lesley's commitment to responsible energy saving practices. here is the story of their new home:

Putting California's Energy Code Into Practice with Commissioner Andrew McAllister

Posted by Orly Lobel on October 27, 2020 at 03:02 PM | Permalink | Comments (1)

Monday, October 26, 2020

An Entry-Level Candidate's Plea

I received the following anonymous email from "AALS Candidate." I'm not generally in the habit of posting anonymous emails to the blog, but this seemed of general interest to those on the job market and also like something that might generate a useful discussion, including thoughts from people who are directly involved in fellowship programs and hiring and who have a sense of, for example, whether fellows are actually not getting jobs this cycle (though of course it's also very early to know that).

I'm an entry-level candidate on the AALS market this year, and it's miserable. I have a strong CV. Not SCOTUS clerk + PhD strong, but in any other year I'd have at least a dozen screening interviews. So far, I've had 1 screening interview. I may get a few more since some schools are delayed, but I'm not very optimistic.

Here is why I'm writing. I've spent years planning out in excruciating detail exactly how and when I would go on the market because I have a personal situation that precludes me from going on the market more than once. I don't want to elaborate because I want to remain anonymous, but trust me. I have one (real) shot. And many years ago, I picked 2020. So, it's especially painful for this year to be the year. For candidates like myself, a member of an often-marginalized group of candidates, going on the market is usually inequitable. Even in a decent year, the stars might not align for us. But especially this year, pandemic-related hiring freezes are likely to shut a lot of quality, marginalized candidates out of the academy permanently.

My ask: if anyone reading this has any sway at your school, please push for your school to fund a new VAP or fellowship. It doesn't need to pay much; we're desperate. I read a scary comment recently that struck me as prescient: most existing VAPs and fellowships won't lose many from their ranks this cycle and schools may extend time-limited positions for an extra year, leaving new candidates on the market shut out entirely unless schools create *new* opportunities for us. Please do what you can to give us an equitable chance to succeed. Thank you.

Posted by Sarah Lawsky on October 26, 2020 at 05:59 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (71)

Goal Gradient Effect & Covid Vaccine

My in-house behavioral scientist, On Amir, explains in today in this news article the “goal gradient effect" in relation to the proximity of a vaccine, health policy, and safe social behavior:  "The closer you are (or think you are) to completing a task, the more motivated you are to stick it through for the reward. In this case, that reward would be some semblance of a return to normalcy. How people react, he says, will depend on whether public officials frame the rollout of a vaccine as an instant triumph or a series of steps. For instance, making clear a vaccine would be rolled out in phases." 

Posted by Orly Lobel on October 26, 2020 at 01:02 AM | Permalink | Comments (4)

Sunday, October 25, 2020

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

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

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

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

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

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

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

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Saturday, October 24, 2020

Symposium on Birch Bayh

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

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

Update on Jewish World Series

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

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

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

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

Declaratory judgment of protected speech

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

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

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

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

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

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

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

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, October 23, 2020

Hybrid Cases and Free Exercise

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

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

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

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

Still getting jurisdictionality wrong

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

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

Tuesday, October 20, 2020

NDAs and racial discrimination

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

Posted by Orly Lobel on October 20, 2020 at 09:35 PM | Permalink | Comments (7)

Panel: The Jurisprudence and Legacy of Justice Ginsburg

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

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

Moderator: Michele Anglade (FIU College of Law)

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


            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

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

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

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

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

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

For Interested Junior Scholars

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

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

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

For Senior Scholars Interested in Serving as Reviewers

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

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

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

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

Monday, October 19, 2020

World Series set

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

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

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

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

New Article: "A Few Grains of Incense"

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

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

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

Here's the abstract:

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

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

Sunday, October 18, 2020

Breyer as assigning justice

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

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

Friday, October 16, 2020

Hamilton: The Legal Text

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

Posted by Howard Wasserman on October 16, 2020 at 12:34 PM in Books | Permalink | Comments (2)

Prawfs' moment in the sun

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

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

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

Thursday, October 15, 2020

Habeas Corpus, Non-Delegation, and the Pandemic

Let's try a thought experiment. Suppose next year Congress passes the "Habeas Corpus Suspension Act of 2021." The Act recites the constitutional standard for habeas corpus suspension and then delegates to the President the power to suspend. Would that Act be constitutional? Probably not. Why? Partly because of the purpose of habeas corpus to limit executive detention authority, the common law history of the writ, and the practice of habeas suspension in Parliament and in Congress.

