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Thursday, January 21, 2021

Job Posting - Federal Judicial Center

From Timothy Lau, Federal Judicial Center:

The Research Division of the Federal Judicial Center is currently seeking Research Associate(s). Candidates ideally would have both a Ph.D. and a JD. The Federal Judicial Center is the research and education agency of the United States federal courts, and, unlike chamber law clerks, the research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries. The precise job listing can be found at:


Interested persons can contact Timothy Lau with questions at tlau at fjc dot gov.

Posted by Sarah Lawsky on January 21, 2021 at 08:29 PM | Permalink | Comments (0)

Wednesday, January 20, 2021

Future Avenues of Section Three Research

Josh Blackman and Seth Tillman have written a thoughtful post laying out one of the issues that will be debated if Section Three of the Fourteenth Amendment is ever invoked against ex-President Trump:  Is the President an "officer of the United States" as required by Section Three?

I want to suggest that there are three sources particular to Section Three that should receive closer scrutiny. One is what, if anything, members of the 39th Congress said about Section Three on the campaign trail in 1866. People look at that campaign to understand the original public meaning of Section One. I used one speech that John Bingham gave on the stump in my draft paper, but that was because I retained a copy of the speech from my research on Bingham. There are probably many more speeches from leading drafters or ratifiers of the Fourteenth Amendment that address Section Three. I'm confident that I looked through the debates in Congress thoroughly, but I did not do so for what occurred outside of Congress.

Second, what did members of Congress say about Section Three when amnesty was debated in 1872? This is not as useful because they were four years removed from ratification. Still, people do use what Congress said in this period of Reconstruction to construe the Fourteenth Amendment. And the debate on amnesty in 1872 was much longer than the debate on Section Three in 1866. I went through those discussions pretty carefully, but I'm not as sure that I squeezed out all of the juice that is there.

Third, Pennsylvania is the only state that kept detailed records of its ratification debates on the Fourteenth Amendment. Perhaps there is Section Three material in those records.

I hope people start diving in so that we can learn more. If I learn more, then I'll be sure to share. 

Posted by Gerard Magliocca on January 20, 2021 at 09:46 PM | Permalink | Comments (1)

Northwestern Law Review 2021 Symposium – Now Accepting Proposals

From the editors of the Northwestern University Law Review:

The Northwestern University Law Review is excited to be accepting proposals for its 2021 Symposium.

The Law Review will consider submissions until February 20th, 2021. Symposium proposals should be submitted via email at [email protected]. After February 20th, the Law Review will review all submissions. Organizers should expect that the Law Review may request further information or the opportunity to discuss the proposal in further detail. The Law Review will notify organizers whether they remain under finalist consideration by March 1st, 2021.

Given the unique circumstances of the pandemic, we do not yet know whether an in-person Symposium event will be possible; however, we would like to keep open the possibility that by the time of our Symposium in Fall 2021, we may be permitted to host live panels and lectures on campus. That said, we ask that you specify in your proposal a roster of potential participants for an in-person event and for an online, remote event.

A strong Symposium proposal should do all of the following in at least 2-3 pages:

  • describe the Symposium idea and its contribution to legal scholarship in as much detail as possible, including its originality, timeliness, and how it fosters diversity of legal scholarship;
  • list potential Symposium speakers and panelists that would add to the academic quality of the event, specifying those who could participate online and/or in person;
  • list potential authors who could write articles and/or essays for publication by Law Review;
  • provide the name and contact information of the proposed Symposium Director, who will serve as the point person for coordination and decisions with the Law Review executive board; and
  • include a draft budget outline and any secured or potential funding sources.

Questions should be directed to Symposium Editor Summer Zofrea at [email protected]. You can find more information on the Law Review's website.

Posted by Sarah Lawsky on January 20, 2021 at 08:23 PM in Law Review Review | Permalink | Comments (0)

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Posted by Howard Wasserman on January 20, 2021 at 04:36 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Painting Constitutional Law


I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Posted by Howard Wasserman on January 20, 2021 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 19, 2021

A Zone of Twilight

I did a podcast  with Daniel Hemel on Section Three for Lawfare. As we were recording, I was struck by the fact that we really are in Robert Jackson's metaphorical zone of twilight here. There are few, if any, helpful authorities and we have to reason in a more general way on a very important question.

Couple of highlights as you listen. First, Dan pointed out that there are insurance cases on the definition of insurrection (presumably with respect to coverage issues in foreign nations). Second, he made the excellent point that there is a deep connection between the Section Three enforcement power that was in the First Ku Klux Klan Act (since repealed) and a reassertion of that power in response to a mob that contained white supremacists and carried the Confederate Flag. Third, I played around with the idea that Section Two and Section Three of the Fourteenth Amendment are linked (as I explained in my paper) but "insurrection" does not appear in Section Two. Can we draw any conclusion from that? I'm not sure. (Dictionaries back then, by the way, tended to define an insurrection as a brief rebellion, which is not a bad fit with what occurred at the Capitol and suggests that the difference between an insurrection and a rebellion is just a matter of degree.)

UPDATE: Here is an essay I've written on Lawfare about Section Three.

Posted by Gerard Magliocca on January 19, 2021 at 12:29 PM | Permalink | Comments (8)

Monday, January 18, 2021

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Posted by Howard Wasserman on January 18, 2021 at 11:02 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 16, 2021

Who Decides Who Presides?

This is uncertainty about who will preside over the Senate impeachment trial. Chief Justice Roberts, Vice President Harris, and Senator Leahy are all candidates. My initial question is who decides this when there is doubt?

One thought is that Chief Justice Roberts decides. If he thinks that he can preside and decides that he wants to do so, then he does. A second thought is that the Senate decides. If they do not invite the Chief Justice to preside, then he cannot do so. If they do, then he must. A third thought is the Senate and the Chief Justice must agree that he can and should preside for him to do so. If not, then the Senate must go with the Vice President. Then if she recuses, they must go with Senator Leahy.

Here's why this matters. Suppose the Chief Justice does not preside. Under the first theory, he should explain why decided not to do so. Otherwise, people could reasonably construe his absence as his conclusion that the Senate cannot hold an impeachment trial of an ex-President. Under the second theory, he need not say anything. If the Senate does not ask him to preside, then that the reason for his absence. Under the third theory, the Senate's lack of invitation would still be sufficient and he can be silent. (Note that the Senate will probably not invite him in this instance without first asking if he will accept. That way, there need be no disagreement between them.)

I'm not sure which of these three theories is correct. I'm inclined to say the third one. The Senate has the sole power of impeachment, which must include some power over determining the presiding officer in doubtful cases. At the same time, I'm not sure that the Chief Justice must accept the Senate's view of his own duty to preside if he thinks that the trial is unconstitutional. 

