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Wednesday, February 24, 2021

COVID defeats free speech and the national anthem

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, February 19, 2021

VAP - Michigan State University College of Law

Michigan State University College of Law invites applications for a full-time, fixed-term Lecturer.  The position will be for one year with an option to renew for a second year.  The Law College’s curricular needs include health care law, torts law, trusts and estates, and tax law. The Law College seeks applicants with a commitment to excellence in teaching and scholarly achievement.

Successful candidates will teach two classes, one in each of the fall and spring.  The Lecturer will have ample time to pursue their own scholarship.  The Law College will provide access to library and legal resources and mentorship for teaching and scholarly work, including opportunities to present at faculty workshops and outside fora.

For more information on the position and the link to apply, please visit  https://careers.msu.edu/en-us/job/504138/lecturerfixed-term

Review of applications will begin on March 5, 2021.

Posted by Sarah Lawsky on February 19, 2021 at 09:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

The National Emergencies Act and Non-Delegation

Before I became a hedgehog on Section Three of the Fourteenth Amendment, I was working on a new article about Robert Jackson's understanding of the non-delegation doctrine. In that paper, I plan to sketch out a constitutional argument against the National Emergencies Act. Here's how this might go:

Instead of developing a broad theory of non-delegation, let's focus on the specific example of A.L.A Schechter Poultry. In that 1935 decision, the Supreme Court explained why a portion of the National Industrial Recovery Act was an invalid delegation of authority by Congress to the President. (You can't clearly say that this discussion was a holding because the Court also said that the provision at issue was beyond Congress's Commerce Clause authority.) The provision in question delegated to the President the authority to create codes of "fair competition" for nearly every industry so long as they did not lead to monopolies. The Court said that this delegation was exceptionally broad because the President was free to define "fair competition" and the codes could cover nearly every part of the economy.

Now consider the National Emergencies Act, which delegates sweeping powers to the President over a wide range of domestic subjects if, in his discretion, the President declares a national emergency. The Act does not define a national emergency. Why is this not in substance comparable to the delegation found invalid in Schechter Poultry? Granted, some parts of the National Emergencies Act relate to foreign affairs. And the Court in Curtiss-Wright more or less said that the non-delegation doctrine does not apply to foreign affairs. But isn't the rest of the Emergencies Act an invalid delegation?

One possible answer is that some people do not want to invoke the non-delegation doctrine against the National Emergencies Act because they are concerned that revitalizing that doctrine will threaten other legislation that they like. This is not so, though, if you accept Jackson's argument (which I discussed in prior posts) that only delegations to the President himself are constitutionally suspect. The National Emergencies Act is in that group, but most delegations by Congress are not.


Posted by Gerard Magliocca on February 19, 2021 at 11:38 AM | Permalink | Comments (2)

Thursday, February 18, 2021

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

Posted by Howard Wasserman on February 18, 2021 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Job Posting - Program Director - Karsh Center for Law and Democracy

The University of Virginia School of Law seeks a Program Director for the Karsh Center for Law and Democracy. The expectation is that the Program Director will pursue a career in the legal academy as a law professor. More information is available through the UVA website as well as the Inside Higher Ed posting.

This position has a fixed-term appointment of two years. The position is classified as Professional Research Staff (“Postdoctoral Research Associate”) and offers compensation of $60,000 plus benefits.

The Karsh Center is a nonpartisan legal institute at the Law School. The Karsh Center’s mission is to promote understanding and appreciation of the principles and practices necessary for a well- functioning, pluralistic democracy. These include civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law. The Center supports these essential features of our democratic life through rigorous and cutting-edge legal and interdisciplinary scholarship. Its aim is to advance the values of law and democracy within the academy and in public discourse.

As the key administrator for the Center, the Program Director will work closely with the Center’s faculty director to develop the Center’s strategic plan and implement its goals. The Program Director will lead development and implementation of the Center’s programming, such as guest lectures, research collaborations, conferences, seminars, and workshops. The Program Director will provide support for visiting scholars and fellows. The Program Director will also interact with other democracy-related programs at the University of Virginia.

