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Friday, July 30, 2021

Hiring Announcement: FIU College of Law (multiple positions)

South Florida’s public law school in Miami, Florida International University College of Law, invites applicants for multiple tenure, tenure track, and contract positions to begin no later than the 2022-2023 academic year.  In particular, we seek candidates to teach environmental law and courses in other priority areas, such as cyberlaw, torts, wills & trusts, health law, family law, and administrative law. A typical package might include two environmental law courses and at least one (preferably two) in our identified priorities. International experience, academic entrepeneurship, and acumen in grants and external funding are welcome but not required.  Given our growing focus on interdisciplinary collaboration, some of these positions may involve joint appointments with other academic units at FIU.

In partnership with the administration, the FIU faculty have created a welcoming and intellectually vibrant community that celebrates lifelong scholarly engagement, nurturing students, public service, academic freedom, and transformational teaching.  Faculty relationships are based on mutual regard, respect and appreciation for differences, academic rigor, and a shared commitment to our rising national profile.  Our faculty are professional leaders in their fields locally, nationally, and internationally.  The faculty’s substantial scholarly output includes law review articles, academic monographs, collaborative work with colleagues from other disciplines, edited anthologies, peer-reviewed work, and op-eds.  The College supports the faculty with research assistance, summer stipends, travel funds, and performance awards.

The Florida Legislature established FIU Law in 2001 to deliver an affordable and excellent legal education that provides inspired teaching, training for a globalized marketplace, support for community service, and the highest standards of professionalism.  FIU Law ranks as the third most diverse law school nationally, and the first in the country among public law schools for Hispanic enrollment.  A majority of our students are the first in their family to attend college. To us, student success means demonstrable professional outcomes.  FIU Law graduates have ranked first among the 11 law schools in the state on the last 6 mid-year administrations of the Florida bar exam.  In 2020, 92% of our graduates secured full time, long term bar passage required, J.D. advantage, or professional positions.  Our state-of-the-art building was designed by Robert Stern.  For more information about FIU Law, visit https://law.fiu.edu.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It is a top 100 public university ranked in U.S. News and World Report’s Best Colleges. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”).  A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as an emerging preeminent university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. degree (or its equivalent), a strong academic record, a track record (or the promise) of scholarly achievement, and zest for effective teaching.  Rank will be determined based on qualifications and experience.  Competitive benefits include excellent insurance options, a defined-benefit plan, defined-contribution plans, and a deferred compensation plan.

Applicants should send a CV, a cover letter outlining curricular strengths and scholarly interests, and a list of references to the chair of the Appointments Committee, Professor José Gabilondo ([email protected]), to whom questions about these positions can be directed.  Applicants can also apply through facultycareers.fiu.edu referencing job opening ID 524569 or by using the following link FIU Assistant, Associate, or Full Professor of Law. Review will begin August 23, 2021 and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status.

Posted by Howard Wasserman on July 30, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, July 29, 2021

The Gun, The Ship, and the Pen

Part of my vacation was spent reading Linda Colley's terrific new book on global constitutionalism. Anyone with an interest in the political side of constitutions should read The Gun, the Ship, and the Pen. I may have more to say about the book later, but here's one implication that hit home for me.

Colley's account undercuts Heller. If you are persuaded by her thesis that the rise of constitutionalism was driven by the need to fight wars effectively (in Europe and in the United States), then the individual right Heller said was part of the 1791 understanding of the Second Amendment is far less plausible than the collective right identified by the Heller dissenters. (Granted, you could defend Heller on other grounds, but the Court focused on Founding-era materials.) Colley does not make this argument, as she's not interested in the issue. But I am.

Posted by Gerard Magliocca on July 29, 2021 at 09:44 PM | Permalink | Comments (6)

Putting racists in a bind

The new Olympic sport for the Crazy Coalition is rooting against the men's basketball and women's soccer teams ("too woke and anthem-kneeling") and Simone Biles ("weak," "selfish socipath," "shame to the country," not tough). The other sport is waiting for that "true champion  . . . who perseveres even when the competition gets tough." That true champion who reflects what makes America great and in whom real Americans can be proud.

Fortunately, they found someone to do what Biles could not in the Women's All-Around, someone strong whom these real Americans can get behind.

Or not.

Posted by Howard Wasserman on July 29, 2021 at 04:02 PM in Howard Wasserman, Sports | Permalink | Comments (2)

"Hunters" is back in production

Hunters, an Amazon show about Nazi hunters in 1977 New York, is in Season 2 production. The Forward; many Jewish leaders, educators, and advocates; and I are not happy to hear this news.

Posted by Howard Wasserman on July 29, 2021 at 08:24 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 28, 2021

Marquette Law Review Expedited Submission Period

The Marquette University Law Review seeks additional articles for its Winter issue. We will consider submissions beginning immediately and will conclude the process on August 20, 2021 at 11:59 PM CT. For any article submitted by August 20, 2021 in accordance with the instructions outlined below, the Marquette University Law Review guarantees a final publication decision within 48 hours of submission. As a condition of submission, authors agree to accept a binding publication offer, should one be extended. The editing process for the Winter issue will commence on September 4. Interested authors may submit articles via email to [email protected] to be considered in this expedited submission process. Authors should also submit (1) their name, article title, word count, phone number, and email address in the body of the email and (2) a CV or résumé. Please use “Expedited Submission Process” in the email subject line. We will also be reviewing submissions for later issues through the usual process. Questions may be directed to Jennifer Knackert, editor-in-chief, at [email protected].

Posted by Howard Wasserman on July 28, 2021 at 01:32 PM in Teaching Law | Permalink | Comments (3)

Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 26, 2021

NBC has learned nothing

Bela Karolyi earned fame as the coach of U.S. gymnastics because of his outsized reactions to the athletes' performances, which NBC cameras showed and commentators discussed, elevating his profile above that of his female athletes. We now know what was going on behind the scenes.

Apparently, NBC has learned nothing. Australian swimmer Arirne Titmus won the 400-free style, beating American Katie Ledecky. NBC cameras showed, repeatedly, her coach, Dean Boxall, losing his shit celebrating Titmus' win from the stands. As with Karolyi and the gymnasts, cameras and announcers focused on his sideline histrionics more than the athlete. I am not suggesting that Boxall mistreats Titmus or other athletes or that his well-documented intensity crosses lines. But it is hard not to notice the parallel focus on the male coach with an intense personality over the female athlete.

Posted by Howard Wasserman on July 26, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

AALS Section on Fed Courts: Best Article

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2022 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2021 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2021), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Leah Litman at the University of Michigan Law School ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2021. Nominations will be reviewed by a prize committee comprised of Professors Curt Bradley (University of Chicago), Maggie Gardner (Cornell), Leah Litman (Michigan), Joanna Schwartz (UCLA), and Diego Zambrano (Stanford), with the result announced at the Federal Courts section program at the 2022 AALS Annual Meeting.

Posted by Howard Wasserman on July 26, 2021 at 09:31 AM in Civil Procedure | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A cynical thought

The Olympic Opening Ceremony featured a moment of silence, with express reference to the eleven Israeli athletes killed at the 1972 Munich Games. This is the first official commemoration of Munich, despite lobbying for it in 2012 (the 40th anniversary) and 2016. The inclusion was not announced in advance. The linked article notes that ceremony's creative director was fired the previous day over a Holocaust joke he made 20 years ago, offering the cynical possibility that the acknowledgement was a response to that embarrassment.

I had a different cynical thought: The Opening Ceremony took place in an empty stadium, meaning there was no chance that a crowd would react to the commemoration with anti-Israel sentiment.

Posted by Howard Wasserman on July 24, 2021 at 10:33 AM in Sports | Permalink | Comments (0)

Hiring Announcement: Loyola University-Chicago-Lateral Candidates

Loyola University Chicago School of Law invites applications for full-time, tenured or tenure-track, lateral faculty positions to commence Fall 2022.

We are especially interested in scholars engaged in teaching and scholarship in any area that addresses anti-racism, racial justice, health equity, and structural disparities impacting Black, LatinX, indigenous, and other persons of color. Both the University and the law school will prioritize candidates who demonstrate a commitment to diversity, equity, and inclusion. We are dedicated as a faculty to contribute to a deeper understanding of law, legal institutions, and systems of oppression through a commitment to transformation, intersectionality, and anti-subordination in our teaching, research, scholarship, and public service. Ability and interest to teach in the hybrid format in our part-time/weekend JD division will also be considered.

JOB RESPONSIBILITIES: Faculty candidates will be expected to teach in our 1L curriculum; our present curricular needs include civil procedure, constitutional law, contracts, torts, and criminal law. Faculty responsibilities will include teaching one to two courses per semester; mentoring and advising students; successful completion of research and scholarship in particular areas of academic interest; service to the law school, University, and community; active involvement in faculty governance through committee work; and representation at local, regional, and national conferences and events.

JOB QUALIFICATIONS: Applicants must have strong academic credentials, a J.D. degree from an accredited institution, evidence of impactful scholarship, and a dedication to teaching. We are especially interested in candidates who will enhance the diversity of our faculty and broader University community. We welcome candidates from traditionally underrepresented groups with perspectives, experiences, and backgrounds that will enrich the diversity of our institution.

APPLICATION PROCEDURE: Applicants should submit a cover letter, a statement of interest, a current Curriculum Vitae, a teaching statement/research agenda, two to three representative publications, and the names and email addresses of three individuals prepared to speak to your professional qualifications for this position to www.careers.luc.edu. All applicants should also specifically address in their statement of interest how they will contribute to the law school’s mission statement, available at https://www.luc.edu/law/about/mission/index.cfm

Application materials may also be emailed directly to Professor Jordan Paradise at [email protected] However, all applicants selected for interviews will need to submit materials to the Loyola website above for university processing.

Jordan Paradise, J.D.
Chair, Faculty Appointments Committee
Georgia Reithal Professor of Law
Co-Director, Beazley Institute for Health Law and Policy Loyola University Chicago School of Law
25 East Pearson, Suite 722
Chicago, IL 60611
(312) 915-7372

Review of applications will begin immediately and continue until the position is filled.

