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Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, May 29, 2021

State action and free speech at Yankee Stadium

Bbf29345cc669fc1d263a670ebc12445-1Two fans at Thursday's game at Yankee Stadium were ejected from Yankee Stadium after hanging this banner from the mezzanine, to a chorus of verbal and nonverbal counterspeech. The men were removed for the stadium, but not arrested and allowed to keep the sign.

Newsmax finds this an affront to the First Amendment. First Amendment Twitter (literally, an account run by the First Amendment itself) says "I protect you from the government, not from the Yankees." Much as I hate to agree with anything appearing on Newsmax, it is not as simple as the First Amendment and its responders make it sound.

At old Yankee Stadium (1923-2008, as renovated in 1976), this would be an obvious First Amendment case. The old Stadium was owned by New York City and leased to the Yankees for exclusive use on highly favorable terms. Plus, security was provided by off-duty New York police officers pursuant to a departmental program.

The NYCLU brought a lawsuit in 2009 on behalf of two fans who were ejected for refusing to stand in place when God Bless America was played during the Seventh-Inning Stretch. There were strong arguments that the Yankees--by virtue of their exclusive and beneficial use of publicly owned property and the involvement of off-duty officers in enforcing team policy--acted under color because of a "symbiotic relationship" with the city. A district court accepted it as to MLB in 1978 in holding that MLB violated the First Amendment by excluding female reporters from the locker room during the 1976 World Series  at the newly reopened Stadium. There also was an argument that the Yankees and the NYPD "jointly participated" in the alleged constitutional violation, because the Yankees used detailed officers to enforce their policies. The 2009 suit settled, with the Yankees taking a judgment for $ 10,001 and attorney's fees of $ 12,000.

The current stadium is owned by the New York City Economic Development Corporation (NYCEDC), a not-for-profit entity that is not a city agency. Its governing board has 27 members--7 appointed by the mayor at his discretion, 10 appointed by the mayor from nominees from the Borough Presidents and Speaker of the City Council, 10 appointed by the chair from a list approved by the mayor. The park cost about $ 2.3 billion, $ 1.1 in public money, and about $ 670 million from the team. I do not know the terms of the lease between the NYCEDC or the Yankees and whether they are as favorable as the terms of the lease with NYC on the old Stadium--although I cannot imagine the team gets less from this stadium than from the previous. I also do not know if security is provided through the NYPD program--pictures in the linked stories show people in uniform speaking with the banner holders.

There is a good argument that NYCEDC, given the manner in which its members are appointed, acts under color under Brentwood's entwinement test. But the Yankees, not NYCEDC, make and enforce these policies. The question is whether a private entity can have a symbiotic relationship with a public-private entity--do the Yankees act under color because they have a symbiotic relationship with an entity that itself acts under color because of its entwinement with the government? Alternatively, the plaintiffs might try to show symbiotic relationship from its exclusive use of a facility that was paid for largely with public funds, regardless of who holds title to the facility. A third option is carrying the joint-participation argument from the old Stadium, depending on whether the team has the same security arrangement with the NYPD.

If the bannermen can establish state action, do they have a First Amendment claim? Team policy requires that banners be "baseball-related, in good taste," not affixed to the stadium in any manner, and not obstruct anyone's view. The question is whether they were ejected for  displaying a banner in an improper manner or because of the content of the banner. I also would argue that the "baseball-related" limitation is invalid, given the broad scope of  the "cheering speech" fans engage in and (much as sports like to deny it) the historic link between social/political issues and sports. Fans can orally chant non-baseball-related stuff during the game, including that "Trump one." It should follow that a non-obstructive and non-affixed non-baseball related banner should be permissible.

Two last points. First, this should not be seen as the camel's nose for arguments that YouTube/Twitter/Facebook act under color; the connection to government is not bad. Second, I believe we can agree that Newsmax would be covering this story differently had the banner read "1/6 Commission Now" or "Trump Should Be Prosecuted."

Posted by Howard Wasserman on May 29, 2021 at 04:48 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 28, 2021

Holes in Removal

Michael Avenatti's defamation suit against Fox News provided a fun illustration of many holes in the removal process and the interaction among several rules and statutes, as shown in this opinion issued Wednesday by Third Circuit Judge Bibas, sitting by designation on the District of Delaware.

Avenatti sued Fox and several Fox correspondents and hosts for defamation in Delaware state court. Avenatti is a California citizen; the individual defendants are citizens of several states, none Delaware or California; Fox is incorporated in Delaware and has its PPB in New York. Fox removed four days after the lawsuit was filed but before any defendant had been sued. Three days after removal (a week after filing the lawsuit), Avenatti amended his complaint to add Fox News correspondent Jonathan Hunt, a California citizen, as defendant, then moved to remand. Judge Bibas denied the motion.

First, we have  snap removal. Fox is a Delaware citizen and should not be able to remove a diversity action under the forum-defendant rule. But Fox had not been served and the Third Circuit is one of three circuit to expressly endorse the practice, plain congressional intent be damned. In addition, Fox could unilaterally remove because no other defendants had been served, so it was not required that they join or consent.

Second, we have the interaction among four provisions and doctrines to determine how and why to prevent a plaintiff from doing what Avenatti did here--adding a non-diverse defendant, someone the plaintiff had not previously desired to sue, post-removal to destroy complete diversity and deprive the court of jurisdiction.

Section 1447(e) exists to limit the practice, giving district courts discretion to deny or permit joinder when a plaintiff "seeks to join additional defendants" post-removal. Courts consider a number of factors, including whether the purpose of the amendment is to defeat diversity, whether the plaintiff would be prejudiced if he cannot proceed against the additional defendant (basically an FRCP 19 analysis), whether the plaintiff delayed in adding the new defendant, and other equities.

But Bibas said § 1447(e) did not apply. Avenatti had amended as a matter of course under FRCP 15(a)(1)(B), which he could do within 21 days after service of an answer or motion under 12(b), (e), or (f).* Because no defendant had responded to the original complaint, Avenatti did not need the court's permission to amend and add Hunt as defendant. Her therefore did not "seek" to add a defendant, he added a defendant because he had the right to do so. Although some courts read § 1447(e) to allow the court to deny amendments as a matter of course if they would destroy complete diversity, Bibas refused to "expand" the text.

[*] Bibas erroneously included 21 days of serving the complaint as a relevant time point, although is not included in the timing calculation under (a)(1)(B), only (a)(1)(A). A common mistake.

Avenatti offered the opposite extreme. Had Avenatti included Hunt in the original complaint, even with the purpose of keeping the case out of federal court, the case would not have been removable unless the joinder of Hunt was fraudulent, meaning there was "no colorable ground" for a claim against him. Avenatti argued that the court must remand unless Fox could show the joinder was fraudulent, just as the court would have to remand unless the joinder of Hunt in the original complaint had been fraudulent. But Bibas rejected that approac. Fraudulent joinder applies at the time of removal when the court determines jurisdiction in the first instance, not after a case has been properly removed and a change threatens established jurisdiction.

Bibas chose a middle way. FRCP 21 states a court "may at any time, on just terms, add or drop a party." In this situation, the court must decide whether it would be "just" to drop Hunt as a party. And justice would be determined by the ordinary § 1447(e) factors--plaintiff purpose, prejudice/necessary party, delay, and other equities. So get to the same analysis, but starting from a different textual point. A good illustration for students of the interactions between statutory text and judicial interpretation and elaboration.

Those factors favored dropping Hunt and keeping the case in federal court: Avenatti's purpose was obvious and Hunt was not a necessary party because Avenatti alleged Fox's liability for Hunt's statements. Although there was no delay in adding Hunt, the other two factors favored weighed against Avenatti.

Posted by Howard Wasserman on May 28, 2021 at 10:35 AM | Permalink | Comments (0)

Thursday, May 27, 2021

Even First Amendment violations are bigger in Texas

Texas must have been jealous that Florida was getting all the attention for enacting laws that violate the First Amendment to an extraordinary degree. Especially after it failed  to pass its social-media bill, to the consternation of Lt. Governor Dan Patrick.

Fortunately, the legislature did find a way to trample the First Amendment. The House passed the Star Spangled Banner Act (previously passed by the Senate and sure to be signed by the governor, again in response to Paxton's demagoguery), requiring that all contracts for services between professional sports teams and state and local entities that provides public funds include a promise to play the national anthem at the start of every event. It takes effect on September 1, although if history is any guide, a lawsuit will be filed next week.