The expectation is that the Program Director will pursue a career in the legal academy as a law professor. The Program Director will be expected to produce legal scholarship and participate in the academic life of the law school.

Posted by Sarah Lawsky on February 18, 2021 at 11:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, February 14, 2021

Section Three Enforcement Legislation

Now that the impeachment trial is over, the work of implementing Section Three of the Fourteenth Amendment begins. When the House of Representatives reconvenes on Tuesday, I hope that there will be an effort to introduce general Section Three enforcement legislation. This is not glamorous work. It involves old-fashioned legislating with hearings, markups, and careful deliberation. There is no rush. They can take their time and get this right.

For example, who should have a right of action or the authority to bring a Section Three case? What should the standard of proof be? Should there be a three-judge District Court to hear these cases? Or an expedited appeal process to the Supreme Court. We need these questions answered before 2023, otherwise what may come afterward will be chaos. 

Posted by Gerard Magliocca on February 14, 2021 at 07:23 PM | Permalink | Comments (7)

Thursday, February 11, 2021

Oh, My

Bruce Castor, one of Trump's impeachment lawyers, went on a weird tangent in his opening statement about how people refer to the Senator from their state as "my Senator," arguing that this is a sign of respect and reverence. But this made me think about the use of the possessive for government officials.

I use the possessive to describe Senators from my state because there are many Senators. I cannot say "the Senator" because that does not distinguish her from the other 99. The possessive identifies a particular Senator based on one personal fact that serves as a shorthand--he represents me. But it has nothing to do with respect. For example, "my Senators are craven, cowardly supporters of insurrectionists and a wannabe authoritarian with no respect for the Constitution."

I do not use the possessive to describe the President because there is only one President and no confusion in saying "the President." The possessive for a unique officer also feels monarchical ("My Queen") or dictatorial ("Mein Fuhrer"). But it again has nothing to do with respect--I have never labeled Presidents I like as "my President."  Trump liked to use the possessive to describe himself ("I am your President").  Which may explain some things.

Posted by Howard Wasserman on February 11, 2021 at 10:26 PM in Howard Wasserman | Permalink | Comments (5)

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 10, 2021

Healy on cancel culture

Thomas Healy (Seton Hall) has a great short essay arguing that social censure of speech--what conservatives denounce, ad nauseum, as cancel culture--is a form of protected counter-speech in most contexts. I especially like the closing flourish: "For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent."

If anything, Healy may underplay the protected nature of much of what gets derided as "cancel culture," for reasons I have discussed in prior posts. The anti-cancel arguments benefit powerful speakers who can have access to a forum to be heard, then demand that other speakers only engage "on the merits" and reject anything else as silencing, while feeling no obligation to engage with the little people.

Healy also has a great response to complaints about silencing, reminding us what the marketplace of ideas is about:

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

I had not thought to put it in these terms, but this is right. The "marketplace of ideas" is not a debating society. Its purpose is not to air all ideas to air all ideas, but to identify those ideas that we want to adopt and to reject those that we do not. The left/liberal criticism of the marketplace is that it does not work and abhorrent ideas continue to exist and to flourish, even as most people find them offensive. If government cannot silence speakers and speech and even one person is entitled to hold onto a bad idea, disassociating from those ideas and from those who espouse those ideas must be built into the market.

Worth a read.

Posted by Howard Wasserman on February 10, 2021 at 03:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (15)

More on Semicolons

To Howard's post below on semicolons, we can add a law school connection by noting a recent short article by Diana Simon, a professor at  the University of Arizona who, inter alia, teaches legal writing. Simon not only "detest[s] semicolons"; she believes they "should be given a proper burial," especially in legal writing. She offers three reasons, excerpted below:

1) "[T]eaching legal writing is challenging enough from a substantive standpoint, and there is no reason to inject the proper use of semicolons into an already steep learning curve. Semicolons require effort and thought."