Posted by Gerard Magliocca on January 16, 2021 at 07:43 PM | Permalink | Comments (9)

Friday, January 15, 2021

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Kilborn included the following short-answer question on his exam:

After she was fired from her job, Plaintiff sued Employer under federal civil rights law, claiming employment discrimination on the basis of her race and gender. [discussion of other evidence omitted]  Employer also revealed that one of Plaintiff’s former managers might have damaging information about the case, but no one at Employer knew where that former manager was, since she had abruptly quit her job at Employer several months ago and had not been heard from since.  With nothing to go on but the manager’s name, Employer’s lawyer pieced together several scraps of information and concluded that this former manager must be located in a remote area of northern Wisconsin.  Employer’s lawyer spent $25,000 to hire a private investigator, who successfully located the former manager in northern Wisconsin.  Employer’s lawyer traveled to meet the manager, who stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a “n____” and “b____” (profane expressions for African Americans and women) and vowed to get rid of her.

                Later, Plaintiff’s lawyer served [another discovery demand, omitted, and] an interrogatory demanding the identity and location of any person with any information related to the termination of Plaintiff’s employment at Employer or potential discrimination against Plaintiff by Employer or any agent of Employer.

The question asked whether the employer could refuse to disclose the witness's location (while disclosing her name) on grounds of work-product privilege.

The school's BLSA chapter responded with a petition. It calls for, among other things, multiple sections of all mandatory classes (so students can avoid professors such as Kilborn with a "history of bias"), Kilborn's resignation from the academic affairs committee, and an "open dialogue event" with Kilborn. The ATL piece is somewhat sympathetic to Kilborn, surprising, given that site's general rage against professors who use racist language and epithets in class.

Amendment: Kilborn was subject to university sanction--the school placed him on administrative leave, cancelled his new-semester classes and committee assignments, and barred him from campus. There is some uncertainty over the grounds for the university sanction or the process followed; I have deleted comments or speculation from the original post about that process. Regardless, the exam question sparked controversy and triggered a student petition within the school; that raises teaching issues worth thinking about. The post focuses on those.

Please note that I have never met Jason in-person. I know of him from posts to the Civ Pro profs listserv, where he has discussed infusing anti-racism and racial-justice issues into the Civ Pro curriculum. So this is not defending a friend. But I am genuinely curious as to what was wrong with the question. What are the rules, so professors can avoid creating "momentous distraction and cause[ing] unnecessary distress and anxiety" or demonstrating "lack of respect, decency, and civility?"

    • The question did not use explicit and complete epithets, which had been the flashpoint for past controversies over what professors said in class or wrote in materials. ATL has covered those controversies at length, sharply criticizing faculty for mentioning the word. Eugene Volokh and Randall Kennedy present the contrary view, relying on the "use-mention" distinction.

    • Is the rule that bowdlerized reference to epithets is not OK? What if the test had the witness say "n-word," as in "she stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a n-word and c-word"? Are all references to epithets off-limits?

    • Is it only racist epithets, given the focus on "centering race" in the academic discussion? What if the question used a misogynist epithet or anything other than a racist one? What if this question only had the employer calling the plaintiff a "c____" or a "b____"?

    • If bowdlerized use of the word is not OK, is all reference to racist epithets not ok? What if that last sentence of the facts had the witness state "she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and referred to her with profane expressions for African Americans and women"? Does the reference to the epithet, even this obliquely, cause the same distress and anxiety? Students will be as aware of the "profane expression for African Americans" being referenced as by saying it with ____ or *** or "n-word."

    • If any reference or hint at epithets is not ok, then does it follow that exam questions touching on racist discrimination are off-limits? What if that last sentence of the exam had said the witness "stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and talked about how much they hated having to employ African-Americans"? The question reveals discriminatory animus without using the word. Of course, the legal issues might come out differently in that case than in an epithet case. If this is problematic, then it seems to eliminate one major litigation area, or at least certain types of cases in that litigation area, as a testing subject; I discussed this issue several years ago.

    • How much does subject matter? The question tested work-product privilege, so the petition argued that the hint at the epithet served no educational purpose. Would the reaction have been different had the question been asked in, say, Employment Discrimination? For what it is worth, a friend who teaches that subject often tests with a fictional religion with fictional stereotypes and fictional epithets. But does that capture the same idea, given the effects of history? It has been decided that this word is the worst in the English language, so bad it cannot be written or spoken or even mentioned. It follows that its use may affect the outcome of a case in a unique way not captured by a fact patter in which someone calls a member of the Church of the Shiny Rock (my friend's actual example) a "Rockette" (I made that one up).

    • This may create unique problems for Civ Pro (and Fed Courts, Evidence, and Civil Rights--basically my entire teaching package). The course material itself is not "sensitive," compared with Con Law or Immigration or Employment Discrimination. But teaching and testing Civ Pro requires that we adopt and use the substantive issues that reach court and must be litigated under the rules we are teaching and testing on. One could argue that there is always another way to test on work-product privilege--use a slip-and-fall tort claim that will not affect anyone's feelings. But one could respond that discrimination claims comprise a substantial piece of the federal docket and it makes no sense to ignore such common claims. Kilborn told ATL that the class casebook uses a lot of employment cases, so that context pervaded the course and made sense as a testing vehicle. And, as I wrote several years ago, the full range of litigation subjects and issues should be fair game.

    • Kilborn also told ATL that the question was designed to illustrate how civil litigation can be used to help women of color overcome the burdens they face in the workplace. And the egregious nature of what the witness reports the employer saying may be relevant to why the employer was so determined not to reveal the witness and why the plaintiff would have a "substantial need" for the information. In other words, just as the precise nature of discriminatory conduct is important "context" in a substantive E/D class, it may provide essential "context" for procedural questions. Given Kilborn's intent, there is great irony that this question has led to these consequences.

Closer to home, I have been watching the litigation in Stallworth v. Nike, a lawsuit by an African American couple alleging that they were subjected to "shopping while Black" in a Santa Monica Nike store and that the SMPD had an agreement with the area stores to arrest or detain anyone on the word of the stores. The complaint runs 50 pages and 200 paragraphs, although without detailed allegations of how Nike and SMPD worked together to create action. The complaint contains pages and paragraphs about the plaintiffs' personal and professional histories, Nike's role in social justice, and last summer's protests; they want to frame the case--likely for consumption by the public rather than the Court--within the broader anti-racism movement. I considered assigning this as one of my in-class pleadings, as an opportunity to discuss the propriety and effectiveness of pleading-as-press release and to analyze the sufficiency of the state-action allegations. I decided against it--partly because it is a long pleading (the other complaints I use are <20 pages) and partly because I could not predict student reactions. There are no racial epithets, but the case touches a raw topic.

Posted by Howard Wasserman on January 15, 2021 at 05:25 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (22)

Couple of Thoughts About the Impeachment Trial

The upcoming trial will look rather different from last year's version in a couple of respects.