ABOUT LOYOLA:

Loyola University Chicago School of Law is a student-focused law center inspired by the Jesuit tradition of academic excellence, intellectual openness, and service to others. For more information on the law school and our mission, please visit: https://www.luc.edu

Loyola University Chicago is an Equal Opportunity/Affirmative Action employer with a strong commitment to hiring for our mission and diversifying our faculty. The University seeks to increase the diversity of its faculty, staff and student populations because broad diversity contributes to a robust academic environment and is critical to meeting the University’s commitment to excellence in education, research, educational access and services in an increasingly diverse society. As a Jesuit Catholic institution of higher education, we seek candidates who will contribute to our strategic plan to deliver a transformative education in the Jesuit tradition. Candidates should consult our website at https://www.luc.edu/mission/index.shtml to gain a clearer understanding of LUC’s mission. For information about the university’s focus on transformative education, please consult our website at http://www.luc.edu/transformativeed. All qualified applicants will receive consideration for employment, without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, ability status, or veteran status.

Posted by Howard Wasserman on July 24, 2021 at 10:16 AM in Teaching Law | Permalink | Comments (1)

Thursday, July 22, 2021

The Great Detroit Charter Fight: A Case Study in Statute-Specific Purpose Versus Trans-Statutory Substantive Canons

In Sheffield and Harbin v. City Clerk, the Michigan Supreme Court is on the verge of deciding whether Michigan law gives Governor Gretchen Whitmer the power to impose an absolute veto on a new charter for Detroit. The case is naturally irresistible to a long-time Michigander and local government law junkie like myself. But it contains some broader lessons about statutory interpretation that are useful for any lawyer.

After the jump, I will suggest how the Great Detroit Charter Fight ("GDCF") illustrates a dilemma at the heart of statutory interpretation: When text is ambiguous (as it often, even usually, is), then what priority should be given between trans-statutory substantive canons versus statute-specific purpose? In Sheffield and Harbin, briefs on both sides invoke “expressio unius est exclusio alterius” canon with equal plausibility. As I argue after the jump, these lawyerly textual arguments are ultimately indeterminate not only in the GDCF but also in most other cases. Faster than you can say “Karl Llewellyn was right,” the argument over the proposed Detroit charter boils down to a conflict between two extra-textual sources of authority: The specific purpose of a 1913 statute giving the governor powers to veto proposed city charters and the general “liberal construction” canon, codified in the 1963 Michigan Constitution, requiring state laws conferring power on local governments to be “liberally construed.”

Here’s the conflict in a nutshell. The political context of the 1913 statute strongly suggests that the state legislature distrusted Detroit and wanted to give governors a hard brake on Detroit’s plans to expand municipal services like a city-owned streetcar system. If that general purpose governs statutory meaning, then Detroit’s charter commission loses and Governor Whitmer wins. On the other hand, if the statutory text is ambiguous enough to justify invoking such unwritten statutory purposes, then maybe it is ambiguous enough to be “liberally construed” to favor of Detroit’s autonomy. Perhaps the Court should sidestep a divisive, ideologically charged inquiry into how much or little the state legislature distrusted urban progressives in the early 20th century and instead invoke a bright-line trans-statutory canon favoring local power.

I do not have any easy answer to how willing judges should be to favor trans-statutory canons over statute-specific purpose. The question turns on a trade-off between fidelity to the enacting state legislature’s likely purpose versus protection of an apolitical simplicity in statutory interpretation that keeps judges out of fraught ideological controversies. This problem, however, transcends Michigan law: The Chevron canon, for instance, raises precisely the same dilemma. For those who are interested in statutory interpretation, therefore, the fight described after the jump will hold some interest.

I. Why textual canons are ultimately indeterminate in the Great Detroit Charter Fight

The question to be decided in the GDCF is whether Michigan’s Home Rule City Act allows the Detroit Charter Commission to send to Detroit’s voters a new charter over the objections of Governor Gretchen Whitmer. Opposed by Detroit’s mayor, the new charter was also “vetoed” by Governor Whitmer pursuant to MCL 117.22, a 1913 statute requiring new city charters to be presented to the governor so she can either “approve” them for a popular vote of city electors or “return” the charter with her “objections.”

Where does the “expressio unius” come in? MCL 117.22 contains two provisions for overruling gubernatorial vetoes of charter “amendments,” but it is silent about whether and how a gubernatorial veto of a charter “revision” can be overruled. (“Amendments,” in case you asked, are focused on single subjects, while “revisions” are comprehensive overhauls. No one doubts that this proposed charter comprehensively overhauls Detroit’s 2012 charter).

Does the “expressio” of two overruling procedures have any bearing on whether the Commission’s overruling of Governor Whitmer ’s veto is “exclusio”? To the surprise of no one who has ever taught statutory interpretation, both sides cite the “expressio unius” canon in favor of their position. Supporters of Governor Whitmer note that MCL 117.22 specifically provides two mechanisms for overruling a governor's veto with respect to amendments. First, for amendments enacted by the City Council, Council can overrule the Governor's veto with a 2/3 majority vote. Second, for amendments "proposed by initiatory petition" by Detroit electors, the amendment "shall be submitted to the electors notwithstanding such [gubernatorial] objections." Expressio two specific ways to overrule a governor's veto is exclusio any unwritten third way, right? Otherwise, as the brief of Lewis and White (Detroit voters opposed to the charter revision) puts it, "the last two sentences of Section 22 [would be] meaningless, because there would be no need to provide an exception if all revisions and amendments could make it on to the ballot notwithstanding the Governor’s objections" (page 17 of brief).

"Not so fast," say the supporters of the charter commission. Perhaps the enumeration of only one constraint on overruling governors' vetoes implies the exclusion of all other constraints! Only the City Council is obliged to come up with a super-majority to overrule the governor: "Initiatory plebiscites" can simply disregard the veto entirely. The state legislature plainly knew how to write in an obstacle to overruling a veto if they wanted to impose such an obstacle. The silence about charter revisions, therefore, should be construed as a grant of an implicit power of the commission to disregard the governor’s veto. (An amicus brief by "Legal Scholars" makes this clever riposte).

I might add another argument against inferring that there are only two ways to overrule a gubernatorial veto of a proposed revision from the enumeration of two ways to overrule a proposed amendment. The statutory enumeration of two mechanisms for overruling vetoes serves a useful function even if the Detroit commission can disregard Governor Whitmer's veto without such statutory authorization: Perhaps statutory silence preserves a local option for overruling vetoes of charter revisions that the explicit rules for overruling vetoes of amendments takes away. Those specific clauses on overruling vetoes of amendments, after all, preempt alternative local mechanisms contained in city charters. "Initiatory plebiscites", for instance, have a right guaranteed by state statute to be considered by voters, regardless of what Detroit's city charter might say to the contrary. The silence of the state statute regarding proposed charter revisions, by contrast, might reasonably be understood to leave the question of how gubernatorial vetoes should be overruled entirely up to the local charter governing the charter commission. On this reading, if the city's existing charter gives the charter commission the power to disregard the veto, then the commission can send a vetoed revision to the people for a vote. If the charter bars the commission from overruling the governor, then the governor’s veto stands. Note that such a reading does not render redundant the express means for overriding a veto enumerated in the state statute: Those enumerations limit local power to control vetoes, while the statutory silence constitutes a delegation to the city to decide how its charter will be changed.

There is a larger point underlying all of these technical arguments about whether or not lists in statutes are exhaustive: Expressio unius is actually a pretty weak canon. Federal courts, for instance, ignore it in favor of deferring to agency interpretations that treat statutory lists as merely illustrative. The reason for giving less weight to expressio unius is easy to see: In ordinary English, lists are often not intended to be exhaustive! As my co-bloger Ethan Leib has argued, sometimes legislatures redundantly list lots of stuff "belt and suspenders" style, just to be extra-sure they cover bases. Moreover, where there is a strong background norm in place, the enumeration of specific items is a pretty weak, indirect way to waive that norm. If Michigan law pervasively favors local power as argued by Justice Thomas Cooley in People v Hurlbut, then statutory silence should be filled by a presumption that the state legislature wanted to preserve local options. (No one believes, for instance, that my instructions to my children to stop kicking each other means that they are thereby authorized to punch each other: The background norm against intra-familial violence remains despite the specific reiteration of one example of violence, because the norm is so basic that no sensible person would think that the enumeration was intended to be exclusive).

All of those "expressio unius" arguments in the GDCF, therefore, essentially cancel each other out. The most one can say is that the state legislature had definite ideas about how to treat gubernatorial vetoes of charter amendments and left the text incomplete with respect to vetoes of charter revisions. And that gives rise to the central question of this blog post: Viz....

2. What priority should courts give to trans-statutory substantive canons as opposed to statute-specific purpose in resolving textual ambiguities?

Suppose you agree with me that MCL 117-22 is ambiguous as to the power of the Detroit charter commission to overrule Governor Whitmer. How should that textual ambiguity be resolved?

One simple solution would be to invoke Article 7, section 34 of the Michigan Constitution, which provides that "[t]he provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor." On such a reading, the gap in MCL 117.22 regarding vetoes of proposed revisions should be filled with a presumption of local power: If the existing (2012) Detroit charter gives the Detroit charter commission the power to send a proposed revision to the people of Detroit for a vote despite a gubernatorial veto, then the commission should be able to disregard Governor Whitmer's veto and hold a referendum this August on its proposed revisions.

But the "liberal construction" required by Article 7, section 34 of the Michigan Constitution implies only that ambiguities in statutes should be construed favorably ("liberally") to local power. If the statute is not really ambiguous, then there is nothing to construe. Moreover, just because the bare semantics of statutory text are ambiguous does not mean that the statute lacks a determinate meaning. As even diehard textualists like John Manning note, textual ambiguities are traditionally resolved by looking to extra-textual purpose -- what Manning calls the statute's "policy context."

Viewed in its "policy context," MCL 117-22, enacted in 1909 and amended in 1913, looks like an effort by the state legislature to control Detroit with a hard constraint in the form of a gubernatorial veto that cannot be overruled. Consider two aspects of this "policy context" suggesting such a conclusion.

