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Thursday, September 30, 2021

Newell's Law Review Meta-Rankings 2021

Since we are ranking things, here is Bryce Newell's 2021 Law Review Meta-Rankings.

Posted by Howard Wasserman on September 30, 2021 at 03:03 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (2)

Tuesday, September 28, 2021

A Fair and Inclusive Alternative to the Sisk Academic Impact Rankings

The following guest post is by Matthew Sag (Loyola-Chicago). This post is a short version of this new essay.

The Sisk Rankings of the academic impact of law school faculties have been around for a while now. Gregory Sisk and his team release these rankings of the top 67 or so schools every three years. And so every three years I find myself wondering: “Really? Can it be true that all these schools have higher academic impact scores than Loyola Chicago, DePaul, and Houston Law?”

The short answer is: no, it’s not remotely true. There are quite a few schools that Sisk leaves out who would outrank those he includes on almost any conceivable method of aggregating citation counts.

How do I know this?

When Sisk and his coauthors released their new rankings last month I spent some time digging around in the citation data available on HeinOnline. As I explain more fully in this essay, I used the data provided by HeinOnline to construct a rankings table that includes every ABA accredited law school.

My rankings are based on the median of doctrinal faculty—this is the obvious place to start if we are trying to understand the central tendency of a group with a skewed distribution. Sisk uses a slightly odd formula of twice the value of the mean plus the median, but not much turns on this. Even if we adopt Sisk's formula and apply it to the HeinOnline data, schools like Penn State, Loyola Chicago, DePaul, Houston Law, and Michigan State still outrank several of the faculties Sisk counts in the top 67. In the essay I have just posted to SSRN, I provide a complete ranking of schools from 1-193 calculated six different ways: median, mean, median+mean, mean*2+median, total, and rank_total+rank_median. I think median makes the most sense, but readers should feel free to rationalize whichever measure ranks their school higher. The point is that my claim that the Sisk rankings are unfair does not depend on the minutia of calculation. No matter how you crunch the numbers, several schools that Sisk and his team ignore outperform the ones he chooses to rank.

How significant are these distortions?

I have constructed a couple of figures to illustrate the differences between the Sisk rankings and my more inclusive approach. The first figure illustrates the difference between Sisk rankings and a simple five-year median citation ranking for schools that are underrated by Sisk. I have assigned each school disregarded by Sisk and implied Sisk rank of 68 for this purpose. (This figure also includes schools that rank the same either way.) The second figure is the same, except that it shows which schools are overrated by Sisk.



Who should be left out?

The Sisk rankings exclude the majority of ABA accredited law schools, including several that outperform many of those ranked by Sisk, and also every law school based at a Historically Black College or University (HBCU). This exclusionary approach to ranking schools is unfair and unnecessary. It is unfair because it falsely implies that certain disfavored or overlooked schools are inferior to those deemed worth ranking. Moreover, even the exclusion of schools that don’t outrank Sisk’s preferred schools once the playing field has been leveled is also unfair. It suggests that the overlooked schools are not even in the same league as those that are ranked, rather than being separated by matters of degree.

This unfairness is unnecessary. I know the HeinOnline data is not perfect, but I suspect it is at least as good as the data Sisk and his team extract from Westlaw. The means and medians I calculated using the HeinOnline data correlate with Sisk’s results at about .95, at least for the 67 schools we both ranked.

When I run the Chicago Marathon in a couple of weeks, I will be running the same race as two-time Olympic medalist Galen Rupp and America’s second fastest female marathon runner ever, Sara Hall. I don’t expect to finish anywhere near these remarkable athletes, but I do expect that my time will be recorded. No doubt, there are runners who believe that they will finish faster than me, but we don’t start the race presuming that some people’s times are worth recording and others are not. We all run, we all count. There is no reason why law school rankings should be any less fair or inclusive.

Posted by Howard Wasserman on September 28, 2021 at 09:31 AM in Life of Law Schools, Teaching Law | Permalink | Comments (21)

Monday, September 27, 2021

Professor and Director of the Center for Negotiation and Dispute Resolution, UC Hastings

The University of California Hastings College of the Law in San Francisco is conducting an open-rank search to hire one lateral tenured or tenure-track faculty member to begin July 1, 2022. The ideal candidate will be a productive scholar in the field of alternative dispute resolution, a successful teacher, and a visionary programmatic administrator capable of leading the nationally esteemed Center for Negotiation & Dispute Resolution (“CNDR”).

Applicants should have a serious interest in UC Hastings and living in the San Francisco Bay Area. Salary and rank will be commensurate with qualifications and experience.

Applicants should email a CV and a statement of interest to Professor Scott Dodson, Chair of the CNDR Search Committee, at [email protected], by October 14, 2021.

CNDR was founded in 2003 to develop the ADR curriculum and to contribute to UC Hastings Law’s public-service mission through ADR-related programs. UC Hastings Law offers a concentration in Civil Litigation and Dispute Resolution and nearly twenty different ADR course offerings, including the Mediation Clinic, the ADR Externship Program, and the #1 ranked Negotiation and Dispute Resolution Team. CNDR hosts international conferences and trainings, drawing practitioners and judges from across the globe. At home, CNDR collaborates on projects and events with non-profits such as The Mediation Society, commercial providers such as JAMS, and government agencies such as the California Public Utilities Commission.

CNDR won the Ninth Circuit’s Alternative Dispute Resolution (ADR) Education Award in 2007 and 2018 and the International Competition for Mediation Advocacy’s prestigious Louise Otis Award for Excellence in Mediation Education in 2011 and 2013. Under CNDR’s leadership, US News & World Report has consistently ranked UC Hastings Law as having one of the Top ADR Programs in the country (currently #8 this year).

UC Hastings Law prohibits discrimination based on race, color, national origin, religion, age, sex, gender, sexual orientation, gender expression, gender identity, gender transition status, sex- or gender-stereotyping, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), genetic information (including family medical history), ancestry, marital status, citizenship, or service in the uniformed services, including protected veterans. This policy applies to all employment practices, including recruitment, selection, promotion, transfer, merit increase, salary, training and development, demotion, and separation.

Posted by Howard Wasserman on September 27, 2021 at 12:24 PM in Teaching Law | Permalink | Comments (0)

Must SCOTUS Injunctions Abide By Precedent?

There now appears to be consensus at the Court that it may issue injunctions not only when claims are “indisputably clear,” but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable. 

Indeed, it is fair to say that every sitting justice has recently voted for at least one “anti-precedential injunction,” that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that “newly minted rights . . . cannot justify an emergency injunction pending appeal.” 

This controversy resembles debates over many other “clarity doctrines.” There are two basic ways forward:

1. The Court could decide that the applicable standard is fundamentally a measure of each voting justice’s confidence. The justices must be adequately certain that the claim is correct, or that the lower court erred in denying it. By analogy, consider a complex math puzzle. Even if most people—or most experts—get the puzzle wrong, an especially talented mathematician might know (or believe that she knows) the answer with complete confidence. True, focusing on internal confidence would be in tension with the “indisputably clear” standard that is often invoked in this area, given that phrase’s apparent focus on what can in fact be “disputed.” But perhaps it is time that that phrase be retired.

This approach would make room for Court injunctions that are contrary to Court precedent. If five justices are certain of the right answer, they may be equally certain that they would vote to overrule any contrary case law. To illustrate this point, consider Justice Thomas’s avowed willingness to overrule precedent that is “demonstrably erroneous.” If a justice is entirely certain that relief is proper on the merits, then any contrary precedent would be “demonstrably erroneous” and therefore (for Thomas) no precedential obstacle. On this view, the Court’s injunction would likely qualify as precedential, at least as a “signal,” even if not at the level of a precedent issued after the deliberative benefits of plenary review. 

One might reasonably worry that this approach would render the Court one of first view, leading to all manner of Court-issued injunctions as well as overly hasty and erroneous precedents. But, to some extent, those outcomes are already taking place, and the legal standard should at least reflect reality. Further, the requirement of extreme confidence on the part of the voting justice would preserve a significant limit on the availability of Court injunctions. Litigants could not obtain injunctions based on disputed facts or legal issues that the justices cannot immediately and confidently answer. 

Of course, many opportunities for Court injunctions would remain—particularly in our polarized legal culture. Today, perhaps more than in the past, Court majorities will feel instantly certain about legal propositions that lower courts have treated as dubious or simply incorrect. That polarization may help explain why the “indisputably clear” standard has either gone by the wayside or else been deemed met in hotly disputed cases. And if polarization is the problem, then we cannot expect any formal legal standard to be a pat solution.