2) "[W]e need to face facts: our students are not well-versed in punctuation and grammar in general, much less in the complex labyrinth of the semicolon. . . . "[L]egal writing instructors can teach the fundamentals of effective legal writing, such as accuracy, brevity, and clarity--without stepping into the quicksand of semicolons." 

3) Eliminating the semicolon will address "the elitist issue," that issue apparently being that semicolons have a "reputation for being overly formal and elitist," a reputation Simon appears to believe is well-deserved. 

De gustibus non est disputandum, as we overly formal elitists are wont to say. I am sympathetic, not to Simon's disdain for the semicolon, but to the difficulty and even unfairness of having to teach "punctuation and grammar in general" where prior educators, busy teaching students to "find[ ] their voice," have failed to do so. My sympathy is genuine, but that is where it ends. Engineering professors should not have to teach engineering students basic math, and we should grieve if they are faced with a situation where they have to. But students who are studying engineering must either master basic math or be dismissed from the study of engineering. That is so even if basic math requires effort and thought and even if these students have been poorly served by their math teachers. What is cause for despair is not cause for resignation. As for elitism, among other things it seems to me that leveling up and giving more people the gift of a full and rich written language is, like Jeremy Waldron's conception of dignity, more a matter of universalizing high social rank and that abandoning the effort will, if anything, help entrench the status and advantages of semicolon-loving elites. Moreover, although I was not bowled over by Oyler's case for semicolons, she is surely right in one respect: "That semicolons aren’t popular on social media . . . is perhaps the only argument some readers will need to be convinced of their value."  

Posted by Paul Horwitz on February 10, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)

Quint, the USS Indianapolis, and the COVID vaccine

Random thought, as COVID takes a (hopefully) last-gasp spin, 90 % of the country waits for the vaccine, and lots of people return to normal in anticipation of an as-yet-not-widely distributed solution.

I am reminded of Quint's U.S.S. Indianapolis speech in Jaws. Towards the end, he describes being most frightened waiting for his turn to get onto the rescue craft. Which makes sense--he had survived five days and safety was in sight. One might have the same feeling now--having revamped life to avoid getting sick, the end is in sight and it is most scary waiting for your turn and not wanting to get sick (or worse) after muddling through for the past year. But many people and communities seem to take the opposite tack--showing no heightened fear while waiting and returning to normal ahead of actual safety.

Plus, Robert Shaw is great in the scene.


Posted by Howard Wasserman on February 10, 2021 at 10:36 AM in Howard Wasserman | Permalink | Comments (3)

Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom

Spread the word!  The Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021. Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

More information is available here:  Download RFT External Invitation.

Posted by Rick Garnett on February 10, 2021 at 10:13 AM in Rick Garnett | Permalink | Comments (0)

Tuesday, February 09, 2021

R.I.P, Peter Gerhart

Peter Gerhart, professor and former dean at Case Western, died on February 7, at age 75. Information on condolences is in the link. A Zoom celebration is scheduled for later in the semester. Condolences to his family and to the Case Western community.

Posted by Howard Wasserman on February 9, 2021 at 09:18 PM in Teaching Law | Permalink | Comments (0)

John Bingham on Section 3 of the 14th Amendment

Today was my first day back in the office since November. As a result, I was able to access my files on Bingham from my biographical research years ago. And I found two interesting items on Section 3 from him that I did not focus on in drafting my Section Three paper.

First, when Bingham accepted the GOP nomination for another term in the House in August 1866, he gave a speech that described the proposed 14th Amendment. Here is what he said about Section Three:

"[N]o man who broke his official oath with the nation or State, and rendered service in this rebellion shall, except by the grace of the American people, be again permitted to hold a position, either in the National or State Government."

This is clear and very broad with respect to who was covered and from what they were barred.

Second, a week later Bingham gave a speech in Cincinnati in which he said this about Section Three:

“The other provision of this amendment, my fellow-citizens, is that no person who took an oath of office, either Federal or State, to support the Constitution of the United States, and in violation of his oath, voluntarily engaged in the late atrocious rebellion against the Republic, shall ever hereafter, except by the special grace of the American people, for good cause shown to them, and by special enactment, be permitted to hold any office of honor, trust, or profit, either under the Government of the United States or under the government of any State of the Union.”