First, debates over home rule in the early twentieth century were inevitably colored by the Progressive fights over municipal ownership that inspired a backlash from state legislative conservatives who feared that municipal ownership would lead to "socialism" and Tammany-style corruption. From William Randolph Hearst's "Municipal Ownership League" in New York City to Mayor and Governor Hazen Pingree's effort to create a municipally owned streetcar system in Detroit, the cry of "home rule" was inevitably associated with municipal progressive's efforts to rid their cities of the power of utility magnates -- the titans who owned "traction" (streetcars), subways, waterworks, gas works, and other infrastructure essential for a modern city. Pingree, in particular, made his name in Detroit as champion of the three-cent fare for streetcars and as the nemesis of Detroit streetcar magnate Tom Johnson.

Pingree wanted to create a wholly city-owned network of streetcars to compete with Johnson's system, but Pingree was consistently foiled by conservatives who believed that such infrastructure was best left to private enterprise. In Michigan, this skepticism about municipal ownership took constitutional form in a state constitutional prohibition, dating from 1850, on the State's investing in "internal improvements." In 1899, then-Governor Pingree was defeated in his effort to create a streetcar commission for Detroit by the Michigan supreme court, which ruled in Attorney General v. Pingree that the McCleod Bill creating such a commission ran afoul of this 1850 ban on state-financed internal improvements. As Professor Charles A. Kent solemnly intoned in arguing for an injunction on Pingree's streetcar plans to the Michigan supreme court, "This is the first tangible movement in the direction of socialism."

From 1899 until the 1920s, Detroit politicians waged a protracted campaign to obtain "home rule" for the purpose of expanding municipal power over streetcars against private owners who relied on their street franchises and skepticism about municipal ownership to defeat such efforts. (The story of this epic struggle is nicely recounted by Neil Lehto in The Thirty-Year War: A History of Detroit's Streetcars, 1892–1922 (MSU Press 2017). Read in light of this battle over municipal ownership, the governor's veto over charter revisions, conferred in 1913, looks like a significant conservative check on municipal power. The Legal Scholars amicus brief argues that the Michigan Constitution is rooted in popular sovereignty and localism favoring Detroit's control over its own affairs. But the legal battles of the early twentieth century tell a much different story: There was deep skepticism from important political and legal leaders about Detroit's bid not only for municipal ownership but also for the power to take back lucrative street franchises controlled by the streetcar owners.

Such a conclusion from the general political context of the early 20th century is re-enforced by the specifics of how MCL 117.22 was amended in the wake of the 1910 mayoral campaign. That campaign largely revolved around the candidates' attitudes towards municipal home rule over streetcars: Popular opinion in Detroit ran strongly in favor of the 3-cent fare and control of the unpopular private street franchises. The 1909 version of home rule merely gave the Attorney General the power to issue a "recommendation" regarding proposed charter revisions. After the 1910 campaign, however, the state legislature amended this provision to create the current version of the statute, giving the governor a power to "return" revisions with "objections." Read in context of the grant of home-rule powers in the 1908 Michigan Constitution, it is difficult not to conclude that the state legislature was offering a quid pro quo: Strict limits on municipal expenditure imposed by the 1850 Constitution would be waived, but gubernatorial control would be substituted for constitutional control over Detroit's proposals for an expansive city-owned system of public infrastructure.

In short, read in light of its "policy context," MCL 117.22's gubernatorial veto looks like a hard constraint on municipal power, not a piece of gubernatorial advice that the Detroit charter commission is free to waive at will. After all, before 1913, there already was a system for the Attorney General's officials' providing mere "recommendations": If the new language in the 1913 law did nothing more with its references to "return[ing]" proposals with "objections," then what exactly was the point of the amendment?

3. So which should govern? Statute-specific purpose? Or the trans-statutory "liberal construction" canon?

The question, then, remains: Should the textual ambiguities in the 1913 statute be governed by its likely contemporary purpose or the "liberal construction" canon later incorporated into the 1963 Michigan Constitution?

I confess that I have no easy answer to this question. To my knowledge, the Michigan supreme court has never squarely confronted it. But here are a few relevant considerations.

In favor of allowing unwritten purpose to trump the trans-statutory "liberal construction" canon is the idea of fidelity to a legislative scheme. State lawmakers, after all, presumably have reasons for the laws that they enact. Those reasons might even form a coherent package of compromises that make sense as a matter of policy. Just because those reasons are unwritten does not mean that they should be ignored, especially if the text has gaps that can be filled only by looking to extra-textual sources. Ignoring those reasons, in fact, might make statutes less sensible and coherent than they otherwise would be. Why, for instance, would the state legislature confer on the highest elected official in the state the power to stop a proposed charter revision in its tracks with "objections" if the charter commission could blithely ignore those objections? The Legal Scholars' brief gamely argues that such a procedure could be "politics-forcing" in the sense that the governor's objections might carry weight with the voters even if they could be ignored by the commission. But this seems a little weak, given that the governor could make her objections known without any statutory mechanism for "return[ing]" the charter revision: What exactly does the formal mechanism of "objection" and "return" add to the normal political process of gubernatorial speechifying?

In favor of using trans-statutory canons to resolve disputes about textual ambiguities, however, is the idea that wading into the weeds of long-forgotten political debates is costly, both in terms of time and political legitimacy. It is significant that none of the briefs bother to delve into the debates over home rule in early 20th century Michigan. Reading historical monographs when one bills by the hour is a costly way to resolve constitutional disputes. (For a law professor, of course, reading monographs is not a bug but a feature of legal wrangling!)

Quite apart from the sheer effort it takes to figure out a law's policy context, there is also a cost in terms of judicial legitimacy. Those unwritten statutory purposes, after all, are often hotly contested values. Taking a position on which values the legislature implicitly endorsed is a difficult thing for a judge to do who legitimately pursues a stance of apolitical neutrality. It is one thing to parse grammar, look up dictionary definitions, and invoke expressio unius. It is another thing altogether to conclude that a state statute is an expression of distrust for profligate urban progressives: Those progressives might reasonably take offense at such a conclusion.

The great advantage of trans-statutory substantive canons is that, because they apply the same way across a broad range of disputes, they theoretically absolve judges of taking stances on hotly contested values. Favoring local power in the GDCF will favor Progressive Democrats in Detroit, because the proposed charter is filled with provisions favored by the "People's Slate" that dominated the Commission. But in another dispute where a local government adopts a conservative stance -- say, creating "Second Amendment sanctuary cities" favoring deregulation of firearms -- the "liberal construction" canon will favor the Right. Like analogous substantive canons such as Chevron or the Santa Fe Elevator v. Rice anti-preemption canon, the ideological valence of the "liberal construction" canon is hard to predict across cases.

In theory, the same might be said for using statute-specific purposes to resolve disputes about statutory meaning. In practice, however, figuring out unwritten statute-specific purposes leaves judges with a lot more latitude to favor the judge's own values than applying a crude, simple canon like one favoring local power. After all, as textualists are fond of reminding us, each statute has lots of unwritten purposes, and favoring one of them above the rest is a great way for a judge to favor his or her pet political cause in each statute, reading narrowly those statutes that the judges disfavors and giving a generous reading to the judge-favored purposes in the judge-favored laws.

I do not hold a brief for either side in this dispute. Here's the simple tradeoff in summary. Delving into statutory purpose when the text is indeterminate probably leads to more coherent readings of statutes at the risk of entangling judges in angry ideological fights. Clear and simple canons like "liberal construction" are like meat cleavers: They do not necessarily make policy sense, but they are easy to wield. In a polarized nation, each side can be satisfied that the simple rule was fairly applied in a particular case, and each side can also rest easy that the rule could favor their own position in a future case even if they lose the present case.

Whichever stance the Michigan supreme court ultimately takes in the GDCF, it would be nice if they admitted that they are obliged to take a position. The temptation to declare that the text of MCL 117.22 is "plain" by involving one or another version of "expressio unius" will be great, but yielding to it is disingenuous. Better to come clean that sometimes the text is up for grabs and that the court needs some way to deal with these "jump balls." In this respect, the GDCF is, in microcosm, what statutory interpretation is all about.

Posted by Rick Hills on July 22, 2021 at 06:54 PM | Permalink | Comments (4)

JOTWELL: Re on Varsava on judicial opinion-writing

The new Courts Law essay comes from guest Richard Re (Virginia), reviewing Nina Varsava, Professional Responsibility and Judicial Opinions (Hous. L. Rev., forthcoming), on judges have (too much?) fun in their opinions.

Posted by Howard Wasserman on July 22, 2021 at 12:36 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 21, 2021

What you call us, what we call you

Daniel Drezner explains why he has students call him "Professor" rather than by his first name and why he recommends that students default to calling professors by the title unless the prof tells them otherwise. He justifies this, in part, because hierarchy and power imbalances are inherent to academia, since the professor's job is to educate, mentor, and evaluate students. Pretending the hierarchy does not exist or obscuring it by "keeping it casual" does not eliminate it.

I have used my title with students since I began teaching, whereas Drezner explains how he has evolved on the issue. But Drezner's explanation for what I do anyway resonates.

Within law school, there is an additional question--what professors should call students in class. I use first names, partly because I believe it puts students more at ease when being called on, partly because I believe I am less likely to botch a first name than a last name. Others favor using last names in the name of parity and mutual respect--if students express respect by calling the professor by title and last name, the professor should do the same. And to the extent a typical law school classroom functions something like an argument colloquy, everyone in court is using titles and last names, even if an obvious hierarchy remains.

Posted by Howard Wasserman on July 21, 2021 at 07:55 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, July 20, 2021

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

Pleasant Grove

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)

 

Posted by Rick Garnett on July 20, 2021 at 11:47 AM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

More on Fuck Biden signs in NJ (Updated)

The worst thing happened to Roselle Park (NJ) in its efforts to get homeowner Andrea Dick to remove "Fuck Biden" signs from her yard--the story is in today's New York Times (including comments from Thomas Healy of Seton Hall). This will end badly for the township and a smart lawyer for the municipality would cut bait now.

A lot of bad stuff can happen in municipal court--the matters are small, many people appear pro se, and the judging and lawyering may not be top-tier. But the key is that no one knows about it, allowing some absurd cases and outcomes to fly under the radar. But this has become a national (or at least regional) story. Every First Amendment lawyer in and around New Jersey is about to come out of the woodwork offering to represent Dick* And when a knowledgeable lawyer gets this case before a knowledgeable court, the outcome will be quick and obvious.