I mention this for two reasons. First, the history of habeas suspension might be a good place to look for guidelines in a future non-delegation case. The Supreme Court will eventually find a case to declare a delegation of congressional authority invalid. Good luck explaining why that would be so, but perhaps habeas suspension practice can offer some assistance.

Second, habeas suspension provides an analogy for thinking about recent cases involving COVID-19 restrictions on civil liberties. One problem with these restrictions is that they come from executive and local officials acting under broad and old statutes delegating that sort of health authority. These health emergency statutes can be analogized to the hypothetical Habeas Corpus Suspension Act of 2021, unless you think that criminal detention is so different from the current curbs as to make the examples distinguishable. At some point, though, a state constitution or the federal constitution might require that a legislature act now and specifically for civil liberty restrictions to reach beyond the immediate crisis period before the legislature can be called back into session.

Requiring legislative authorization would address some of the legitimacy concerns surrounding these measures and allow for exceptions to be discussed and addressed. This would not foreclose a constitutional challenge to a statute enacted now that places restrictions on speech, religious practice, gun shops, abortions, etc. Current legislative action, though, would reduce the number of these challenges and put the subsequent health actions on a stronger footing. Especially as we have no idea how long they will be required.

Posted by Gerard Magliocca on October 15, 2020 at 08:26 AM | Permalink | Comments (1)

Wednesday, October 14, 2020

Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United StatesDemma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges.

These are two incredibly important questions that arise because of how the Supreme Court decided United States v. Booker.  Previous cases had said that mandatory sentencing systems violate the Sixth Amendment if they require judges to make factual findings before increasing a sentence.  The Federal Sentencing Guidelines required such factual findings, and so the Booker Court held that they were unconstitutional.  But then something unusual happened—although she formed part of the 5-4 majority that found the Guidelines unconstitutional, Justice Ginsburg joined the four dissenting Justices who then fashioned a strange remedy.  Rather than saying that mandatory sentencing facts have to be proven to a jury beyond a reasonable doubt, the remedial majority said that the Guidelines would no longer be mandatory, they would instead be “advisory.”

Since Booker was decided in 2005, the Supreme Court has heard a whole bunch of cases that seek to clarify this remedy.  It is clear that judges still have to find facts and calculate a sentence under the Federal Sentencing Guidelines.  It is also clear that judges have at least some authority to give a non-Guidelines sentences.  And it is clear that appellate courts are supposed to review sentences to make sure that they are both procedurally and substantively reasonable.  But it is entirely unclear how much authority district court judges have to sentence outside of the Guidelines, and it is also unclear what the appellate review of those non-Guidelines sentences is supposed to look like.

Just last week, the North Carolina Law Review hosted a symposium on the Supreme Court’s Sixth Amendment sentencing doctrine.  The first of the Court’s Sixth Amendment sentencing cases, Apprendi v. New Jersey, was decided in the year 2000, and so the symposium marked the 20th anniversary of the doctrine.  We had an amazing group of speakers at the symposium—Judge Stephanos Bibas, Doug Berman, Will Berry, Frank Bowman, Judge Nancy Gertner, Nancy King, Susan Klein, Kate Stith, and yours truly.  The law review will be publishing papers from the symposium.

Coincidentally, my paper (which is not quite in shape to be shared right now!) addresses both of the questions that are before the Supreme Court in Demma.  I argue that two Supreme Court cases—Blakely v. Washington and Cunningham v. California—require allowing district court judges to impose sentences based only on policy disagreements.  Blakely contained the following explanation of its holding:

“Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 

If district court judges may not base their sentences on policy reasons alone, then they will have to base sentencing decisions on facts.  The Blakely Court told us that those facts, if necessary, have to be submitted to a jury.  If judges have to point to particular facts or circumstances in a case that justify a non-Guidelines sentence, rather than being able to simply articulate a policy disagreement, then the Supreme Court will have to overrule Blakely.