2. Alternatively, the Court could commit to viewing the applicable standard as an inquiry into the state of the law as viewed by some imagined third-party. The claim for relief might have to be indisputably clear from the standpoint of, say, a lower court judge who is bound to apply extant case law. This approach would be prediction-based, in the sense that each justice would assess, not her own confidence, but rather her prediction of how confident someone else would be. The “indisputably clear” standard might have originated in a similar thought: when a single justice considers whether to issue an in-chambers injunction, he should think about whether his colleagues would dispute that relief.

Under this approach, anti-precedential injunctions can, and probably would, be prohibited. By way of analogy, the Court has adopted a prediction-based clarity test within the doctrine of qualified immunity. That doctrine places a premium on existing precedent and imagines how an official might understand case law. Again, a similar analysis might apply as to Court injunctions, substituting the official with a lower-court judge. A ruling that applied this kind of standard would generally set precedent only on the state of existing case law, not on how to extend those precedents or whether they are correct. A grant of relief might then be understood only as a protective measure to safeguard rights under existing doctrine. 

This approach is also susceptible to legislative implementation. Borrowing a page from habeas corpus legislation, Congress could require that any Court injunctions issue if, or only if, the lower court’s denial “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(2). Whether adopted by Congress or the Court on its own initiative, that solution would tether injunctive relief to a familiar form of predictive clarity. 

The problem here is that all the justices would at least sometimes be sorely tempted to break the rule to make room for doctrinal innovation. And that instinct is justifiable. Existing case law may not account for a new, startling reality. Or the justices’ views on a legal question might be out of step with older rulings. The Court’s role is, in part, to meet those novel or unanticipated problems. Those points help explain, and may justify, the justices’ apparent consensus on the availability of anti-precedential injunctions. Here again, increasing legal polarization matters: the hypothetical possibility of an anti-precedential injunction would not fatally undermine the prediction-based approach, but a succession of those injunctions would, returning us to the first option above.

*          *          *

Of course, there are additional considerations and approaches. We could imagine a special voting rule for Court-issued injunctions. Or the Court could formally disavow the “indisputably clear” standard in favor of a rule of perfect discretion, somewhat like certiorari. And other factors for granting injunctions can qualify or even outweigh the merits-based inquiry.

But the choice between certainty and predictability would continue to matter. If we care about the certainty of voting justices, then we might set a simple-majority voting rule, whereas a concern for predictability might support a super-majority or even unanimous voting rule. Adopting a rule of discretion would only move debates about certainty and predictability off the page, without eliminating them. And the other injunction factors, too, may be affected by the appropriate way to evaluate claims on the merits.

Posted by Richard M. Re on September 27, 2021 at 10:47 AM | Permalink | Comments (18)

Friday, September 24, 2021

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

Posted by Howard Wasserman on September 24, 2021 at 01:31 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, September 22, 2021

Florida sinks to Texas' level

Florida Rep. Webster Barnaby (besides vying for most Southern name imaginable) has introduced the Florida Heartbeat Act, a carbon copy of SB8--ban on post-heartbeat abortions, no public enforcement, private civil action by "a person" against providers. No surprise, either that there is a copycat or that Florida would be the first copycat. Given how quickly this is going to fall apart, one wonders if it is worth the bother. But Ron DeSantis needs something else to run on. And maybe a few months of stopped abortions, until the wheels fall off, is sufficient.

It will pass next year, take effect in July 1, 2022, and we will be back where we are. My guess is that rather than wasting time on offensive litigation, providers will be quicker to set-up the defensive test case: Perform the abortion on July 2, find a friendly plaintiff on July 3, and off we go.

Posted by Howard Wasserman on September 22, 2021 at 07:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The truth of SB8

The Times reports on the two SB8 lawsuits, including a quotation from Supreme Court litigator Paul Smith that defensive litigation is the "nicest, cleanest way" to get to SCOTUS, which is what we have been arguing from the start. This is not speedy or comprehensive. But no litigation is, in fact, comprehensive in the sense of one case prohibiting all enforcement. And defensive litigation avoids having to endure the Fed Courts seminar that offensive litigation requires.

I was struck by this bit of honesty from anti-choice activists in Texas:

These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

The complaints about the lawsuits being "plants" or about Braid inviting the lawsuits is nonsense. Activists do not get to control who avails themselves of a legal right they advocated for. They drafted the statute to allow "any person," without limiting "any person" to those that share their policy goals or positions.

I do wonder what to make of the idea of enacting a law with no intention of enforcing it, hoping that the chilling effect of the risk of enforcement will be sufficient to stop the disfavored conduct, without actual enforcement. Is that a legitimate use to make of law? On the other hand, it suggests that the fears of crippling litigation and judgments might have been overblown. There was no real threat of overwhelming liability because no one wanted to enforce. But the possibility of a lawsuit by "friendly" plaintiff who will bring the claim and allow for litigation means the law does not, in fact, insulate the law or thwart judicial review.

Posted by Howard Wasserman on September 22, 2021 at 03:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 21, 2021

Stare Decisis as Crying Wolf

Stare decisis is in the news again as the Supreme Court begins to consider requests to overrule abortion-rights precedents. To a great extent, the justices have spent years preparing for this moment, as every recent debate over precedent has seemingly had abortion rights looming in the background. Dissenting justices have adopted certain rhetorical strategies, and majority justices have had to respond. 

I explore this rhetorical dynamic in a forthcoming paper (Reason and Rhetoric in Edwards v. Vannoy) and reproduce a slightly edited excerpt below:

Imagine that you are a justice who generally hopes to protect existing case law from erosion or repudiation. You might think it is a good idea to complain about each and every instance of overruling, so as to keep stare decisis salient and make the majority coalition pay an ever-increasing “price” in professional and public esteem. But you would also worry about coming across as Chicken Little, or the Boy Who Cried Wolf. It isn’t always a big deal to overrule, even when doing so is wrong. And, sometimes, overruling is positively the right thing to do. Much as the Court would lose face by overruling too freely, as though precedent were legally irrelevant, dissenters can sacrifice their credibility by acting as though every new overruling is a fresh End of Days. So, what’s a dissenter to do?

One way of squaring the rhetorical circle is to try and have it both ways at different points in time. This solution requires selective forgetting: the importance of stare decisis is trumpeted in dissent after dissent, but the doom-and-gloom rhetoric attending each dissent is instantly swept under the rug. The point of this strategy is to make each transgression of stare decisis seem unprecedented, as though stare decisis had been eroded for the first time. A less helpful understanding of events, namely, that stare decisis has proven to be quite flexible, is thus kept out of view. This approach counts on the reader’s short memory—and, ironically, on the forgettability of the dissenter’s earlier rhetorical flourishes. 

All this raises the question of how the majority coalition might respond to our imagined dissenter’s rhetorical strategizing. The majority might do just what the dissenter hopes: wince at each rhetorical lashing, try to avoid the next one, and generally think hard before overruling. But there is another salient possibility: much as the public could come to wonder whether the dissenter is overdoing it, the majority might decide that there is no satisfying the opposition. Someone who cannot see that overrulings are sometimes justified—or just not a big deal—might not be worth appeasing. Thus, the majority could become numb to the lashing, and unafraid to overrule. The strong rhetoric against overruling would have defeated itself.

That reasoning can be taken still further. A cynical majority might put itself on the lookout for precedents to overrule. Not just any precedent will do, of course. Overruling cases that are either too important or too sound would tend to feed the dissenter’s critical flame. But when precedents are contrary to the would-be dissenter’s view of the merits, or else not terribly important, a decision to overrule can put the dissenter in a bind: she would have to moderate her rhetoric or else risk coming across as crying wolf. Notably, Ramos and Edwards respectively fit each half of that strategy, with Ramos, which established a right to unanimous criminal jury verdicts, appealing to (and splintering) the Court’s left wing and Edwards, which declined to apply Ramos retroactively in habeas cases, “overruling” only a never-used exception.

Posted by Richard M. Re on September 21, 2021 at 01:58 PM | Permalink | Comments (9)

These are not very bright guys, and things got out of hand

Operation Rescue has asked the Texas Medical Board to investigate Dr. Braid and to suspend and permanently revoke his license, based on his admitted performance of a post-heartbeat abortion. (H/T: David Cohen of Drexel). The letter is a sight to behold, explaining that Dr. Braid wants to be sued for his "defiant attitude and unlawful act," so OE went to the Board to seek a sanction without giving him what he wants. It also is stupid, if the goal of this and other anti-choice activists is to make it difficult to get a judicial ruling on the constitutional validity of the heartbeat ban.