[*] I am surprised the ACLU has not entered the mix. Facing continued suggestions that the organization is more committed to liberal causes than to free speech, this would be an easy win in support of a Trump supporter.

Of course, getting Dick out from under the fines is the beginning. The next step is a § 1983 action against the township, the code enforcement officer who issued the citation, and perhaps the mayor (the Times story suggests that the mayor pushed the enforcement officer to issue the citation), which will cost the township some real money. Politics aside, the municipal attorney should recognize this.

Update: The ACLU of New Jersey has taken the case.

Posted by Howard Wasserman on July 20, 2021 at 10:36 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Jot on Pozen and Samaha's "Anti-Modalities"

I don't normally promote my Jotwell contributions or, less forgivably, those of my other contributors to Jotwell's con law section. But I am sharing this one, which I hope and think readers may enjoy. The subject of the jot is David Pozen and Adam Samaha's excellent recent article "Anti-Modalities." As with many of my jots, it is somewhat dual-purposed: both an effort to explain why an article is praiseworthy, and an opportunity to suggest problems or unfortunate trends in legal scholarship generally, to which a "jot-worthy" article serves as a contrast and exemplar. Here's the opening: 

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars. Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.

A bit on social media and other platforms and the dangers of elite law professors (which, arguably, from a class perspective, is all of them) engaging in "code-switching:"

Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.

All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.

And an amusing footnote to the description of the concept and label the article introduces as "new:"

Semi-new, actually. The label “anti-modalit[y]” appears briefly in a 2013 article by James Grimmelman, in a different but conceptually similar fashion. To my delight, a much closer version also appeared in 2014 in parodic form, in one of Larry Solum’s April Fool’s abstracts. “Antimodalities,” here, is an affectionate spoof of Suzanna Sherry’s criticisms of constitutional theory, in the form of an argument that despite “the insistence of [constitutional] pluralists that constitutional argument is limited by a closed list of modalities,” in reality many key Supreme Court decisions are “‘antimodal’ decision[s] relying on arguments from outside the modalities.” That sentence could easily appear in the “real” article discussed in this jot. I see no reason to think the authors of the present-day Anti-Modalities were aware of or remembered this parody. But I do hope they share my delight. It is no reflection on the genuine merits of Pozen and Samaha’s piece that Solum is a fine parodist or that, in legal scholarship as elsewhere, history so often repeats itself—first as farce and then as reality.

Enjoy--and read the Pozen and Samaha article! 

 

Posted by Paul Horwitz on July 20, 2021 at 08:39 AM in Paul Horwitz | Permalink | Comments (0)

Monday, July 19, 2021

Bernstein on sport and speech

David Bernstein argues in Persuasion that sporting bodies should allow athletes to speak in non-disruptive ways around events, targeting the IOC, UEFA, and the NFL and considering players taking a knee, wearing expressive items on their uniforms, etc. Here is his key point:

No matter how much professional sports and sports fans may wish to separate sports from politics, it cannot be done. The debate re-emerges again and again with no resolution in sight, and you can bet it will kick into gear once the medal ceremonies start at the Tokyo Olympics.

So, rather than attempting to extricate itself from politics, sports should adopt a laissez-faire posture: Let everyone—owners, players, and fans—make political statements at sports matches.

I would supplement with the point I made last week after English fans heaped racist abuse on the three Black players who missed penalty kicks in the Euro finals: If fans are going to respond to sports in political terms, the athletes should be able to express themselves in political terms in the first place.

Posted by Howard Wasserman on July 19, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, July 18, 2021

Best Jewish teammates?

Joc Pederson was traded from the Cubs (as part of an impending firesale by a cheap-and-mismanaged organization) to the Braves, where he teams with lefty starter Max Fried. In their first game together last night, Pederson went 2-for-5 with a two-run homer and Fried struck out seven in seven shutout innings (and had three hits, raising his season average to .333).

Are Fried and Pederson the best pair of Jewish players on one team? What other teams have had two (or more) top-tier Jewish players at once? Going backwards in history:

    • Third-baseman Alex Bregman and catcher Garrett Stubbs have been teammates on the Astros for most of the past three seasons. Bregman is a star and MVP runner-up in 2019, but has been hurt much of the past two seasons. Stubbs is a back-up and rarely plays.

    • Outfielder Danny Valencia and pitcher Richard Bleier were teammates on the 2018 Orioles. Bleier was an effective situational reliever, going 3-0, striking out 4 batters per nine innings. Valencia played in 78 games in his final season in the Majors. And the Orioles went 47-115.

    • Kevin Youkilis and Gabe Kapler were teammates on the Red Sox from 2004-06. Both were bench players for the first two seasons. Youkilis became a starter in 2006, but Kapler played in only 72 games.

    • Ken Holtzman and Elliott Maddox (African American, converted to Judaism) were teammates with the Yankees for part of 1976, a season in which the team reached the World Series.  Holtzman was part of the starting rotation and won 9 games, but was on the downside of his career; Maddox was a spot outfielder.

    • On the 1972 World Champion A's, Holtzman won 19 games and made the All Star team, while Mike Epstein was the starting first baseman who hit 26 home runs and garnered some MVP votes. In 1973, Holtzman won 21 games and made the All Star team, but Epstein was run out of town after playing in 118 games.

    • The Dodgers had pitcher Larry Sherry from 1958-63; his brother Norm, a catcher, from 1959-'62; and a lefty named Koufax. Norm was a career backup. Sherry was primarily a reliever, although an effective one; he won 14 games in 1960 and 7 games and World Series MVP in 1959. Koufax did not become KOUFAX until 1961, at which point both Sherry brothers were less key players.

So I think the Holtzman/Epstein duo, although it lasted only one year, is the one to beat, accounting for team and individual performance. Pederson has not hit well this season, but he still has power and will be the everyday right-fielder for a team trying to get back into the pennant race. Fried has been inconsistent this season, but has won his last two games and is the best pitcher on the staff. Can they (and the team) get hot in the second half and pass them?

Did I miss other good examples?

Posted by Howard Wasserman on July 18, 2021 at 02:21 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Saturday, July 17, 2021

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

A

A municipal court judge in New Jersey ordered a woman to remove "Fuck Biden" lawn signs or face fines of $ 250 per day (unable to post photo, but can be found in the article).* This is an absurd ruling, in which no one-- the judge, the town's attorney, or the reporter covering the story--understands the First Amendment. The town proceeded under its obscenity ordinance, even though: 1) the written word is almost never obscene in modern doctrine; 2) nothing about "fuck Biden" describes sexual conduct because the point of the message is not that this woman wants anyone to have sex with Joe Biden; 3) nothing about this appeals to the prurient interest, as opposed to angry and hostile politics; 3) Cohen establishes that the word "fuck" is protected as a verbal intensifier; and 4) even without Cohen, using the word as part of an anti-Biden message gives it serious political value, removing it from the definition of obscenity.

* The story includes the photo with the signs on full display, then uses "f-word" throughout. We have weird standards.

Everything about this is wrong on the law. The news report paraphrases the ordinance as defining obscenity as "material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value." But either this ordinance is facially invalid or the reporter should not be covering courts. Merely describing sexual conduct is not enough; it must do so in a "patently offensive" way that also appeals to the prurient interest. And Miller is conjunctive--it must describe sexual conduct and lack SLAP merit. Again, however, obscenity should not be part of this discussion--Cohen makes clear that profanity as part of a political message is protected.

The woman's lawyer did not help through his comments to the media, showing that he may not understand what this case is about. He tries to argue the signs are not obscene because obscenity has changed, pointing to how people treated women's knees in the 1920s. He then railed about burning books and burning people (?!) in Nazi Germany. No mention of Cohen, fuck the draft, or recent cases holding that flipping someone off is protected, all of which is more doctrinally relevant than Nazi book burning. Maybe he is doing a better job in court than outside of it. But it would be nice if the ACLU or someone with the expertise to show the court and the public why this is nonsense were in the mix.

Update: Forgive me for not emphasizing enough the wrongness of the court's decision and her lawyer's seeming approach to the case. SCOTUS less than one month ago issued an opinion, binding precedent, saying the following: "And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. See Cohen v. California, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection." Anyone believing an obscenity ordinance could apply to these signs, in the wake of that opinion, should be disbarred and/or kicked off the bench.

Two final points. First, this shows why (as one of my colleagues argues) First Amendment should be required or overwhelmingly encouraged. Lawyers qua lawyers should know the First Amendment. And it is important enough that a municipal court judge or suburban township attorney should know the area, however rare it might be that it comes up in their work. Second, this illustrate the point made in this article by Norman Spaulding (Stanford), reviewed on JOTWELL by Suzette Malveaux: The Civ Pro taught as the ideal in law school is a far cry from the real procedure applied in local courts, such as this one.

B

President Biden and Press Secretary Jen Psaki are taking heat for criticizing Facebook and others for allowing bullshit vaccine information (my words) on their sites. Biden went so far as to say the sites are killing people, while Psaki acknowledged conversations urging the sites to do a better job of policing misinformation and providing. Several critics noted that this plays into the narrative of the Trump lawsuits that Democrats in government have coerced or compelled the sites to ban certain speakers and speech, making the sites into state actors.

Government officials, especially the President, speak to private actors; push preferred policies, issues, and ideas; and encourage those actors to act or not act in a certain way.  Government "speaks" and attempts to persuade; successful persuasion does not create a public-private conspiracy. In fact, we expect the President to "lead" in this way from the bully pulpit, by rallying the public to agree with them and criticizing those who do not. It is part of governing and part of public dialogue. And saying that allowing the speech is "killing people" is the sort of rhetorical hyperbole protected in that dialogue, no less so when uttered by a government official.

As David Frum argues, "'Please stop spreading anti-vaccine misinformation on your platforms' is a request very much in line with long traditions of presidential leadership challenging corporations to accept basic norms of social responsibility." On the other hand, Kevin Drum questions Biden's failure to include Fox News as among those killing people, as more influential (and I would add more direct) purveyor of vaccine falsehoods.