The appellate review question arises from some contradictory language in Gall v. United StatesGall instructed the courts of appeals to “take into account the totality of the circumstances” when reviewing sentencing decisions, and it also suggested that this review should be conducted no differently for sentences inside the Guidelines range and outside of the range.   But this even-handed language was undercut elsewhere in the opinion.  In stating that appellate courts should consider the totality of the circumstances, the Gall Court mentioned only a single circumstance—“the extent of any variance from the Guidelines range.”   It also said “it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision—the decision to allow different legal standards for sentencing—troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits. 

For example, according to 2018 U.S. Sentencing Commission data, judges in the Fifth Circuit follow the Guidelines when imposing sentence 84.3% of the time.  In contrast, judges in the Second circuit follow the Guidelines only 55.3% of the time.  It should come as no surprise that these two circuits take different legal approaches to the questions presented in the Demma petition.

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Posted by Carissa Byrne Hessick on October 14, 2020 at 03:21 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Monday, October 12, 2020

Standard Arguments Against Confirmation (Alas)

At least for the past 33 years, two arguments seem to lead the pack as standard justifications for voting against a judicial nominee, especially a Supreme Court nominee, who is otherwise "well qualified" for  the office:

1) "Extreme": The most popular, because most generally and easily applicable, begins with the acknowledgment that the nominee may be otherwise well qualified for the office, and that the person opposing the nomination does not object to the fact that the nominee is conservative, or liberal, or what have you, as such. But this nominee is not just conservative/liberal/what have you: He or she is "extreme" in his or her views, and those extreme views are "disqualifying." (Here is a recent example.) 

2) Scandal: The other standard argument is that regardless of the nominee's other qualifications or of whether the nominee is or isn't "extreme," he or she has done something that is scandalous, improper, illegal, or what have you, but in any event so bad that the nomination should not go forward.

Stipulate that either of these may, in fact, be good reasons for voting against a nominee and that there are nominees for whom, on almost any reasonable reading, one or the other reason may apply. It remains the case, it seems to me, that both of these arguments are bad standard arguments. That is, whether or not they are sufficient reasons to vote against a nominee, they should not be held up as the standard primary arguments or, which ends up coming to much the same thing, treated as necessary arguments.  

That's not because they're wrong in themselves, but because the incentives involved are damaging and arguably not wholly within the conscious control of any senator, let alone the Senate as a collective body. If the supposition is that a "well-qualified" nominee is entitled to confirmation unless he or she is extreme, and a senator wants to vote against that person for the obvious reason that he or she is likely to cast votes that the senator doesn't want, of course one will describe the nominee as extreme. There's not much of a penalty for getting it wrong predictively, and since "extreme" is a standardless word, it's not clear what getting it wrong means as a descriptive matter. Indeed, given its malleability, the influence of epistemic bubbles, and the number of people who have decided that their mission in life is to move the Overton window, the senator may even come to believe that the nominee is "extreme" even if he or she didn't start with that belief.

As for scandal, there are reasons to take it seriously. But absent a clear standard and burden of proof, reasonable but strictly observed time limits, and other controls, relying on this as the other major justification for a negative vote will at a minimum lead to protracted confirmation processes in the hope that something will eventually emerge that "raises serious questions." On the margins, there will of course also be questions about what is or isn't scandalous, questions that are subject to the same cognitive effects. (I think this line of attack will have a number of other negative effects. I think the character of office-holders matters, But I doubt that a trend in which anyone entertaining the idea of public service is encouraged to order his or her life to conform to the Boy Scout oath is a positive one even for those who care sincerely about the character of office-holders. It does not follow that if having office-holders of good character is good, demanding office-holders of superficially unblemished character must be even better. But I'll rely here strictly on the basic point.)

People often bemoan party-line votes. But it's not clear to me that they are as damaging to the process, or to the federal courts, as a system in which people profess loyalty to the proposition that a well-qualified nominee should be confirmed but then must perforce frame a "no" vote in terms of the "extreme" or scandalous nature of a particular nominee. On the whole, I like the proposition that a well-qualified nominee should be confirmed. At least I would like it, if I felt I could trust senators to abide by it and not rely on escape hatches, or if I felt that the media environment was such that disingenuous statements would be treated as such rather than amplified.

