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Thursday, October 21, 2021

Ely, Roe, and the Wages of Judicial Recklessness

Will Baude has a new post on John Hart Ely’s fascinating precedent-based defense of Planned Parenthood v. Casey. Part of what makes Ely’s defense so interesting is that he had strongly criticized Roe v. Wade, arguing that it was “not constitutional law and gives almost no sense of an obligation to try to be.” You should read the whole post, including Will’s commentary, but I want to focus on this paragraph by Ely:

I don’t have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I’m actually not sure anyone does. My fear, of course, is that I don’t think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don’t think a principled opinion along those lines could have been written at the time— “We don’t know exactly how, but somehow this holding will importantly help undergird a more general movement toward women’s equality, which movement is mandated by the Constitution” obviously doesn’t make it—but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.

Ely is not saying that Roe engendered reliance and so we are stuck with a legally meritless ruling. Rather, Ely seems to be describing a constitutionally good outcome that could not have been achieved through constitutionally good methods. How can that be?

Here is one possibility. The justices may have a general duty to promote constitutional “themes” or values, subject to the following side-constraint: they must credibly ground their decisions in relatively determinate and identifiable legal sources, like constitutional texts. This side-constraint might be essential to preserving the Court’s overall legitimacy, even though the side-constraint’s application in any given case would prevent full realization of constitutional values. In this way, the demands of legal reasoning and judicial craft would give rise to a kind of constitutional underenforcement.

That account can explain Ely’s dueling views. In the first instance, Ely thought Roe was wrong because it flunked the side-constraint. But if the ultimate effect of Roe was to enhance overall constitutional values, such as by promoting gender equality, then Casey would look quite different. Because stare decisis supplied the determinate legal source that Roe lacked, Casey could satisfy the side-constraint.

On this view, stare decisis operates primarily as a permission or enabler, rather than as a constraint. The fact of supportive case law essentially gives the Court access to a set of reasons that would otherwise be out of bounds. For Ely, direct reflection on constitutional “themes” evoked “fear,” namely, the fear of being “politically” motivated. A similar thought might help explain some pragmatic approaches to precedent. For instance, Justice Scalia famously cast stare decisis as an exception to the rule that the Court must eschew openly pragmatic reasoning.

But does this account really allow for Ely’s continued condemnation of Roe? Perhaps Ely should have come to view Roe as an exceptional act of genius: while the justices normally have to engage in cogent legal reasoning to reach good outcomes, Ely apparently believed that the Roe Court was able to skip that step and intuit a constitutionally optimal holding. And why should we evaluate moments of judicial inspiration based on rules meant for normal cases?

Still, I don’t think that Ely had to view the Roe Court warmly because of its assertedly salutary legacy. Instead, Ely or someone like him could make use of the distinction between a harmful action and a reckless one. If Roe was reckless in the sense of being a dangerous bet with long odds, then Ely could continue to criticize the Court and warn against similar rulings in the future—even as he celebrated the gamble’s long-term pay off. The permission that precedent afforded Casey would not necessarily apply elsewhere.

Posted by Richard M. Re on October 21, 2021 at 12:39 PM | Permalink | Comments (6)

Wednesday, October 20, 2021

The Most Overrated (Former) Supreme Court Justice

Let's take a break from serious posts and try something fun. Who is the most overrated former Supreme Court Justice? (I'm excluding the current Justices from consideration.) Two names that immediately come to mind are Holmes and Story, but I want to try out a different idea.

It seems to me that Chief Justice Hughes is rather overrated as a Justice. He was a good Governor of New York and Secretary of State. He was an outstanding lawyer. He came within a whisker of being President in 1916. And in my view, Hughes would have done a better job that Woodrow Wilson did in leading the country during World War I and its aftermath.

As a Justice, though, I think Hughes was mediocre at best. He did little of note as an Associate Justice from 1910-1916. As Chief Justice, his main claim to fame is that he successfully steered the Court though the Court-packing crisis of 1937. But you could just as easily say that his poor leadership before 1937 helped cause that crisis. And I've always found Hughes's opinions rather opaque and unhelpful.

In any event, I thought this might jump-start some interesting conversation in the comment thread. 

Posted by Gerard Magliocca on October 20, 2021 at 09:10 PM | Permalink | Comments (10)

JOTWELL: Mullenix on Norris on neoliberal procedure

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Luke Norris, Neoliberal Civil Procedure, 12 UC Irvine L. Rev. (forthcoming 2022).

Posted by Howard Wasserman on October 20, 2021 at 11:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 19, 2021

VAPs and Fellowships 2021-2022

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 19, 2021 at 07:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Posted by Howard Wasserman on October 19, 2021 at 08:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 18, 2021

The Burden of Proof in a Section 3 Case

Today ex-President Trump sued the January 6th committee to block the disclosure of information which he says is privileged. Whatever you think of the merits of this suit, the former President is likely to prevail in the sense that the information will not be disclosed to the committee. Why is that? Because the January 6th committee will probably not be in business past the end of next year, if you assume (as I do) that Republicans will win back the House in 2022. As long as the litigation filed today lasts beyond 2022, the Committee will probably get zero.