Give Texas credit. There are plausible visions of free speech that might accept government compelling social-media sites to accept all speakers or to limit their power to bar speakers, given their role as forums for expression. I do not share the vision, but it is plausible. There is no plausible universe, barring SCOTUS overruling three or four precedents, under which the state can condition funds on private entities performing mandatory patriotic rituals.

Posted by Howard Wasserman on May 27, 2021 at 05:54 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

That did not take long

On Monday, Florida Governor Ron DeSantis signed the law purporting to regulate whether and how social-media sites decide who can use their sites. On Wednesday, I appeared on a local NPR program (first segment) discussing the law and predicting lawsuits, and quick TROs or preliminary injunctions, on July 1, the day the law takes effect. I missed it by 35 days--a lawsuit was filed Thursday in the Northern District of Florida by two trade associations representing most of the major social-media and tech companies, including Facebook and Twitter.

My favorite feature, besides the obvious First Amendment arguments--the bill includes a carve out for any company that operates a theme park, a clear sop to Disney. Count III is an equal protection claim, challenging that specific carve-out.

Preliminary injunction coming soon.

Posted by Howard Wasserman on May 27, 2021 at 04:16 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Further Updates on the procedure of the Texas fetal heartbeat law

A few points in update to my post on the Texas fetal heartbeat law and the procedural insanity it spawned, following some developments and some discussions on the Civ Pro Prof Listserv.

• My proposal (made not entirely seriously) that providers change domicile to create diversity and remove the enforcement action would not work. A listserv member pointed out that the district court upon removal would not dismiss for lack of standing, it would remand, putting the case back in state court. In addition, it would be too easy to avoid; Billy Bob could join a Texas-based doctor as defendant and eliminate complete diversity. I did not think that one all the way through.

• Another pre-enforcement option floated: Sue the state-court judge assigned to hear the private action. This raises the same Younger problems as suing Billy-Bob-as-state-actor, but not the state action problems. I do not believe this works for two reasons. First, a judge cannot be enjoined in the first instance in a § 1983 action; the plaintiffs must get a declaratory judgment first, then go back for a second round of litigation if the DJ is ineffective. Second, and more importantly, the judge is not the target of anti-suit litigation; the target is the litigant in that underlying litigation (such as the executive official charged with enforcing the law).  It would be highly unusual to enjoin a judge from allowing a case to go forward, although perhaps this is an extraordinary case.

• Some people seem a lot higher on the Lugar-based argument that Billy Bob acts under color. I hope not. I disagree with the Lugar line of cases and would not want it extended. And it would be deeply troubling if filing a lawsuit, without more, subjected someone to a § 1983 suit. Consider that MyPillow's lawsuit against Dominion, legal nonsense in current form, would look much different if this were the rule. I am more willing to go with the public-function argument, which is narrower and limited to a unique context in which a state delegates all enforcement to the private sector precisely to avoid pre-enforcement litigation. But I do not trust courts to find the nuance there.

• We have a test run for these arguments in a challenge to a Lubbock ordinance banning abortions within city limits and using private enforcement (although the complaint alleges some public-enforcement mechanisms, so it may be less clear than HB8). Planned Parenthood sued the city and the city moved to dismiss for lack of standing. Stay tuned.

• There is a separate question, which I am not competent to address, of whether Billy Bob will have standing to bring the private enforcement action under HB8. According to Charles "Rocky" Rhodes (South Texas), the expert on the Texas Constitution, Texas courts generally follow Article III standing doctrine, but are more accepting of standing when the legislature authorizes the suit.

• A wild proposal from a different emailer: What if a blue state created a cause of action against Billy Bob--allowing any person to sue for damages anyone who brings a claim under HB8? All sorts of extra-territoriality and personal-jurisdiction puzzles there.

• A different version: What if a blue state enacts a clawback statute, allowing anyone (or at least anyone within the blue state) held liable in a Texas HB8 suit to bring a claim in the blue state's courts to recover the amount paid in the Texas litigation. This raises a specific PJ question--is suing a New York corporation (knowing it is a NY corporation) in  a lawsuit that is tortious under New York law purposefully aiming actions at the forum for Walden/Calder purposes? (I believe there are legal malpractice actions that get at the same idea).

This also could raise issues about relationships among state judiciaries and whether the courts of one state can halt litigation in another. Countries enact clawback statutes designed to recover any judgment paid under the laws of another country (e.g., Japan allows a clawback action against U.S. antitrust plaintiffs). Federal courts are split on whether and why they can enjoin those proceedings to "protect or effectuate" their judgment in the underlying case. Could a Texas court, having issued a judgment for Billy Bob against Planned Parenthood, enjoin the NY clawback action?

Posted by Howard Wasserman on May 27, 2021 at 10:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, May 26, 2021

Northwestern University Law Review Exclusive Empirical Cycle

From the Northwestern University Law Review:

The Northwestern University Law Review’s 4th Annual Exclusive Empirical Cycle is opening soon. It will be open from June 14 to July 31. 

For our empirical issue, NULR welcomes pieces making use of any and all empirical methods—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest. NULR defines “empirical methods” broadly; as Professor Shari Diamond put it in an article in our 2019 empirical issue, empirical methods encompass any “systematic organization of a series of observations with the method of data collection and analysis made available to the audience.” Through its Empirical Initiative, NULR seeks to expand the use of robust empirical analysis to answer pressing and interesting questions within the legal community. The NULR Empirical Issue shines a spotlight on high-quality empirical research within the pages of a general readership Law Review.   

As in the past, the NULR empirical cycle review process features an opportunity unique amongst Law Reviews to have your article peer-reviewed by seasoned experts in the field. This year, NULR is also guaranteeing that any author who submits by 5pm CT on Monday June 21st will receive a decision by August 2nd. This allows scholars the chance to submit to the Exclusive Empirical Cycle without forgoing their opportunities to submit to other fall cycles. For more details, please visit the NULR Empirical Issue page.  

Posted by Sarah Lawsky on May 26, 2021 at 12:17 PM in Law Review Review | Permalink | Comments (0)

Tuesday, May 25, 2021

Against the Well Pleaded Complaint Rule

A point I neglected to make in my post on the Texas fetal-heartbeat law: This illustrates the strongest criticism and biggest problem with the Well Pleaded Complaint Rule.

The argument against the rule is that the benefits of a federal forum--uniformity, respect for federal rights, and expertise in federal law--apply regardless of where and how a federal issue arises. A federal forum is as necessary for a federal defense or a counterclaim as for a claim. Just as The New York Times would have liked a federal forum against Alabama officials using state-law defamation as the functional equivalent of seditious libel against truthful reporting of government misconduct, so does Planned Parenthood need a federal forum against random Texans attempting to bankrupt them into practically depriving women of their opportunity to engage in constitutionally protected activity.

Preenforcement challenges to state laws are important not only because it allows a rights-holder to assert her rights without having to face legal jeopardy, but because they give the rights-holder access to a federal forum. Combining purely private enforcement with the WPC deprives Planned Parenthood of any federal forum (save the unlikely SCOTUS review) in these cases.

Posted by Howard Wasserman on May 25, 2021 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Sunday, May 23, 2021

Another Little Discovery About Youngstown

Thanks to Adam White, I can now see Justice Jackson's drafts of his Youngstown concurrence. (The Library of Congress is still closed to most researchers, but Adam shared his scans from a prior visit.) And I found something new in those drafts.

I've posted before about the idea that a non-delegation challenge can be mounted against some applications of the National Emergencies Act. The idea, which I've sketched out in a draft, relies in part on Jackson's analysis of the non-delegation doctrine as Solicitor General and in part on his discussion in Youngstown. One thing that I pointed out was that Jackson implied in Youngstown that there were limits on the emergency powers that Congress could delegate. I also noted that (in a separate essay) he mentioned that he thought legislative vetoes were constitutional. Was there a connection between those two points?

There was. In one of Justice Jackson's drafts (dated May 22, 1952), he said the following:

"I see no constitutional objection to statutory grants of power to within limits of constitutionality, making their operation contingent upon a declaration of emergency by the President. Nor do I see any constitutional reason why Congress may not keep effective control of such legislation by making the grant terminate at any time or upon any contingency, even its own joint resolution."