C

In twelfth grade, we read Swift's A Modest Proposal, then were assigned to write an essay in that style. I proposed that sober people should not be allowed to drive, leaving the roads to drunk people who, in time, would kill themselves or others. It feels as if that is where we are headed with unvaccinated people using public spaces.

Posted by Howard Wasserman on July 17, 2021 at 12:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 16, 2021

Congress and universal injunctions

My latest, published at Cardozo Law Review De Novo. The essay analyzes the role of Congress in ending the controversy over universal/non-particularized injunctions. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

Posted by Howard Wasserman on July 16, 2021 at 04:04 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Hiring Notice: University of Alabama School of Law

I am pleased to forward the following hiring notice from the University of Alabama School of Law:

The University of Alabama School of Law seeks to fill up to three tenure-track positions for the 2022-23 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Contracts, Environmental Law & Regulatory Compliance, and Family Law; however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Interested candidates should apply online at https://facultyjobs.ua.edu/postings/48458. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Adam Steinman, Chair of the Faculty Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on July 16, 2021 at 10:26 AM | Permalink | Comments (0)

Cosby, justice, and what we teach our students

The following is by my FIU colleague Scott Fingerhut, who is Assistant Director of the Trial Advocacy Program and practices criminal defense.

 

 

The call of my summer criminal procedure class is for each student to come to terms with what justice looks like to them. 

Not an easy task, particularly in America today.

But in the two weeks since Bill Cosby was freed, I sense a reckoning, something of what Dr. Cornel West must have meant when he said,  “justice is what love looks like in public.”

For all his wretchedness, give America’s Dad credit: He confessed when he said he would.

Sure, maybe not in full.  And yes, only when his liberty was no longer at stake.

Yet still, he kept his word.  And so, then, should the prosecutors have kept theirs, as the Pennsylvania Supreme Court held. 

A matter of pure contract – reliance, to his detriment, upon an offer for consideration, and then, estoppel.

Justice. 

And not a bitter pill to swallow at all.

For as we continue on our mutual journey to repurpose America, in this season of accountability and rethinking lusts for power in quests for liberty, Cosby delivers yet another powerful teaching moment – on how sacred is honor.

Promises made, promises kept, in court and out.

And make no mistake: for many, too many, this is a message that can and must indeed be taught.

Honor, like humility, is an elusive quality, to be sure, but one that is, in fact, possible to define, able to be told, and capable of being understood, all deference to Justice Jackson.

Honor is the soul of our profession, and a core of criminal justice.  This the Court spoke, in Santobello and Brady: “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

And that our students must really know.  That it will be up to them to do justice.  And to do justice, they must know justice, feel it, in their bones.

That the iron in their word is their bond. 

And that (the wisdom of all prosecutorial decision-making in this case aside) means celebrating, not lamenting, Cosby’s release.

For without honor, what is there left to be taught?

Six months before his death, upon accepting the Liberty Medal at the National Constitution Center in Philadelphia, Thurgood Marshall continued to impress that “[t]he legal system can force open doors and sometimes even knock down walls.  But it cannot build bridges.  That job,” he said, “belongs to you and me.”

Lawyer as bridge-builder. 

Law student as constructor-in-residence. 

So, thanks for the lesson, Mr. Cosby.

Contrary to most of the press, your case has nothing to do with celebrity, and everything to do with honor.  As much, if not more, about process than outcome.  The spirit of American crim pro.  And the essence of justice.  Even for, especially for, the least, last, lost, left out, and looked over. 

And that’s the point.

How a society treats its outcasts, the least among it, says perhaps the most about the type of society it is, and yearns to become.

Posted by Howard Wasserman on July 16, 2021 at 09:31 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Thursday, July 15, 2021

Who gets to cancel?

Four people have been arrested (and more arrests appear likely) over online racist abuse directed at the three members of the English soccer team who missed penalty kicks in Sunday's Euro finals.

Such arrests would be impossible in the U.S>, because racist speech is protected. (Or likely protected--we would need to know more about what exactly these people said and did and whether the context pushes it into an unprotected category such as harassment or fighting words). Instead, these speakers would have been subject to a range of private consequences. Their identities might have been exposed and they might have been ridiculed, criticized, shunned, and dismissed from jobs and other positions. That is, private people would have expressed their disagreement with and criticism of the original speakers and their racist speech, in the face of more limited government power to do so.

So two points. First, this illustrates the problem with the derisive label "cancel culture." What I described above is counter-speech, the Brandeisian remedy for evil counsels; to write it off is to leave some able to speak but not others or to control how speech is exercised. Second, this illustrates the divide between the U.S. and Europe over hate speech and presents the question of which approach is superior--privately administered consequences or government-imposed consequences.

Posted by Howard Wasserman on July 15, 2021 at 12:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 14, 2021

Constitutional rhetoric meets constitutional litigation

In an email exchange, someone highlights ¶¶ 17-19 of the SB8 Complaint:

17. At bottom, the question in this case is whether Texas may adopt a law that sets about to “do precisely that which the [Constitution] forbids.” Terry v. Adams, 345 U.S. 461, 469–70 (1953) (striking down a Texas law attempting to insulate white-only political primaries from federal court review). 

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect. 

19.Plaintiffs urgently need this Court to put a stop to Texas’s brazen defiance of the rule of law and the federal constitutional rights to which Texans are entitled.

That sounds nice in the abstract. But it does not describe how constitutional litigation works. Federal courts do not stand ready to strike down invalid laws (because they do not, in fact, "strike down" anything) whenever a plaintiff asks. Nor are federal courts the only forum in which constitutional litigation occurs. There is a process, beginning with someone enforcing the law. Where that enforcer is a state actor and enforcement is imminent, rights-holders can go to federal court in what is (in this case) essentially an anti-suit injunction. When enforcement is not imminent or when the enforcer is not a state actor, it must follow a different process of defensive litigation in state court. The plaintiffs' argument is that the former process is constitutionally required as a matter of due process; that has never been the case.

Here is the analogy I have been using: A state enacts a defamation statute that is inconsistent with New York Times v. Sullivan (e.g., allows liability for any plaintiff on simple negligence). That law is invalid under prevailing First Amendment doctrine. But pre-enforcement litigation would be impossible, because there is no one under color charged with enforcing that law. The First Amendment would be available as a defense if and when a speaker is sued for his protected speech. And that is true of the parade of horribles in ¶ 18. The Constitution does not require anything more.

Posted by Howard Wasserman on July 14, 2021 at 03:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SB8 lawsuit

I am in the early days of a co-authored piece on Texas' fetal-heartbeat law, including why pre-enforcement federal litigation may be impossible. Complicating that argument, reproductive-health providers in Texas on Tuesday filed suit in federal court. Much of this will become part of the article. But some analysis after the jump.

A

The law's main feature is the prohibition on public enforcement of the law in favor of reliance on private enforcement through actions (by any person) for statutory damages, injunctive relief, and attorney's fees. That made pre-enforcement litigation impossible, because there was no responsible executive officer to sue to enjoin enforcement. This left them in state court and having to raise constitutional issues as a defense. These plaintiffs tried different targets.

    • State court judges (through a defendant class action), who would rule on the cases. I do not think this works because the judges have not done anything or threatened to do anything. They wait for someone to file suit, then rule on it, bound by oath and the Supremacy Clause to adhere to federal law. That is, the "enforce" the law, but only in the sense that someone else takes the executive action of initiating litigation. Plus, I think parity--the assumption that state judges follow federal law and are equal to federal courts in protecting federal rights--weighs against a federal court enjoining state judges before state judges have had an opportunity to do anything.

    • Clerks of court (through a defendant class action), who would accept the filings. This does not work because the clerks perform a ministerial function--accepting the filing--that does not alone cause any injury or constitutional violation. The mere filing of a lawsuit does not violate anyone's rights. Otherwise, a plaintiff could sue the clerk as a joint tortfeasor in an abuse-of-process claim.

    • Mark Dickson, the head of East Texas Right to Life. They allege he acts under color because he has been "deputized" to bring lawsuits enforcing SB8. This is the traditional-public-function theory I argued could work--by surrendering all public enforcement in favor of private litigation, private plaintiffs perform the traditional public function of enforcing the law. This does not place all private attorneys general under color; but the complete surrender of enforcement authority goes one step further. The problem is that it is not clear that Dickson (or anyone else) will bring or plans to bring a lawsuit; he (and everyone else) is empowered to do so, but we do not know anything beyond that. So there may be an imminence problem. The complaint also alleges that Dickson pushed for this law; basing a state action finding on that conduct raises serious First Amendment problems.

    • The heads of the state medical board and board of nursing. This one is cute. The argument is that the boards are responsible for enforcing laws governing medical and nursing practice through administrative and licensing proceedings. Those proceedings can be instituted against a doctor or nurse who violates any state laws related to medical care--including the provisions of SB8. In other words, licensed professionals must adhere to all laws and regulations governing the practice of medicine, including SB8, and the boards can institute disciplinary proceedings for failing to follow any laws or regulations, including SB8.

        This offers a partial solution for some plaintiffs, but only goes so far. Some plaintiffs are not providers, but non-profits who provide information, guidance, and funding to women seeking abortions and are worried about being sued under the broad aiding-and-abetting provisions (which would likely violate their First Amendment rights). But they are not subject to regulation by these Boards and so they cannot bring claims against the board.

        Also, note the scope of any injunction that issued. The Boards would be enjoined from bringing licensure or other actions against providers for violating the fetal-heartbeat law. But that injunction would not protect other plaintiffs from private suit, nor would it stop other actors (such as the many deputized individuals) from bringing lawsuits nor would it stop future use of anything else in the statute.

B

SB8 includes a provision allowing for recovery of attorney's fees to any defendant who prevails in a challenge to the validity of any abortion restriction or regulation. This is intended to deter plaintiffs from filing suit. It cannot apply in federal court, where § 1988 (an Act of Congress) controls and allows defendants to recover fees only if the claim is frivolous, unreasonable, or without foundation. But SB8 creates a state law cause of action to recover fees. Plaintiffs argue that § 1988 preempts state law, because it conflicts and would frustrate congressional policy (which was to incentivize § 1983 suits without the chill from a true loser-pays system). I think the preemption argument is a good one, but I am not sure it is proper in this case because we do not know who would be responsible for bringing that action and thus who could be enjoined. Preemption could be a defense if someone attempts to bring a state-law claim for attorney's fees in the future, but I do not think it is up for pre-enforcement review because we again do not know the enforcer.