This practical thought tees up my next point. If you view Section Three of the Fourteenth Amendment as an eligibility requirement to be elected President, then the burden of proof is on Trump to show that he is eligible, not on a state to show that he is not. Thus, claiming executive privilege will only hurt him there, not help him. It could be unlike any prior litigation involving Trump personally, where people accuse him of wrongdoing and, of course, bear the burden of proof.

Suppose I want to run for President. I must supply information proving that I am older than 35, a natural-born citizen, and a national resident of sufficient length to qualify under Article II. If I claim that the only documents containing this information are privileged, then I cannot meet my burden of proof.

Is Section Three the same? It depends whether you view that provision as an eligibility requirement or as a punishment. (As I explained in my law review article on Section Three, there is decent authority on both sides of that issue.) If exclusion from office is a punishment, then surely the state bears the burden of proof. If eligibility is the correct framework, then the candidate bears the burden. 

You can take this analysis one step further. If Section Three is an eligibility requirement, then a state election official can enforce this requirement if there is state law authorization or if you think Section Three is self-executing. (These are other problems to be resolved.) If Section Three is a punishment, though, then a state prosecutor must be the one taking action under some state statute. 

Posted by Gerard Magliocca on October 18, 2021 at 09:04 PM | Permalink | Comments (7)

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Posted by Howard Wasserman on October 18, 2021 at 07:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Posted by Howard Wasserman on October 18, 2021 at 03:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

I agree with most of Ruth Marcus' takedown of Yale Law School's attempt to extort an apology from a student over an obnoxious email.*

[*] The student surreptitiously recorded his conversations with two deans--is Connecticut a one-party state?--and it is really hard to listen to those recordings in which the deans remind him of applying to the Bar and not laugh when the school says "No student is investigated or sanctioned for protected speech." No sanction, but a not-subtle "nice Bar Exam you have to take, shame if you get dinged by not apologizing."

I take issue with this:

Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation.

The eggshell plaintiff is a go-to move in discussions (critical or supportive) of attempts to restrict offensive speech. Feminist anti-porn arguments rested on this theory--the eggshelliest person might decide to emulate porn and commit crimes against women, so this rule justifies banning porn. Marcus tries to argue that everyone is acting like an eggshell plaintiff as to offensive speech and that law-school administrators are allowing.

Both arguments rest on a misapplication of the eggshell-plaintiff concept. Marcus defines it correctly--a wrongdoer takes the injured person as he finds her and must pay a uniquely great compensation for a uniquely great injury. But this is a compensation rule, not a liability rule. A person is not liable for conduct that would not injure an ordinary person, and thus is not wrongful, even if it injures the eggshell plaintiff. The rule kicks in when the defendant has engaged in wrongful conduct and we have to determine how much he pays--compensation is tailored to the injured plaintiff, even if her injuries, and thus the compensation, are unusually great. We do not establish our liability rules according to the weakest, most sensitive, most easily persuaded, or the most easily offended. The eggshell rule cannot be used to justify greater restrictions on speech or conduct and should not be used to explain them.

Posted by Howard Wasserman on October 15, 2021 at 02:35 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

The final version of the story, which meant to promote a compilation of Ginsburg’s writings called, My Own Words, included her criticism of ‘stupid’ and ‘arrogant’ protesters.
But what was left out was arguably more inflammatory.
Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'
She said: ‘Which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly. And that’s why education is important.’
Couric claims that she ‘lost a lot of sleep over this one’ and still wrestles with the decision she made.
I will leave criticism of Couric's journalistic practices and the cult of RBG to others.
 
I want to pose a different question: Given these views of disrespect for the flag, how would RBG have voted in the flag-burning cases? Burning a flag shows greater "contempt for government" and is more a thing someone could not do "in the place they came from" compared with kneeling during a flag-centered ceremony. Ginsburg generally followed the left-liberal view of free speech. But perhaps, like Justice Stevens, she believed the flag and its surroundings demand a unique First Amendment carve-out.

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

Defining an Insurrection

One question that will arise in any Section Three litigation is whether what occurred at the Capitol in January was an insurrection in a constitutional sense. One argument against that conclusion is that an insurrection for Section 3 purposes must be comparable to the Civil War. The riot at the Capitol, the argument goes, was not significant enough to qualify. 

While I'm sure there'll be more research on this point, my initial review of sources prior to the Civil War indicates that "insurrection" was used to refer to all sorts of smaller scale events that involved a group of people who used violence in part to obstruct a legal process. For instance, the Whiskey Rebellion of the 1790s was described as the "Whisky Insurrection." Shays Rebellion in the 1780s was described as an insurrection. Nat Turner's Rebellion in the 1830s was described as the "Southampton Insurrection." And so on.

Here's another interesting piece of evidence. When Federalist #10 appeared in the newspapers in New York, the subtitle of Madison's Essay was "The Union As a Safeguard Against Domestic Faction and Insurrection." Madison was not talking about a civil war or some large-scale calamity. He was instead explaining why a larger union would tend to prevent factions powerful enough to obstruct the law.

Did Section Three of the Fourteenth Amendment change the definition of insurrection in 1868? I don't think so. Nobody at the time said that they were applying a stricter or more limited meaning. And the post-bellum use of the term does not seem different.

