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Monday, June 14, 2021

Duly Noted

In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."

It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.

Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.     

Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink | Comments (0)

The Attorney General on Voting Rights

I want to draw attention to Attorney General Garland's statement on Friday about voting rights. Leave aside what you think of his proposals or how they fit within the broader picture on voting rights. His account of the history of voting rights is splendid. Among the highlights:

1. "Representative John Bingham--the principal author of the Fourteenth Amendment--called the right to vote the source of all institutions of democratic government."

2. Garland explains that the DOJ was created in part to enforce the First Ku Klux Klan Act and singles out Attorney General Amos Akerman, who was a champion of voting rights enforcement his all-too-brief tenure in the early 1870s. 

3. Garland also singles out by name DOJ stalwarts like John Doar, Burke Marshall, and Drew Days in their work on behalf of voting rights as part of a discussion of the case law.

The speech is well worth your time.

Posted by Gerard Magliocca on June 14, 2021 at 08:14 AM | Permalink | Comments (5)

Thursday, June 10, 2021

The Myth of Black Robes

A common belief is that John Marshall initiated the practice of Supreme Court Justices wearing black robes. The story goes that the Justices wore scarlet robes before 1801, but Marshall chose to wear a simple black robe. This was an expression of his modesty and an exercise of leadership, as the other Justices soon followed his example.

A new article in the Journal of Supreme Court History debunks this claim. (I cannot link to the article.) Matthew Hofstedt, the Associate Curator of the Court, proves to my satisfaction that some of the Justices did wear black robes before Marshall's arrival. Hofstedt reaches no conclusion about why all of the Justices eventually adopted black robes, but what seems clear is that Marshall was not the cause.

This finding is consistent with my own research. In 1799, Elizabeth Powel told Bushrod Washington that she was buying him a "black satin robe" that he could use. (Washington was appointed to the Court in December 1798). I had wondered about that until I heard of Hofstedt's paper, but now Powel's letter makes sense. Some Justices did wear black robes before Marshall's arrival.

Just another John Marshall myth.

Posted by Gerard Magliocca on June 10, 2021 at 04:16 PM | Permalink | Comments (1)

Whatever "the immediate political moment" is, Ignore It

Allow me to register a mild dissent to part of Howard's post below, in which he complains that the sudden last-minute issuance of opinions threatens to "overwhelm[ ] those whose job it is to parse, understand, and critique the Court's work in the immediate political moment," and notes that "scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions." I disagree on a number of counts.

I can understand an argument that the Court, like the other branches of government, in some sense serves and in many senses should be aware of the public. And I can understand an argument that the Court, in doing so, is likely to deal with intermediaries, since most of the public neither reads nor necessarily understands or even cares about individual legal opinions. But neither of those things require the Court, or any court, to try to assist specifically in "understanding" any particular opinion's role or significance "in the immediate political moment."

I doubt, frankly, that one's understanding of a judicial ruling is generally assisted by focusing on "the immediate political moment," since it is precisely an obsession with the "immediate political moment" that has the almost inevitable tendency to wreck judgment, supercharge motivated reasoning and partisan interpretation, and turn the minds of even (or especially) the best and brightest to jelly. But even for those who enjoy thinking about judicial opinions and other events in the "immediate political moment"--and I do think "enjoy" is the right word, since it is as much a hobby as a sign of any real engagement--it is not the Court's job institutionally to facilitate such efforts. It is its job to facilitate the issuance of opinions and their distribution to the public, full stop. The fact that an industry has sprung up around trying to read and opine on opinions within minutes of their issuance is true and unfortunate. But it's not one the Court ought to pay much attention to.

Nor do I agree that scholars "should" provide immediate comment and critique. The second word, critique, certainly not. The more immediate it is, the less scholarly it is likely to be and the less likely it is to draw on anything like the actual skills or capacities of scholars. Even "comment" is dubious. (And both are highly dubious, if one means comment or critique in the context of "the immediate political moment," a matter on which legal scholars have no specific expertise and which is as likely to skew their thinking as it is anyone else's.) The job of the scholar qua scholar is to provide scholarship--which generally takes time, care, and attention. Legal scholars--like lawyers, bricklayers, or anyone else--can provide immediate comment and critique. They are often asked to do so. They have lots of individual incentives to do so: they get on TV, they get well-known, they get to push particular narratives, and, for those who are politically engaged, they get to maintain the feeling, however illusory or self-serving, that they have influence or importance or engagement on public issues. They are also aware that their institutions, from deans to law school PR offices to main campus, love it when their school's name gets publicity as a repository, not of experts as such, but of experts who delight in particular in speaking to the press. But none of this is their job as such.