After explaining that he disagreed with FDR's view that legislative vetoes were unconstitutional, Jackson continued:

"In view of the ease, expedition, and safety with which Congress can grant and recall large emergency powers ample certainly to embrace this crisis . . ." he was unpersuaded that the Court should rule that President Truman possessed those powers without a statute. (I've added the emphasis on recall.)

What do I glean from this? That Jackson believed that the constitutionality of broad emergency delegations to the President depended in part on the ability of Congress to recall those delegations. The Court's invalidation of the legislative veto process in Chadha thus raises serious questions about whether the basic framework set forth by National Emergencies Act can withstand constitutional scrutiny under Justice Jackson's thinking in Youngstown. I will keep digging and see what else I find.


Posted by Gerard Magliocca on May 23, 2021 at 03:48 PM | Permalink | Comments (3)

JOTWELL: Erbsen on Gluck & Burch on MDL

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. ___ (forthcoming 2021).

Posted by Howard Wasserman on May 23, 2021 at 02:25 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, May 21, 2021

The Collaborative Marshall Court

One of the themes in my Bushrod Washington book is that the Marshall Court was a collaborative body in which Washington played a pivotal role. Here are a couple of interesting examples I've come across this week at Mount Vernon.

1. In an 1833 letter to Joseph Story, Marshall talks about a tricky legal issue that he's dealing with on circuit and then says: "I recollect a conversation between you and Judge Washington on some question connected with this in which I believe, though I am not certain, you did not concur." He then asked Story to tell him about that conversation. I tend to think that the chat happened at the boarding house where the Justices stayed during their sessions, and gives a sense of how they hashed things out over dinner or breakfast.

2. In 1823, Osborn v. Bank of the United States was argued. The Court set the case for reargument the following Term. One of the lawyers who argued the case the first time, Charles Hammond, could not return in 1824 because his wife was ill. He turned his argument into a monograph and sent the book to Marshall. Marshall replied by praising Hammond's presentation and then offered this comment about whether Hammond's book could be submitted to the Court as his argument: "If Judge Washington will not consent to receive it; absolutely & unconditionally as an argument, it must be read over in court, & he must view it in the light of notes, and as a substitute for those which might be taken by himself."

Why did Washington get to decide this? Marshall was, after all, the Chief Justice. I think the answer is that Washington was the unofficial secretary of the Court's arguments. In other words, he kept the notes of argument and the Justices treated his notes as the authoritative source. Thus, he had to decide to what extent Hammond's book conformed with what was actually said in court. 

This is a significant point. Being the official record keeper gives that person influence over any subsequent deliberations. An opinion author might have to consult Washington's notes (or talk to him) to write the draft properly. I'm going to follow-up and see if I can find any examples of these argument notes, as there are one or two possible sources.

3. Washington was delegated the task of making the boarding house arrangements for the Justices. There is one letter from Marshall to Bushrod asking him about how that will go following the sack of Washington DC by the British in 1814. A couple of years later, Bushrod its writing a letter to someone to make specific arrangements (the Justices stayed at different boarding houses over the years). After he died in 1829, the boarding house setup fell apart. 1830 was the first Supreme Court Term in three decades where the Justices did not all live together. Was Bushrod's death coincidental to this change or a cause? Either is possible. But maybe nobody else wanted to take on the boarding house assignment. Or the absence of his conviviality made the group less cohesive.  


Posted by Gerard Magliocca on May 21, 2021 at 10:19 AM | Permalink | Comments (1)

Thursday, May 20, 2021

Constitutional History Chair Search at VMI

One of my colleagues here at Mount Vernon is running VMI's search for a chair in constitutional history. The job announcement is below. This is an exciting opportunity, as VMI is in the process of revamping its curriculum.

The Virginia Military Institute seeks a tenure-track associate or full professor for a newly endowed chair in United States Constitutional History, to begin in August 2022.

This position includes significant administrative duties related to a forthcoming core curriculum course in United States Constitutional history. Core curriculum courses are required of all cadets. VMI is committed to ensuring that our graduates possess a thorough grounding in the principles and substance of the United States Constitution, and the successful applicant will play a key role in achieving that goal.

The successful applicant will design the upper-division Constitution course, coordinate other faculty teaching the course, represent the course as a member of VMI’s Core Curriculum Oversight Committee, design and oversee assessment of the course, and coordinate extracurricular speakers and events.

The Department of History’s normal teaching load of nine credit hours per semester will include six credit hours of the new upper-division course in Constitutional History plus three credit hours per semester of an upper-division elective course as mutually agreed with the department head. Enrollments in all courses are capped at 22 or fewer students per section.

Minimum requirements include an earned Ph.D. in United States history and substantial teaching experience bearing directly on the United States Constitution and its history. The most attractive applicants will possess a genuine interest in designing and implementing a core curriculum course and have significant experience managing people and resources. We seek a colleague enthusiastic about joining a vibrant teaching department and expect all our faculty members to maintain active research interests in their topical specialty. The successful candidate, whether hired at the associate or full professor level, will have the potential to embrace an accelerated tenure and (if applicable) promotion clock.

Preliminary Skype interviews with long-list candidates will precede fuller interviews. Normally, the department invites job finalists to VMI for two days of meetings, interviews, and tours, including in this case a teaching demonstration to a pilot upper-division course “American Civic Experience.” If pandemic conditions permit, we will bring finalists to VMI during November or early December; if not, we will interview finalists via videoconference, to include the teaching demonstration.

VMI is a public, four–year, undergraduate military college of approximately 1,700 students, about half of whom accept commissions as officers in the armed forces upon graduation. Teaching excellence in a liberal arts setting is our first priority.  Faculty members wear uniforms and adhere to military customs, but military experience among the faculty is neither required nor expected. For more information about VMI and the Department of History, please visit our web site at https://www.vmi.edu/academics/departments/history/

Applicants must complete an online state application and submit letters of interest, curricula vitae, and an unofficial transcript of all graduate course work on-line at: https://virginiajobs.peopleadmin.com/postings/221490 

In addition to the materials submitted online through this website, applicants should have three letters of recommendation (including comments on teaching) submitted via InterFolio Dossier.  Samples of scholarship not available in JSTOR may be sent as scanned documents via email to [email protected]  Please do not mail hard copies of letters of interest, curricula vitae, application forms, or any other application material directly to the department.

Applications will be accepted until midnight, 11 October 2021.

In a continuing effort to enrich its academic environment and provide equal education and employment opportunities, VMI encourages women, minorities, disabled individuals, and veterans to apply. AmeriCorps, Peace Corps, and other national service alumni are also encouraged to apply. VMI does not discriminate on the basis of race, color, religion, creed, national origin, citizenship status, sex, sexual orientation, or gender identity. VMI will provide reasonable accommodation to qualified individuals with documented disabilities to ensure equal access and equal opportunities with regard to employment, educational opportunities, programs and services.

Posted by Gerard Magliocca on May 20, 2021 at 08:15 PM | Permalink | Comments (0)

Property Law exam possibilities . . . and mountain biking

I suppose the Property prawfs out there have moved from exam-writing to exam-grading, but I thought this update from Northern Michigan's outstanding Copper Harbor mountain-biking trail-club might be of interest.  It's been a (really!) long time since I took a property exam, but the club's announcement read like an issue-spotter!

Posted by Rick Garnett on May 20, 2021 at 02:05 PM in Rick Garnett | Permalink | Comments (0)

Procedural morass of the Texas Fetal Heartbeat Law (Updated)

Texas Governor Greg Abbott yesterday signed SB 8, a "fetal heartbeat" law that bans abortions as early as six weeks. What makes this different than the spate of similar laws from red states is that the law is not publicly enforceable. Instead, it creates a cause of action for "any person" to bring a civil action against any person who performs or induces an abortion or who aides or abets the performance or inducement of an abortion, the latter covering paying, insuring, and reimbursing the costs of an abortion, as well as (I presume) publicizing the availability or option of abortion. Remedies include injunctions, statutory damages of not less than $ 10,000 per abortion, and attorney's fees.

This is a mess, although picking it apart will take work.


Josh Blackman is correct about two things.