The lone viable theory to get into federal district court is an action by medical providers (doctors, nurses, clinics) against the regulatory boards to stop "indirect enforcement"--licensed professionals must adhere to health laws, including SB8, so the licensing bodies can be enjoined from using an SB8 violation as the predicate for a licensure action because SB8 is constitutionally invalid. The original WWH complaint (the one sitting in the Fifth Circuit and in which SCOTUS refused to enjoin enforcement pending review) included claims against the medical, nursing, and pharmacy boards on this theory. In denying the motion to dismiss the appeal and staying the district court proceedings, the Fifth Circuit stated that SB8’s prohibition on public enforcement includes this sort of indirect enforcement.

Operation Rescue’s letter argues the opposite of that position. If the medical board moves on this, it is going to have a harder time arguing in the ongoing WWH suit that it does not and will not yield indirect enforcement authority. That means WWH has at least one claim against one defendant for which there is standing and no sovereign immunity and that can move forward in federal court and allow for resolution of the law’s constitutional validity. Alternatively, Braid has a state actor against whom to bring a new lawsuit in federal court. There is standing and no sovereign immunity, because possible enforcement is imminent based on the complaint, unless the Board again conclusively disclaims this enforcement authority. Any injunction will not stop any private individuals from pursuing claims and will not protect advocates from aiding-and-abetting claims; it would protect only providers from licensure actions. But this creates a path to (limited) federal litigation and quicker path to SCOTUS and binding precedent that the heartbeat ban is invalid, which will govern future private actions.

If the Board moves forward on this complaint, it creates some tricky abstention issues. The now-pending state administrative proceeding may require the federal court to abstain under Younger, at least as to any claims Braid brings himself or in the WWH case. Braid then has the same anti-abstention arguments that could lie against private SB8 plaintiffs--no adequate opportunity to raise the constitutional issue in the state proceeding, bad faith, flagrantly unconstitutional law. Also, the question of indirect enforcement is a state-law issue that might require certification or Pullman abstention. As I said, this law is a Fed Courts/Civil Rights class.

But here is a larger point. SB8 was drafted by a smart lawyer and legal scholar with a particular understanding of constitutional law and litigation (that I happen to share). The law contains moving pieces and requires collective patience to achieve its desired result--stopping abortion through actual or threatened civil liability while eliminating any governmental targets for immediate offensive litigation in federal court. But operatives on the ground seem to lack that sophisticated understanding or patience and, without realizing it, may undermine the law's complex scheme. OE's letter illustrates that impatience and apparent lack of understanding of what the law is designed to do. Whether it undermines the grand plan depends on what happens next.

Update: An additional thought. As Mary Ziegler has argued, this is not the first time states have attempted to use private civil litigation. In the 1990s, activists tried to sue providers for medical malpractice, failure to give informed consent, and other misdeeds. But interest in this slow, bel0w-the radar process died out in favor of direct and high-profile attacks on Roe itself. The OE letter reflects that.

Posted by Howard Wasserman on September 21, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 20, 2021

We have our SB8 test case (Udpated)

We have our SB8 test case(s). On Saturday, Texas doctor Alan Braid wrote an op-ed in the Washington Post announcing/confessing to performing a first-trimester-post-heartbeat abortion. On Monday, Oscar Stilley filed suit in state court in Bexar County. Stilley is a disbarred lawyer and tax protester, under home confinement serving a 15-year sentence on tax charges. Expect to read a lot more about his brand of insanity, some of which appears in the complaint--he alleges that he called Braid and asked him to "repent of his ideology as well as his deeds" and filed suit only when "such respectful efforts" failed to secure an agreement.

Update: A second suit was filed by a "pro choice plaintiff" from Illinois, also in Bexar County. Further Update: This plaintiff also is a lawyer who has encountered some disciplinary problems.

I agree with the comment someone made on the ConLawProf listserv: This is the plaintiff Texas deserves for enacting this nonsense. I would be curious about what the anti-choice community thinks of this suit. This is not who they want as the face of the movement nor is he likely to offer the best defense of the law. In the same way the reproductive-rights community wants an appealing person to violate the law, those seeking to defend the law want an appealing plaintiff. I imagine activists were happy with the current state of affairs--no lawsuits, no abortions in the state, running out the clock until (they hope) a favorable decision in Dobbs. (Further Update: The head of Texas right to life is not happy, calling the suits "self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes." This is a long way of saying "Fuck, we have been hoisted on our own petards.")

Braid's first move in state court should be a motion to dismiss on constitutional grounds and a request for expedited briefing. The more interesting question is whether Braid brings a § 1983 action against Stilley on a public-function theory (in enforcing state law under an exclusive delegation, Stilley is performing a traditional-and-exclusive public function) and seeks to enjoin him from pursuing the state-court litigation. This might be the path into federal court. We are off and running.

The second, "pro choice plaintiff" complaint is its own form of nonsense that undermines its own strategy. One paragraph moves the court to declare the act unconstitutional and another alleges that Braid did not violate Roe (whatever that means) and that the act is unlawful. This is not the way to do this. There is room for what Rocky labels "arranged" litigation, in which a plaintiff who supports reproductive freedom brings the lawsuit and is willing to lose, giving the doctor the opportunity to challenge SB8's constitutional validity, including on appeal. The statute allows "any person" to sue, so there is no basis for the court to look for either injury or adverseness; a person can say he is suing because he needs the money. But the sympathetic plaintiff must act like a plaintiff by alleging that the defendant violated the law; it is on the defendant to make the arguments against the law. But given the pervasive misunderstanding of procedure in this mess, it should not be surprising that the first moves come from people who cannot get the procedure right.

Posted by Howard Wasserman on September 20, 2021 at 07:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Steinman on Bayefsky on respect and Article III

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021). This is a great article (and great review), although I unsurprisingly do not believe the model, however valid, gets us to universal injunctions.

Posted by Howard Wasserman on September 20, 2021 at 12:27 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Shorter Chronicle of Higher Education

Some members of the Stanford College Republicans are immature assholes who do immature asshole things and other members realize both of those facts. But nothing described in this story comes close to falling outside of First Amendment protections. Thanks for sharing.

Posted by Howard Wasserman on September 20, 2021 at 12:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Are the Federal Rules of Evidence Unconstitutional?

I have a paper on the quirky way we enacted and continue to revise the Federal Rules of Evidence forthcoming in the American University Law Review.  The paper is here.  Abstract below:

This paper explores how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the current Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.



Posted by Ethan Leib on September 20, 2021 at 10:04 AM | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 16, 2021

Checking on the Koufax Curse

What is the latest on the Koufax Curse? Which Jewish players played on Yom Kippur 5782 and how did they and their teams do?

On Kol Nidre (Wednesday evening):

Among players included in the original study:

• Kevin Pillar (Mets loss): 2/4 with a solo home run. Pillar is 5/7 with 2 home runs on Kol Nidre; that is a .714 BA and an 2.464 OPS. For his Yom Kippur career, he has a BA of .428 and an OPS of 1.39.

• Joc Pederson (Braves loss): 0/1 as a pinch-hitter. He remains hitless on Kol Nidre. For his Yom Kippur career, he has a .167 BA and an OPS of .417.

• Richard Bleier (Marlins win): 1 hitless inning in relief. He has given up 1 hit in 2.1 relief innings.

Among players not in the original study:

• Scott Effros (Cubs loss): .1 inning and gave up one hit, allowing an inherited runner to score.

Not playing:

• Alex Bregman (Astros win) sat out: Max Fried (Braves loss) was not scheduled to pitch; Rowdy Tellez (Milwaukee loss) is on the Injured List

On Yom Kippur Day:

• Pederson was not in the starting lineup for the Braves (game postponed). Draw your conclusions about whether a rainout is divine will.

On End of Holy Day

• Bregman (Astros win, beginning at 7 p.m. CST): 2/5 with a walk and four RBI. He raised his career Yom Kippur BA to .260.

• Garrett Stubbs (Astros win): 0-for-1 with a walk

As for teams, 2-3 when a Jewish player plays, bringing overall record to 55-70, a .440 winning percentage. That includes 1-3 on Kol Nidre, dropping that overall record to 24-36 (.400).

• On Kol Nidre, teams were 1-1 when a Jewish non-pitcher sat.