I doubt they do it particularly well, and I doubt that the ones who do so most eagerly are the ones who do it best or in the most scholarly fashion. I would be happy if it were otherwise. It would be nice if the scholars who spoke most often to the press emphasized the most boring but crucial details, rejected stupid or overheated interview questions and simply refused to play along with those lines of questioning, pointed out when they had not finished reading various opinions or stated that it was too soon to have a useful opinion about a newly issued one, openly emphasized the role of their own political views in influencing their commentary and warned readers or viewers that this surely affects the reliability of their commentary, and foregrounded the utter unknowability of longer-term implications. But there is a label for such scholars: "people who don't get called a second time." The media environment, especially in the immediate political moment and given the brevity and immediacy of the news cycle and the economics of current journalism, is not well-suited for scholarly commentary on judicial opinions. On the whole, I would rather they either did it absolutely right or didn't do it at all. But whatever choice they may make on these matters, none of it is their job qua scholars.   

None of this, of course, is to say that the Supreme Court should issue tons of opinions on the last day or week of the Term, or that they should ignore the role of intermediary institutions in distributing their opinions to the public. On the latter point, a far more useful response would be something like that of the Supreme Court of Canada, which (at least during some portions of the post-1982 years; I have no idea what the current status or approach of the Court is) has an Executive Legal Officer, whose job it is to give a careful, no-spin explanation of rulings on the day they are issued. Such an approach, which allows the Court to explain rulings (off the record and on an embargoed basis) to journalists before they are issued, would be elitist, have a somewhat undemocratic air, and be preferable to the likes of reporters--or "scholars"--rushing out to announce something based on a sentence or two that they have glimpsed on the last page of a lengthy opinion.

On the first point, it seems to me that instead of focus on, if you will pardon the repetition, the immediate political moment, we might think in a longer-term and more institutional fashion. Basing the size of the Court on last Term's opinions or those of the last several Terms is a lousy way to think about Supreme Court reform, and I would say the same about this. Institutionally, the scramble to get out opinions before the end of Term is embarrassing--no more embarrassing than much of what the other two branches do, but embarrassing just the same. I would much rather see them adopt a strict policy of issuing no more than two or three opinions on a given day, and to see them do so every day of a week during the last month of a Term rather than cramming everything into a few issuance days. I would, for that matter, be perfectly happy if they sat from the first Monday in October through the following first Monday in October. I'm sure there are some good reasons that the Court's calendar year is the same as that of academics and other school-teachers. But there are many bad ones. If the institution would be better served by the justices sitting longer, issuing opinions throughout the year, and having to give a miss to Aspen or Runnymede or Salzburg, I for one am willing to accept that sacrifice. They are already well compensated in pay and honor for what they do. Surely they can do it all year. 

A last word: I agree with Howard that Justice Breyer ought to retire. There is an excellent reason for it: He is 82 years old, serves in a federal government that is already far too much of a gerontocracy, and has served what is already an ample--indeed, excessive--tenure on the Court. I see no convincing reason why any Justice of the Supreme Court should serve longer than 20 or 25 years or past the age of 70. On this score, however, the last Justice to show any good behavior was Justice Souter, who understood that there are other things in life besides serving on the Court. More of his former colleagues should emulate him, instead of engaging in the awful competition to break records for length of tenure. These are excellent reasons to retire from public office, and they apply to a number of recent and current Justices and elected officials. I think they are more important than the immediate political moment. But one may take that view with a grain of salt, since, like most of my colleagues in the legal academy, I have no special expertise on that--whatever it is.     

Posted by Paul Horwitz on June 10, 2021 at 03:45 PM in Paul Horwitz | Permalink | Comments (0)

Opinions and Assignments

Two thoughts as the Court again issued one opinion (from November)

1) Since May 17, the Court has issued twelve opinions in seven "opinion days," issuing two or more opinions three of those days and one opinion on each of the remaining four. The Court has issued one opinion on eleven of its opinion days this Term. They have 21 argued cases left and three weeks in the Term, so likely six opinion days and an average of three opinions per day. And those that remain are among the most controversial and most important. Obviously the Court can issue opinions only when they are ready and cases with more and longer opinions take more time. But it is hard to avoid the sense that the Court is doing the equivalent of a "document dump"--dumping out major opinions in a flood, overwhelming those whose job it is to parse, understand, and critique the Court's work in the immediate political moment. This is distinct from the longer scholarly term. Scholars can write articles about these cases whenever and the timing of their issuance does not matter. But scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions.

2) Thursday's decision in Borden was a 4-1-4 split. Kagan wrote for Breyer, Sotomayor, and Gorsuch; Thomas concurred in the judgment; Kavanaugh dissented for the Chief, Alito, and Barrett. So a question: Who assigned this opinion, Breyer or Thomas? The practice is senior-most associate justice in the majority. Is it the majority for the judgment/outcome? So at conference, Thomas, Breyer, Sotomayor, Kagan, and Gorsuch vote to reverse, the assignment goes to Thomas, and if the writer (Kagan, in this case) loses a majority in the course of drafting, oh well? Or if at conference it is obvious that Thomas' views (apart from the result) are different than Breyer, et al., Breyer assigns? The former would seem to be more administrable because one never knows if the write can get a majority until she tries. The same issue arose with June Medical last Term--did the Chief assign the opinion because he was in the majority to reverse or did Ginsburg assign because the Chief's reasoning was always different? Does anyone know for sure?