First, the ordinary route to challenging abortion restrictions--Planned Parenthood or other doctors and providers of reproductive-health services brings a pre-enforcement § 1983/Ex Parte Young action against the governor, AG, Secretary of Health and Human Services, or other public official for a declaratory judgment and injunction prohibiting enforcement--is not available. Because no government officials are responsible for enforcing he law, there is no "responsible executive officer" to sue or to enjoin from enforcing the law. Courts may frame this a number of ways--lack of standing (because the officer does not enforce the law, the injury is not fairly traceable to the officer or redressable by an injunction), sovereign immunity (the elements of the EPY exception are not satisfied), or (my preferred way) that official is not violating the plaintiff's substantive rights. The legislature is immune from suit for enacting the law. And, in any event, the existence of the law (the thing for which the legislature is responsible) does not violate anyone's rights.

Second, the enforcement actions will stay in state court, because any federal defense that the law is invalid is not a basis for removal. One workaround on this would be for providers to reincorporate and/or change their principal places of business out of Texas. That would create diversity jurisdiction and allow for removal on that basis. And once the case is in federal court, the defendant should be able to have it dismissed for lack of standing. There could be fun games with the amount-in-controversy requirement. Attorney's fees are generally not included in calculating the amount in controversy, so that remedy is excluded from the calculation. Would a plaintiff limit the claim to recovering the statutory minimum and only for seven abortions to keep it under the amount? What is the "cost" of a prevented abortion procedure? Alternatively, would we see plaintiffs coming from outside Texas to bring these actions? "Oh, Planned Parenthood is incorporated in New York, let's find a New Yorker to bring this suit."

Alternatively, this is where § 1443 would come in handy, as it appears this law will deny defendants the ability to assert certain rights (see below). But that provision is limited to state laws that deny federal equal rights, not to laws denying non-equality constitutional rights such as due process.


The law attempts to limit or deny defendants the right to assert the constitutional rights of women to challenge the validity of the underlying abortion fetal-heartbeat ban as an affirmative defense. This is framed as a limit on third-party standing and as a statutory provision codifying the requirements of the constitutional test. It also removes the affirmative defense if Roe or Casey is overruled, even after the challenged conduct.

This demonstrates the problem with using the language of third-party standing to describe constitutional challenges to laws regulating and criminalizing the conduct of the providers bringing these actions. It is not third-party standing but first-party standing, because the challenged law regulates the party to the action. These cases do not involve a law prohibiting conduct by 18-year-old men and a lawsuit brought by the bar owner injured by the loss of business. These cases involve laws prohibiting conduct by and imposing punishments on reproductive-health-services providers. Planned Parenthood is asserting first-person standing to raise its own rights not to be held liable or sanctioned under a constitutionally invalid law. True, the law is invalid because it violates someone else's constitutional rights. But the law still targets the party to the action, not the non-party rights-holder. This looks more like United States v. Bond, in which the Court held that a defendant can raise federalism and separation-of-powers defects in the law under which she is prosecuted, without viewing it as vicarious assertion of state interests.

I came up with the following analogy: A state wants to silence a critical newspaper. It enacts a statute prohibiting "mean and critical speech" and creates a cause of action to sue for damages and attorney's fees the companies that provide ink and paper to the newspaper that publishes mean-and-critical speech. I believe a court would allow the defendants to argue that the law is invalid because it prohibits protected speech, even if the speech regulated (thus the constitutional right violated) belongs to the newspaper and not the ink or paper companies. The companies' conduct is regulated by the law and thus they must be able to defend themselves.

Is the civil action under SB8 materially different from that case? In both, someone is being made liable under an invalid law. Maybe the difference is (or should be) between pre-enforcement and enforcement actions. We might limit who can bring pre-enforcement challenges and what rights can be asserted in pre-enforcement challenges. But those limitations should not apply when the invalid law is enforced to impose liability on someone; that defending party must be able to raise the full range of defects in the law to avoid liability and damages.

To the extent the statute purports to limit defendants' ability to challenge the invalidity of the underlying ban, does that violate procedural due process?

Again, this gets litigated in Texas state court. Will state courts faithfully apply SCOTUS precedent to this zombie law and dismiss the enforcement actions? The assumption is that they will not, contra the assumption of parity that guides the study of fed courts. And SCOTUS could review the underlying defenses that the law is invalid. Would SCOTUS touch this? Would a majority object to the temerity of either the state legislature for enacting this or for the state courts in disregarding current precedent?


An Erie problem, because this disaster has everything. Section 4 provides that an attorney or organization who unsuccessfully challenges the validity of any state law regulating or restricting abortion or funding of abortion or represents a plaintiff in an unsuccessful challenge, in state or federal court, is liable for the defendant's attorney's fees.

It is pretty obvious this cannot apply in federal court. An Act of Congress controls the question of attorney's fees in constitutional actions in federal court--§ 1988, which has been interpreted to make fees virtually automatic for prevailing plaintiffs but recoverable by prevailing defendants only if the case was frivolous and even then relatively rarely. So there is no room for the state law, which directly conflicts with § 1988, to operate.

Section 4 circumvents problem by providing a distinct cause of action to recover attorney's fees within three years of the end of the prior litigation. So a plaintiff who prevails in federal court could bring a new lawsuit in state court seeking fees. Does that create a converse-Erie problem?


This is a good, if unfortunate, lesson that most people in law and politics do not take procedural arguments seriously, but use them as cover for substantive preferences. The conservative legal project for 30+ years has been limiting standing and causes of action in environmental- and consumer-protection cases, including using Article III to defeat legislative efforts to enable private enforcement. I guess those limitations do not apply in the areas some people care about.

E (Update)

This is becoming a Fed Courts exam.

A reader proposes that the private state-court litigation under invalid state law equals state action under Shelley v. Kramer and New York Times v. Sullivan. So perhaps Planned Parenthood can bring a § 1983 action against the Texas plaintiff once the lawsuit is filed (but perhaps before service), seeking to enjoin the private action because the underlying law is invalid. I do not think it works, but it is worth exploring.

I describe this situation as state action without a state actor (or a person acting under color of law). There is state action in the creation of state law (statutory or common law) and its enforcement in state courts, thus the Constitution plays a role as a defense in the private litigation. The Shelleys could argue that equal protection means they must prevail in the state-court action to divest them of title to the property, The Times could argue that the First Amendment means it must prevail in the state-court defamation action, and Planned Parenthood could argue that due process protects it from liability for performing or facilitating abortions.

But it requires another step to say that Kramer (the neighboring property owner), Sullivan, or Texas anti-choice advocate Billy Bob Smith is a state actor (or acts under color of state law) and thus is subject to a § 1983 suit for filing those civil actions.  That generally does not happen in these state tort cases with constitutional undertones. And rightly so. A private person who avails himself of state law and state processes, even if constitutionally invalid, does not become a state actor and should not become a state actor. Think of the major constitutional decisions involving state tort or other causes of action; all arose as defenses in the civil action rather than by suing the would-be state plaintiff in federal court. Lugar v. Edmondson Oil represents the exception, where the Court found state action because the use of state law (ex parte pre-judgment attachment) required coordination with the clerk of court and the sheriff, so it was more than availing oneself of state law. (Lugar does the state-action work in the series of post-Janus actions to claw back previously paid agency fees). I happen to believe Lugar is wrong. If we are stuck with it, however, it should not extend to the situation of filing a lawsuit under presumptively valid state law.

On the other hand, let me try a different state-action argument that might work. Texas enacted a new law banning some conduct, then delegated to private individuals lacking any connection to the conduct at issue the exclusive power to enforce that law while declaiming all governmental enforcement. And it declaimed government enforcement specifically to prevent pre-enforcement challenges. Perhaps enforcing state law is a "traditional-and-exclusive government function," delegation of which creates a state actor. This is not to say that every private attorney general acts under color. But perhaps it is different if the government turns all enforcement to the private AG. That argument is at least non-frivolous.

If Planned Parenthood could get past that state-action problem, another hurdle awaits--Younger. In the ordinary case, Planned Parenthood would bring a pre-enforcement action in federal court against the responsible executive official to enjoin enforcement. But it has a time window in which to act--if the state initiated an action to enforce the abortion ban, Younger prohibits Planned Parenthood from running to federal court to enjoin that pending enforcement action. Under HB8, however, Planned Parenthood cannot sue the private plaintiff because it has no idea who the private plaintiff will be--it could be anyone. So it must await for Billy Bob to identify himself by filing the lawsuit, at which point Younger arguably kicks in.