Posted by Howard Wasserman on September 16, 2021 at 12:01 PM | Permalink | Comments (0)

Wednesday, September 15, 2021

Devin Nunes wins a small victory, for now

To show I can write about something other than SB8: This terrible Eighth Circuit opinion. The court holds that Devin Nunes did not sufficiently plead actual malice against Esquire and Ryan Lizza over publication of an article about Nunes' family's farm, because he had not sufficiently pleaded actual malice. (Nunes acknowledged he had not done so--he asked the court to reconsider the standard, which it obviously cannot do). But the court reversed dismissal of a claim against Lizza for retweeting a link to the story two months Nunes filed his original complaint. Retweeting constitutes republication. And because Lizza retweeted after the lawsuit denied the story, it was "plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"

This cannot be right. The denial or contesting of allegations, without more, cannot plausibly establish knowledge or reckless disregard as to truth of the statements, presumably in the face of other reasons to believe the story (which is why they published it). The implication of this is that a defamation claim can survive 12(b)(6) by alleging that someone retweeted the disputed story knowing that the target of the story has sued or otherwise contested its truth. Or, one step further, a plaintiff could survive 12(b)(6) by pleading that the reporter published the story despite pre-publication denials of the content. Either of those puts the defendant on notice of the denial, which raises the same plausible inference the defendant "purposefully avoided" the truth.

I doubt Nunes survives summary judgment, because I doubt he can establish evidence beyond his denial for Lizza to disbelieve the article. That is not enough to establish actual malice by clear-and-convincing evidence, as required. Still, letting this get beyond 12(b)(6) is not good. It raises again whether plausibility should account for a higher standard of persuasion, as it does on summary judgment.

And just to tie this back to SB8, because that is my life right now: No one seems to believe that Lizza was denied judicial review of his First Amendment rights by having to defend a lawsuit.

Posted by Howard Wasserman on September 15, 2021 at 06:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

SCOTUSBlog review of "Painting Constitutuional Law"

Amanda Frost (American) published a nice review on SCOTUSBlog of Painting Constitutional Law, my edited volume with M.C. Mirow on Xavier's Cortada's series May It Please the Court.

Posted by Howard Wasserman on September 15, 2021 at 09:31 AM in Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 14, 2021

Kentucky Law Journal: Exclusive Submissions

The Kentucky Law Journal is opening an exclusive submission track for Fall 2021, with an expedited review process. We are accepting manuscripts from all areas of law, though we are particularly interested in scholarship focused on tort lawAuthors who submit to our exclusive submission track agree to accept a binding publication offer, should one be extended. The accepted Article will be published in Volume 110 of the Kentucky Law Journal, with final publication around April 2022. The KLJ will provide a publication decision within 7 days of submission. The final manuscript will be due shortly after we accept the article for publication. 


Authors interested in submitting to the exclusive submission track for Fall 2021 should email their CV and manuscript to Editor-in-Chief Kelly Daniel at [email protected], and Managing Articles Editor Samuel Weaver at [email protected] with the subject line "Exclusive Article Submission."

Posted by Howard Wasserman on September 14, 2021 at 04:33 PM in Teaching Law | Permalink | Comments (0)

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Chronicle of Higher Ed reveals its biases

The Chronicle of Higher Education has an article on the rankings obsession among colleges. They begin the story with three examples--University of Houston, Washington State, and us. The top of the piece contains a photo with an array of pull-quotes from strategic plans--we are the only school mentioned by name. Also garnering mention in the story are Clemson, Oklahoma State,  and Oregon State. Apparently the only schools obsessing about rankings are non-flagship public universities, two of which are urban and some of which serve significant numbers of non-white students. My colleague Louis Schulze has some thoughts about the biases reflected in the editorial framing choice.

Posted by Howard Wasserman on September 14, 2021 at 01:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 13, 2021


The George Washington University Law School invites applications for up to five tenure-track or tenured faculty appointments. The appointments will be made at the rank of Associate Professor or Professor and will begin as early as Fall 2022. The school may hire faculty in any subject area or category based on a candidate’s overall strength. Areas of particular interest include all large 1L classes (torts, contracts, criminal law, civil procedure, property, legislation & regulation, and constitutional law), professional responsibility, family law, health law, intellectual property, government procurement, international law, environmental law, and civil rights law. The University and Law School have a strong commitment to achieving diversity among faculty and staff.  We are particularly interested in receiving applications from members of underrepresented groups and strongly encourage women, persons of color, and LGBTQ candidates to apply for these positions.

Minimum Job Qualifications:

Applicants must possess a J.D. degree or an advanced degree in a relevant field and have relevant experience such as teaching, legal practice, or judicial clerkship. Applicants must also show scholarly promise, evidenced by publications in scholarly journals or scholarly works in progress.

Application Procedure:

For Lateral Applicants: Complete an online faculty application at https://www.gwu.jobs/postings/83843 and upload a cover letter indicating the area of interest and a current c.v., including a list of references.

For Entry Level Applicants: Please apply through the AALS Faculty Appointments Register at https://www.aals.org/services/recruitment/ or complete an online faculty application at https://www.gwu.jobs/postings/83843.  

Please email questions to [email protected]—Review of applications will begin August 26, 2021 and will continue until the positions are filled. Only complete applications submitted either through AALS or GW’s online system will be considered.

Employment offers are contingent on the satisfactory outcome of a standard background screening.

The university is an Equal Employment Opportunity/Affirmative Action employer.  See https://compliance.gwu.edu/equal-opportunity-nondiscrimination-anti-harassment-and-non-retaliation

Posted by Howard Wasserman on September 13, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (2)

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, September 12, 2021

Sports nomenclature

Novak Djokovic lost in the finals of the U.S. Open today, ending his attempt to complete the first Grand Slam by a male player since Rod Laver in 1969 and by any player since Steffi Graf in 1988.

Much of the writing about this will describe Djokovic as missing the "Calendar-Year Grand Slam," a qualifier distinguishing what became known as a "Serena Slam" in which a player holds the four titles at the same time measured from some arbitrary point in time. For example, a player wins Wimbledon and the U.S. Open in Year One and the Australian and French Opens in Year Two; measured during the month between French and Wimbledon in Year Two, that player has won a "Slam" over the last 12 months.

This is stupid. Had Djokovic won, he would have captured a Grand Slam, unmodified and unqualified. The Serena Slam is not a thing and we should not mention it. A Serena Slam is equivalent to saying a baseball player who hit 37 home runs in the last 81 games of Year One and 37 home runs in the first 81 games of Year Two holds the record by hitting 74 homers in 162 games (the length of a season). Or a hockey player who scored 46 goals in the final 41 games of Year One and 47 goals in the first 41 games of Year Two holds the record by scoring 93 goals in in 82 games (the length of a season). Season records are measured in a season, not the number of games that comprise a season, measured from arbitrary points over multiple seasons.

Tennis has a season that follows a calendar year and contains four Grand Slam tournaments in order. It begins in January leading to the first Slam tournament in Australia in late January and ends in November with round-robin tournaments featuring the eight best men (played in Italy) and women (played in China), two months after the fourth and final Slam event in New York. If winning the four tournaments is a thing, it must be within that "season," meaning a calendar year. Anything else looks like an attempt to create a special achievement when the real achievement proved too rare.

Posted by Howard Wasserman on September 12, 2021 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

John Marshall's "Life of Washington"

I'm going through Volume 2 of John Marshall's biography of George Washington. (Volume 2 covers GW's life from 1781-1799). It's a remarkable book, both for what we learn about the Chief Justice and for its style.

First, consider that Marshall (while Chief Justice) wrote in detail about political controversies during the Washington Administration. These occurred only a decade before the book was written and were not ancient history by any means. Yet Marshall does not shy away from sharing his opinions on various matters, including the role that Jefferson played in some of these disputes. It would be hard to imagine John Roberts writing, say, a book about the Bush 41 or the Clinton Administration. (In the second edition of the book, Marshall added one note that directly responds to comments that Jefferson made about the first edition.)

Second, Marshall does not mince words when discussing the various wars fought between the United States and the Native American Tribes. He uses the word "savages" more than once to describe the Tribes. Perhaps scholars of Marshall's Native American decisions should take a look at Life of Washington to see if that sheds any light on those decisions.

Third, Marshall gives his views on various early constitutional controversies. Some of these are ones that came before the Supreme Court later, such as the validity of the national bank. Others never did, such as the Decision of 1789 or some of the fights over foreign policy during the 1790s. What he had to say about these issues is worth examining, though maybe not enough for a paper of its own.

Fourth, Marshall talks about the XYZ Affair but never mentions that he was one of the diplomats involved in the Affair. Maybe he was being modest, or maybe he assumed that his readers would just know. It's odd though.

Posted by Gerard Magliocca on September 12, 2021 at 03:27 PM | Permalink | Comments (2)

Saturday, September 11, 2021

Universal injunctions are back, baby

I predicted that, with the change of presidential administrations, Republicans and conservative activists would discover that universal injunctions are permissible and essential to the rule of law. I did not know what would trigger the new arguments. Now we do.