Without that kind of environment, it seems to me that I would vastly prefer a senator to call a nominee well qualified and vote against him or her explicitly on the basis that the nominee might rule in a way the senator doesn't want. Perhaps the counter-argument is that there is a constitutional "norm" or "settlement" or "convention" favoring the confirmation of well-qualified nominees. And I believe in the value of constitutional norms, and am delighted that the renewed interest in them reveals a deep and abiding love of tradition. Who knew? But if that's the norm (and one should generally be suspicious of any specific invocation of constitutional norms), it's a bad one, at least unless it is observed by people of character. Under the circumstances it would be preferable for senators, who are politicians, to cast political votes. It would save a lot of fuss and bother. But they should be openly political votes.         

Posted by Paul Horwitz on October 12, 2020 at 06:02 PM in Paul Horwitz | Permalink | Comments (0)

Friday, October 09, 2020

Ford arguments

Here is the transcript from Wednesday's argument in Ford and here is my SCOTUSBlog story. A few additional thoughts:

The Justices do not seem to understand or recognize that the prevailing analytical approach has 3 parts (at least as it has developed): 1) Purposeful availment; 2) Relatedness; 3) Unreasonableness. A lot of the hypos conflated the three. The Chief's hypo about the small manufacturer in Maine could be resolved on the third prong (much like Justice Breyer's hypos about Egyptian shirts and Brazilian coffee in his Nicastro concurrence). Other hypos were about purposeful availment rather than relatedness. Justice Kavanaugh tried to disaggregate them in his colloquy with plaintiff counsel, giving him a chance to describe the differences between the first two steps and why they do not run together. But I do not know whether it will take. (There is an argument that the three-step approach is wrong and inconsistent with Shoe, but this is where we are until the Court changes it. So it would be helpful if they recognized their analysis).

Justice Kavanaugh explored the World Wide connections with both sides, including quoting specific language from the case. Counsel for Ford argued that the issue is open because Audi and VWA did not challenge jurisdiction. Counsel for plaintiffs argued that there is a reason for that--jurisdiction over a nationwide manufacturer for defects in its products forms the "core" of specific jurisdiction.

I am bad at predictions, so I will not make one. But the Justices were less hostile to the plaintiffs' position than I anticipated. I do not know what that means for the outcome.

On a different note, it was easier writing the argument recap (what I have found the hardest of the three SCOTUSBlog pieces for each case) under the new argument format because it was easier to take notes and to organize the piece--Intro and nine mini colloquies per side, with less need to scour many pages for common themes. Although I was raised in the Scalia-led free-for-all that also is reflected in law-school moot court, this format is growing on me and I am curious if they will maintain some version of this when the Court returns to face-to-face. And if Court membership expands.

Posted by Howard Wasserman on October 9, 2020 at 01:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

Posted by Howard Wasserman on October 9, 2020 at 10:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, October 08, 2020

"Religious Questions: Relevant, Legitimate, and Impossible" at Canopy Forum Blog

Here is a post I did for Canopy Forum, the blog of Emory's Center for the Study of Law and Religion, which (present company excepted, of course) has been running some excellent material. Here's a key paragraph:

It is in the seeming tension between these two assertions — that the Religious Test Clause as a constitutional provision is more residual than important these days, and that religious questions about putative office-holders are at least as urgent as they have been in some time, if not more — that we might approach the latest such controversy, over the nomination of Amy Coney Barrett to the United States Supreme Court. 

I would like to make two suggestions here. First, despite the rhetoric of some of her supporters, those who suggest that the Religious Test Clause bars any religious questions about Judge Barrett and her views are wrong. That is not a bad thing; religious questions can, in theory at least, be sensible things. Second, precisely because of the rhetoric of those who actually raise or insinuate religious questions, whether in opposition to her or in her support, we should avoid them like (pardon the expression) the plague. That is, in a sense, a bad thing. It means that the level of public discourse around religion — and not just religion — and the religious literacy of our representatives and of the public itself is so impoverished that we are virtually incapable of asking such questions. 