  1. There will a lengthy argument about whether the trial can occur at all. This is because of the argument that an ex-President cannot be tried by the Senate. If more than one-third of the Senate agrees with this legal argument, then the outcome will be certain--acquittal. This will therefore be an early tell for where things are going.
  2. If the trial goes forward, there will be witnesses. They will testify about what occurred at the Capitol. In theory, the ex-President himself could be a witness. Watching Chief Justice Roberts rule on objections to questions from counsel will be interesting, to say the least. As I pointed out in a post last year, he has never presided over a real trial before.
  3. Last year the Chief Justice commented at one point that he did not think that he had the power to break tie-votes, as Chief Justice Chase did in 1868. That seemed like a bit of trivia then, but that precedent will presumably bind the Chief Justice in this trial.

More broadly, there will probably more of an ebb-and-flow to this trial. Last year both parties were dug into their trenches. This time more Republicans will vote to convict, though probably not enough.

Posted by Gerard Magliocca on January 15, 2021 at 10:29 AM | Permalink | Comments (6)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (10)

Wednesday, January 13, 2021

Seminar with Educational Testing Service on the GRE and other issues

Working with ETS, we have put together an information seminar on Tuesday during which ETS leadership will discuss the GRE and law school admissions and a panel of deans and admissions directors will discuss key issues. There will be ample time for Q & A and for exchange among schools and ETS professionals. 

Here is the summary from the invitation:

As the GRE® General Test becomes a more significant part of law school admissions, ETS is committed to engaging with law schools, providing insight into the empirical basis for the test’s efficacy in law school admissions, and to explore the ways in which ETS can support the law school community. 

Please join David Payne, Vice President and Chief Operating Officer of ETS’s Global Education Division as we open a conversation with law schools about ETS and the GRE® Program, allowing for a dialogue with participants.  Julie Shurts, Associate Director, Global Higher Education at ETS, will share an overview of the GRE General Test, including its content, format and validity, and GRE score use best practices. 

I can testify first-hand that ETS has been developing really interesting and innovative strategies to enhance law school admissions, including expanding diversity (race/ethnicity, gender, and academic background) and developing tailored strategies that improve our work.  The GRE is at the fulcrum of this, but there are other initiatives underway.  2021 promises to be a great year for these partnerships.

All of which is to say that I hope interested folks will join with us next Tuesday, 1pm EST.

Posted by Dan Rodriguez on January 13, 2021 at 07:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Some Reflections

Writing a paper on an obscure topic and then seeing that paper go viral (at least for an academic paper) is surreal, to say the least. One happy feature of this experience is that I know that I did not say anything in the paper with the events of last week in mind, because I wrote the entire draft before those events occurred. Bias along those lines is therefore impossible. Not so for the edits that I make between now and whenever the paper is published. This creates something of a dilemma about how (and how much) I should edit the paper, but I'll think about that later.

I am grateful for all of the thoughtful emails, questions, criticisms, and follow-up posts that I've received or seen about the paper. It's the academic and legal community at its best. Let me add that this all supports the idea that everyone should pursue the research that they want to do and that there is tremendous value in that. Not just for its own sake, but because you never know when what you are studying may become important for a contemporary issue.  

Posted by Gerard Magliocca on January 12, 2021 at 03:46 PM | Permalink | Comments (0)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Sunday, January 10, 2021

A Stroll Through Section Three of the Fourteenth Amendment As Applied to the President

Here is the language of Section Three of the Fourteenth Amendment:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Let's ask some questions about this language given current events:

  1. Is the Presidency an "office . . . under the United States?" and is the President "an officer of the United States?" The answer, I think, is yes to both, though it's a contestable point. (My draft paper discusses this issue briefly, but now I'll have to go back and revise.)
  2. If the President incited an insurrection, is that the same as having "engaged in insurrection" against the United States? This is a harder question that would require more thought about what insurrection meant in 1868, among other things. (Such as did he, in fact, incite an insurrection and was what occurred at the Capitol an insurrection?) 
  3. Is Section Three self-executing? Arguably not. Chief Justice Chase held on circuit in 1869 that Section Three is not self-executing. My draft paper criticizes his opinion, though, and I thought (before this week) that Section Three is self-executing.

If you answer any one of these three questions "No," then Section Three does not apply to the President action's on Wednesday. But if you answer all three of these questions "Yes," then you can reach this shocking conclusion: Donald Trump ceased to be President on January 6th. He is constitutionally ineligible to serve. 

I point this out because some litigant will probably argue that presidential actions taken after January 6th are invalid unless they are confirmed by the Biden Administration. Courts, therefore, may have to address this issue. (This could be particularly true for any last-minute pardons issued by the (ex?)President.) Likewise, if the (ex-?)President seeks to run again, courts will have to address the issue. Section Three claims are justiciable, as courts did address those claims in the 1860s and 1870s.


Posted by Gerard Magliocca on January 10, 2021 at 08:28 AM | Permalink | Comments (12)

Saturday, January 09, 2021

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Posted by Howard Wasserman on January 9, 2021 at 06:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SCOTUS takes up Assignor Estoppel - MINERVA SURGICAL, INC. V. HOLOGIC, INC.

MINERVA SURGICAL, INC. V. HOLOGIC, INC. - this is an exciting development - the assignor estoppel doctrine is an equity court developed rule that bars an inventor who sells his patent rights from later claiming the patent was wrongly granted. A few years ago I wrote that this rule is problematic in general, and in particular in the realities of corporate innovation which mean that most individuals pre-assign their future innovation, without knowing whether/when/for what their employer will apply for an invention. In The New Cognitive Property, Texas Law Review, I write:

The assignor estoppel doctrine, a recently developed doctrine in patent law, constitutes a post-employment restriction over the cognitive abilities of employees. The assignor estoppel doctrine is a rule of equity that prevents the assignor of a patent from raising the defense of invalidity in case of a suit of patent infringement. The doctrine of assignor estoppel was originally developed by courts to prevent unfairness in circumstances in which an owner of a patent right sells the right to her patent and later denies the value of the very thing from which she profited. The logic is analogous to landlord-tenant situations and estoppel by deed of real estate. The courts viewed an “intrinsic unfairness in allowing an assignor to challenge the validity of the patent it assigned” because of “the implicit representation of validity contained in an assignment of a patent for value.” This logic however is flipped on its head when we shift our inquiry from patent law to human capital law and examine the application of the doctrine in the context of pre-invention assignment in the employment relationship. As we saw, assignment clauses refer to future innovation rather than a patent-in-suit. The invention can be very different than what had been assigned. Indeed, the United States Patent and Trademark Office (USPTO) often determines that a filed patent application must be divided into two or more patents, expanded, or modified. Thus, assignment of future innovation is always done under conditions of uncertainty. Put differently, in the context of human capital, the representation of the assignment in contracts assigning future innovation is made by the employer rather than the employee. Thus, the landlord parallels the employer and the tenant parallels the employee. The analogies that served as the basis for the development of the assignor estoppel doctrine do not simply fail, but are reversed.  In practice, the assignor estoppel doctrine operates to place a former employee and his new employer at a great disadvantage compared to all other competitors because their legal defenses are dramatically diminished. Because invalidity is a major defense in patent litigation, in essence, assignor estoppel penalizes a former employee and thus creates a powerful disincentive for competitors to hire an employee who has experience in the field. Essentially, anyone who already has human capital in the hiring company’s field becomes a liability for the new company. The following has become a prevalent scenario: an employee, as part of his employment agreement, assigns an invention to the firm (Firm A). The employee moves to a competing firm, Firm B. After the employee leaves Firm A, Firm A files for a patent on the former employee’s inventions. This can happen without the employee’s knowledge or consent regarding the claims issued and the scope of the filed patents. Frequently, claims are filed post-employment and without the former employee’s control over the filed claims. During this period after the employee began working at Firm B, she works on innovation for Firm B. If Firm A sues Firm B for patent infringement, Firm B is estopped from attacking the validity of the patent because it has hired a former Firm A employee and used her skills to continue innovating in her field of expertise. The perverse result is that the most productive and experienced employees, who are already engaged in inventive activities in their industry, become untouchables. The hiring of these employees who are already in the field creates an immense risk. Aberrantly, the more experienced an employee, the less employable they become. The assignment agreement coupled with the assignor estoppel doctrine becomes a de facto trailer clause, both tantamount to a post-employment non-compete.

In fact, I also served as an expert witness in a patent case on the topic, where I opined about the harms of assignor estoppel on regional talent pools and post-employment mobility in Juniper v. Palo Alto Networks -- you can find my expert report on Westlaw. Mark Lemley has led an amicus on this case and has also written an important paper on the doctrine here


Posted by Orly Lobel on January 9, 2021 at 02:49 PM | Permalink | Comments (1)

The Disqualification Clause

If there is a Senate impeachment trial, one pressing question will be whether the Senate can actually bar the President from serving again as President. (Assuming Section Three of the Fourteenth Amendment does not so bar him.) The issue was raised in the trial last year but was never addressed. Does the Disqualification Clause for impeachment extend to the Presidency?

One thought here is the Chief Justice may be asked, as the presiding officer, to rule on this point. Let's say he does and says that the Disqualification Clause can be applied by the Senate to the presidency. You could understand that as a final judgment that the federal courts may not review. Another thought is that--no matter what the Chief Justice says--the Senate's conclusion on that point is final and may not be reviewed. In other words, whatever arguments there may be against applying the Disqualification Clause to the President, they present nonjusticiable political questions. (Remember only a Senate majority votes on the penalty imposed for a conviction.)


Posted by Gerard Magliocca on January 9, 2021 at 01:01 PM | Permalink | Comments (3)

Which Republican party will emerge? Early returns not encouraging

In two posts, I discussed suggestions that the GOP was going to come apart into two or three groups. The question is which group will retain the party's power within government. Would the autocrats be cast out or abandoned, leaving a slightly smaller but rational center-right party committed to the system? Would the autocrats be left alone in the husk of a party (a la the pro-slavery Whigs) while the pro-democracy group formed a new entity? Or would the autocrats retain control aided by the pragmatic fence-sitters who want to retain power, leaving the tiny group of sort-of moderates (Murkowski) and those committed to the system (Romney) nowhere to go but to stay and shout at the rain.

Early returns are not encouraging. Trumpist Ronna McDaniel was reelected, unopposed, as RNC Chair. A super-majority of House Republicans voted to sustain challenges in Arizona and Pennsylvania and would have sustained challenges in Georgia, Michigan, and Nevada had any Senators gone along. Mitch McConnell will not bring the Senate back before January 19 and an evenly divided Senate may decide there is no jurisdiction over an ex-President. Lindsay Graham says it is time to "heal and start over" and not hold anyone accountable for a mob storming the Capitol (he was talking about impeaching Trump but I assume he would say the same about efforts to censure or expel Hawley, Cruz, et al).

Even after Republican playacting at overthrowing the government turned real, violent, and deadly, most members of the Republican congressional caucus and others "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know."

Update: Steve Scalise says the same thing about impeachment interfering with whatever will unite and bring our country together, while Jim Jordan speaks of "united and healing." Even Derrick Evans, the West Virginia legislator who was arrested for being part of the mob, wants  to help the healing process and bring the nation together. So everyone seems to have received the talking points memo. And the talking point is that unity, healing, and bringing the country together are more important than accountability and repercussion for past misdeeds--at least when Republicans engage in those misdeeds.

Posted by Howard Wasserman on January 9, 2021 at 11:40 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sanctions, disbarment, and sedition

There was discussion prior to Wednesday about sanctions or bar consequences for the attorneys who brought the nonsense election challenges. Even if Trump and his lackeys did not commit incitement on Wednesday, there was a steady stream of statements about election fraud, stolen elections, and official malfeasance, including in court documents and in press conferences and quasi-hearings related to those lawsuits. Given potential  evidence they were part of a coordinated effort that caused, even if unintended, Wednesday's events, might that affect how courts judge sanction requests, how willing courts are to raise sanctions sua sponte, and how state bars judge disciplinary actions?

Posted by Howard Wasserman on January 9, 2021 at 11:11 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

How Impeachment Might Play Out

Let's say the House of Representatives impeaches the President next week. There will be no Senate trial before January 20th. Will there be a trial after January 20th? I don't know, but I doubt it. It might depend, in part, on whether the President tries to pardon himself. 

The Senate could end up deciding that the High Court of Impeachment simply lacks jurisdiction over an ex-President. While there are precedents for trying ex-officials who were impeached, those examples can be distinguished from an ex-President. The advantage of this "no jurisdiction" approach is that there would no decision on the merits. The President would not be acquitted. He will stand impeached without a judgment for all time. Maybe there is merit to that unique status.

Posted by Gerard Magliocca on January 8, 2021 at 08:15 PM | Permalink | Comments (3)

Lawyering and Responsibility

Somehow I have managed to retain my back door into Prawfs, and with Howard's permission, I am sharing what follows.  It is my note today to my Contracts students who just finished their first two credit hours segment and will return for the remaining three credit hours in the spring semester.  I thought it might be of some interest to other law professors.

 Lawyering and Responsibility

I know that you will be consumed over the next hours and days with exams and grades, but I decided I wanted to pass along some thoughts about current events and their relationship to what we do together.  Somebody who hasn’t endured the first two credits of my Contract Law course might not understand the connection between the substance of the class and the political and social events of the last several months. 