Litigation is on the horizon challenging the coming OSHA vaccine mandate. I can hear it now.: "It is not enough to stop the government from requiring the plaintiff to get vaccinated. The mandate applies to all employees across the country. If it is unconstitutional to make A get vaccinated, how can it be constitutional to make B get vaccinated. That violates the rule of law. Federal law must be uniform."

Posted by Howard Wasserman on September 11, 2021 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Anticipating Mandatory Vaccination--10 Years Ago

Ten years ago, I was blogging at Concurring Opinions (R.I.P.) and Balkinization, where I still post. Here is a post that I wrote in October 2011. I wouldn't write this in exactly the same way now, but I think it's still of interest.

Friday, October 28, 2011

Broccoli vs. The Plague

Gerard N. Magliocca

The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.

The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction? I've asked this question to folks who are skeptical about the individual mandate and usually get one of four answers:

1. "This is a non-issue because every state would order mandatory vaccination." Maybe, but that sounds a lot like "This is a non-issue because Congress will never order you to buy broccoli." Either both responses are valid or neither is. One can't be adequate and the other not.

2. "Congress can do this under some other Article I power." Really? Like what?

3. "Congress cannot order vaccination purchases. We just have to rely on jawboning and financial incentives." This lack of authority in the face of a terrible disease scares me far more than having to buy broccoli when I don't want to.

4. "In that dire emergency, congressional regulation of inactivity would be lawful." At this point, the activity/inactivity distinction vanishes and is replaced by a balancing test that weighs the state's interest against its intrusion into personal liberty.

Thus, I think that the only way that the activity/inactivity line makes sense is if you answer the disease hypothetical with #3. Otherwise, you need another rationale to strike down the individual mandate.

Posted by Gerard Magliocca on September 11, 2021 at 08:19 AM | Permalink | Comments (27)

Friday, September 10, 2021

5th Circuit allows appeal in SB8 case

The 5th Circuit denied motions to dismiss the appeals and stayed the district court proceedings in the WWH SB8 case. The court of appeals had jurisdiction under the collateral order doctrine over the state officials'  claims because all were denied 11th Amendment immunity when the district court found that Ex Parte Young claims could proceed against them despite their not being proper defendants. The court had pendent appeallate jurisdiction over the appeal by Mark Lee Dickson, because the claims against him are inextricably intertwined with the claims against the judges and clerks. A stay was proper because the defendants were likely to succeed on their appeal, because they are not proper defendants under SB8.

On the likelihood of success, there is some language in the order that will help with the paper. The court labeled the claims against judges as "specious," citing Ex Parte Young and cases from the Fifth Circuit and other courts to make the argument we have been making--judges acting in an adjudicatory capacity are not proper defendants in lawsuits challenging the constitutional validity of a law, as the judges (and the clerks who accept pleadings) are "disinterested neutrals" engaging in adjudication rather than enforcement. The court cast doubt on the "indirect enforcement" claims against executive officials. Rocky and I argue that this could work, although the remedy would be limited to providers and licensing proceedings, doing nothing to stop private lawsuits. But the court read SB8's no-enforcement provision to bar any enforcement based on any SB8 violations.

I think the court was wrong about the Dickson. Pendent appellate jurisdiction is supposed to be limited to situations in which resolution of the COD issue resolves the PAJ issue. For example, the first prong of qualified immunity (violation of a right) is inextricably intertwined with the violation prong of municipal liability. But that is not true of the claims against the judges/clerks and Dickson. The issue as to the judges is whether they are proper Ex Parte Young defendants; the issue as to Dickson is whether he intends to bring suit. I guess if the judges are proper defendants and can be enjoined then Dickson cannot pursue his claims. But the propriety of the injunction is not on this appeal, only whether they can be defendants. Pendent appellate jurisdiction is problematic in extending COD beyond a "narrow class of cases." This proves the point.

I know this is bad for abortion rights and for women needing reproductive-health services in Texas. And I accept Andy Koppelman's argument that it would be bad for constitutional rights if this type of law proliferates. But, for better or worse, procedurally the court is correct.

Posted by Howard Wasserman on September 10, 2021 at 09:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) [and also - employment and labor law is a central field of scholarship!]

The 16th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) is being held at Vanderbilt U, Friday, October 15 & Saturday, October 16, 2021 - TBD whether in person or not. you can Submit an abstract and/or paper for consideration. The deadline to submit a paper/abstract is Monday, September 13.


On a related note: Leiter's lists on "most cited scholars" in various fields are coming out -- they've never, and still don't, include a list of employment and labor law scholars -- though it is a very strong and large scholarly and practice area, which includes employment contract theory, labor law, wage and hour, gig economy and classification, worker health and safety, employment discrimination, harassments, pay equity, employee mobility, whistleblowing, speech, privacy, worker comp, unemployment insurance and job training, pensions and retirement policy, and much more. 


Posted by Orly Lobel on September 10, 2021 at 05:31 PM | Permalink | Comments (0)

Teaching While Masked

Now three weeks into teaching I can say that all my fears that: 1) I would feel suffocated lecturing four hours in one day while masked. 2) my students would not be able to hear me. 3) students will not be compliant with our all-masked, including the vaccinated (and vaccinations are mandatory at USD for all students, faculty and staff, as well as any visitors, like guest speakers) 4) I wouldn't be able to hear my students speak -- all of these fears have proven to not realize. I forget after a short while that I am wearing a mask, the students are happy to be back in person and engaged in lively conversation and discussion. I project my voice, and yes, I have to sometimes remind the students in the back rows to speak up louder especially since we keep the lecture hall doors open, but overall - we can hear each other! We do take a break in the middle of class because our policy is no eating or drinking in the classroom. 

How to wear a coronavirus mask safely and comfortably - Los Angeles Times



Posted by Orly Lobel on September 10, 2021 at 05:21 PM | Permalink | Comments (0)

KCon 2021 - Contract v. Competition, October 1 via zoom

For all contract lovers -- see this free and open to all event - https://lawprofessors.typepad.com/contractsprof_blog/2021/09/announcing-a-kcon-zoom-panel-employment-2021-k-v-competition.html with speakers Eric Posner, Evan Starr, John Harris and myself.

Post-employment restrictions are in the news. President Biden mentioned them in his July 9 executive order.  In July, the Uniform Law Commission approved a uniform act governing covenants not to compete.  Illinois, Nevada, and D.C. have recently enacted legislation.

Should competition law should play a role in regulating such terms?  This panel will generate wisdom in that regard.

Employment 2021: Contract v. Competition
Which Should Govern Freedom to Work?
A KCON Zoom Panel

Friday, October 1, 2021
2 p.m. to 4 p.m. Central Time

Unconscionability in Contracting for Worker Training
Jonathan F. Harris
Associate Professor of Law
Loyola Law School, Los Angeles

Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Non-Disclosure Agreements and Externalities from Silence
Evan Starr
Associate Professor
Robert H. Smith School of Business, University of Maryland

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance
Orly Lobel
Warren Distinguished Professor of Law
University of San Diego School of Law


Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law
Arthur and Esther Kane Research Chair
University of Chicago Law School
Author of How Antitrust Failed Workers (and a batch of related articles)

Questions and Comments from the Floor

Please direct questions to Val Ricks, South Texas College of Law Houston, organizer and moderator, at [email protected].

To reserve a spot, please register in advance:


After registering, you will receive a confirmation email containing information about joining the meeting.

Posted by Orly Lobel on September 10, 2021 at 05:13 PM | Permalink | Comments (7)

Call for Submissions: AALS New Voices in Administrative Law 2022

via my wonderful colleague Mila Sohoni:

Call for Submissions: AALS New Voices in Administrative Law 2022

The AALS Section on Administrative Law is pleased to announce the “New Voices in Administrative Law” program for the 2022 AALS Annual Meeting, which will be held entirely online. The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. While we have always welcomed the submission of early stage drafts, we want to highlight that our selection process this year will reflect our awareness that in this particular climate, many scholars face unusual and significant hurdles in finding time to do academic work.  We encourage eligible scholars to err on the side of submission.  As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.  

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 4:45 to 6:00 p.m. Eastern time on Thursday, January 6, 2022.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Jamelle Sharpe at [email protected] by Friday, October 29, 2021, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 10, 2021. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers
If you are interested in serving as a reviewer this year, please email Professor Mila Sohoni at [email protected] as soon as possible.

For All Participants

Please be aware that selected participants and commentators must register for the AALS Annual Meeting. This year, the AALS is offering a school registration rate. Faculty and administrators from law schools that do not accept the school rate will need to pay a $295 individual attendance fee. Please submit any questions about the New Voices Program to Professor Mila Sohoni at [email protected].