But Younger is uncertain in three respects. First, under Sprint, Younger bars federal actions in deference to three classes of state litigation--criminal cases, civil enforcement actions brought by the state, and ordinary civil litigation involving court orders that are uniquely central to the state court's authority (e.g., contempt and pre-judgment attachment). Billy Bob's lawsuit does not fall within any of those three, unless the court extends the second category to include civil enforcement by a private attorney general. Second, if Younger applies to this type of case, it would test Younger's "flagrantly and patently violative" exception, because it is hard to imagine a law more flagrantly and patently violative under Roe/Casey than a ban on abortions at six weeks, before many women know they are pregnant. Finally and alternatively, this might fit the bad-faith exception, because the plaintiff could not win a valid (under current judicial precedent) judgment. A district court held earlier this year that the exception applied to a new action to sanction Masterpiece Cakeshop for refusing to back a cake for a trans woman following the SCOTUS decision. It is even more obvious that a fetal-heartbeat law is invalid under Roe/Casey and that any judgment would be invalid.

Posted by Howard Wasserman on May 20, 2021 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, May 19, 2021

Houston v. Moore--The Backstory

A favorite parlor game each year is to figure out whether a Justice lost a majority between the conference and final opinion in a case. This is not a new phenomenon, of course, though identifying examples from long ago is difficult. But here is one I hadn't seen until now.

Houston v. Moore was argued before the Supreme Court in 1819. Chief Justice Marshall wrote Joseph Story and assigned Story the opinion. In 1820, the opinion came out. But Moore was written by Justice Washington over Story's dissent. What happened? The most logical thought is that Story lost his majority, as the personnel of the the Court did not change. Score one for Bushrod here. 

Story said in his dissent that at least one of his colleagues concurred with him. Was that Chief Justice Marshall? There's no way to know. In his letter to Story, Marshall said that he basically agreed with Story on the case. Could he have changed his mind? Perhaps.


Posted by Gerard Magliocca on May 19, 2021 at 01:50 PM | Permalink | Comments (1)

The Court is Not Worried About Court Packing

I think that's the main takeaway from the certiorari grants on the Second Amendment and abortion. If the Court thought that some legislation from Congress was on the table, they would have denied review in those two cases. Justice Breyer may be the only one worried about Court-packing, based on forthcoming book. 

Let me add one dull (but probably accurate) point about Justice Breyer's potential retirement. He probably just doesn't want to retire in an abnormal year. He may want to serve for one more normal year where arguments happen in the courtroom, he can be in his chambers with his clerks, etc.

Posted by Gerard Magliocca on May 19, 2021 at 08:01 AM | Permalink | Comments (6)

Tuesday, May 18, 2021

Lawsky Entry Level Hiring Report 2021

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2021. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Lawsky Entry Level Hiring Report 2021, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2021/05/lawsky-entry-level-hiring-report-2021.html.

Here is the full spreadsheet:

There were 76 tenure-track hires at U.S. law schools reported, at 53 different law schools.

Q: How does 76 reported hires compare to past years?

This is a drop from the last few years. The average number of hires per year since 2014 is 76. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)


It would useful to know the percentage of those who registered with the AALS who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. This graph and chart compares the hiring in Year X to the number of forms in the first distribution in Year (X - 1) (because those are the people who were hired in Year X).



Q: You say the hires were at 53 different schools. How does that compare to previous years?

On the low side.


Q: How many reported hires got their JD from School X?


Yale 13; Chicago 6; Columbia 6; Harvard 5; Stanford 4; NYU 3; Virginia 3.

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: CUNY, Duke, Georgetown; Michigan, Vanderbilt.

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: American; Aristotle U; Augsburg; Berkeley; Bonn; Boston University; BYU; Cardozo; Democritus University of Thrace; Fordham; Fundacao Getulio Vargas; George Washington; Georgia; Hastings; Illinois; Loyola-New Orleans; Nat'l Law School of India; Northeastern; Southern; Tehran; Temple; Tulsa; UCLA; Vermont.

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

62 (about 82%) had a fellowship; 46 (about 61%) had a clerkship; 52 (about 68%) had a higher degree. All hires had at least one of these credentials. This is consistent with prior years.

Venn diagram:


Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--a shift starting in 2017 is apparent:


Q: Still a lot of fellowships.

A: Yes, the percentage of fellowships remains high.


Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

NYU 13; Harvard 12; Columbia 6; Georgetown 5; Chicago 4; Stanford 4; Yale 4; Berkeley 3; Tulane 3; Fewer than Three 26.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 52 “highest” advanced degrees broke down like this:


Topics ranged all over the map. For the 31 Doctorates, 11 had degrees in Law (including Law & Economics and Law & Religion); 7 in Political Science (including Politics and Political Theory); 4 in Philosophy; 3 in Economics; 3 in History; 2 in Business (including Business Administration); 2 in Psychology (including Psychology and Business); and the other doctorate topics, each of which had only one hire, were Energy and Resource; English; and Health Policy and Management.

Q: What is the percentage of doctorates over time?

This year continued the now five-year trend of a 40% or higher percentage of reported hires with doctorates.


Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

91% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both.


Q: How long ago did these reported hires get their initial law degrees?


Zero to Four Years (Graduated 2017-2021) 10; Five to Nine Years (Graduated 2012-2016) 30; Ten to 19 Years (Graduated 2002-2011) 33; Twenty or More Years (Graduated before 2002) 3.

Q: How do the "time since initial degree" numbers compare to previous years?

Comparable, with a somewhat higher percentage of people who graduated 10-19 years ago.


Year Grad Chart.20210808

Q: Could you break the reported hires out by men/women?


Men 37 (49%); women 39 (51%). (Let’s say this is right within +/-2 people.)

Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.)


Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Originally posted 5/17/2021; updated 5/17/2021, 5/18/2021, 5/21/2021, 6/4/2021, 6/24/2021, 7/3/2021, and 8/8/21 to include additional hires; updated 6/8/2021 to remove lateral hire.


Posted by Sarah Lawsky on May 18, 2021 at 12:14 PM in Entry Level Hiring Report | Permalink | Comments (18)

Monday, May 17, 2021

Blogging from Mount Vernon

I'm staying on the Mount Vernon estate as part of my fellowship at the library here. I'll post some photos of the estate later in the week, but I cannot pass up the opportunity to blog from America's most famous home.

Two new letters that I'm looking were sent by Bushrod to Martha right after George's death. He explained various aspects of George's will and their effect on her. On a couple of points, though, he said that the legal issues were complex and thus he would "consult with General Marshall" on his next trip to Philadelphia and that they would advise her of their joint opinion. (People called Marshall "General" because of his rank in the Virginia militia.) At that time, Marshall was a member of Congress serving in Philadelphia.

The upshot is that Bushrod and Marshall already had a close professional relationship before they served on the Court. (I have some other examples of this in my draft of the book, but I had not read this particular letter until now.)

I also want to give a shout-out to an excellent book I've picked up here by Matthew Costello called The Property of the Nation, George Washington's Tomb, Mount Vernon, and the Memory of the First President, which was published by the University Press of Kansas in 2019. It's a great read and very insightful. 

Posted by Gerard Magliocca on May 17, 2021 at 09:08 PM | Permalink | Comments (0)

Fed Courts Day at SCOTUS

Monday was the seemingly annual day in which the Court drops multiple Fed Courts decisions.

CIC Servs. v. IRS held unanimously that an action challenging the validity of a reporting requirement, even one backed by a tax penalty for noncompliance, is not barred by the Anti Injunction Act. The Court identified three features that define whether the purpose of an action is to restrain assessment or collection of a tax: Whether the challenged rule imposes costs separate from any tax, how attenuated the tax payment is from the challenged rule, and whether noncompliance is enforced through non-tax mechanisms, such as criminal penalties. Justice Sotomayor concurred to suggest the answer might be different in a challenge brought by a taxpayer as opposed to a tax adviser (the plaintiff in this case), because those three features, especially costs, play differently for the taxpayer. Justice Kavanaugh concurred to seemingly broaden the Court's opinion as allowing all challenges to regulations backed by tax penalties ("Do X or pay a tax penalty) even if the result of a successful suit would preclude assessment or collection of a tax. Would his reading mean that the ACA individual mandate was not barred by the AIA not because it was not a tax, but because it was a regulation backed by a tax penalty?