C

The complaint generally complains about the unfavorable procedures built into SB8--anyone can sue anyone involved or advocating for abortions, statewide venue, attorney's fees and high statutory damages, providers cannot raise the constitutional rights of pregnant women as a defense; the complaint describes the enforcement proceedings as "rigged."

The complaint attempts to constitutionalize certain legislative judgments about the structure and organization of the judiciary, such as venue and fee-shifting, that are ordinarily not subject to constitutional limitations. As a due process argument, it fails. But they frame it as an equal-protection argument--these unique procedures applied to one category of favored claim against disfavored defendants for a disfavored activity; that could work. The question is what level of scrutiny would apply, which doubles back to whether the right to choose is a fundamental right. If it is fundamental, then strict scrutiny would apply; otherwise, it would be rational basis.

The providers do have a due process argument against the provision preventing providers from raising the constitutional rights of women as a defense. Several scholars have described a "valid-rule due process" defense--a law must be valid to be enforced against anyone and anyone subject to enforcement of a law has the right to raise any constitutional defect in that law, even if involves someone else's rights. While abortion providers are described as asserting third-party standing to enforce their patients' rights, it looks more like first-party standing when the providers are the targets of the law.

But these arguments remain defenses that can be raised in the state-court enforcement action and nothing indicates that state judges will not follow federal law in adjudicating them. There is still no basis for a pre-enforcement challenge.

 

SB8, and the attempts to frame litigation to challenge it, illustrates the procedural framework within which judicial review operates. Federal courts do not issue free-standing pronouncements that a law violates the federal Constitution and the mere existence of even a blatantly unconstitutional (according to judicial precedent) law is not enough to get into federal court or to ask a federal court to rule. Sometimes constitutional litigation remains in state court, no matter how strong the federal arguments, and goes from there. It may not be how we like it. But that is how it functions.

Posted by Howard Wasserman on July 14, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Ron DeSantis says the quiet part out loud, undermines anti-protest laws

Protesters opposing the Cuban government blocked several Miami-area roadways Tuesday, including a major highway. Police responded by shutting down the highway, creating buffers a great distance from the protesters in either direction and routing cars off the road, allowing protesters to do their thing. They "negotiated" an end to the protests and reopened the roads around 11 p.m. last night, almost twelve hours after the protests began.

Florida Governor Ron DeSantis famously signed an "anti-riot" bill. A protester can be cited for "willfully obstructing the free, convenient, and normal use of a public street, highway or road." Penalties are enhanced if someone blocks a roadway during a protest that comes to destroy property. And the bill provides immunity for anyone who runs over a protester in the street. But  police attempted to negotiate and keep the protesters safe, but never issued a dispersal order. No one was cited yesterday and police made sure no drivers got anywhere near the protesters by blocking the roadway.

DeSantis was asked about this; the Miami Herald describes his answer:


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

“What is going on in Cuba in particular, those are not simply normal, run-of-the-mill protests like we see here in the United States. They don’t have freedoms respected there, whereas in the United States, you have a panoply of freedoms that are respected,” DeSantis said. “They are seeking an end to the regime itself.”

He added: “They are trying to end the regime. So that is fundamentally different from what we saw last summer where people were burning down buildings — and this was fortunately not happening in Florida to a large extent — burning down buildings, looting, breaking windows and targeting law enforcement and all those things.”

This is incoherent. The extraordinary measures that people in Cuba are taking to end the regime and their lack of a "panoply of freedoms" has nothing to do with protesters in Miami, who have that panoply and are able to engage in "normal, run-of-the-mill protests." They chose this method of protesting, apparently to draw maximum attention to the cause (which, logic suggests, is what every group wants to do). Many BLM protests got out of hand when police confronted protesters, issued dispersal orders (often very quickly and simply because the gathering was large), and attempted to clear the protesters--that never happened yesterday. Finally, the BLM protests "target[ed] law enforcement" only in the sense that their protests criticized and sought to change the behavior of law enforcement, just as Tuesday's protests criticized and sought to change the Cuban regime. So the difference, according to DeSantis, is the subject of the protest--targeting law enforcement is bad and grounds for mass arrests for blocking highways, targeting the Cuban regime good and grounds for law-enforcement to allow a major roadway to be shut down for half a day.

The anti-riot law, which is the subject of several ongoing First Amendment lawsuits, is an example of a law written in content-neutral terms but has a content-based motivation and is likely to be enforced in a content-based manner. Yesterday's events illustrated that point. We saw how police responded to similar actions during the 2020 protests, before the new law was enacted. And we saw how police responded yesterday, with the new law in place. Combined with DeSantis' statements distinguishing anti-Cuba protests from anti-police protests, the lawyers challenging these laws have a new piece of evidence for arguing these laws are content- (if not viewpoint-) discriminatory.

Just to be clear: I am not criticizing the protesters; breaking laws to protest injustice is a storied free-speech tradition. And police should give protesters a certain amount of leeway for spillover. But the response of police and the governor illustrate First Amendment problems with Florida's vaunted laws enacted less than three months ago.


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

Posted by Howard Wasserman on July 14, 2021 at 07:44 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 13, 2021

Will Jacob Steinmetz play on Yom Kippur?

Jacob Steinmetz, an Orthodox Jew and recent high-school graduate, was drafted in the third round (77th overall) by the Arizona Diamondbacks, putting him on path to possibly/maybe/perhaps/if-everything-breaks-right being the first Orthodox Jew to play in the Major Leagues.

Here is the rub: Steinmetz keeps Kosher and observes Shabbat. But he plays on Shabbat (although he walks to the ballpark) and on Jewish holy days. I would love to hear Steinmetz explain this as a matter of Jewish law. (Update: An emailer says that some Orthodox rabbis allow recreational sports on Shabbat, which justifies his playing as an amateur; it becomes work if he gets paid. Of course, rabbis told Hank Greenberg that he could "play," but not "work" on Rosh Hashanah).

But does that mean, if he were to make the Show, that the most-observant Jewish player in MLB history would play on Yom Kippur, while less-observant players sit or make public displays of deciding to sit? It would be consistent with the sense that we focus on Yom Kippur because the more-secular/less-traditional American Jews, for whom that day (especially the fast) marks the pinnacle of the Hebrew calendar, drive the conversation around Jews in baseball. For Orthodox Jews, other parts of the calendar and other practices form the core of worship. If he does make the Show, it will be interesting how he approaches that one holy day (as opposed to the many, many other Jewish holy days and festival days throughout the year that he observes but that do not make a blip for most American Jews).

Steinmetz has a baseball scholarship to Fordham, so it is not clear if he will play college ball or sign with the D-Backs and accept a minor-league assignment. Stay tuned.

Update: The Washington Nationals drafted Elie Kligman, a Nevada high-schooler who does not play on Shabbat or holy days, in the 20th (final) round. Kligman was a pitcher and infielder in high school who plans to convert to catcher to allow himself days off for Shabbat. The Times wrote about Kligman in March, but I cannot get a sense of how good a player he is or where he is going to land.

Posted by Howard Wasserman on July 13, 2021 at 05:50 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Biden Issues Exec Order on Competition (with focus on non-competes!)

This week, President Biden issued an executive order on promoting competition in the American Economy. The first item of action is a call to ban or limit non-compete agreements and unnecessary, cumbersome occupational licensing requirements that impede economic mobility. This, including Biden's call on the FTC to take action, follows what Mark Lemley and I recommended in our 2021 Day One Report. 

This has been a long time coming. In January 2020 I spoke at the FTC about the need to intervene in the labor market to protect competition, and in 2016 I served on President Obama's working group that resulted in a presidential call to action to the states to curtail the spread of noncompetes. A federal rule will be a gamechanger.

I spoke to the LA Times and the Wall Street Journal about the order. Here's some of the Times article:

Orly Lobel, a professor at the University of San Diego School of Law who has studied the effects of noncompete clauses for years, said that this shift in policy is “very significant” for the U.S. labor market. Based on California’s record on attracting top talent, “we have all the evidence empirically that this comparative advantage contributes not only to higher wages and worker mobility, but also a win-win for firms,” Lobel said.

“When there’s more competition, there’s more of an incentive to innovate, better fit between talent and jobs, and people don’t stagnate in the same position,” Lobel added.

Lobel, the University of San Diego law professor, said that Friday’s approach of calling on the FTC to create a federal rule is a stronger step, and one that she believes falls within the FTC’s powers.

“It’s squarely within the charge of the FTC to regulate unfair practices,” Lobel said, and that includes the labor market. “Wage fixing is just as unfair as price fixing — all of those are unlawful, and we should tackle them.”

 

Posted by Orly Lobel on July 13, 2021 at 06:04 AM | Permalink | Comments (5)

Monday, July 12, 2021

A textual defense of the diversity theory of the 11th Amendment

Eric Segall discusses everything wrong with the Court's 11th Amendment/sovereign immunity jurisprudence, discussing its evolution and incoherence. I agree with just about everything, particularly the point that states should not have sovereign immunity from federal-question actions because states are not sovereign as to federal law.

I depart on one point: Eric argues that the only truly "textualist" interpretation is that the 11th Amendment prohibits all suits against a state by a citizen of another state, regardless of the nature of the case, but is silent as to suits against a state by its own citizens, regardless of the nature of the case. He argues that the diversity theory--a state cannot be sued by a citizen of another state on diversity, but could be sued on some other basis, such as federal question--is not textualist. This makes Gorsuch, who adopted that view in PennEast, is a "fake textualist."

I disagree with Eric at my peril. But I want to try to make a textualist defense of the diversity theory.

There are two key issues here. One is whether textualism requires us to read all relevant provisions or one provision in isolation, especially when dealing with amendments--do we read the 11th Amendment alone or must we also look at the text of Article III § 2, which was the target of the amendment. The other is how we understand a constitutional amendment--how much of the prior provision does it amend and do we look to a specific clause within a provision or to the provision as a whole in figuring that out.