Posted by Paul Horwitz on October 8, 2020 at 03:11 PM | Permalink | Comments (0)

Wednesday, October 07, 2020

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Drake Law School - Visiting Position Spring 2021

From Drake University Law School:

Drake University Law School invites applications for a temporary appointment as Visiting Assistant/Associate/Professor of Law, to teach a small section of Civil Procedure (II) in a remote format during Spring Semester 2021. Civil Procedure (II) is a three-credit class for incoming first-year students, and should cover the phases of a civil lawsuit, including pleading by the parties, joinder of parties and claims, discovery and preparation for trial, devices for resolving disputes without trial, burdens of proof, instructions, verdicts, and post-trial motions. Visitors should also be available for office hours on a weekly basis. Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see www.drake.edu/law. Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to Associate Dean Andrew W. Jurs, [email protected], prior to October 23 for the initial review of candidates.

Posted by Sarah Lawsky on October 7, 2020 at 04:47 PM | Permalink | Comments (0)

Law Professor Wins MacArthur Grant

Congratulations to Thomas Wilson Mitchell, a professor at Texas A&M University School of Law and co-director of its program in real estate and community development law, who this week was named a 2020 fellow of the MacArthur Foundation. The foundation describes his work as "reforming laws and developing policy solutions addressing mechanisms by which Black and other disadvantaged American families have been deprived of their land, homes, and real estate wealth."

I am not acquainted with his work, no doubt to my loss, as it's outside my usual field. And I must confess that I'm not a huge fan of the MacArthur Foundation and its annual grants. But I am a fan of fair play and reasonable distribution of plaudits within our economy of prestige, and specifically within law, our ostensibly, generally absurdly credentialist sector of  the already absurdly credentialist academy. Not having learned the news until this moment, and having heard much more, and much more quickly, about previous grants to law professors, I wondered whether it was a function of my own increasing effort both to stay away from most social media and to approach more warily and less frequently the usual mainstream media outlets, which are suffering from an evident drop in quality, reliability, and professionalism--or whether there was a genuine relative lack of coverage. A quick and dirty search suggests to me that it's not just my reading habits; it looks as if Professor Mitchell has not (at least not yet) received the same amount of coverage and law-blog love as at least some other previous lawprof recipients of the fellowship. I'm sure all private law scholars and at least a few public law scholars join me in thinking there is no reason in the world for property, and private law generally, to get less than its due share of attention in an often overly public-law-oriented legal academy. (And I say that as a public law scholar.) So I am happy to note the news and to congratulate Professor Mitchell--and Texas A & M Law, which I'm sure is justly thrilled and proud.  

Posted by Paul Horwitz on October 7, 2020 at 03:56 PM | Permalink | Comments (0)

Joseph Rainey and the Amnesty Act of 1872

I've come across a fascinating speech. In 1872, Congress was debating amnesty from Section Three of the Fourteenth Amendment for many former Confederates. A proposal was made to amend the amnesty bill and add a strong civil rights measure. Democrats opposed the civil rights amendment, but without the amendment amnesty might not have passed the House of Representatives due to opposition from Republican members who were African-American.

On May 13, 1872, Congressman Joseph Rainey of South Carolina, a former slave, rose to speak on the amnesty bill. You can find the speech at pp. 3382-3383 of the Congressional Globe for the 2nd Session of the Forty-Second Congress. Here is part of what Rainey said in support of amnesty without conditions:

"We are desirous, sir, of being magnanimous; it may be that we are so to a fault; nevertheless, we have open and frank hearts toward those who were our former oppressors and taskmasters. We foster no enmity now, and we desire to foster none for their acts in the past to us, nor to the Government we love so well . . . We now invoke you, gentlemen, to show the same magnanimity and kindly feeling toward us--a race long oppressed; and in demonstration of this humane and just feeling give, I implore you, give support to the civil rights bill, which we have been asking at your hands, lo these many days. . . . I need not say to you that we fought for the maintenance of the Government while those who are about to be amnestied fought to destroy it."

Rainey served in Congress for four terms and led a rather remarkable life (including an escape from the Confederate Army during the Civil War.) He's worth further study.