My students, past and present, know that contract law is a logical model used to translate real-world narratives of desired outcomes into legal binding commitments.  Before the fact of disputes, lawyers use contracts to model, in fewer bits and bytes of information, an underlying analog reality, and do so in a way that permits parties to act together in the face of risk and uncertainty.  After the fact of disputes, lawyering is weaponized reason, sublimating (to repeat a reprehensible bit of recent incitement) trial by combat into an intellectual and non-violent game of winners and losers.  The rule of law is a cultural norm that says the loser of that game accepts the loss without resort to trial by combat.

I have spent my academic career trying to articulate the difference between the nature and logic of legal systems, on one hand, and moral imperatives, on the other, in situations far more mundane than we have been witnessing.  It began with the observation, in the wake of the Enron-WorldCom corporate scandals of the early 2000s, that there were significant limitations to the legislation of “good governance.” Courage, independence, integrity, humility, all essential characteristics of good CEOs, board members, Presidents, and Senators, resist being captured in the language of a statute or a contract.  Statutes and contracts embody fundamental characteristic of positive law: if antecedent conditions exist, rules of law establish inferences that particular legal consequences must ensue.  Both the thrill and the dark side of lawyering arise from the complexity of the real world narrative – we don’t always agree that the antecedent conditions exist, and even if they do, we don’t always agree on the particular rules that get triggered. 

Many business decisions (like many family or personal decisions) are not easy – closing an unprofitable plant, for example, creates distress but is necessary if the business as a whole is to survive.  Personally, I don’t love every professional decision I’ve ever made. Nor can I be sure my belief that I was appropriately reflective was not a rationalization.  But if I can’t recognize the clear cases of the clash between logic and moral imperatives, then the nuanced cases are hopeless. 

In the days since we last were together as a class, I have thought about saying something about lawyering that has gone beyond the pale, specifically the specious litigation undertaken by Rudy Giuliani, Sidney Powell, Jenna Ellis and other lawyers around the country.  Several weeks ago, I signed the Lawyers Defending Democracy letter calling for bar associations to pursue sanctions against those lawyers.  The license to employ the logical model to translate narratives into legal consequences is not a license to write fiction or spew fantasy.  The result of the litigation demonstrates that it was fiction and fantasy.  And the spewing of fantasy by lawyers who should know better – incompetents like Powell and accomplished lawyers like Cruz and Hawley – contributed to the violence.

You will get licensed as a lawyer for the same reason you get licensed to drive a car or carry a firearm.  You will have been entrusted with the weapon that I have now spent two credit hours teaching you to use.  How you use the weapon, if at all, is ultimately not a matter of legality (except in the most egregious cases), but one of conscience.  As we have seen in class, the challenge usually won’t be to differentiate between clear cases of good and evil – but rather to decide in close cases of the Venn diagram overlap how, if at all, to employ the intellectual gifts you brought to class and the professional tools that have been entrusted to you. 

I will never be able to give you a transcript grade on this particular lesson.  But it’s what I hope you remember long after you have forgotten the two old drunks who contracted on a napkin to sell the Ferguson farm for $50,000, title satisfactory to buyer.

I look forward to seeing you (via Zoom) on January 25.



Posted by Jeff Lipshaw on January 8, 2021 at 04:57 PM in Current Affairs, Lipshaw, Teaching Law | Permalink | Comments (2)

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.

Posted by Howard Wasserman on January 8, 2021 at 12:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:


All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.


We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.


[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.


We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

An Impeachment Trial for an Ex-President

One possibility is that the President will be impeached again. Suppose he is but the trial does not occur until after January 20th. There is precedent (though not that much) for impeaching and convicting ex-officials. This probably makes sense, though, only if the Senate imposes the disqualification penalty for future office. (Otherwise, what's the point?) And there is an open question on whether disqualification  can be imposed on future occupancy of the White House. (I would say yes, but others say no.)

Here's another wrinkle. Presumably the Chief Justice need not preside over the trial of an ex-President. He only must do so for the trial of a President. Thus, Vice-President Harris would preside.

UPDATE: I'm not so sure about the last point now. If the impeachment is for something the President did, maybe that carries over to the question of who should preside over the trial. Moreover, the Vice-President and the Senate may both prefer that the Chief Justice preside. Since he arguably can, maybe he will have to.


Posted by Gerard Magliocca on January 8, 2021 at 09:18 AM | Permalink | Comments (6)

Thursday, January 07, 2021

National Constitutional Law Workshop 2021

The University of Arizona’s Rehnquist Center is pleased to announce the National Constitutional Law Workshop Series—a virtual forum for the discussion of new scholarship by leading scholars in the field. Our goal is to leverage the videoconferencing revolution spurred by the pandemic to promote community and intellectual exchange among constitutional law scholars across the U.S. and beyond. Workshops will take place monthly on Zoom during the academic year. Registration is free. <bit.ly/conlawworkshop>

Our spring 2021 schedule will feature the following presenters:

- Aziz Huq (Chicago)                    Jan. 19, 12 p.m. EST

- Cristina Rodríguez (Yale)             Feb. 22, 3 p.m. EST

- Keith Whittington (Princeton)     Mar. 22, 1 p.m. EST

- Maggie Blackhawk (Pennsylvania)  Apr. 20, 12 p.m. EST

REGISTER at bit.ly/conlawworkshop

Zoom links and papers will be distributed to registered participants approximately one week before each workshop. 

Posted by Gerard Magliocca on January 7, 2021 at 09:23 PM | Permalink | Comments (0)

Some Thoughts on a Self-Pardon

The odds that the President will pardon himself seem pretty good. Rather than address the validity of such a pardon, I want to make some points about what responses that act might generate:

  1. I would think that the House of Representatives could try to find the ex-President in contempt of Congress for what occurred yesterday. This might create a test case for a self-pardon without action by the DOJ or by a United States Attorney. (I'm not sure that this would create a live case, but arguably a "conviction" without a sentence is a sufficient harm.)
  2. Congress could summon the ex-President to testify. He could not "Take the Fifth" and claim the benefit of the self-pardon at the same time. (Though I guess he could say, "I can take the Fifth since I'm not sure that a court will uphold the validity of the self-pardon.")
  3. A self-pardon might give Congress an excuse to impeach, convict, and disqualify the ex-President precisely because pardons cannot apply to impeachments. It would be the only tool.


Posted by Gerard Magliocca on January 7, 2021 at 07:51 PM | Permalink | Comments (4)

Noisy withdrawals (Updated)

Everywhere today. Some questions remain: Are these exits appropriate and appropriately done? And why now--other than consequences resulting from the conduct of others, was Trump's conduct before and after the putsch any different than what he has been doing and saying for 3 years and 50 weeks? And with 13 days left, how is this different than giving two weeks notice.

Facebook (and other social media sites followed).