3) Rick Hasen gets it and it amazes me that Justice Breyer does not appear to. It is one thing for Breyer to continue to believe the Court is not nakedly political. It is another thing to have watch Mitch McConnell for the past decade and not recognize what would happen.

Posted by Howard Wasserman on June 10, 2021 at 11:52 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, June 09, 2021

JOTWELL: Malveaux on Spaulding on "actual" procedure

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021) on how much of civil procedure occurs outside of federal court and the need for legal education to acknowledge and reflect that reality.

Posted by Howard Wasserman on June 9, 2021 at 09:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Universally recognized as one of the most “marketable” athletes in the world, Osaka, who, in 2020, had earned the distinction of being the highest-earning female athlete of all time by annual income, announced that she has been struggling with depression. She decried "people [with] no regard for athletes' mental health,” noting that "We're often sat there and asked questions that we've been asked multiple times before or asked questions that bring doubt into our minds and I'm just not going to subject myself to people that doubt me."

As many commentators have pointed out, Osaka’s exodus has thrust into the spotlight issues of mental health and self-care among everyone in workplaces from sports arenas to boardrooms to factory floors. Words of support and encouragement have poured in for Osaka from athletes and celebrities ranging from Serena Williams, to  Stephen Curry.

            Because the tournament at issue, at Roland-Garros, is not held in the United States, US law does not apply. Moreover, we know nothing about Osaka’s mental or emotional state, other than what she has shared. We do not know whether she would ever claim or be capable of being shown to be disabled so as to entitle her to protection under any law. But many now wonder what would happen if someone who did claim that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health. Under the ADA, an individual deemed disabled within the meaning of the Act (via a physical or mental disability) may not be discriminated against because of their disability and is entitled to an affirmative reasonable accommodation that may be needed.

            This hypothetical case immediately reminds me of a 2001 Supreme Court case that I analyzed over a decade ago, when discussing the varying amounts of deference that courts give defendants in ADA cases: PGA Tour, Inc. v. Martin. In that case, the PGA refused to allow Casey Martin,  a pro golfer stricken with Klippel-Trenaunay-Weber Syndrome, a degenerative condition that impeded his ability to walk, to use a golf cart to get around during PGA Tour competition, as he had been permitted to do in other, lower-level tournaments. The Supreme Court held, over the PGA’s strident protestations, that walking the course was not an essential part of the game of golf and that no real disadvantage would be imposed upon Martin’s opponents due to the accommodation of a golf cart to transport him from hole to hole.

In a previous article, I noted that the case was somewhat remarkable, in that the PGA was charged with the administration and regulation of professional golf, a sport whose rules, by all accounts, are inherently arbitrary. Unlike a more objectifiable “essence” (such as of a pizza business to sell pizza) or “essential function” (such as of a fire department to fight fires, perform rescues, etc.), the rules/requirements of any sport are typically precisely what the regulatory body overseeing the sport and administering its competitions says they are. As dissenting Justice Scalia famously quipped, if the majority could answer the question “What is golf,” in a way that put it at variance with the PGA itself, then “One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)”

            In Martin, as would likely happen here, the plaintiff, though a professional athlete, was not considered an “employee” of the PGA  such that he could pursue a claim under Title I of the ADA; rather, he needed to use Title III, which covers public accommodations. Under title III, a plaintiff is entitled to a reasonable accommodation so long as it does not threaten safety or effectuate a fundamental alteration of the defendant entity or that which it purveys. The Supreme Court in Martin held that despite the PGA’s contention that as the arbiter of professional golf and its rules it could proclaim that walking was an essential element of the game, it would not effect a fundamental alteration of the PGA Tour’s highest-level tournaments if Martin were afforded the use of a golf cart.

What does this tell us about how our hypothetical might play out? There are several key points to keep in mind. In the first place, Martin is considered good authority for the proposition that even in the case of a sport or sports tournament whose purpose is leisure and recreation, the regulatory body of the sport is not entitled to the final word or even to high levels of deference when it comes to defining the rules of the sport or the essence of the defendant entity.

So where does that leave us? Assuming that our hypothetical plaintiff could establish that she is disabled within the meaning of the ADA and the issue was her entitlement to refuse  to comply with the tournament’s requirement that she make herself available to the press after competing, the issue would boil down to whether an exemption from the press conferences would be a reasonable accommodation or whether it would constitute a fundamental alteration of the tournament. Unlike in Martin, this requested accommodation could probably not, at first blush, be argued to confer a physical, athletic, competitive advantage (though the Martin Court did give this issue thorough consideration). It is an interesting question as to whether a defendant might try to argue that the press conferences are so draining and deleterious to an athlete’s psyche that avoiding them might amount to an advantage, or whether that might not be a thing that would be auspicious for the USTA to put out there.