B.P. v. Mayor of Baltimore held 8-1 that when a case is removed in part under § 1442 (federal-officer removal) and the district court remands, all bases for removal may be raised on appeal, even those bases for removal that could not have been appealed independently. Section 1447(d) says "order remaning," which includes all possible bases and grounds for the order remanding. Justice Sotomayor dissented and I think has the better of the argument; the text is not as clear as the majority suggests and the potential mischief--borderline frivolous federal-officer or civil rights removal followed by appeal of other grounds not otherwise appealable--would undermine the purposes of § 1447(d) in limiting appeals of remand orders.

Edwards v. Vannoy held 6-3 that Ramos v. Louisiana (holding last term that the Sixth Amendment required unanimous juries) did not apply retroactively to habeas actions. The Court held that new procedural rules cannot apply on habeas, eliminating Teague's exception for "watershed" rules of criminal procedure because no rule had ever been held to be such a watershed. Justice Thomas (joined by Justice Gorsuch) concurred to argue that the case should have been resolved under AEDPA--the state court's decision upholding Edwards' conviction could not have been unreasonable prior to the Court changing the law in Ramos. Gorsuch (joined by Thomas) concurred to provide a disquisition on the history and evolution of habeas to argue that modern habeas review of state court judgments does not reflect the original purposes of habeas corpus and does not authorize federal courts to reopen final state court judgments. Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.

Apart from the details, the case included one interest exchange. Justice Kavanaugh wrote the majority here and supported the judgment in Ramos (he joined Gorsuch's plurality in part and concurring in part), while Kagan dissented in Ramos and here. Kavanaugh objected to Kagan criticizing the Court was failing to live up to the promise of Ramos and "impugn[ing]" the Court for shortchanging defendants. Kavanaugh argued that defendants are better off under his (and the Court's) view--some defendants (those whose cases are pending and whose convictions have not completed direct review) benefit, even if not all do. That is better off than if Kagan's view in Ramos had prevailed. Kagan responded that the force of stare decisis shifted--it supported her position in Ramos, but Ramos having been decided as it was, stare decis "was on its side" and the Court must "take the decision on its own terms, and give it all the consequence it deserves." Given recent stories about Kagan's efforts to reach out to Kavanaugh, Kavanaugh seemed put off by Kagan "rhetoric" and what he perceived as an implication of bad faith.

Posted by Howard Wasserman on May 17, 2021 at 02:01 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 14, 2021

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Prosecution's evidence:

    • Dawson and Downey attacked Santiago, stuffed a rag in his mouth, and Santiago died.

    • The doctor testified that the rag was poisoned, largely based on the results of the autopsy and the cause of death.

    • Kendrick testified that he ordered the men in the unit not to touch Santiago, however much they might want to.

    • Santiago was scheduled to be transferred the next morning, so Kendrick and Jessup had not reason to "train" him through a Code Red.

    • Dawson had motive--Santiago threatened to report Dawson for a fence-line shooting. It is not clear what Downey's motive was--following Dawson, I guess.

Defense evidence:

    • Dawson had previously ignored orders and helped a Marine who was being denied food as a Code Red; his performance ratings and the speed of his promotions dropped.

    • Code Reds (Codes Red?) were a thing at Gitmo, it was in the air, and everyone knew about them.

    • Dawson protected Santiago. The men in the unit knew that and would not have given him a Code Red because Dawson would not have allowed it.

    • Santiago had not packed and had not told family that he was being transferred (although he was supposedly being transferred not discharged, so I am not sure whom he was supposed to tell).

    • Men follow orders or people die.

    • We did not see it, but there almost certainly would have been other positive character evidence on the defendants, who were, before this, "poster-child marines."

    • The doctor's testimony changed--initially inconclusive, then certain about the presence of poison.

Kaffee's closing: Much of what Kaffee does in examining witnesses, especially Jessup, would properly have occurred during closing and could have been effective then.

    • Inconsistency between the supposed transfer and the supposed order not to perform a Code Red, given that men follow orders. Both were designed for Santiago's protection, but there is no reason to issue both. Combined with Santiago not having packed and being asleep four hours before his flight, it seems unlikely that he was being transferred. So the plan was to tell the men not to touch Santiago.

    • Dawson had gotten in trouble for ignoring orders, so he would not have ignored Kendrick's order not to touch Santiago. Especially given his history of protecting weaker marines, including Santiago. Dawson would not disobey an order anymore and he would not attack a weaker marine. For him to do this, he must have been ordered.

Reasonable doubt?

Posted by Howard Wasserman on May 14, 2021 at 09:31 AM in Film, Howard Wasserman | Permalink | Comments (5)

Thursday, May 13, 2021

Fed Courts Puzzle

After Twitter banned Donald Trump and others, Texas Attorney General Ken Paxton issued a Civil Investigative Demand (CID), a demand from the Consumer Protection Division seeking documents relevant to an investigation into possible violations of state consumer-protection law. Twitter filed suit in the Northern District of California, seeking a declaratory judgment and injunction stopping investigation or action to enforce the demand, alleging that investigation was begun to retaliate against Twitter for content decisions Texas did not like.

The Northern District of California dismissed the action as not ripe. The demand is not self-executing and requires the state to initiate an enforcement action in state court; absent a court order, Twitter can ignore the demand without penalty. The initiation of a retaliatory investigation, without more, is not sufficient adverse action to make a retaliation claim. The court distinguished precedent involving employment investigations, which carry the threat of termination or other adverse employment action, and subpoenas and other investigatory documents that carried sanctions without court involvement. Here, Texas would have to file an action in state court and any consequences on Twitter come from a state court finding that demand is valid. Because "to date,no action has been taken to enforce the CID," Twitter's action is premature.

But the effect will be to lock Twitter out of federal court on its First Amendment claim. Once the AG initiates the enforcement proceeding, Twitter would have an opportunity to raise its First Amendment arguments.  That the means the federal court might have to abstain under Younger--this would be a civil enforcement proceeding akin to a criminal proceeding, in which the state as party seeks enforce its laws, the proceeding would be pending, and Twitter would have an adequate opportunity to raise its federal constitutional arguments. Alternatively, should the state court find the CID valid, Twitter would be complaining about a state court judgment, triggering Rooker-Feldman. At a minimum, issue preclusion would prevent federal relitigation of the First Amendment questions raised and decided in the state enforcement proceeding. Twitter's only option is to appeal the enforcement action through the Texas system and hope SCOTUS would take the case on review. In the meantime, it can do nothing about the threat over its head and the chilling effect it is intended to create.

Update: An emailer shares my skepticism, wondering why this case should not be Steffel v. Thompson--a declaratory judgment on the First Amendment defense to any enforcement action. He suggests this was an error in framing. The court described Twitter's sought remedies, quoting the complaint, as an injunction prohibiting "any action to enforce the CID or to further the unlawful investigation" and a declaratory judgment that the "First Amendment bars . .. Paxton's January 13, 2021 CID and the investigation." By framing the DJ around the investigation rather than enforcement--whether on her own or based on the complaint--the court pulled the case out of Steffel. The result is to keep Twitter out of federal court, except through SCOTUS review.

Posted by Howard Wasserman on May 13, 2021 at 02:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

Yale law professor (and Tiger Dad) Jed Rubenfeld has signed on as counsel for Children's Health Defense, a non-profit anti-vaxx organization founded by Robert Kennedy, Jr., in a lawsuit alleging Facebook and Politifact violated the First Amendment in labeling certain content as false and in preventing people from donating to CHD through the site. CHD argues that Facebook acted under color because the CDC gave Facebook the standards and guidelines it used in its labeling, creating a close nexus through government coercion or encouragement of private constitutionally violative conduct. The more obnoxious coverage emphasizes that Rubenfeld undertook this representation during a two-year suspension at Yale, creating complementary memes of "disgraced law prof further disgraces himself" and "this is what happens when law professors try to practice law."

But I cannot see a meaningful difference between Rubenfeld pursuing free-speech claims for anti-vaxxers on Facebook and the ACLU pursuing free-speech claims for Nazis in Skokie. I (and most of the people using the case as a chance to zing Rubenfeld) agree with the legal arguments in the latter and disagree with the legal arguments in the former. But that cannot be the difference in evaluating the professional, ethical, or moral propriety of the decision to serve as counsel and to pursue this litigation.