The attorney in Philadelphia whom the court called out for saying there were "non-zero" Republican observes in the counting areas. I would like to hear from PR experts whether this was done in an appropriate manner. I have seen some lawyers suggesting that the noisiest of withdrawals should not include specific accusations that may breach confidentiality.

Chad Wolf as nominee for Secretary of Homeland Security. This is tangled up in competing stories about the timing of the re-nomination and withdrawal.

Bill Barr, who already withdrew but is not being noisier about it. This one rings hollow, given his fawning statement as he stepped out the door.

Several national-security officials have resigned in the past 24 hours and reports are more may be coming in the next few hours or days.


Transportation Secretary Elaine Chao (aka Mr. Elaine Chao, the Senate-Majority-Leader-for-the-moment), effective Monday. There is some question whether acting cabinet members can participate in the 25th Amendment process, so similar resignations could make that path trickier than it otherwise might be.

Forgot Mick Mulvaney, who resigned  as special envoy to Northern Ireland, saying "I can’t do it. I can’t stay." Mulvaney will (or should) forever be tagged for his November 7 Wall Street Journal article (paywalled) guaranteeing Trump will concede gracefully if he loses.

Posted by Howard Wasserman on January 7, 2021 at 01:18 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Three (maybe four) parties?

John McLaughlin (Johns Hopkins) says it "Feels like we might be heading for a 3 party system, formally or in practice. Hard to understand how Rs like Toomey, Sasse, Romney, etc. share future goals with Cruz, Hawley, Johnson, House Rs who are about to challenge basic democratic norms. These are not mere policy disputes."

But returning to my response to Steve Schmidt's similar suggestion, I think we have to tweak McLaughling's argument to make it four parties: 1) Cruz, Hawley, et al; 2) Romney, Sasse, Toomey; and 3) the vast remainder of the GOP who voted against the challenges but might have acted differently if the possible result would have been different.

However framed, I do not see this rift as permanent. McLaughlin is right that there "are not mere policy disputes." But that is because these groups do not disagree on most policy matters. And those policies are the "future goals" they share. Toomey, Sasse, and Romney were appropriately and explicitly angry with the actions of Cruz and Hawley and the +/- 125 House Republicans in futilely challenging electors for show and political points based on false claims of wrongdoing. But they can and will continue to make common cause because they agree on most policy questions. And that is before we get to the many members who will make common cause around the simple idea of obstructing Biden.

I might view it differently if there appeared  to be a move among party leaders (most of whom are more in group 3 than 2) to sanction Hawley or anyone else for undertaking these efforts, especially after the siege laid bare the problem of pushing false narratives on the public. I have seen no indication that this will affect Hawley's relative position within the Republican Senate caucus (which may be less important to him than visiting Iowa and New Hampshire).

The answer may depend on whether a combination of photos, speeches, and votes from today has electoral consequences for the highest-profile Republicans. Does that photograph end Josh Hawley's political career, as David French hopes? Will political ads juxtaposing member speeches about fictitious made-up votes with images of rioters hurt them with voters, who seem them as simpatico on policy but unworthy of support because of their lack of commitment to democracy? If so, that might cull what Schmidt called the autocratic faction.

But that depends on how this multi-party split plays among Republican voters. I quoted Mike Sacks (prior to Wednesday) that GOP Congressmen "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." In other words, how many GOP voters are in the autocratic faction, how many in the pro-democracy, and how many in the pragmatic.

I have long feared the answer. Yesterday shows I am right to be afraid.

Posted by Howard Wasserman on January 7, 2021 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Wednesday, January 06, 2021

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

Posted by Howard Wasserman on January 6, 2021 at 09:45 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (2)

JOTWELL: Mullenix on Russell on frivolous defenses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Thomas D. Russell, Frivolous Defenses, which focuses on tort defendants' non-compliance with the rules governing responsive pleadings. I spend time in Civ Pro on this subject, especially the way that defendants refuse to respond to allegations (common response: "Neither admit nor deny and strict proof demanded thereof," which is nonsense) and the refusal of any judge other than Milton ShadurZ"L of the ND Ill. to hold attorneys to account for these practices.

Posted by Howard Wasserman on January 6, 2021 at 09:41 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

More movie stars and diversity jurisdiction

Elizabeth Taylor has company in the Civ Pro canon. The S.D.N.Y. denied a motion to remand in Rapp v. Fowler, an action for sexual assault against Kevin Spacey. (H/T: Volokh Conspiracy). The victims filed the action in New York state court. Spacey removed, alleging he is a Maryland citizen. The plaintiffs moved to remand, arguing that Spacey is domiciled in the U.K., making him stateless and not subject to suit on diversity. The court denied the motion, for now, because the only evidence of Spacey's intent was a declaration from Spacey that he intends to return to Maryland; the contrary evidence was a declaration from the plaintiffs' attorney, who lacks personal knowledge. The court allowed the parties to take jurisdictional discovery and for the plaintiffs to perhaps renew the motion.

Posted by Howard Wasserman on January 6, 2021 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (7)

What Does A Head of State Do?

I mentioned in my prior post that most democracies divide the head of state and head of government roles. Why do they do that? What does the head of state do?

The head of state could be a religious figure. Queen Elizabeth II and Emperor Naruhito of Japan are examples. The head of government (a partisan party leader) cannot be the head of a church. In these nations, there is no separation of church and state, but there is separation of church and government.

The head of state could be a secular figure who performs purely ceremonial tasks. The advantage of this is that some events can be led by someone non-partisan. This could be seen as making these occasions more dignified or politically neutral, or denies to a party leader the ability to exploit those events. Some nations elect a president for this role, in some nations Parliament picks the head of state, some in the Commonwealth simply use the Queen (or her designate the Governor-General), and others in Europe have constitutional monarchies. 

The head of state could possess some extraordinary reserve powers that are seen as too dangerous to give to a Prime Minister. The most obvious example is when no party wins a majority in Parliament after an election. Somebody else has to get involved to broker what happens next (unless the political conventions are strong) and the Prime Minister has a conflict-of-interest. Heads of state often take the lead. There could be other situations, say the declaration of a national emergency, that are comparable.

Some heads of state (mainly the French President) are close to the American model. France has a Prime Minister, but the President wields most of the power. My understanding is that De Gaulle, who basically wrote the current French Constitution, did not want to get involved in political details and hence set up a weak division between the President and the PM, but I'm not sure that is correct.

I think that this is all interesting in general, but consider how what will occur today would look different in a head of state model. Suppose a Queen or the ceremonial president presided over the counting of the electoral votes. Nobody then would say that this person should or could do anything about the substance of that count. (It's like when the Chief Justice presides over a presidential trial in the Senate.) Because the presiding officers are partisan elected officials, though, there can be such an expectation (mistaken though it is). There are other purely ceremonial occasions where we might feel better about having a non-partisan person involved.