However, a defendant that made participation contingent upon press availability would need to argue that the ability to face the press and answer even aggressive questioning is essential to making the tournament what it is. Selling tickets, procuring ratings, and keeping the tournament relevant and current is dependent upon permitting the public a window into the athletes’ reflections upon and reactions to their performances. Inasmuch as probing into these innermost thoughts may cause stress, embarrassment, or perseveration, the state of social media and the public’s increasingly handy access to and hunger for sports heroes’ and other celebrities’ thoughts and feelings necessitates the press conferences. They are as much a part of the essence of the tournament as the competition itself. Would a court buy this? Might a court be persuaded that in the age of social media and instantaneous access to celebrated public figures, fan access to athletes’ personas, including their most agony-filled defeats and regrets, is now necessary in a way that maybe it didn’t even used to be? To the extent that a reasonable accommodation could be argued to be an athlete’s furnishing this access through written statements or some other less immediate means of communication, could a court nonetheless be persuaded by a defendant that the buffer of time and space to prepare responses and the filter of the keyboard failed to yield sufficiently direct, raw access?

This is not to say that the defendant would necessarily win this case. Our hypothetical plaintiff might be, like Osaka, a personally and professionally compelling figure who is pushing back on not only the rules of this tournament, but on the idea of the public’s entitlement to this kind of access—especially when it causes and inflames harm and/or is deemed unnecessary. A court adjudicating the dispute would have wide latitude in determining the questions of the “essence” of the event and of the “fundamental alteration” or transformation that the requested accommodation could cause. Any number of considerations—including increasing societal recognition of the sanctity of the mental health of athletes (and all people trying to earn a living) at work, the evolving nature of what it means to be a public figure, the public’s insatiable hunger for access to athletes’ post-game thoughts and opinions, or even individual judges’ conceptions of “What is this tournament—to me”—could factor into the final determinations.

A case like our hypothetical would thrust the issue of workplace bullying into the spotlight. Only Puerto Rico and no U.S. state has passed comprehensive legislation that makes status-blind workplace bullying unlawful. This failure of legislatures to act has occurred despite high-profile stories about how celebrities and athletes have been driven from their workplaces and even from their careers by workplace bullying. Years ago, I pointed to the compelling case of Jonathan Martin, a talented, successful Stanford graduate who was driven from his career in professional football when Richie Incognito and other Miami Dolphins teammates tormented him. This torment took the form of both abhorrent race-based abuse as well as more generic bullying. Many scholars bemoaned the failure of the law and law makers to take not only bullying but the mental health of those at work seriously enough.  It should not be lost on anyone that Martin and Osaka are Black, and many of us have pointed to the impact and compounding effect of systemic racism and sexism on so-called “status-neutral” bullying.” Not only does “neutral bullying” often accompany race-based abuse as with Jonathan Martin, even when it doesn’t, it still befalls and, some studies say, affects, women and minorities more than it does others.

Last, but far from least, a comparison of the hypothetical case of an athlete who sought to avoid a contentious press conference for the sake of her mental health with the Martin case should also draw a comparison between the way we address and compel accommodation of physical disabilities and mental/emotional disabilities at work or in places of public accommodation. Michael Perlin has written extensively about sanism, "an irrational prejudice of the same quality and character of other prevailing prejudices such as racism, sexism, heterosexism and ethnic bigotry that have been reflected both in our legal system and in the ways that lawyers represent clients.” Would a case brought by someone with a disability that was not physical lay bare the differences in the ways in which the law and society regard and address mental disabilities?

I am working on an article that will seek to address these and other issues raised by this very compelling news story. I am interested in hearing others’ thoughts.

Posted by Howard Wasserman on June 8, 2021 at 09:31 AM in Employment and Labor Law, Law and Politics, Sports | Permalink | Comments (0)

Monday, June 07, 2021

On suing the wrong defendant

What happens if a constitutional plaintiff sues the wrong defendant and why does that happen? The answer is neither clear nor consistent, as two cases reveal.

Last week, the Northern District of Texas dismissed a challenge to a Lubbock ordinance prohibiting abortions in the city but providing no mechanism for municipal enforcement. Planned Parenthood sued the city, but the court recognized that the city is not responsible for enforcement of the law and does not control the private individuals who do enforce the law. The court therefore held that plaintiffs lacked standing. This decision presages the likely result when Planned Parenthood or another provider sues to challenge HR8.

Also last week, the Fifth Circuit ordered dismissal of a challenge to the rejection of online voter-registration applications using a photograph of a signed application form, under the "wet signature" requirement that applications have an actual ink signature. Acceptance or rejection of registration applications rests with country registrars. The Secretary of State had issued a press release reminding voters that online registration is not available, a press release that prompted several county registrars to change course and reject online applications. The Texas Democratic Party and others sued the Secretary. The court held that the Secretary had sovereign immunity, because she was not the responsible executive officer for a proper Ex Parte Young action.