Posted by Gerard Magliocca on October 7, 2020 at 09:38 AM | Permalink | Comments (1)

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

"Relatedness" in personal jurisdiction--Ford and World Wide Volkswagen

SCOTUS on Wednesday hears arguments in Ford v. Montana Eighth Judicial District and Ford v. Bandemer, considering whether there can be specific jurisdiction over a defendant who sells and ships products into the forum state but not the specific unit involved in the events at issue. The Court must decide whether "give rise or relate to" reflects one concept or whether "relate to" is a distinct and broader concept and how much broader. I am covering the case for SCOTUSBlog. Larry Solum offers some thoughts.

This case is the spiritual successor to World Wide Volkswagen, answering questions that were unnecessary 40 years ago and reflecting recent doctrinal shifts. Audi and Volkswagen of America did not challenge personal jurisdiction, recognizing that they were subject to jurisdiction based on the large number of cars that they sold, marketed, serviced, and shipped to the state, although they did not sell or ship the Robinson's car to Oklahoma (they shipped that to NY). Whether this was general "doing business" jurisdiction or some broader conception of specific jurisdiction was unresolved, although it was the topic of academic debate between Mary Twitchell and Lea Brilmayer.

The Court's recent decisions (several authored by Justice Ginsburg) narrowing general jurisdiction to "home" (meaning principal place of business and state of incorporation for corporations) changes the calculus for Ford, which stands in the same position as Audi and VWA. There is no general jurisdiction, because Ford is not incorporated or headquartered in Montana or Minnesota, just as Audi and VWA were not incorporated or headquartered in Oklahoma. So this squarely presents how far (or not far) relatedness extends, including whether it reaches cases in which the defendant has contacts with the forum that are "identical" or "similar to" the out-of-state contacts that caused the accident.

This could be the most significant of the recent wave of P/J cases. If the Court narrows the relatedness standard and finds no specific jurisdiction, it could make it difficult for plaintiffs to sue manufacturers in the locus of the accident, which usually is the plaintiff's home. Instead, often-less-resourced plaintiffs will have to travel to the better-resourced defendant's home (having to sue Ford in Michigan) or to some third state where the defendant did have contacts (such as where Ford manufactured or made first sale of the car at issue). Either is less convenient and more burdensome for the plaintiff. Waiting to hear arguments, but I expect the Court to be more divided on this case than in most of the other recent PJ cases.

Finally, on a teaching point. I use World Wide to show the intersection between subject matter and personal jurisdiction and the strategic choices that parties must make. Depending on the outcome in Ford, everything about WW would be different if the case arose now.

The Robinsons sued Audi, VWA, World Wide (the regional distributor), and Seaway (the dealer) in Oklahoma state court in 1975. Audi and VWA recognized they were stuck in Oklahoma, but wanted to be in federal court. WW and Seaway, both from New York, destroyed complete diversity because the Robinsons were from New York (the accident in Oklahoma prevented them from reaching Arizona and establishing the new residence so as to change their domiciles). So Audi and VWA financed WW and Seaway to challenge personal jurisdiction through the OK courts and to SCOTUS. Following the SCOTUS decision and the dismissal of WW and Seaway in 1980, Audi and VWA removed. But that strategy is unavailable under current law. In 1988, Congress amended what is now § 1446(c)(1) to prohibit renoving later-becomes-removeablae diversity cases more than one year after filling. So Audi and VWA now gain nothing from financing WW and Seaway to get out of the case. Given the cost of litigation, would WW and Seaway thus decline to challenge personal jurisdiction, litigate in Oklahoma, and hope to shift the blame onto the manufacturers?

On the other hand, if the Court rejects jurisdiction in Ford, Audi and VWA would have a different strategy--join WW and Seaway in getting the case dismissed from Oklahoma.

Posted by Howard Wasserman on October 6, 2020 at 09:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Changing Supreme Court Terms

Some brief questions. Suppose one of the statutory proposals to impose term limits on the Supreme Court Justices is enacted. Someone then wants to challenge the new statute on constitutional grounds. How would that challenge work exactly?

First, who would have standing? The answer may be nobody for a long time. If you say that the term limits do not apply to the current Justices, then no litigant would be adversely affected until the next appointment. Even then, you could still say that nobody is adversely affected until that Justice's term expires and he or she is forced off the Court for that reason. Would the first Justice appointed to the term-limited version have standing? I suppose, but I can envision many difficulties there. (The history of Supreme Court Justices as litigants would be a fascinating topic, BTW.)