Nor is the answer that the ACLU raised obviously and indisputably valid arguments about core free speech principles while "everything about [CHD's] case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake." Skokie was not the simple case in 1977 that it appears in 2021. Under the law at the time, fighting words had not been narrowed to face-to-face encounters, a state could punish group libel, and police could arrest outrageous speakers to prevent a hostile audience from engaging in violence. Newer case law (e.g., Brandenburg and Sullivan) called those cases into question, but the landscape was more open than it is today. Someone certainly labeled the ACLU's case on behalf of the Nazis "dumb." Similarly, arguments can be made that "Facebook is a private actor and so can control what gets said and how" is not the sole plausible conclusion. No precedent controls the situation in any direction. And while I believe best application of existing state-action doctrine leads to the conclusion that Facebook is not a state actor and I expect courts to agree, it is not so obvious.

This story implicates a broader controversy over how vigorous attorneys should be in pursuing civil litigation on behalf of plaintiffs. At what point can/should/must an attorney decline to take on a case or to make arguments in support of the client's position and how does the attorney identify that line? The general view is that a criminal defense lawyer is sui generis; the imperative to do whatever it takes is greater when defending an individual against the overweaning power of the carceral state, even when a "bad person" benefits. Even if not the same, however, Skokie has been celebrated as the principled lawyer using civil litigation to pursue general ideals for all, albeit for the immediate benefit of the ultimate bad or unappealing person. This was obviously and especially true of the First Amendment, but it was not so limited; RBG established principles of gender equality by vindicating the rights of men. Moreover, the analogy between civil and criminal works when both are about protecting rights against the power of the state. The state seeking to incarcerate is different in degree but not kind of the state prohibiting rights-holders from exercising their rights.

What has changed, such that Rubenfeld is the target of criticism and mockery? Or put differently, would we see the same criticism and mockery if Rubenfeld had joined the Skokie case. One possibility is that some might be be less accepting of the Skokie narrative, less accepting of lawyers using general principles used on behalf of bad people. Otherwise, are anti-vaxxers "worse" than Nazis? Some segment believes the ACLU was wrong to represent the Nazis in Skokie, so Rubenfeld is equally wrong to represent anti-vaxxers. A version of this positionarose during the post-election litigation, where firms and lawyers (including some large firms with reputations at stake) were criticized for pushing legally and factually absurd cases on behalf of plaintiffs wronged by state governments (and Dominion, of course), distinguishing those doing whatever is necessary on behalf of criminal defendants.

Posted by Howard Wasserman on May 12, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Tuesday, May 11, 2021

Hiring: Lewis & Clark Law School

LEWIS & CLARK LAW SCHOOL in Portland, Oregon invites applications from entry level candidates for three positions to begin in the 2022-23 academic year. These positions will remain open until filled.

We seek candidates to teach (1) criminal law, criminal procedure, evidence, and related courses, (2) property, wills & trusts, and related courses, and (3) lawyering, legal writing, and related courses.

We will employ an accelerated timeline this year. We hope to identify an initial group of prospective candidates no later than August and to begin screening interviews shortly thereafter. Campus callbacks will begin in September. Applicants who receive an offer likely will have two weeks to consider the offer. In some cases, an applicant may need to make a decision before other law schools have begun screening interviews or callbacks. Therefore, applicants should have serious interest in Lewis & Clark Law School and living in the Pacific Northwest. 

Interested persons should send a resume or c.v., references, a writing sample, and an indication of specific teaching interests to Kerry Rowand, Executive Assistant, at [email protected].

Lewis & Clark is an equal opportunity employer, and we encourage applications from candidates who would enhance the diversity of our community. For questions about these positions, contact John Parry, Associate Dean of Faculty, at [email protected]. Information about Lewis & Clark Law School is available at https://law.lclark.edu/.

Posted by Howard Wasserman on May 11, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Entry Level Hiring: The 2021 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Monday, May 17. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Monday, May 17.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 17, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

Also, if you have accepted a job but are not ready to make it public yet, please consider contacting me anyway. Every year, the aggregate report includes information from hires that are not reported on the spreadsheet. That is, I keep the individual's information private and just increase the relevant numbers. (74 people hired rather than 73, etc.) The more information I can include in the aggregate data, the more accurate the report will be.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 11, 2021 at 07:46 AM in Entry Level Hiring Report | Permalink | Comments (0)

Monday, May 10, 2021

Bushrod Washington on Slavery

The pandemic is delaying the editing process for my Bushrod Washington biography, but I'm still hopeful that the book will come out next year. I recently transcribed most of a draft letter from the Justice that contains some notable observations on slavery that I want to share.  

The letter is undated, but must have been written after 1816 because the American Colonization Society is mentioned. The intended recipient is also unknown, but the person was someone who sent Washington an essay proposing that Congress exercise the power of eminent domain to free the nation's slaves and compensate the slaveowners. (This is, in fact, what was done in the District of Columbia during the Civil War.) I cannot say if Justice Washington's response was sent or merely drafted.

After the praising the essay, Washington said:

"I have no hesitation in declaring that I concur in all the sentiments you express as to the policy of giving freedom to our slaves under such modifications as may insure their happiness and promote the well being of our country. The difficulty comes in arranging such a scheming for the accomplishment of these great objects as is susceptible of execution. This unfortunate class of society constitutes the great mass of labor employed in the agriculture of the southern states. To withdraw it prematurely before it is ready to be supported by an equally efficient white population would be attended by the most disastrous consequences."

Justice Washington then said that the problem was that white foreign immigrants did not want to come to the South and work on plantations when they could farm their own land on the western frontier. Solving this problem was a task for "wiser heads than mine." Nevertheless, Washington said that slavery's demise "may be gradually brought about by voluntary emancipation and the advance of natural sentiment and feeling upon the subject as rapidly as the present circumstances in the Southern states will bear." 

He then turned to the essay's emancipation proposal. "With respect to the great outlines of your scheme: 1st, forced emancipation by the national government; and 2nd, compensation to the slaveowners from the National Treasury--they are exposed to difficulties which I have not been able to surmount. It is possible, however, that there is no great weight in them: they have no doubt occurred to you." Here you get a glimpse of how Washington might have operated with the Supreme Court's conference to make his points in a genial fashion.

Washington then explained his concerns: "[H]as the national government the power under the Constitution to adopt the proposed measure? It is certainly not to be found amongst the defined powers and I do not perceive that it can fairly be implied from any part of that instrument." (It's not clear whether Washington was referring here to the general power of eminent domain or just as applied to enslaved people.) His second point was practical: he doubted that Congress would approve such a large transfer payment from North to South. In other words, the proposal was just too expensive to pass.

I will be at Mount Vernon next week for a long delayed research trip. Perhaps I will make one more big discovery.

Posted by Gerard Magliocca on May 10, 2021 at 08:23 PM | Permalink | Comments (1)

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, May 07, 2021

Covid-19 Vaccines, IP Waivers, TRIPS, the WTO & Compulsory Licensing

On Wednesday U.S. Trade Rep Katherine Tai announced support of a waiver of IP protections. This is significant in many ways, not the least of which is the end of a hard American line against any softening of IP policy. Many of our colleagues are helping us understand the implications and meaning of this announcement, and I'm talking about it with a reporter this afternoon. The gist of it is that a waiver needs to be negotiated, can mean different things, and is very likely to be limited to the countries who cannot afford to pay. South Africa and India were the countries who proposed such a waiver from the World Trade Organization, and now there seems to be more willingness from the West to move toward such an agreement.

A waiver basically means that a country won't be in violation of TRIPS if it issues a compulsory IP license to manufacture vaccines (and also COVID-19 drugs). TRIPS already provides that during a crisis country can issue a compulsory patent license, but the proposed waiver would be broader as it will include also copyright and trade secrets and for any use, not just domestic. Still, many worry that the bottleneck at the moment is not IP but manufacturing capacities and the willingness of companies to share their know-how. Even with a waiver, it would be very difficult to force companies to share their secrets without their willing cooperation. 

For a good review of the issues, read Jorge Contreras here who as I blogged about in April 2020 has been a leader of the Open Covid Pledge. 