The defect in both actions is the same--the plaintiff sued the wrong defendant, a person/entity not responsible for enforcing the challenge law and thus causing the challenged harm. It makes no sense to use distinct doctrines to get at the same idea. And a court could recast one as the other. The Fifth Circuit could have held that Planned Parenthood lacked standing to sue the Secretary, because the Secretary's press release did not cause the injury and an injunction against the Secretary would not remedy their harm. The Lubbock case could not be recast as sovereign immunity because a municipality is not a sovereign. But imagine when Planned Parenthood sues theTexas Commissioner of State Health Services. The court could say no standing, on the same grounds as in Lubbock. Or the court could follow Texas Democratic Party and say the Commissioner has sovereign immunity because he is not responsible for enforcing the heartbeat law and does not control those who do. Again, it is incoherent to fold the same idea into two doctrines.

Worse, to the extent the court wants to tie this to Ex Parte Young and sovereign immunity, it should be about the merits of the claim. The issue under § 1983 is not that states (and state officials sued in their official capacities) have sovereign immunity. The issue is that states (and state officials sued in their official capacities) are not "persons" for purposes of § 1983. So a state/state official should not claim sovereign immunity; it/he should claim that an element of § 1983--a person as defendant--is not satisfied. But that is a merits question that the court cannot resolved as a jurisdictional issue at the outset.

And all of this asks the § 1983 question--did the named defendant "subject or cause[] to be subjected" the plaintiff to a violation of her rights. If the defendant is not responsible for enforcing the challenged law, the answer is no. Which again reflects failure of an element of a § 1983 action, not competing jurisdictional ideas.

Posted by Howard Wasserman on June 7, 2021 at 12:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, June 06, 2021

Tulane VAP 2021-2022 - Murphy Institute

From Tulane Law School:

Tulane Law School is currently accepting applications for a two-year position of visiting assistant professor.  The position is being supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation).  It is also designed for individuals who plan to apply for tenure-track law school positions during the second year of the professorship.  The law school will provide significant informal support for such. Tulane is an equal opportunity employer and candidates who will enhance the diversity of the law faculty are especially invited to apply.  The position will start fall 2021; the precise start date is flexible.

Candidates should apply through Interfolio, at http://apply.interfolio.com/84001, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining your teaching interests and your research agenda. If you have any questions, please contact Adam Feibelman at [email protected].

Posted by Sarah Lawsky on June 6, 2021 at 08:55 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Friday, June 04, 2021

Mike Lindell sues Dominion

MyPillow CEO Mike Lindell's new lawsuit against Dominion is a rerun and expansion of the suit the company filed last month, throwing in a civil RICO claim along with more of the same absurd factual allegations about election fraud and nonsense constitutional arguments.

Lindell's state action arguments fail for the same reasons as MyPillow's state action arguments--Dominion does not "administer" elections beyond providing infrastructure (any more than the handcuff manufacturer uses excessive force) and, if it did, it does not become a state actor for all purposes beyond running those elections.

This is garbage on the merits. But there are procedural issues attached to both actions that are worth considering.

Both sets of claims could have been brought as counterclaims in Dominion's defamation action in the District of D.C. At bottom, both actions allege that Dominion's lawsuit is part of a campaign to silence Lindell/MyPillow about election fraud; both suits allege that the Dominion suit is an abuse of process and a First Amendment violation.

One question is whether they would be compulsory; the answer is probably not, because the MyPillow/Lindell claims do not arise out of the same transaction or occurrence as Dominion's claims. This illustrates a common sequence: X does something to injure A, A files suit to remedy that injury, and X files a counterclaim alleging that those remedial efforts violate X's rights. Most courts say this is not STO because the real-world events giving rise to A's claims are based on whatever X did, while the event giving rise to X's counterclaims is A filing that lawsuit. There is a but-for relationship: But for X's actions, A would not have sought remedy; but for A seeking a remedy, X would not have a basis to sue. But that is not the necessary logical connection between the real-world events. Here, MyPillow/Lindell made false statements about Dominion, Dominion sought a remedy by suing, and MyPillow/Lindell argue that suit is tortious/violates the First Amemdment/violates RICO; that is the but-for relationship courts deem insufficient.

Nevertheless, they could have been brought as permissive counterclaims--there is diversity jurisdiction and/or some of the claims arise under federal law.

A second question is whether personal jurisdiction and venue is proper in Minnesota. The action that MyPillow and Lindell challenge is the filing of the lawsuit, which took place in D.C. The question is the same as one I considered about the Texas heartbeat law: Is suing a Minnesota citizen (and serving process on that Minnesota citizen in Minnesota) outside of Minnesota sufficient to establish personal jurisdiction? Again, this arises in the legal-malpractice and patent context and courts seem split on it.