Article III § 2 enumerates the jurisdiction that federal courts can exercise if authorized by Congress. Each basis for jurisdiction stands alone as a distinct and independent ground for a federal court to hear a case; a case need only satisfy one ground, although it could satisfy more than one. The list includes controversies "between a State and Citizens of another State" and between "a State . . . and foreign States, Citizens or Subjects." These provisions grant diversity or alienage jurisdiction--jurisdiction over the controversy because of the identity of the parties. These  grants are distinct from the grants earlier in § 2 to hear "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States" or to hear "Cases of Admiralty."

Thus imagine a suit by a citizen of South Carolina against Georgia for violating a federal statute. Prior to 1795, a federal court would have had two constitutional bases for exercising jurisdiction over that case--it arises under the Laws of the United States and it is between a State and a Citizen of another State.

The Eleventh Amendment strips courts of jurisdiction over "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The amendment's text copies the text of the diversity and alienage clauses of § 2, carving out one half of those grants. Given the linguistic overlap, we can read the 11th Amendment as amending the diversity clause, but not all of Article III. For example, the diversity clause and the 11tm Amendment together say the judicial power extends to "controversies between a State and Citizens of another State, but not to a suit commenced or prosecuted against one of the United States by Citizens of another State." (This is a long way of saying the grant of judicial power in diversity cases is limited to controversies commenced by a State against Citizens of another State). But the diversity clause is one part of § 2, independent of the other, unamended jurisdictional grants, such as the grant of federal-question jurisdiction or the grant of admiralty jurisdiction.

So return to the suit by a citizen of South Carolina against Georgia for violating a federal statute. After the 11th Amendment, there is no diversity jurisdiction, because this case falls within the 11th Amendment's exception to the diversity clause (stated differently, the case no longer falls within the amended clause granting diversity jurisdiction). But the case still satisfies a distinct-and-independent jurisdictional grant, in that it arises under the Laws of the United States. The 11th Amendment did not amend that clause of Article III, which provides a  stand-alone basis for the court to hear this case. By its plain terms, the amendment jurisdiction because the suit is one "commenced or prosecuted against one of the United States by a citizens of another State," but is silent as to another basis for jurisdiction (such as arising under).

It seems to me this reading is not atextual or fake-textual. It relies on the text the 11th Amendment, read in conjunction with the text of the clause it amended, without pulling in extra-textual historical, purpose, or policy considerations.

Posted by Howard Wasserman on July 12, 2021 at 10:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sports and politics

England lost the European championship to Italy on Sunday, losing 3-2 in a penalty shootout. England's three misses were by Black players. English fans did not take the loss well; fans vandalized a mural dedicated to one player (for his philanthropic work) and took to social media to criticize the three players in the way you would expect to happen on social media.

Calling sports apolitical is nonsense, given the trappings of patriotism and politics, especially (as here) in an international competition when one plays for one's country. But without those trappings, this highlights the unavoidable politics. A loss is expressed in political terms--racist language and ideas about them as people (not merely as footballers) or denying that they are true Englishmen. If the players know how they will be criticized for poor performance, they cannot be blamed for making their own political statements, whether in anticipation or response.

Posted by Howard Wasserman on July 12, 2021 at 09:22 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

Texas and Florida are locked in a bizarre race to the bottom in enacting the most stupid and constitutionally problematic laws. Florida jumped into the censor-social-media-in-the-name-of-stopping-censorship and was smacked down in federal court.

Texas decided to follow suit, proposing its own absurd law (nice summary here). It includes some new features, including record-keeping, notification, public-disclosure, and process requirements surrounding how sites moderate content that I expect the state will justify in the name of consumer protection but which might be vulnerable to challenge. It tries to learn from Florida's mistakes--no Disney exception and targeted sites are not defined by size. And Texas does not prohibit sites from appending statements, comments, criticisms, or warnings to posts; it does not attempt to stop sites from engaging in counter-speech in response to user content.

But the same problems remain The definitions exclude news sites and others that "preselect" content and for which user content (such as comments) is incidental to presentation of that preselected material; the news-organization exception was one of the content-based defects Judge Hinkle noted in Florida. It defines censorship as to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression," which limits the order and manner in which sites can have material presented--any listing of sites puts one thing over another, which treats some material better than other; chronological or alphabetical would be the only options. And it prohibits that "censorship" on the basis of viewpoint, which means sites cannot  prohibit any expression--Nazis, racists, anyone--because of disagreement with an otherwise constitutionally protected message.

Expect a carbon-copy opinion from a court in Texas soon.

 

Posted by Howard Wasserman on July 9, 2021 at 05:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, July 08, 2021

Scope of discovery

A recurring theme with Donald Trump lawsuits is a stated hope that he will sue and the case will go forward, subjecting him to discovery and the exposure of all the things he has been trying to hide all these years about his taxes, his private conduct, his dishonesty and corruption, etc. This is especially true for his many threats to sue for defamation, where the need to prove the falsity of the allegedly defamatory statements makes relevant inquiry into his conduct underlying those statements.

Some have floated that same idea with respect to his latest lawsuits, expressing the hope that Facebook, Twitter, and YouTube will not get the actions dismissed, but will let the case proceed into discovery and a deep-dive into Trump's secrets. But filing a lawsuit does not open a plaintiff to discovery about anything and everything in his life; it has to be relevant (meaning calculated to lead to the discovery of admissible evidence) to the claims and defenses in the case. The only issues in this case will be whether the companies act under color based on their relationship to the government and whether the speech that Trump engaged in was constitutionally protected. Whether Trump paid taxes, sexually assaulted women, or self-dealt as President is not relevant to those claims or defenses.

So this will not happen, not because Facebook has no incentive to do it, but because it has nothing to do with the case.

Posted by Howard Wasserman on July 8, 2021 at 03:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 07, 2021

Today in dumb lawsuits

Coming to my neck of the woods in the Southern District of Florida: Class action lawsuits by Trump against Twitter and Jack Dorsey; YouTube and Sundar Pichai; and Facebook and Mark Zuckerberg; all allege violations of the First Amendment and the constitutional invalidity of § 230 (I guess because by protecting private actors, it incentivized their censorship or improperly delegated censorial power).

I think we can agree that this is stupid, for many of the reasons that this lawsuit was stupid. But wait, this one gives us more:

• There may not be personal jurisdiction here. Some of the named defendants are not Florida citizens. Trump was still President and residing (if nor domiciled) and tweeting from D.C. when Twitter and Facebook banned him. So the act of banning him was not "aimed at" Florida.

• Venue may not be proper. My understanding is that terms of service agreements include forum-selection clauses that funnel these cases to California. I have to look into that further. Update: Yep. Brad Heath of Reuters reports that Twitter and Facebook both require that federal lawsuits be in the Northern District of California]

• I do not know how you get a declaratory judgment that a law is invalid without suing the person charged with enforcing that law. Facebook, Twitter, et al., do not "enforce" § 230. They enforce their private terms of agreement and the rules for their sites. If § 230 has the effect of converting them into state actors (it does not, but work with me) in banning Trump and others, they still are enforcing their own private terms of service; but those terms of service have been converted into public regulations subject to First Amendment limits. The companies are not enforcing § 230. Enforcement of § 230 rests with someone in the executive branch. But no government officials have been sued. Update: Another problem with this issue that has been raised: Challenges to the constitutional validity of all provisions of the CDA of 1996, including § 230, must be heard by a three-judge district court.

• The purported class is everyone banned since June 1, 2018 within the United States, which includes a whole of people engaged in unprotected speech (as opposed to Trump's protected-but-false-and-offensive speech), That may be too broad to certify.

• The captions list the first plaintiff as "DONALD J. TRUMP, the Forty-Fifth President of the United States," which might be one of the saddest things in any pleading. And I teach the case brought by "NARUTO, a Crested Macaque." This is worse.

• Yes, the lawyers who filed this nonsense should be held up to public ridicule and potential clients should take this into account in deciding whether to retain them.  Also, referring to "Democrat lawmakers" works on Twitter and the Republican echo chamber; in real life, it is disrespectful. This tells us one of two things: 1) The lawyers are talking to the public rather than the court or 2) The lawyers assume the judge will be as hacky as they are; neither is likely to play well with the judge. Whether that warrants sanctions or PR consequences is another story.

Update: A point I saw raised: Trump spent four years arguing that he was not a state actor when blocking people from his Twitter and Facebook pages, while now arguing that those who created the site he was using are state actors. Are those positions reconcilable? If Twitter and Facebook are state actors, how does that affect the people who use those sites in their relationships to other users? If the site is state-run, does that make every piece of the site state-run, such that the individual user also is a state actor?

Another Update: How does the invalidity of § 230 affect the under-color argument? The defendants act under color (allegedly) because § 230 gives them immunity from suit and delegates censorial power and because the threatened repeal coerced/compelled/induced them to censor certain messages. But if § 230 is invalid (facially, according to the complaint), would it not be a good thing that Congress sought to amend or repeal? Alternatively, if the court declares § 230 invalid, does that eliminate the close nexus, so the defendants no longer are under color?

Posted by Howard Wasserman on July 7, 2021 at 12:28 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, July 06, 2021

Submission Angsting Update

This blog will not be posting a law review submission angsting thread going forward. Comments to the previous thread are closed, and there won't be a thread for the fall cycle.

Posted by Sarah Lawsky on July 6, 2021 at 10:38 AM in Law Review Review | Permalink | Comments (0)

Hiring Plans and Hiring Committees 2021-2022

I am collecting information about (1) whether a particular school plans to hire in 2021-2022, and (2) if so, information about the school's hiring committee and hiring interests.

Please share in the comments the following information related to the 2021-2022 law school faculty hiring season. (A spreadsheet is below. You cannot edit the spreadsheet directly.)

First:
 
(a) your school;
 
(b) whether your school is pursuing entry-level hiring in 2021-2022 (this could be yes, no, maybe, or something else);
 
(c) whether your school is pursuing lateral hiring in 2021-2022 (this could be yes, no, maybe, or something else).
 