Reminder: Nominations Due for the Emerging Scholar Award by Sept. 30, 2021

In January, the AALS Administrative Law Section presented Joy Milligan its first Emerging Scholar Award. Nominations for this year’s award are due by September 30, 2021. Self-nominations are welcome! Full-time faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are eligible. To nominate someone, please send an anonymized version of their work to Professor Kati Kovacs at [email protected] by September 30, 2021. (Any reasonable effort to strip identifying information is fine. Kati will pass along nominations to the selection committee, adding another layer of anonymity.) The work may be on any topic related to administrative law, although the award selection committee may favor works with greater general applicability. Any substantial scholarly work—whether a law review article, monograph, or chapter—published between September 1, 2020, and August 30, 2021, is eligible. We will present the award at the AALS Annual Meeting in January. Please direct any questions to Kati Kovacs.

Posted by Orly Lobel on September 10, 2021 at 05:11 PM | Permalink | Comments (0)

Guest stint at Volokh Conspiracy

Rocky and I will be guest-blogging about our SB8 article (now forthcoming in American University Law Review but very much a work in progress) at the Volokh Conspiracy over the next week. Our first post is here.

Posted by Howard Wasserman on September 10, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

CFP: The Future of Food

The Business, Entrepreneurship, and Tax Law Review Symposium at the University of Missouri School of Law: The Future of Food.

Details here.

Posted by Howard Wasserman on September 10, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, September 09, 2021

Demanding Ivermectin--what legal right?

Several state trial courts have entered TROs compelling hospitals to give patients Ivermectin, despite the view of the hospitals and staff doctors that it is in inappropriate treatment.

These suits have bothered me because I could not figure out the cause of action or legal right being asserted. What legal right did a patient have to a particular treatment from a doctor contrary to the doctor's best judgment, to say nothing of a right that would allow the court to compel that treatment. A doctor who refused a particular treatment, involving an unapproved use of a drug, could not be liable for malpractice so long as his treatment was otherwise within the ordinary standard of care. So how could the court order treatment that a doctor would not be liable for failing to provide. It turns out, none, according to an attorney at Reed Smith.

My guess is that something like the following happened: The court focused entirely on the irreparable harm to an ill patient who might die without what some regard (wrongly, but well . . .) as a life-saving treatment and the high burden on the plaintiff in the balance of equities. That overcame what should have been an incredibly small likelihood of success on the merits, since there was no legal right to enforce and thus no right on which to succeed.

Posted by Howard Wasserman on September 9, 2021 at 07:52 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

US v. Texas

Filed in the Western District of Texas. I have no idea whether this overcomes the problems that, in my mind, plague individual suits--no state official or person working for the state enforces this law. Therefore there is neither traceability nor redressability in standing terms and no constitutional violation in merits terms (since the law, apart from enforcement, does not violate rights). Paragraph 8 defines Texas as including "all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8," contemplating every person who might sue, even if not imminent. Will that work?

There has been so much scrambling at the expense of the simple (if not ideal) solution--violate the law, get sued, defend in state court, appeal to SCOTUS. The prevailing theme is that this is insufficient. Paragraph 4 of the complaint insists that the law has thwarted "traditional mechanisms of federal judicial review," while ¶ 15 describes Texas attempting "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights," But how is defending in state court and appealing to SCOTUS not a traditional mechanism of federal judicial review According to a study by Arthur Hellman, prior to the mid-'70s most judicial review occurred this way; the shift to more offensive litigation happened towards the end of that decade. And if having to litigate federal issues in state court strips citizens of the ability to invoke federal courts, then the Well Pleaded Complaint Rule and Younger are constitutionally invalid. I don't think the government meant to say that.  My guess is that if this gambit fails, someone will violate the law and get sued, realizing that is the only way.

On the issue of whether the U.S. can, on behalf of its citizens, bring a broader lawsuit and obtain broader relief: I might be comfortable with that fact. The idea between having a combination of private and public enforcement of federal rights (especially civil rights) is that the federal government can pursue a broader suit (including by naming a sovereign) and get broader relief. But the inherent limits on government enforcement--resources, political will, competing demands--mean that the federal government will not and cannot puruse every case. They only go after the big ones--"more bang for the buck." And this is that singular huge issue that prompts government action.

Update: Will Baude offers a version of what my co-author calls a special standing solicitude for the United States. Unlike individuals, the U.S. can sue all of Texas and everyone who does anything with respect to a law--enacting, enforcing, adjudicating. So the U.S. can do more in that rare, big case it decides to pursue. I still believe this is a simple case in which simple defensive litigation is an option. But maybe this is the huge outlier case in which unusual government action is appropriate.

Another Update: I forgot to mention the strategic forum choice: This could have been filed in SCOTUS on original jurisdiction as a controversy between the United States and a state. At least Justices Thomas and Alito would have accepted the bill of complaint, as both are on record that SCOTUS' original jurisdiction is not discretionary. And like a suit challenging the validity of voting-age rules under the VRA, this would seem to be the type of uniquely huge national controversy involving state-law perogatives demanding speedy and original review by SCOTUS.

Posted by Howard Wasserman on September 9, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 08, 2021

Upcoming Talk on "Bushrod Washington and the Marshall Court"

My first live lecture in two years will come on Tuesday at 5PM my law school. I hope to turn this talk into a paper, as part of the run-up to the publication of my biography of Justice Washington in 2022. Hope to see you there if you are in Indianapolis.

Posted by Gerard Magliocca on September 8, 2021 at 08:33 PM | Permalink | Comments (0)

Tuesday, September 07, 2021

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.


Posted by Howard Wasserman on September 7, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (3)

Monday, September 06, 2021

Searching for Estelle Griswold and more SB8 developments

Two items on SB8 and the developing conversation.


Estelle Griswold has entered the public discussion around SB8. Griswold was the executive director of the Planned Parenthood League of Connecticut who (along with Dr. C. Lee Buxton, a ynecologist)  violated Connecticut's ban on contraception, was prosecuted and convicted of aiding-and-abetting contraception, and appealed to SCOTUS for the opinion that established the constitutional right to reproductive privacy. Josh Blackman and David Garrow (Garrow's op-ed is behind a Houston Chronicle paywall, but the linked Faculty Lounge post quotes the key paragraphs) both tell Griswold's story and suggest that some abortion provider or advocate must follow suit in performing or aiding a post-heartbeat abortion.

But Garrow gets the process wrong, arguing that upon the lawsuit, Griswold's heir can file a federal suit against the judge assigned the case. I continue to reject this possibility because state judges are not the appropriate targets for offensive litigation designed to stop enforcement of a law. If they were, every media outlet or other defendant sued in state court for defamation would do what Garrow suggests (a defamation suit against protected speech violates the First Amendment as much as an SB8 suit violates the Fourteenth Amendment). That this never happens suggests something about the shape and structure of constitutional litigation. It is telling that Garrow tells Griswold's story, then describes a process different than the one she followed. She did not sue the state judge; she raised constitutional defenses in the criminal case, was convicted, and appealed the conviction to SCOTUS (which at the time had mandatory jurisdiction), which declared the law invalid and overturned the conviction. In other words, Griswold litigated the constitutional issue in a defensive posture in state court--exactly as we argue providers and advocates must do with SB8.

We cannot understand the procedural posture of Griswold without understanding Poe v. Ullman, four years earlier. Poe arose from several (state) declaratory judgment actions against the state AG challenging the validity of Connecticut's contraception ban. The Court held that the appeal was not ripe, because the plaintiffs could not show that the AG intended to immediately enforce the contraception laws, which had been the basis for one prosecution in more than 80 years. Justice Brennan concurred in the judgment to provide the fifth vote, arguing that the individual couples who brought these actions could not fear prosecution because they were not the real targets of the law. He argued that the "true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples." With offensive litigation off the table, defensive litigation became necessary, with the large-scale clinic violating the law and defending against the prosecution by arguing the law is invalid.

As in Connecticut in 1961, offensive litigation is off the table because there was no threat of public enforcement. The reason varies--no intent or history to enforce as opposed to no power to enforce; but we end in the same place. So the solution is defensive litigation--violate the law and assert the Constitution as a defense to liability.


On Thursday, President Biden called for a "whole-of-government effort" to find ways to protect reproductive rights as against SB8. On Monday, Merrick Garland announced that DOJ is exploring "all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion." What might those efforts include? Garland points to the Free Access to Clinics Etrances (FACE) Act, which prohibits obstruction of access to clinics. This works to the extent SB8 bounty-hunters are interfering with clinics or threatening clinic workers and clients (and reports suggest that happening on the ground); it does not do much to stop anyone from filing an SB8 lawsuit.