A third question is whether the court should transfer venue to D.D.C. A court in Minnesota would be reluctant to adjudicate a lawsuit challenging the validity of a lawsuit in another court while that lawsuit is ongoing, as both turn on the same underlying facts (the truth of Lindell's original allegations against Dominion). The convenience of witnesses and evidence would seem to favor transfer--the validity of MyPillow/Lindell's claims depends on the validity of Dominion's defamation claim, which is occurring in D.C. The "situs" of the events in the counterclaim is the situs of the allegedly abusive defamation action, which is D.C. I would think both cases are better litigated in the same place, if not the same action, as the underlying lawsuit alleged to be violative.

Update: Commentators elsewhere point out a choice-of-law problem. Lindell points to Minnesota law on the abuse-of-process claim. But the prevailing view is that such claims are governed by the law of the place in which the allegedly abusive proceeding was filed. In other words, D.C. law. Which makes sense. A plaintiff who chooses to file a claim that is not abusive in one jurisdiction should not bear the risk that it might be abusive in a different jurisdiction. The choice-of-law issue also affects the transfer analysis, discussed above. What law applies is one of the public-interest factors that gets balanced--if D.C. law applies, that will favor the Minnesota court sending the case to D.C.

Further Update: The attorney from the firm Barns & Thornburg, who signed the complaint as local counsel, has been defenestrated. The firm says it did not know about the lawsuit.

Posted by Howard Wasserman on June 4, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Breyer's first (and last?) assignment

I am late on this, but thought I would mention: The Court decided Van Buren v. United States on Thursday, holding that the Computer Fraud and Abuse Act did not reach a case in which the defendant lawfully accessed the computer for an improper purpose. The line-up was Barrett writing for Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, with the Chief, Thomas, and Alito in dissent.

That unusual line-up makes this (according to all-things empirical SCOTUS Adam Feldman) the first time Breyer has assigned a majority opinion. And since many on the left hope Breyer retires at the end of the Term and that line-up of Justices is unlikely to recur, perhaps his last.

Posted by Howard Wasserman on June 4, 2021 at 08:11 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 03, 2021

No standing when abortion law privately enforced

I mentioned the dry run for the standing/federal forum problems in challenging HB8 was a lawsuit over a Lubbock ordinance banning abortions within city limits and utilizing private enforcement.

The district court on Wednesday dismissed Planned Parenthood's challenge to the ordinance, finding PP lacked standing to sue the city. Because the city was not charged with enforcing the law and the city had no control over the private individuals who could bring private actions, there was neither causation nor redressability. The court (rightly) rejected the idea of a declaratory judgment or injunction against the non-responsible party as a way to persuade everyone else to comply. And the Fifth Circuit has precedent denying standing to plaintiffs in pre-enforcement challenges to laws that rely on private enforcement; apparently, Texas has attempted this in the past.

An alternative holding was Pullman abstention, as it is unclear whether a municipality has the power under state law to create private rights of action. The interesting piece there was over the source of the state-law ambiguity. The substantive provision challenged as violating the 14th Amendment--the ban on abortions--was not ambiguous; it was clear what the provision did. The ambiguity was over validity of the private enforcement mechanism. Both parties proceeded from the belief that any ambiguity must be "intertwined with" or directly related to the federal constitutional claim--that is, the ambiguity is in the substantive provision challenged on constitutional grounds. And in the mine run of cases it is--did the Railroad Commission have the power to enact the regulations or is the challenged law capable of a limiting construction. But the court did not find Pullman so limited. A state-law defect in any piece of the ordinance renders the entire statute invalid (or at least unenforceable), mooting the federal issue.

The case is on to the Fifth Circuit, which I expect to affirm. Meanwhile, we have a good sense of what will happen to pre-enforcement challenges to HB8.

Posted by Howard Wasserman on June 3, 2021 at 08:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 02, 2021

More stupid lawsuits, ep. 81

Something called the "Job Creators Network" has sued MLB, MLB Commissioner Rob Manfred, the MLBPA, MLBPA Executive Director Tony Clar, and a bunch of John Does, claiming constitutional (equal protection and Dormant Commerce clause) and contract claims over MLB moving the All-Star Game from Atlanta to protest Georgia's voter-suppression laws. Nothing new here; more bad lawyering by bad lawyers using the courts to make political noise. Some thoughts on where this goes wrong.

MLB Under Color:

The § 1983 claim depends on MLB acting under color. The complaint tries to get there two ways, neither of which works.

The first, passing argument, is that MLB is not covered by the antitrust laws, a substantial benefit. Receipt of governmental benefits, disconnected from the challenged conduct, is not sufficient to place a private actor under color. This is not a case in which government gave a private actor a benefit on condition of the private actor doing something constitutionally violative. Quite the opposite. MLB's decision to move the game pissed off some congressional demagogues, who threatened to strip MLB of its antitrust exemption.

Moreover, if the antitrust exemption were sufficient, the alleged benefit comes from the federal government, not the state or local government. MLB therefore would be color of federal law and this would be a Bivens claim (in a new context, so not going anywhere), not a § 1983 claim.