More on this tomorrow.  

Posted by Gerard Magliocca on January 6, 2021 at 08:40 AM | Permalink | Comments (1)

Tuesday, January 05, 2021

Partisan messaging

Keith Whittington at Lawfare breaks down the legal, constitutional, social, and political problems with what congressional Republicans plan to do tomorrow.

He responds to the argument that this is harmless political posturing, a "messaging" act that causes no harm because it cannot succeed (akin to voting for a bill that will not pass or that is likely to be declared invalid). But:

[E]ven as a political messaging exercise, what exactly is the message? Are these congressional Republicans telling voters that if they elect enough like-minded politicians, then a majority coalition would be willing and able to overturn the result of a presidential election? Is the message that every future presidential election is up for grabs when Congress meets to “count” the votes and that election results are simply contingent on who holds the majority in Congress? This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way.

Whittington is right that this is the message Republicans are sending to voters. And that tracks with questions over the divide within the Republican party and which direction that divide might go. Perhaps the message is that voters must primary the pragmatic faction and elect more autocrats, at the federal and state levels, so this will work in the future. Perhaps the message is to GOP autocrats at the state level to alter their election laws and processes to allow this to work in the future, up to and including returning selection of electors to the legislatures (the past two months show that many Republican voters would not oppose this in their Red or gerrymandered states).  Or perhaps the message is to the pragmatic wing of the GOP in Congress--hang with us, even if opposing us now, because eventually there will be an election that comes down to one state and a few hundred votes (e.g., Florida in 2000) and this will work.

Regardless of the message, Whittington's ultimate point stands: "This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way."

Posted by Howard Wasserman on January 5, 2021 at 06:17 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, January 04, 2021

Kurt Lash on the Bill of Rights

Professor Kurt Lash has posted a new paper entitled "The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)." I disagree with most of Professor Lash's conclusions (I'm one of the revisionists), but his paper is a gallant effort that anyone interested in the topic should read. In due course, I will write up a formal reply, though I suspect that will not happen until life gets back to normal. Here is the abstract of Professor Lash's paper:

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments. 

Let the debate begin!

Posted by Gerard Magliocca on January 4, 2021 at 08:05 PM | Permalink | Comments (3)

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Head of State vs. Head of Government

I'm going to start a series of posts about another work-in-progress. This one is about the constitutional distinction that most democracies make between the head of state and the head of government. The United States is one of the few that does not make that distinction. Why do other nations do so? What do heads of state there do? Is there an advantage in dividing executive authority in this way? 

It's easy to explain why the United States does not divide these executive roles. In 1787, the concept was unknown. King George III did have Prime Ministers (Lord North, for most of the Revolutionary War) but the King retained substantial powers and people did not see Prime Ministers in the modern sense as the head of a parliamentary party. Like most aspects of the British Constitution, the distinction between the Crown and the Government grew slowly and organically. The Framers could not have foreseen this.

Nevertheless, there are some aspects of early American constitutional practice that mimic the separation between the head of state and head of government. One was that Presidents did not openly or directly campaign for office. This was seen as grubby or degrading for the head of state. (Until 1932, we must remember, presidential candidates did not generally go to the party nominating conventions and did not give an acceptance speech either.) Another is that George Washington acted more like a head of state as President and left much of the policy work to Hamilton, who is sometimes described as Washington's Prime Minister. Third, consider all of the circumstances (even now) where we say that the President should not do this-or-that within the executive branch. One could argue that some of that reflects the view that the President, as the head of state, ought not to be involved in certain political matters that are "beneath" him.

The only Supreme Court opinion that says something useful about the President's role as head of state is . . . you guessed it . . . Justice Jackson's concurrence in Youngstown. There he pointed out that the President's "prestige as head of state" adds to his soft or informal power. Heads of Government, even powerful Prime Ministers, lack that prestige and are, in that sense, weaker. 

Tomorrow, I think, I'll talk more about different kinds of heads of state around the world and how they act as a balm against partisanship.

Posted by Gerard Magliocca on January 4, 2021 at 01:35 PM | Permalink | Comments (3)

Northwestern University Law Review Exclusive Submission Track (Reposted and Moved to Top)


From the Northwestern University Law Review:

Exclusive Submissions

The Northwestern University Law Review Exclusive Submission Track will open on January 1, 2021 and close January 15, 2021 at 11:59 PM CT. For all Article that have been submitted by January 15, 2021 in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor and a final publication decision on or before January 30, 2021.


Submission Terms

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

Submission Procedure

Interested authors must submit Articles to NULR via email, during the submission window, at [email protected].

Anonymized Review

For the Winter 2021 Exclusive Track, the Law Review will be piloting an anonymized review process. Accordingly, to be considered, all authors must fully anonymize their submissions. We ask that each manuscript be stripped of the author’s name, institutional affiliation, and any other identifying information. Additionally, citations using phrases, or supporting phrases above the line, that reference the author’s prior work (e.g., “as I have argued previously” or “in a previous article”) must be redacted to ensure complete anonymity. We will prioritize submissions that comply with these requirements; a failure to submit a properly anonymized manuscript may negatively affect our review. Our review process will be fully anonymized until the Article Board’s final vote.

Submission Requirement

In addition to a completely anonymized manuscript (consistent with the procedure outlined above), we ask authors submit (1) a cover letter that includes your name, Article title, word count, phone number, and email address and (2) a CV or résumé.

Confirmation & Communication

We will confirm receipt of your manuscript via email within 48 hours of submission. If you do not receive confirmation within five (5) days, please email the Editor-in-Chief directly at [email protected]edu. To ensure anonymity, please direct all questions regarding the Exclusive Submission Track to us at [email protected] with the subject line “Exclusive Submission Track.”

Posted by Sarah Lawsky on January 4, 2021 at 10:51 AM in Law Review Review | Permalink | Comments (0)

Sunday, January 03, 2021

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

The 140+ House Republicans and dozen Senate Republicans planning on making futile-but-dangerous mischief on Wednesday have clothed themselves in a vision in which Congress plays a substantive role in checking the limits of the EC and choosing the President. Ted Cruz has pointed to 1876 and the congressional commission; historical ignorance aside, Cruz argues that Congress can and should exercise meaningful power in looking under the hood of state and EC processes--the House as the ultimate arbiter of the election. Never mind that this vision has never controlled in 240 years of elections. On the other hand, the two-party system means that a congressionally selected President would not be dependent on Congress as the Frames feared when they rejected legislative selection. Party identification unifies the branches, so congressional Republicans support rather than attempt to control a Republican executive whom they chose. Another example of the Levinson-Pildes separation-of-parties-not-powers thesis.