Lawrence Tribe argues in the Washington Post that the U.S. should prosecute SB8 plaintiffs under § 242 (the criminal counterpart to § 1983). He is not alone in this idea. "Under color" means the same thing for both statutes and both can reach private actors. Most prosecutions, particularly those from the Civil Rights Era, involved private individuals conspiring with government officials, although I have found lower-court prosecutions of private actors under a traditional-public-function analysis. This option stands or falls with our argument for § 1983 suits against bounty-hunter plaintiffs--it works for both or it does not work for both.

The larger problem for a § 242 prosecution is that the defendant must "willfully subject[]" a person to a deprivation of rights. This imposes a specific-intent requirement--the defendant must have acted with the intent to deprive a person of their constitutionally protected rights. In the most common use of § 242 against police officers for excessive force, the government must show that the officer intended not to assault the victim, but to assault him so as to impose an unreasonable seizure; this forms part of the reason that § 242 cases are hard to prove and why DOJ prosecutes so few of them. The problem as to willfulness in these cases is that the SB8 plaintiff is acting pursuant to state law. His intent in filing suit is to recover remedies authorized by (presumptively valid) state law and perhaps to produce a change in the judicial interpretation of the Fourteenth Amendment, as opposed to depriving any person of their constitutional rights. Tribe's rhetoric aside, people bringing lawsuits in state court to enforce a state statute seems a distance from the Klan lynching people for trying to vote. The government would have to show that the criminal defendant/SB8 plaintiff knew the law could never be declared valid.*

[*] Section 242's willfulness requirement overlaps with the good-faith defense that an SB8 plaintiff would have to any § 1983 action.

The necessary move for the government would be an action for injunctive relief against the State of Texas to stop the entire government from enforcing the law. The problem is finding a law that authorizes such a suit. Tribe argues the source is the All Writs Act--an injunction is a writ and an injunction prohibiting Texas from enforcing its law on the grounds that it violates the Fourteenth Amendment would be a writ "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Moreover, as someone argued on a listserv, a suit between the U.S. and a state is within SCOTUS' original jurisdiction, which might allow the U.S. to fast-track its challenge.


Posted by Howard Wasserman on September 6, 2021 at 02:43 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Sunday, September 05, 2021

The judicial departmentalism of SB8

On an emergency episode of the Divided Arguments podcast, Will Baude and Dan Epps discuss SB8 and SCOTUS's refusal to stop enforcement pending litigation. Dan attempted to distinguish a longstanding law whose constitutional validity was newly called into doubt by a change in Court personnel and constitutional doctrine from a new law enacted in the face of contrary precedent and designed to change precedent against long-protected rights-holders. The former includes the handgun restriction declared invalid in McDonald or the abortion law declared invalid in Roe; the latter includes SB8 and other new abortion restriction. Rights-holders should be protected and free to exercise their rights during litigation. But that problem arises in the latter class but not former class. In the former, rights-holders have not been exercising their rights (which had not existed), so they lose nothing having to wait for resolution of litigation. In the latter, rights-holders have been exercising recognized constitutional rights for years, so they bear a risk of losing long-recognized rights in the interim.

It is an interesting distinction, especially for how we understand zombie laws.

The problem is that--regardless of the source, timing, or nature of the law--constitutional decisionmaking must follow regular judicial processes. That need not and cannot always entail offensive pre-enforcement litigation in which a federal court preliminarily enjoins enforcement pending the completion of litigation. And such offensive litigation remains limited to the parties to the action--any further compliance is voluntary.

It may be, as Dan argues, that the Court would have responded differently to a law prohibiting gun ownership and allowing "any person" to sue a gun owner. But the Court's inconsistency (hypocrisy?) should not obscure the procedural rules. The answer is that the Court should act appropriately as to the guns law, not that we should urge the Court to act inappropriately as to the abortion law.

Posted by Howard Wasserman on September 5, 2021 at 02:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 04, 2021

Insurrection and the Excited Utterance Exception

I'm teaching a Fourteenth Amendment seminar this semester, and we will talk about Section Three. One question my students are raising is the definition of an insurrection. The answer is that there is no clear constitutional standard for an insurrection, although I'm sure that over the next few years there will be more research on that point.

In defense of the argument that what occurred on January 6th was an insurrection, you can say at least two things. First, the article of impeachment adopted by the House of Representatives uses that term. Second, there was widespread use of "insurrection" in the media to describe what happened. 

Here is a third possibility. We recognize an excited utterance exception to the hearsay rule. Why? Because we tend to think that people blurt out the truth in these moments. Now what did the members of Congress (including Mitch McConnell) say right after the riot? They generally described what happened as an "insurrection," in part because they were still reeling from the violence. Is that like an excited utterance that reveals the truth? I would say yes. Later when people realized that insurrection was a loaded term some reconsidered their language. But that's not the right vantage point for their true views

Posted by Gerard Magliocca on September 4, 2021 at 01:49 PM | Permalink | Comments (12)

Stay (the SB8 judgment) just a little bit longer

My recurring argument around SB8 is that the statute does not eliminate judicial review of SB8's substantive provisions, it channels it into a defensive posture in state court (with SCOTUS review at the end). Providers and advocates reject that because it requires them to violate the law, get sued, and risk liability. But this reflects two distinct concerns: Incurring ultimate liability because SCOTUS rules against them at the end of the day and having to satisfy and comply with a judgment before they have an opportunity to fully litigate the issues.

But state procedures in the defensive action address that by allowing courts to stay judgments or orders pending appeal. That is, imagine the state court rules in favor of Billy Bob and against Whole Women's Health and awards statutory damages, attorney's fees, and enjoins WWH from future prohibited abortions. The state court can stay that judgment pending review, preventing the plaintiffs from collecting damages or enforcing the injunction until appellate review is complete. A stay seems appropriate here, given the constitutional uncertainty, the unique procedural posture of these cases, and the irreparable harm to the defendant if they must comply with this judgment immediately. One member of the ConLawProf listserv suggested that the SCOTUS majority could have alleviated some of the shouting over its refusal to stay or enjoin by including a sentence saying they expect state courts would issue such stays in any enforcement proceeding.

There is precedent for this. After the Alabama trial court issued a $ 500,000 judgment against The Times and four civil-rights leader defendants, all defendants moved for a new trial and The Times asked for and received a continuance (essentially, a stay of the judgment), so Sullivan never began collecting against them. The individuals never asked for that stay, so Sullivan went after Ralph Abernathy's assets. The point is that providers can avoid paying on any loss until litigation is complete. If the loss is affirmed because SCOTUS declares SB8 valid, the concern now is about the substantive right, not the process.

There is a third problem for providers--having to defend dozes or hundreds of such suits. But there is a possible solution to that. Given that every SB8 action involves the same conduct and raises the same issues (state standing and substantive invalidity), there is a good argument that the courts in cases 2-200 should, in their discretion, stay those cases awaiting the outcome of the one "test" case.

This is not perfect by any means. But it undermines the complaint that judicial review is impossible or that it requires providers or advocates to place themselves in irreparable jeopardy.

Posted by Howard Wasserman on September 4, 2021 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 03, 2021

JOTWELL: Carroll on Sabbeth & Steinberg on gender and the right to counsel

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Kathryn A. Sabbeth & Jessica Steinberg, The Gender of Gideon (forthcoming UCLA L. Rev), which considers how the Court has rejected a civil right to counsel in cases involving women litigants and gendered contexts.

Posted by Howard Wasserman on September 3, 2021 at 12:53 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Some responses to Somin on SB8

Ilya Somin offers some thoughts on SB8 and the Court's decision to allow enforcement pending litigation.

Somin argues rejecting current standing and injunction rules in favor of a "general injunction" precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task. In an email, Somin clarifies that the target defendant in the lawsuit would be the government entity that created the law (a further rejection of current sovereign immunity rules). This is an intriguing idea. I favor simplifying constitutional litigation by making the government the target defendant. And I do not like standing rules as they exist as jurisdictional limitations. I am not quite ready to dissaggregate judicial review and remedy from actual or threatened enforcement of the law by someone, even if the government is ultimately "responsible." We still do not have that.