The primary argument is that MLB teams act under color by virtue of playing in publicly owned or publicly financed stadiums; thus MLB, as an association of those teams, acts under color. Two problems. First, while I agree that playing in public stadiums places teams under color for some purposes--namely running those ballparks during games--it does not make them under color for all purposes. The Yankees are perhaps bound by the First Amendment in regulating fans' cheering speech during games at the publicly owned stadium; they are not bound by equal protection in firing a ticket-office employee. So if the teams are not under color for all purposes, MLB is not under cover for all purposes. Second, and more conclusive, a private association of state actors located in multiple states does not act under color because it is not tied to the law of any state. The NCAA does not act under color despite having actual state entities--public universities--from multiple states as members. It follows that MLB, which stands in the same position to teams as the NCAA does to schools, does not act under color.

Diversity Jurisdiction:

This is minor and not outcome-determinative, but the Civ Pro geek in me remains amazed at how often lawyers get diversity wrong.

According to the complaint, the following is true: The JCN is a not-for-profit corporation, incorporated in DC with its PPB in Texas.  MLB is an unincorporated association whose members are the 30 teams; it is a New York entity with its PPB in New York. The MLBPA is the players' union, a New York entity with its PPB in New York. Manfred is a New York citizen and Clark a New Jersey citizen. The complaint does not say so, but I believe the plaintiffs see this as  JCN(TX/DC) v. MLB (NY), MLBPA (NY), Manfred (NY), and Clark (NJ).

But an unincorporated association's state of creation or PPB is irrelevant; what matters is the citizenship of its members. The complaint acknowledges that MLB's members are the 30 teams, all of which are corporations or unincorporated association; if the latter, we need further level(s) of inquiry as to the members/partners of each team and perhaps the members/partners of each member. MLB therefore is not a New York citizen (or not solely a New York citizen); it is a citizen of any state in which a member/partner in any team ownership group is a citizen. We do not know every state, I imagine at least one team has at least one member who is a citizen of Texas or DC. Similarly, a union's state of creation or PPB is irrelevant; it is a citizen of every state in which a union member is a citizen. Again, I imagine at least one current MLB player is a citizen of DC or Texas.

This does not matter to the outcome of the case, because the complaint alleges (and there is) supplemental jurisdiction over the state claims. But I become skeptical of any complaint when the attorney gets the basics so wrong.

Standing

JCN purports to be an association of small businesses injured by MLB moving the game. It asserts associational standing on behalf of its members and organizational standing for the time and money it has spent fighting MLB's actions.

The problem is that the claim seeks primarily damages as a remedy, whereas associational standing works in injunctive actions. One element of the Hunt test for associational standing is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Damage are, by definition, individualized to each plaintiff and thus require the participation of each member. The complaint attempts to get around that by asking the court to order that the defendants pay damages into a common fund, from which moneys are distributed to each plaintiff. But that is not how damages are calculated or awarded. I cannot think of a major constitutional case in which an association has been able to pursue damages on behalf of its members.

Remedies

The complaint asks for compensatory damages of at least $ 10 million and punitive damages of at least $ 1 billion, as well as an injunction ordering MLB to move the game back to Atlanta. That injunction is not happening. The punitive damages request is interesting because a punitive-damages ration exceeding 10:1 presumptively violates due process.

The least-stupid contract claim might be promissory estoppel, although that still fails. But even if it worked, the damages on a P/E claim are limited to what was spent in reliance on the promises, not what they would have made had the defendants followed through on their promise. Did businesses spend $ 10 million+ on the expectation of the game coming to Atlanta?

Whither the First Amendment

At its core, the claim here is that by engaging in the First Amendment activity of protesting Georgia election policy through its business decisions, MLB, et al. interfered with the power of Georgia to enact policy and the equal protection rights of those who support those policies. The Complaint spends some time defending Georgia's new laws, as if the propriety (in the plaintiff's views) of the laws lessens the First Amendment rights of those who protest. I do not believe the level of First Amendment protection for expressive activities turns on the "correctness" of the position asserted. That would have some broad implications.

Posted by Howard Wasserman on June 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, June 01, 2021

When Is It Too Soon to Call a Catastrophe a “Genocide”?

The following post is by my FIU colleague Hannibal Travis.

At an interesting event held by the United Nations General Assembly, with the UN Secretary-General Antonio Guterres and delegates from many nations in attendance, the question of the “g-word” came up.  On the topic of “Multilateralism and Diplomacy for Peace,” the General Assembly president, Volkan Bozkir, responded to a question from an Armenian diplomat regarding denial and justification of past genocides being a “test of multilateralism” and the principles of the United Nations regarding the peaceful resolution of disputes.  Mr. Bozkir stated that in “order to describe an incident as genocide, a competent international tribunal must make a decision to that effect,” and that in April of this year, a spokesperson for Mr. Guterres had “reiterated that genocide needs to be determined by an appropriate judicial body, as far as the UN is concerned.”  By that standard, it may be too soon for the United Nations to label as “genocide” the Armenian catastrophe, or the great anti-Armenian crime (Meds Yeghern).   