The maneuvering will not give Trump another term in office nor stop Biden's inauguration on January 20th.* It further undermines Biden's presidency. And it lends further cover to the inevitable refusal of all Senate Republicans--not only these twelve, but the silent Rubios and McConnells--to cooperate in any way with the Biden Administration.

[*] The insistence by Peter Navarro on Fox News that Congress could move the inauguration is laughable. But it reflects the moving goalposts. Several people insisted that there was no reason litigation had to end by December 14, since that date did not appear in the Constitution; the implicit argument is that statutory deadlines are meaningless. Apparently, so are constitutional deadlines. Although Navarro may be correct that Congress could move the Inauguration as an event. But that will not keep Trump in office past noon on the 20th.

So what happens after the play-acting fails? Former Republican political consultant Steve Schmidt argues that January 6 will mark the beginning of the end of the modern Republican Party, as the 1854 Kansas-Nebraska Act marked the end of the Whig Party. Both brought to the fore fundamental divides that drove the party apart. As he puts it, the GOP's "Pro Democracy faction and Autocratic factions can no more exist together then could the Whig Party hold together [t]he abolitionist with the Slave master."

I want Schmidt to be correct, but I do not believe he is. Abolitionists and supporters of slavery could not exist within the Whig Party because that fundamental philosophical divide made it impossible to agree on policies or candidates and to do the things political parties are designed to do. The anti-slavery Whigs found a home in the new Republican Party.

But the GOP's factions can co-exist when the smoke clears because the divide is not so philosophical. They will unite around knee-capping Biden (again, has any President had zero judges confirmed) and retaking the House/retaining the Senate in 2022 around a platform of Biden's failure to unite the country as he promised to do. Schmidt imagines a '22 primary bloodletting (including an Ivanka Trump-Marco Rubio primary in my home state of Florida, for which I will buy popcorn and a ringside seat). But, again, GOP party identification unites the factions against the common Democratic enemy once those primaries end. GOP voters will vote for whichever candidate carries the Republican label, the  party's structural advantages means there will continue to be more Rs than Ds in both houses, and the unifying goal will be opposition to the Democrats.

And unlike 1854, there is no place for these pro-Democratic Republicans to go. They are not going to become Democrats. And there is no room in the system for a third party.

Moreover, Mitt Romney and a few others aside, I think Schmidt misidentifies the factions within the party, at least within Congress. There is not a pro-Democracy faction and an Autocratic faction. Instead, there is one windmill-tilting autocratic faction and one pragmatic faction that will not waste time on futile efforts but would be "fine with this effort actually succeeding" and likely would not "refrain[] from supporting it if they thought it could succeed." McConnell is not using or threatening to use any of the tools at his disposal to pull these Cruz, Hawley, et.al in line. Perhaps he knows it cannot work. More likely, he knows that he and the rest of the party benefit from these failed efforts. It is enough to shut up and reap the benefits.

I believe Mike Sacks has it right: "They’re playacting an attempt to overthrow democracy because they think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." Sack was talking about Gohmert, Cruz, Hawley, et al. But it is true of every member of the party's congressional caucus.

Posted by Howard Wasserman on January 3, 2021 at 10:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Saturday, January 02, 2021

Where are they now: Tolan v. Cotton

The Washington Post on Friday ran a story on Robbie Tolan, a baseball player who was the victim of a 2008 police shooting in Texas that ended his potential career. His lawsuit was the subject of Tolan v. Cotton (2014), the rare case in which the Court reversed the grant of summary judgment on qualified immunity, when the lower court defined the context of the right despite factual disputes. I wrote about the case. Following remand, Tolan settled for $ 110,000; the newspaper story describes how he has gotten on with his life twelve years later. (H/T: Jonah Gelbach).

Posted by Howard Wasserman on January 2, 2021 at 07:10 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Mike Pompeo? (Updated)

Criticizing Lin Wood's legal acumen is fish-in-a-barrel stuff these days. Still I was struck by this: In his prediction/call/hope that Vice President Pence would be arrested and executed for treason, Wood said that Secretary of State Mike Pompeo would take charge of the Senate on January 6 and would save the election.

Obviously this is nonsense, and I do not know whether Wood believes it. But I am curious how he got there--even if you know nothing about law or the Constitution, what is the logical progression that gets the Secretary of State--an executive-branch officer whose existence is not provided for in the Constitution--presiding over a joint session of Congress and performing a function that is constitutionally delegated to the VP? The only thing I could think of is that Wood went through the line of presidential succession to find the next executive-branch officer and decided that person must perform the VP's functions if the VP is sitting in prison awaiting execution. This is wrong for several reasons, but I think that is it.

By the way, I am with the many people believing that this insanity does not end on January 6. Someone will seek to enjoin Chief Justice Roberts from issuing the oath to Biden or will seek to mandamus Roberts to issue the oath to Trump. Someone will challenge a Biden-signed law or Biden-issued executive order and argue that Biden is not really the President. Someone pointed out that the birther lawsuits continued into December 2012. And I would not be surprised if some Republican House members made noise about impeachment, which would be the appropriate vehicle (as opposed to these nonsense lawsuits) for removing a President who won the office by deceit or wrongdoing.

I also continue to believe that none of these will hurt the Republican Party or any individual Republican officials, in the short or long term.

Updated: Apparently, there is a different version of Pompeo, the Hero, in which Pompeo becomes acting president. According to the December 16 LawFare podcast, Senate Republicans will delay count-and-challenge until January 20 (Cruz's demand for a 10-day study, followed by referral to state legislatures, would achieve), then obtain a ruling from OLC that § 19 is constitutionally invalid to the extent it allows a non-executive officer to become acting president. The OLC ruling would require the executive branch to accept Pompeo as acting president, while the rest of the government would presumably recognize Nancy Pelosi as acting president.

Posted by Howard Wasserman on January 2, 2021 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Opinion Announcement Practice in the Supreme Court

The traditional practice in the Supreme Court was that the entire opinion in a case was read in open court by the Justice who wrote the decision. Typically, separate opinions were also read aloud. Thus, the Justices spent a lot of time just sitting on the bench to either deliver opinions or hear them being delivered. At some point, this practice changed into the modern (pre-pandemic) version, in which the author just summarizes the decision or reads a portion and a dissent is only occasionally read from the bench.

I'm not clear when the practice changed. An example of the old style is described in The New York Times story on the announcement of the decision in Youngstown. The article states that the Justices read their opinions in the Steel Seizure Case for two-and a-half-hours. Justice Frankfurter (not surprisingly) took 30 minutes to deliver his concurrence. Granted, Youngstown was unusual in that there were many long separate opinions and the Chief Justice was in dissent. I'm also not sure if the Court made an exception by reading all the opinions or whether that was still the norm in all argued cases in 1952. Maybe the change came under Earl Warren.

Posted by Gerard Magliocca on January 2, 2021 at 08:44 AM | Permalink | Comments (1)