Second, if someone does have standing, then who would decide the suit? Wouldn't the Supreme Court itself be forced to recuse in such a case? Would Congress have to create some special circuit court for the matter? And how would that work?


Posted by Gerard Magliocca on October 5, 2020 at 12:56 PM | Permalink | Comments (2)

Sunday, October 04, 2020

VAPs and Fellowships: Open Thread, 2020-2021

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 4, 2020 at 02:29 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (67)

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers wouldexpect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Posted by Lyrissa Lidsky on October 4, 2020 at 01:32 PM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (2)

Saturday, October 03, 2020

MLB MVP cancels Landis

The Baseball Writers Association of America (BBWAA), which awards the MLB leage MVP awards, has removed the name of former commissioner Kennesaw Mountain Landis from the award, citing his history of racism and his actions in keeping baseball segregated.

As I wrote in my prior post, the narrative of Landis as affirmatively racist active opponent of integration has carried the day. A scholarly counter-narrative sprouted in the '00s that he was a man of his time who did not push the owners to sign African American players, but has been largely forgotten in this discussion--whether because it has been historically discredited or because it has lost the day.

Posted by Howard Wasserman on October 3, 2020 at 08:30 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, October 02, 2020

DC Statehood

There are several interesting constitutional puzzles involved in making the District of Columbia a state. The first is whether a state admission decision by Congress is justiciable. No court has ever questioned a decision to admit a state, and the dubious admission of West Virginia (formerly part of Virginia) in 1863 seems to suggest that statehood decisions are political questions.

The second problem flows from the 23rd Amendment. The amendment states plainly that the seat of government shall have three electoral votes (the same number as the smallest state). This implies first that that there must be some federal District of Columbia inside the new state of Washington DC. The other implication is that this "rotten borough" would still have three electoral votes. How would they be allocated?

The DC statehood bill passed earlier this year by the House of Representatives tries to answer the second question, though not very well. The bill defines the federal district (called the "Capital") as basically encompassing the major federal buildings around Pennsylvania Avenue. They then have a section creating an expedited procedure for Congress to consider a constitutional amendment that would repeal the 23rd Amendment. That's nice, but there's no way for a statute to assure than an Article Five amendment will be ratified.

Suppose DC becomes a state and the 23rd Amendment remains. One solution is that Congress could say that the "Capital" electors must always vote for the person who won a majority of all of the other electoral votes. Or the winner of the national popular vote. Either of these is a decent workaround, though there remains the possibility that a given Congress and President could change that law and just award the Capital electors to the President and (in an extremely close election) tip the outcome. 

UPDATE: Another question is what should you do with the DC Circuit if DC becomes a state.

Posted by Gerard Magliocca on October 2, 2020 at 09:27 AM | Permalink | Comments (29)

Thursday, October 01, 2020

Call For Papers


The Rehnquist Center is pleased to announce the third annual National Conference of Constitutional Law Scholars. This year’s event will be held entirely via Zoom due to the pandemic but will otherwise follow a similar format to previous years, with a series of panels organized by subject matter moderated by Distinguished Commentators. To avoid Zoom fatigue, the program will be limited to a single, short day on Saturday, March 6. The goal of the conference is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year. To that end, the program will include opportunities for informal, small-group discussion between panels.

Jamal Greene will give a keynote lecture. Distinguished commentators for 2021 include:

Guy Uriel Charles
Maggie Lemos
Melissa Murray
Caleb Nelson
Jane Schacter
Lawrence Solum

Registration is free and all constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by November 1, 2020. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by December 1, 2020. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan: [email protected]
For logistical questions please contact Bernadette Wilkinson: [email protected]

Andrew Coan, Arizona
David Schwartz, Wisconsin
Shalev Roisman, Arizona

REGISTER NOW: bit.ly/conlaw2021

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

University of Arizona James E Rogers College of Law | 1201 E. Speedway | Tucson | AZ | 85721-0176

Posted by Gerard Magliocca on October 1, 2020 at 07:58 AM | Permalink | Comments (1)