For Michael Berenbaum, a project director for the emerging United States Holocaust Memorial Museum and the first director of its Research Institute, the U.S. House and Senate resolutions of 2019 and presidential statement of 2021 recognizing the Armenian genocide did not come too soon.  The very word “genocide,” he argues, was used and invented by Raphael Lemkin “to speak of the Armenian genocide.”  

Advocates of Armenian genocide recognition point out that the UN does not often wait for an international tribunal to make a final decision on a genocide before the UN opines on whether one has occurred.  In 1985, a study prepared at the request of the UN Commission on Human Rights, for example, named the “massacre of the Armenians in 1915-1916” as a “genocide.”  At least 40 U.S. states and many national parliaments followed suit, as did the European Parliament in 2006 in a resolution that also referred to Assyrian and Greek victims.  (Incidentally, Lemkin wrote in 1948 not so much of an “Armenian genocide” as of a broader phenomenon – “the destruction of the Christians under the Ottoman Empire” – in promoting a genocide treaty; similarly, the House of Representatives in 2019 referred to a genocide against Armenians and “Greeks, Assyrians, Chaldeans, Syriacs, Arameans, Maronites, and other Christians,” whereas the presidential commemorative statement of 2021 referred only to Armenians even though it mentioned other Christian orphans and refugees as being affected by the same events.) 

In 1992, the General Assembly called the tragedy of ethnic cleansing in Bosnia and Herzegovina a “form of genocide,” after noting that human rights violations and mass refugee flight had happened.  The resolution also acknowledged that the Security Council had not even begun considering creating an international war crimes tribunal with jurisdiction over acts committed in Bosnia and Herzegovina.  The UN’s own records also designated the extermination of the Jews in Germany and occupied Europe and North Africa as a “genocide” before a genocide treaty had been signed, let alone enforced in court.

Waiting for a tribunal to declare a genocide could involve substantial delays in the effort to salvage the victims’ lives by such means as providing a safe haven, an independent country, an arms embargo, a UN or regional force to restore order, housing and land restitution, psychosocial counseling, or medical treatment.  It can take about three years for the memorials to be filed and preliminary objections to be heard in an interstate case involving state responsibility for genocide, such as Bosnia and Herzegovina v. Serbia and Montenegro.  It can take even longer than that, or more than a decade, for significant movement to occur in a genocide prosecution at the International Court, such as the “Darfur situation.”  The first chance to begin to assess the guilt of a suspect in the Darfur genocide at the ICC came in March of 2021, involving events that took place starting in 2004.  The Genocide Convention states that genocide has occurred throughout history and that all parties to the convention have a duty to punish the crime; while it states that all trials should be before a competent domestic or international tribunal, it does not state that all punishments must be meted out to natural persons after a trial.

There remain very few survivors of the events of 1914-1918 in the Ottoman Empire, or even of the events of 1919-1925 which followed and involved further massacres and denials of a homeland.  In that respect, many of the considerations which might persuade a diplomat to seek genocide recognition in order to advance an ongoing agenda of civilian protection carry less weight in the Ottoman case.  Scholars who write on the Armenian genocide therefore emphasize the ongoing character of the events, including reduced populations, lower birth rates as a result of physical violence and impoverishment, impacts of trauma on lifespans, and compromised cultural and religious traditions due to “dispersion.”

Other reasons not to recognize a genocide with resolutions or statements such as those that the United States issues include the following: politicians should not be the arbiters of what happened in history, recognition of important human milestones both for good and evil should be balanced rather than selective, contemporary political and strategic relationships are more important than proclamations about the past, and congressional or White House procedures may be twisted towards biased ends.  While each of these reasons has some validity, politicians make a variety of factual and historical findings and commemorations in the course of shaping legislative or executive policy and proclamations.  There are more urgent matters to investigate from the standpoint of the present moment than how to conceptualize the Armenian catastrophe as a matter of U.S. policy, but there are also other far less significant statements that are made in the annals of Congress, in the halls of the White House, or on a U.S. website.  The selectivity of U.S. proclamations is also obvious, especially given the executive branch’s policy of opposing judicial inquiry into allegations of internationally wrongful acts by the United States or its allies (whether in the International Court of Justice, the federal courts - update, or in foreign courts).  Perhaps rather than giving up on commemorating events with legal concepts that capture some of their gravity, politicians could strive to be even-handed across nations and situations, including their own nation and situation.  Finally, while the strategic situation of the United States is beyond the scope of this post, it is not as if the period during which the presidency and the Congress denied the Armenian genocide (beginning in the late 1980s or thereabouts) was uniformly characterized by greater security and reduced Middle East tensions.  Nor was Turkey’s role always a benign one during this period.

Posted by Howard Wasserman on June 1, 2021 at 09:31 AM in International Law, Law and Politics | Permalink | Comments (0)