Posted by Orly Lobel on May 7, 2021 at 01:53 PM | Permalink | Comments (0)

Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

End of (snow) days

I called this one.

Because everyone in my family was teaching and/or learning remotely for much of this academic year, we spent six months (mid-August to mid-February) in the Philly suburbs. We experienced the snowiest Philly winter in about a decade, with three major (6"+) snowstorms and 2-3 snow days. While taking a family walk in the snow, I wondered whether the year of remote learning signaled the end of the snow day--schools would shift to remote learning on those days in which weather prevents students and teachers from getting to the building.

New York City announced the elimination of snow days for the 2021-22 academic year, continuing the practice of the past year for many school districts. It made sense this year, when many schools were doing an in-person/remote hybrid; if half the school would have been remote, it made sense to make everyone remote for the day. But presuming schools are back to normal and everyone is in-person next year, this represents a major change, shifting the entire school from in-person to remote for the day. The arguments for this are clear--eliminating snow days gives the district control over the academic calendar and avoids the risk of the school year running (in the northeast) into late June. The arguments against it sound in nostalgia for the snow days of our youth.

In Miami, we do not have snow days, we have hurricane days. Eliminating these off-days is not an option, because a storm severe enough to close schools likely knocked out power and internet for teachers and students. On the other hand, kids cannot go out and play in the hurricane or its aftermath, so no one misses anything fun.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Oral arguments

With the exams about over, I come to my favorite days of the semester today and tomorrow: Oral Arguments in my Fed Courts and Civil Rights classes. Each student argues one case before SCOTUS and serves as Justice on one case as a final project; the cases are recent decisions from lower courts. Ordinarily, the class spends the day in the courtroom watching one another and we bring in lunch and coffee; this semester will be via Zoom, hopefully for the last time.

This is a fun exercise. It gives students another chance to do oral advocacy, which many do not do after 1L legal writing. It allows me to engage the students to see how well they can talk about material, outside the formalities of a paper. The list of this year's cases is after the jump (case numbers are made up, usually representing key dates in my family).

Federal Courts:

New Hampshire v. Massachusetts, No. 21-0526

      Motion for Leave to File Bill of Complaint on Original Jurisdiction

      Issue Presented: Whether this Court must and should exercise original jurisdiction over an action by one state challenging another state’s collection of income tax from non-residents.

 Shands Teaching Hosp. & Clinic v. Morgan, No. 21-0520

      Issues Presented: Whether a federal district court has subject matter jurisdiction over action for a declaratory judgment that plaintiff has no obligation to comply with state law to disclose medical records because state law is preempted by federal law.

Waterfront Comm’n of New York Harbor v. Murphy, No. 21-1028

      Issue Presented: Whether an interstate compact agency can sue a state official under the doctrine of Ex Parte Young to prevent that official from implementing a state law that would be preempted by the terms of a congressionally approved interstate compact.

Nike, Inc. v. Fleet Feet, Inc., No. 21-1227

      Issues Presented:

      (1) Whether appeal of preliminary injunction becomes moot where the injunction restrains defendant from designating “confusingly similar” marks, where the time period in which the defendant wanted to use the challenged mark has passed.

      (2) Whether, if the appeal is moot, vacatur of a preliminary injunction is proper under United States v. Munsingwear, Inc.


Civil Rights:

Campbell v. Reisch, No. 21-0526

      Issue Presented: Whether an elected state representative acts under color of law in blocking an individual from accessing the social-media account she uses to publicize performance and accomplishments as a state representative.

Janus v. American Federation of State, County and Municipal Employees, No. 21-1028 (Diamond v. Pennsylvania State Education Ass’n, No. 21-1227 (Consolidated))

      Issues Presented:

        Whether public-employee labor unions acted under color of state law in collecting fair-share fees from non-union members pursuant to state law mandating such fees, so as to be subject to suit for damages under § 1983 for violating the First Amendment.

        Whether § 1983 recognizes a good-faith immunity allowing public-employee labor unions that act under color of state law in collecting fair-share fees from non-union members pursuant to state laws mandating such fees to avoid liability for damages for violating the First Amendment.

Fowler v. Irish, No. 21-0520 (Robinson v. Webster County, No. 21-0303 (Consolidated))

      Issue Presented: Whether state officials can be liable under substantive due process for injuries caused by non-governmental third persons, contrary to this Court’s decision in DeShaney, under a “state-created danger” theory.

Nance v. Commissioner, No. 21-0423

      Issue Presented: Whether death-row inmate’s claim that state’s lethal-injection protocol would cause undue suffering in violation of the Eighth Amendment and seeking to require the state to employ an alternative method of execution is cognizable under § 1983.

Polk County v. J.K.J. No. 21-0515

      Issue Presented: Whether a municipality can be liable under Monell for sexual assaults of detainees committed by a corrections officer, where county policy prohibited sexual contact between guards and inmates and the county knew of sexual assaults by other officers but not the officer involved.

Mack v. Yost, No. 21-1216

      Issue Presented: Whether federal inmate can seek damages for First Amendment retaliation under Bivens against prison officials who fired him from his paid prison job for complaining about anti-Muslim harassment by correctional officers.

Thomas v. Freed, No. 21-0428

      Issue Presented: Whether § 1983 action challenging state’s failure to return excess proceeds from foreclosure sale of real property is barred by the Tax Injunction Act, § 1341.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the dirt and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, May 02, 2021

Rudyard Kipling's "The Old Issue"

In his Youngstown concurrence, Justice Jackson quoted the following verse from Rudyard Kipling: "Leave to live by no man's leave, underneath the Law." (Jackson quoted the same verse in his opening statement at Nuremberg.) The poem is called "The Old Issue," but was called "The King" in some publications. Kipling wrote the poem in 1899 just before the outbreak of the Second Boer War and implied that the Boers supported despotism while Britain supported liberty. I don't think that this was true, and the Boer War was sort of like the Crimean War--pointless. Nevertheless, the poem is interesting because Kipling talked at length about the abuses of executive power, which was, of course, the issue in Youngstown

At the end of the first stanza, Kipling invoked Magna Carta: "It is the King--the King we schooled aforetime!/(Trumpets in the marshes-in the eyot at Runnymede." Then in the second stanza he alluded to the execution of Charles I: "It is the King--inexorable Trumpets--(Trumpets round the scaffold at the dawning by Whitehall.")

Then he comes to his central theme about England's long and painful fight to restrain royal power:

All we have of freedom, all we use or know--
This our fathers bought for us long and long ago.
Ancient Right unnoticed as the breath we draw--
Leave to live by no man's leave, underneath the Law.
Lance and torch and tumult, steel and grey-goose wing
Wrenched it, inch and ell and all, slowly from the king.

Till our fathers 'stablished,, after bloody years,          
How our King is one with us, first among his peers. 

So they bought us freedom-not at little cost--         
Wherefore must we watch the King, lest our gain be lost."

. . .

Here is naught unproven--here is naught to learn,
It is written what shall fall if the King return
He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom's name.

He shall take a tribute, toll of all our ware;
He shall change our gold for arms--arms we may not bear.

He shall break his Judges if they cross his word;
He shall rule above the Law calling on the Lord.

He shall peep and mutter; and the night shall bring
Watchers 'neath our window, lest we mock the King --

Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies.

Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell-deny-delay.

We shall drink dishonour, we shall eat abuse
For the Land we look to--for the Tongue we use.

We shall take our station, dirt beneath his feet,
While his hired captains jeer us in the street.

Cruel in the shadow, crafty in the sun,
Far beyond his borders shall his teachings run.

Sloven, sullen, savage, secret, uncontrolled,
Laying on a new land evil of the old--

Long-forgotten bondage, dwarfing heart and brain--
All our fathers died to loose he shall bind again.

I have a couple of observations thus far. First, there is there reference to "arms we may not bear," which implies a right to bear arms that the King will take away. Second, there is the claim that the King would be above the Law. Third, there is the fear that free speech (the right to mock the King) will disappear. Fourth, there is another reference to Magna Carta in the line about no "sell-deny-delay" of Justice.

Perhaps there is more to uncover here, but this is my first attempt to understand "The Old Issue."

Posted by Gerard Magliocca on May 2, 2021 at 09:15 PM | Permalink | Comments (5)