If your school does plan on pursuing hiring in 2021-2022:
 
(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(h) your committee's preferred way to be contacted (email, snail-mail, or phone); 
 
(i) the website, if any, that candidates should use to obtain information about the position or to apply;
 
(j) the number of available faculty positions at your school; and
 
(k) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

Update, 8/11/2021: My understanding is that there is a complete collection of this information that is generated privately by one or more individual law schools. (I don't have access to this complete collection of information.) The purpose of this post and the accompanying spreadsheet is to allow the information to be accessible to anyone, regardless of where they happened to go to law school or do their fellowship.

Posted by Sarah Lawsky on July 6, 2021 at 10:30 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (93)

Friday, July 02, 2021

Reconsidering doctrine

From the final Orders List: Justice Thomas again calls for reconsidering qualified immunity (p.30 of List), including that it makes no sense to us the same standard for police officers making split-second decisions as for a college administrator making deliberate and calculated choices about enacting and enforcing policies (here, creating free-speech zones  on campus). Thomas again calls for reconsidering New York Times (p.41 of doc) and Justice Gorsuch has joined as a wingman (p.44), which suggests this campaign might begin to have legs.

The assault on NYT is notable because it runs opposite to the trend among  free-speech advocates and scholars--their view is that NYT, while great, is insufficient and requires additional protection through anti-SLAPP statutes to stop the filing of bad lawsuits (those that fail under NYT) to bankrupt and silence defendants. Gorsuch adds an odd bit about how few defamation cases go to trial, ignoring that few cases go to trial on any topic because of how 12(b)(6) and summary judgment have been interpreted and applied.

The danger of the emerging Thomas/Gorsuch position is figuring out what it means to "reconsider" NYT. Does it mean eliminating the entire First Amendment edifice (standard of proof, burden of persuasion, protection for parody and satire, protection for anything other than provable statements of fact) and leaving everything to state law? Or does it mean eliminating actual malice as the state-of-mind requirement but leaving the rest in place? And how much of the difficulties that Gorusch decries for defamation plaintiffs derives from actual malice as opposed to the rest of that constitutional edifice? Neither Thomas nor Gorsuch says.

Posted by Howard Wasserman on July 2, 2021 at 01:12 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

On Americans for Prosperity

SCOTUS on Thursday declared invalid a California law requiring not-for-profits to file with the state their Schedule B's revealing major donors. It was another largely 6-3, with Roberts writing for the majority, Thomas joining in all but a few parts, Alito and Gorsuch joining in all but a few parts, and Sotomayor writing the dissent. A couple of points aside from the First Amendment merits

First, the majority declared the California law facially invalid because of its overbreadth, while Thomas questions overbreadth and facial unconstitutionality. Thomas seems to use that departure to fight about universality, making two points. First, while speaking of facial invalidity, "the Court does not say that it is 'provid[ing] relief beyond the parties to the case'"--that is, it is not expressly making the judgment universal. Second, Thomas argues that the judgment does not depend on facial invalidity, only the opinion--"One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners."

This is the right way to understand facial invalidity, within the distinction between judgments and opinions. The Court's judgment/injunction remains particularized to the parties. The reasoning in the opinion explaining the judgment establishes judicial precedent that the law is invalid when applied to anyone else. That precedent binds courts in future cases, compelling the court declare the law invalid and to reject new enforcement efforts against others.  If California attempts future enforcement, the new targets must go to court for a new or expanded injunction. They will get it, because SCOTUS precedent establishes that the law is invalid as to all persons. But they must take that step. And California does not violate the injunction in this case by attempting future enforcement against others.

Second, I am intrigued by Zachary Price's model of "symmetrical constitutionalism, which I discuss in a forthcoming essay. Price proposes that justices should favor "when possible, outcomes, doctrines, and rationales that distribute benefits across major partisan divides, as opposed to those that frame constitutional law as a matter of zero-sum competition between competing partisan visions." The idea is to focus on the principle at issue, rather than on who won the immediate case, where the principle will protect politically distinct people and entities

On its own, AFP fits Price's  model, as shown by the range of groups--ACLU, NAACP, PBS--that filed amicus briefs in favor of the plaintiffs. But the Court divided across ideological/partisan lines and the case is being reported and analyzed as a victory for wealthy conservative groups and their wealthy conservative donors. One reason for many is a belief that the "other side" does not follow the principle as much as the outcome--Justice Alito would be less solicitous of the First Amendment concerns if, say, Texas tried to do a deep-dive into Planned Parenthood's donor base. Another is the fear of this case as a stalking horse for further limits on campaign-finance regulation by imposing the same protections for contributions as for expenditures, which plays into a zero-sum competition between competing partisan visions.

Posted by Howard Wasserman on July 2, 2021 at 09:22 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, July 01, 2021

Erroneous political statement of the day

I have seen a version from multiple sources: Thursday's decisions in AFP and Brnovich are a direct result of Mitch McConnell's ploy with Merrick Garland, that but for that, the Court would have a 5-4 liberal majority rather than a 6-3 conservative majority.

This is wrong because Donald Trump still would have filled two seats (Kennedy and Ginsburg). Had Garland been confirmed, there would have been a 5-4 liberal majority until October 2020, when the majority flipped when Barrett replaced Ginsburg. So some cases during the Trump years probably come out differently--the travel ban, for example. The Court might have done more to stop the worst of Trump's abuses in starker terms. But not Thursday's cases or any of the 6-3 cases of this Term--they are closer (5-4 rather than 6-3), but the outcomes do not change.

The other question in this counter-factual is who the Trump appointees would have been: Gorsuch and Kavanaugh, Gorusch and Barrett, Kavanaugh and Barrett?

Posted by Howard Wasserman on July 1, 2021 at 11:36 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Some thoughts on Cosby

I do not do criminal procedure, so I cannot pass on the Pennsylvania Supreme Court decision in Cosby. I want to raise some issues that touch on what I do study.

• Could Pennsylvania seek review in SCOTUS? That is, did the majority rely on federal or Pennsylvania principles of due process and estoppel? It cites state and federal cases and discusses both sources of law, moving between them. In an unclear case, Michigan v. Long requires the conclusion that the state court relied on federal law rather than independent-and-adequate state grounds, giving SCOTUS jurisdiction (although I doubt SCOTUS will touch this case). I think the better reading is that this is a decision on federal due process, but it requires parsing.

• Accepting that a constitutional violation occurred, I agree with the two-justice concurring-and-dissenting opinion that the proper remedy is a retrial without his deposition statements rather than dismissal of the case and a bar on a new trial. The former DA promised not to prosecute and the breach of the promise was the violation, but Cosby was injured only because he answered deposition questions rather than asserting his Fifth Amendment privilege (which the court accepts as the purpose behind the promise) and those statements were used against him. Imagine the former DA had made the promise and the current DA ignored the promise, but Cosby had never testified in the civil action or the new prosecution had not used his statements--in other words, had Cosby not relied. Would the court have found a violation? Reading the opinion, it does not appear so, specially since the former DA likely lacked authority to make this binding promise in this form. If a prosecution would have been allowed ab initio, then the remedy for the violation should be to allow a re-prosecution as if Cosby had not testified (i.e., without his statements).

• The majority is unclear as to who violated Cosby's rights--the former DA who made the promise or the current DA who brought the prosecution? The court is inconsistent about that, although at the end of the day seems to define it as the promise that induced Cosby to waive his Fifth Amendment privilege in the civil action (which would seem to suggest that Castor committed the violation).

If that is the violation, how does that affect the underlying civil case against Cosby? It settled for more than $ 3 million and was dismissed, after Cosby sat for multiple depositions and made inculpatory statements. It does not appear that any judgment was entered. Could Cosby attempt to open the settlement, arguing that it was a product of the DA's constitutional violation--he settled because negative information came out in his depositions, but he would not have made those inculpatory statements (and thus would not have settled) had he not been stripped of his Fifth Amendment rights by Castor's promise? That might be an equitable "other reason" to reopen a judgment; not sure it does the same for a settlement.

• Might Cosby sue the current and/or former prosecutors, claiming a due process violation and seeking to recover some or all of the $ 3 million settlement that resulted from the violation? We will not find out because it seems pretty clear that decisions to prosecutor or not are protected by prosecutorial immunity.

Posted by Howard Wasserman on July 1, 2021 at 03:49 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Florida social-media law (unsurprisingly) violates the First Amendment

Judge Hinkle of the Northern District of Florida declared that the law violates the First Amendment and preliminarily enjoined its enforcement. This result was over-determined from the start. The court adopts the views  that speech-protective commentators had been arguing from the beginning, which seemed clear from the argument on Monday.

    • Social-media sites are not state actors and cannot violate the First Amendment. So the law cannot be justified as a way to vindicate users' First Amendment rights.

    • Social-media platforms look more like the newspaper in Tornillo and the parade in Hurley and the state has no interest in "balancing the debate." They look less like the shopping mail in Pruneyard or the interviewing classrooms at Harvard Law School; allowing speakers onto your property is different from controlling the owner's speech or dictating how the owner must provide that access.

    • The law is "as content-based as it gets" and subject to strict scrutiny (which Florida conceded at argument it could not survive). This seemed obvious. It treats political candidates and speech by or about candidates different from other speakers and speech. It regulates large platforms but not smaller ones. It is viewpoint discriminatory, motivated by a desire to protect conservative speech and speakers. And that is before the court reached the Disney carve-out.

All-in-all, a slam dunk. And it is hard to envision a different outcome in the 11th Circuit. It would be cheaper for Florida to go back to cut bait and start over. But it will not, because Ron DeSantis has judges to run against in 2024.

Posted by Howard Wasserman on July 1, 2021 at 03:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

University of San Diego School of Law is Hiring Faculty!

Hi all, here at USD (well, I am physically in Tel-Aviv right now but still) we are looking to hire several faculty this year - we are considering both laterals and entry. We have a particular interest in hiring in the areas of corporate and tax but we are open to other fields as well. Here is the announcement. We are also looking to hire one faculty member with a joint appointment with USD's center for ethics, here is the announcement for that.

Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move! 

 

Posted by Orly Lobel on July 1, 2021 at 08:08 AM | Permalink | Comments (1)