Somin rejects the criticism that SB8 unleashes "vigilantes," because many laws use private enforcement. "The troubling aspect of SB 8 is not the use of private enforcement, as such, but the resort to it as a mechanism for evading judicial review." But SB8 does not evade judicial review, as much as it channels judicial review into a defensive posture. That is unusual for most statutory regimes (e.g., environment and civil rights law), which combine public and private enforcement, leaving a government official to sue for injunctive relief. But it is not unusual for tort regimes (e.g., defamation), in which constitutional challenges to liability must be made on defense. Yes, that has a chilling effect in the interim. But the only way around that chilling effect is to say that pre-enforcement offensive litigation is constitutionally required--and I see no reason for that to be the case.

Somin's third issue is ingenious. He argues that leading pro-choice organizations should commit to providing legal representation and to cover any damages or fees awarded, thereby incentivizing providers  to continue providing services. The prospect of providers being able to defend themselves may deter Billy Bob from filing suit. And I would add that the legal representation could include suing Billy Bob in federal court, further deterring him from filing suit. This is a fascinating idea that we will try to work into the paper.

Posted by Howard Wasserman on September 3, 2021 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Flood Damage at American Heritage

I wanted to share this message that I received from the editor of American Heritage, which is now an online publication. Please help if you can

Posted by Gerard Magliocca on September 3, 2021 at 11:59 AM | Permalink | Comments (0)

Thursday, September 02, 2021

SCOTUS denies interim relief in SB8 litigation (Updated)

SCOTUS denied interim relief in the SB8 litigation, emphasizing the uncertainty of whether there is a proper defendant in the case. The Chief, Breyer, Sotomayor, and Kagan dissented. I will have some thoughts once I get out of class.

Update: OK, done with class. I actually discussed this in Fed Courts, something I ordinarily don't do--we have not gotten to standing or EPY yet, although we were in the middle of SCOTUS review of state courts and I was about to talk a bit about the shadow docket. It was a pretty good discussion. I think I will use this law and this case as a case-study when we come back to later topics.

Thoughts on the order:

• Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.

• I think the procedural discussion reduces to this question: Is Ex Parte Young/pre-enforcement offensive litigation required by the Constitution. Breyer cites Marbury for the proposition that when a right in invaded, the law provides "'a legal remedy by suit or action at law." This is true when the right is invaded outside of court--defaming me, hitting me with a car, or not giving me my commission. But here the right is invaded inside court, when someone attempts to enforce a law against me. In that case, I have a legal remedy in the form of a defense. If that is not sufficient, then Younger, limitations on habeas, and other doctrines that channel certain federal issues into defensive state-court litigation are invalid. Maybe that is true, but I do not know that Breyer is going that far.

• The related problem is whether the existence of a law equals a constitutional violation. Again, I think Breyer assumes it does. Which explains his demand for offensive litigation--the "injury" is the existence of the law, so there must be an offensive remedy. But if the existence is not a violation until enforcement, it does not work.

• Breyer says a case could proceed against "those particularly likely to exercise the delegated powers." This is correct. The problem is no such person has been identified. When has has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help--even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim. Not sure Breyer recognized that.

Michael Dorf has a good post and discussion on some issues.

Posted by Howard Wasserman on September 2, 2021 at 06:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (15)

Wednesday, September 01, 2021

SB8 and New York Times v. Sullivan

Mary Ziegler (Florida State) describes SB8 as the culmination of a decades-long strategy, centered in Texas, to use civil litigation to end abortion.

Ziegler reinforces our argument that current events around abortion in Texas recall events around pro-civil-rights speech in Alabama in the early 1960s. Alabama officials developed a coordinated plan to use civil defamation litigation under wildly pro-plaintiff state law to silence pro-civil-rights speech by civil rights activists and the Northern press. By the early 1960s, the New York Times faced $ 300 million in defamation judgments, prompting it to pursue the case to SCOTUS and ultimately change the First Amendment.

The difference, of course, is that SCOTUS in 1964 would interpret the First Amendment to end that strategy. Reproductive-rights activists and providers fear, probably rightly, that SCOTUS will not interpret the Fourteenth Amendment to end that strategy. But that shows that the concerns and complaints about SB8 are substantive rather than procedural--the current Court believes that states can ban abortions after six weeks of pregnancy and so will allow enforcement of that law.

Posted by Howard Wasserman on September 1, 2021 at 09:14 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)


SB8 took effect at midnight. Neither SCOTUS nor the Fifth Circuit has moved on various motions to enjoin enforcement pending litigation, therefore the law is enforceable by everyone against everyone (except for the limited state TRO protecting three individuals from enforcement by an entity and two individuals). But the courts' failure to act is not why the law took effect. Had either court acted, the law would have "taken effect." But it would not be enforceable by some persons against some persons (although it may be enforceable by other persons against other persons) as a result of a court order.

Posted by Howard Wasserman on September 1, 2021 at 06:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Dean Search: Loyola University Chicago School of Law

Full ad here.

Loyola University Chicago, a private, coeducational, Catholic, Jesuit university, seeks a Dean of the School of Law with intellectual vision, energy, ambition, and the ability to lead the School of Law community to even greater distinction. Inspired by the Jesuit traditions of academic excellence, intellectual openness, social justice, and service to others, the School of Law is revered for its student-centered approach and dedication to educating lawyers, scholars, and leaders for an increasingly complex and diverse world. The School of Law recently adopted a new and powerful mission statement that gives meaning and currency to its Jesuit social justice tradition and reinforces a commitment to equity, justice, and anti-racism. Building upon the school’s strengths and potential, the incoming Dean will have a profound influence on the future of a school where faculty, staff, and students are mutually and deeply committed to creating an impact on Chicago, the legal community, and the world. 

Founded in 1870, Loyola University Chicago is one of 27 Jesuit universities and one of the largest Catholic universities in the United States. The School of Law has been educating aspiring attorneys in the theory, practice, and ethics of lawyering for more than 100 years. The School of Law boasts a number of world-renowned scholars capable of guiding students to the frontier of legal knowledge in pursuit of a greater social justice. While the School of Law trains excellent lawyers in all practice areas, many students take advantage of the highly regarded program in healthcare law, which is ranked #3 in the country by U.S. News and World Report. With a variety of different degree and programmatic offerings, as well as opportunities for students to gain practical experience, the School of Law is a place for all students to learn together in the pursuit of a more inclusive and just world. 

In 2019, as part of its Mission Priority Examen, Loyola completed a self-study of how the University advances its Jesuit educational mission. The study served as part of the foundation for the new strategic plan. Building on that work, in the Summer of 2020, the Loyola University Chicago School of Law community, including faculty, staff, students, and alumni, came together to examine the mission statement and ensure that it was clearly aligned with the goals of the institution and the aspirations of the community. The new mission statement, adopted in July of 2020, declares:  

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. Our mission is: 

  • to educate students to be responsible and compassionate lawyers, judges, and law-related leaders in an increasingly diverse and interdependent world;
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This is an outstanding opportunity for a highly collaborative, forward-looking, enthusiastic leader to inspire a diverse community of faculty, staff, students, and alumni. The Dean will join Loyola as the university embarks on a new strategic plan, We Are Called to the Next 150 Years, that focuses on finding transdisciplinary approaches to complex and urgent social problems. Thus, the Dean will guide the School of Law as it continues to seek excellence as a premier law school with a focus on educating lawyers prepared to enter an increasingly diverse, complex, and dynamic legal landscape and as it helps the university achieve the goals of the strategic plan.  The Dean will help define the next era of the School of Law and addressing a number of key strategic and operational priorities. To be successful in this role, the Dean will:

  • Actualize the ambitious and compelling mission of the School of Law
  • Increase visibility by building upon existing strengths and embracing innovation and scholarship
  • Continue to develop a dynamic and diverse faculty and staff
  • Nurture philanthropy in pursuit of academic excellence
  • Advocate for the School of Law and collaborate with partners across the University
  • Strengthen ties with the city of Chicago and beyond

Loyola University Chicago will prioritize candidates who demonstrate a commitment to equity, diversity, and inclusion. Loyola University Chicago has retained Isaacson, Miller, a national executive search firm, to assist in this search. Screening of complete applications will begin immediately and continue until the completion of the search process. For more details, including the full position profile and to submit inquiries, nominations, referrals, and applications, please see the Isaacson, Miller website for the search: www.imsearch.com/7959. Electronic submission of materials is required.

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San Francisco, CA  94111

Phone: 415.655.4900

Loyola University Chicago is an Equal Opportunity / Affirmative Action employer with a strong commitment to hiring for our mission and diversifying our faculty and staff. All qualified applicants will receive consideration for employment without regard to race, color, religion (except where religion is a bona fide occupational qualification for the job), national origin, sex, age, disability, marital status, sexual orientation, gender identity, protected veteran status or any other factor protected by law.  

Posted by Howard Wasserman on September 1, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)