This is still clear, though instead of "position" Bingham used the phrase "any office of honor, trust, or profit" to describe the disqualification. This could mean that he equated the two phrases, though I'm not sure on that yet.

The bottom line is that Bingham's descriptions of Section Three do not support the argument that the president or the presidency is excluded from Section Three's coverage. 

(BTW, Bingham gave a speech calling for a broad amnesty for ex-Confederates in December 1870 that I overlooked. This is not pertinent to the current debate on Section Three, but his discussion there will be something I'll need to add to the historical discussion in my paper.)



Posted by Gerard Magliocca on February 9, 2021 at 09:12 PM | Permalink | Comments (0)


Lauren Oyler on the joy of semi-colons. I join you heartily & gratefully. This is fine—very.

Posted by Howard Wasserman on February 9, 2021 at 10:35 AM in Howard Wasserman | Permalink | Comments (3)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, February 07, 2021

Shotgun pleadings and the (continued) death of FRCP 12(e)

The creation of "factual insufficiency" under FRCP 8(a)(2) and 12(b)(6) dismissals without prejudice--informally pre-Twiqbal and formally since--made FRCP 12(e) motions for more definite statement into a relic. If the complaint lacked sufficient facts or details, a defendant would move to dismiss for failure to state a claim rather than for a more definite statement. The result is the same--the plaintiff gets another chance to plead--and courts and defendants followed the 12(b)(6) route.

So 12(e) evolved in the other direction, as a tool against prolix complaints--100+ pages, 750+ allegations (often containing irrelevant and inflammatory information), 25+ claims against a random host of defendants, with no clarity about who did what or what conduct violated what rights. Such a complaint fits Rule 12(e)--the massive amount of disorganized information renders the pleading "so vague or ambiguous that the party cannot reasonably prepare a response." Defendants (and courts) should not be required to excavate the rubble of the pleading to figure out what is going on and how to respond.

The Eleventh Circuit has gone a different route. It introduced the doctrine of "shotgun pleadings." It recently described four types of shotgun pleadings (or, probably more accurately, four characteristics, since I imagine they can combine): 1) a complaint with multiple counts in which each count incorporates every prior paragraph, including the paragraphs in the prior counts; 2) a complaint "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;" 3) a complaint that does not separate causes of action into distinct counts; and 4) pleadings with multiple claims against multiple defendants that does not specify who did what or who each claim is brought against. All solid categories. But under the Eleventh Circuit's doctrine, the appropriate tool is a 12(b)(6), not 12(e). More importantly is the consequence: Where a plaintiff represented by counsel has a complaint dismissed as shotgun and fails to request leave to amend, the district court must give one chance to replead. Subsequent shotgun pleadings can be dismissed with prejudice.Using 12(b)(6), and dismissal with prejudice, seems to rest on two ideas. First, if the plaintiff had a valid claim, she would not have filed a shotgun pleading; that she believed it necessary to lard the complaint with extraneous material shows she could not identify facts showing a violation. Second, there is something that looks like a sanction here, especially where plaintiff is counseled. Shotgun pleadings "waste judicial resources waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and undermine the public’s respect for the courts."Meanwhile, the doctrine leaves even less for 12(e) to do.

Posted by Howard Wasserman on February 7, 2021 at 10:11 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, February 05, 2021

New Draft Papers

I have two new articles on SSRN and in circulation to law reviews.

Zombie Laws explores something I discussed here--the statute that remains on the books following a judicial declaration of invalidity, which Fifth Circuit Judge Gregg Costa called a "zombie law." The article discusses how Congress and state legislatures can narrow, expand, or eliminate them. Larry Solum was good enough to flag this one.

Congress and Universal Injunctions discusses five legislative proposals for eliminating universal injunctions and why they do or do not work tor resolve the problem.

Posted by Howard Wasserman on February 5, 2021 at 02:27 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Some Final Thoughts Before the Impeachment Trial

With the trial set to begin on Monday, I thought I'd would offer some opinions on the proceedings.

1. I do not think that this trial is unconstitutional. I am instead against the trial on prudential grounds.

2. My chief prudential reason is that the trial will end in an acquittal. Thus, all we are doing is creating a precedent that what President Trump was not a high crime and misdemeanor. This will not serve us well in the future.

3. A full-blown trial will take a long time and be a circus. The Senate has other important priorities during the pandemic. Moreover, the country does not at this time need another extended discussion about the former President dominating the news.  

4. A short trial with no witnesses is equally pointless. At least with a proper trial you could argue that we might learn new facts. A short trial doesn't even do that.

5. Having Patrick Leahy as the presiding officer will create a number of problems.

6. Section Three of the Fourteenth Amendment offers a better path forward, as I've explained before and will do again next week.


Posted by Gerard Magliocca on February 5, 2021 at 08:58 AM | Permalink | Comments (5)

Thursday, February 04, 2021

What Southworth hath wrought

Bd. of Regents v. Southworth is an odd case. The action was brought by students at a public university challenging the use of their student-activity fees to fund groups or expression to which they objected. The Court rejected the claim because the forum was viewpoint neutral. I believed (and wrote at the time) that this was the wrong approach. Students were not compelled to fund any speech, so there should not be any free speech problem; they were required to fund a forum that the government operated. No one's First Amendment rights were violated, because no one was required to fund any speech or to give money for any objectionable speech; they gave money to the government that the government used to enable private speakers. And that does not change if the forum is not viewpoint neutral. The thing funded remains a public forum, just a viewpoint-discriminatory public forum. Any First Amendment claim should lie with anyone denied access to the forum on viewpoint-discriminatory grounds has a strong First Amendment claim. But the funders should have nothing.

The grounds on which Southworth was decided leads, unavoidably, to Smith v. Regents of Univ. of Minnesota. The plaintiffs were students who paid the mandatory fees. Some of their claims survived 12(b)(6) to the extent they challenged the unbridled discretion that university administrators had in deciding who received money, space, or other services. These plaintiffs were not denied money or space or other funded services; they simply do not like who does  receive money, space, and services or how that decision was made.

This makes no sense, however we look at it. On the merits, this should not violate the First Amendment, because the plaintiffs have not been compelled to speak or to fund anyone's speech, nor have they been denied access to a public forum to which they are entitled. Any unlawfulness in running the forum does not change the lack of connection between the plaintiffs and any fund recipient.  Or we could wonder how the plaintiffs have  standing, since they have not been harmed in any concrete way by the way the money was spent (the injury is not to their pocketbook, since they must pay this money no matter how the funds were spent) and they will not get their money back if the school changes its procedures. Or we could say this recognizes a new form of taxpayer standing under the Free Speech Clause, despite the Court's extreme narrowing of taxpayer standing in recent cases. Anyway of looking at is wrong. And that Southworth and the current court talk about this in First Amendment merits rather than standing terms and that we could criticize this decision either shows, again, that there is no meaningful difference between them except when courts treat them as different.

To say one nice thing about this decision: There is a wonderful discussion (at pp. 13-18) about the standard for 12(b)(6), the meaning of Twiqbal, and the differences between legal and factual insufficiency; I already shared it with my Civ Pro students. Not surprising, as Judge Patrick Schiltz was a Civ Pro scholar in his prior life.

Posted by Howard Wasserman on February 4, 2021 at 02:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

JOTWELL: Bookman on King on global civil procedure

The new Courts Law essay comes from Pamela Bookman (Fordham), reviiewing Alyssa King, Global Civil Procedure (Harv. J. Int'l L., forthcoming).

Posted by Howard Wasserman on February 4, 2021 at 01:40 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 03, 2021

Remembering Justice Brennan (Updated)

In their biography of Justice Brennan (which I reviewed), Seth Stern and Stephen Wermiel describe Brennan's post-retirement concerns that his legacy on the Court would be forgotten, especially as compared with his friend Thurgood Marshall.

Irin Carmon profiles Justice Sotomayor in anticipation of her assuming the new role as senior-most dissenter for the "New Three Musketeers" of herself, Justice Kagan, and Justice Kruger (an African-American woman appointed to replace the retired Justice Breyer). Carmon writes "[o]n a Court that runs on seniority, Breyer’s move would anoint Sotomayor as the most senior justice in what is usually, in the most heated cases, the resistance — the true heir to Ginsburg and, before her, John Paul Stevens and Thurgood Marshall."

The use of Marshall rather than Brennan in that sentence exemplifies Stern and Wemiel's point and Brennan's concern. Brennan spent 15 years (from Justice Douglas' 1975 retirement) as a liberal senior associate Justice on the increasingly conservative Burger and Rehnquist Courts. Brennan assigned those dissents. Or he assigned the majority opinion when he cobbled together a majority without the Chief (a skill for which he was renowned). Marshall served that role for one term between Brennan's 1990 retirement and Marshall's 1991 retirement.

This is not to disparage Marshall, a legal giant and an historic Justice. But if we are discussing the Court as it operates and tracing the line of "great dissenters" or "great leaders of the dissenting bloc," that line runs through Brennan, not Marshall.

Update: This appears to be a common phenomenon. Stories and commentary about Sotomayor's recent capital-punishment dissents have described her as Marshall's heir in that area. Even though Brennan assigned and wrote as many of those opinions and joined with Marshall in the routine dissents from cert denials.

Following RBG's death in September, I asked whether Ginsburg's greater influence was as a Justice or litigator, comparing the general view that Marshall's greater influence was as a litigator. The view had been that Marshall's significance arose from being the first African American Justice and for bringing that voice to the Court, but not for the influence of his jurisprudential work. The trend seems to be to bolster Marshall's reputation as a jurist. And that seems to be coming at the expense of Brennan's.

Further Update: Two further thoughts, from an email exchange with a reader. First, this was a piece of popular journalism written for a non-legal audience and Marshall is more famous among non-lawyers/non-legal scholars than Brennan. Second, there is a tendency to inflate Marshall greatness and significance as a jurist so it matches the unquestionable significance of his membership on the Court. The combination is problematic, to the extent we regard journalism as "writing the first draft of history."

To use an analogy from my other great interest: Jackie Robinson was a a figure of great and essential historic importance, as well as a great baseball player. But he was not a greater baseball player than Stan Musial (or, for that matter, Willie Mays or Hank Aaron). And it is unwise to say he was. As the reader said, because of his historical significance, it makes sense that MLB retired Robinson's number and marks Jackie Robinson Day every season. But we do not want Bill James to rank Robinson higher than Musial, Mays, and Aaron because of that historical significance in becoming part of the game.

Posted by Howard Wasserman on February 3, 2021 at 08:52 AM in Howard Wasserman, Judicial Process | Permalink | Comments (8)

Monday, February 01, 2021

Unconstitutional Delegations to the President

Before the insurrection at the Capitol, I was posting about my discovery of Robert Jackson's 1938 brief as Solicitor General on the non-delegation doctrine. I am now writing up a paper on Currin v. Wallace and how Jackson's brief in that case clarifies some of the things that he said in Youngstown.

One payoff from the paper will be that there is a valid argument that Congress cannot delegate power directly to the President under some circumstances. The most obvious example would be the National Emergencies Act, which was much discussed under the Trump Administration. While there are fine policy arguments for revisiting that statute, there are also constitutional arguments that could be raised against a current or future invocation of the Act.

Jackson's analysis also provides an alternative explanation for the Supreme Court's holding in Clinton v. City of New York. In Clinton, the Court held that the Line Item Veto Act was invalid for giving the President a rescission power over specific appropriations. The Court reached that conclusion based on its decision in Chadha and on its understanding of the Presentment Clause in Article One. That's all fine, but you can also say that the problem was the Congress delegated a core legislative power (over spending) directly to the President with few meaningful limitations. Maybe you can say the same about aspects of the National Emergencies Act.

Posted by Gerard Magliocca on February 1, 2021 at 12:22 PM | Permalink | Comments (4)