BTW, I didn't know the subtitle (or headline) of Federalist #10 until yesterday. Makes me wonder how the other essays were subtitled. 

Posted by Gerard Magliocca on October 15, 2021 at 09:21 AM | Permalink | Comments (19)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

Posted by Howard Wasserman on October 14, 2021 at 10:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

FDR on States'-Rights

One of the strongest (and most surprising) defenses of federalism came from Franklin D. Roosevelt in 1930. As Governor of New York, FDR gave a radio address on the subject that took a pro states'-rights view that is (needless to say) ironic given his actions as President. Here is a link to the speech, and here are some choice quotes:

[T]o bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government. The individual sovereignty of our States must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the states is scrupulously preserved and fought for whenever they seem in danger.

The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but because it has been a democracy where through a division of government into units called States the rights and interests of the minority have been respected and have always been given a voice in the control of our affairs.

Unfortunately, there is no audio available for this address, but read on.

 

Posted by Gerard Magliocca on October 14, 2021 at 01:14 PM | Permalink | Comments (5)

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

JUSTICE KAVANAUGH: Does the same kind
of rule apply in private litigation? So suppose
a private plaintiff sues a private defendant
under state tort law. The state -- the private
defendant argues that the state tort law is
unconstitutional, and the court on appeal rules
that the tort law is unconstitutional, okay?
And the state -- the private plaintiff, sorry,
chooses not to seek en banc or cert.

Can a state AG intervene in that
circumstance even though the private plaintiff
has chosen not to seek en banc or cert to argue
that the state tort law is, in fact,
constitutional?

MR. KUHN: I think this Court told us
in Hollingsworth that a private party defending
state law is just a different matter than a
state official who has sworn an oath to defend
Kentucky's constitution who is popularly
elected.

So I think the state in that
circumstance would -
-

JUSTICE KAVANAUGH: The state tort law
in that circumstance will be declared
unconstitutional. And I think, by saying it's
different, you're saying the state AG in that
case could not seek en banc or cert even though
the state tort law had been declared
unconstitutional?

MR. KUHN: Our position is not that he
could not do so but that it would not be as easy
of an argument in that circumstance. I think it
matters that we have a handoff from one state
official to another, both of whom are sworn to
defend Kentucky law.

I think a lot of the things I'm saying
today would be consistent with the -- with the
hypothetical that you're talking about. But I
think we're perhaps a half step beyond that and
this is a much easier case than the one you've
hypothesized.

I do not know if Kavanaugh asked the question with SB8 (or its many tort analogues) in mind, but it is relevant. When the state delegates enforcement power to private parties for the purpose of eliminating offensive (preemptive/anticipatory) litigation by rights-holders, it would be the height of chutzpah to claim the power to intervene as the law's primary defender if it does not like the private -party delegee's litigation decisions. Kentucky's SG seemed to recognize the crux of the issue as the difference between the state acting when it is defending a law challenged in offensive constitutional litigation and the issue is which executive officer can lead that defense and the state acting when a private person has enforced the law by initiating judicial proceedings and the question is how the law is being litigated.

Competing incentives and obligations create a unique twist on this exchange as to SB8. An anti-choice SB8 plaintiffs who loses in the trial court has less incentive to appeal the constitutional issue if they lose in the trial court. Given the obvious (for-the-moment) invalidity of SB8, anti-choice activists are better off with the threat of litigation and liability chilling providers than they are appealing an adverse judgment and establishing likely adverse binding precedent. But what about the state? Would it attempt to step-in if a private plaintiff gives up on litigation? Or does it have the same incentive to let sleeping dogs lie and leave the constitutional issue unresolved as binding precedent and allow the chilling effect to continue.

This reflects another difference between offensive and defensive litigation. Offensive litigation produces a  remedy for the rights-holder, such as injunction, that, depending on the plaintiff and the right at issue, protects against future enforcement. The state thus has an incentive to appeal to avoid those those prospective limitations. Defensive litigation does not grant a rights-holder a prospective remedy, only a favorable judgment in one attempted enforcement. Like the private SB8 plaintiff, the state may be willing to take the loss in that case but to leave the legal issues unresolved to allow future enforcement and future litigation.

Posted by Howard Wasserman on October 14, 2021 at 06:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a "rule of law" that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

Posted by Richard M. Re on October 13, 2021 at 10:09 PM | Permalink | Comments (2)

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Posted by Howard Wasserman on October 13, 2021 at 06:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

The Return of Space Law

Space law was a hot topic in the 1960s. I recall from law school a portrait of Myres McDougal that had the moon in the background because of his work on space law. 

Needless to say, space law has not been a hot topic since the 1970s. Indeed, it's almost not a topic at all. But that should start to change. The advent of space tourism means that people need to start thinking harder about basic questions of jurisdiction and substantive regulation for injuries that occur on a space flight. Some of the treaties on space law were made with the Soviet Union and are woefully out of date, for example. 

BTW, you could ask whether maritime law might provide a better template for space law than the common law, but I'd need to give that more thought.

Posted by Gerard Magliocca on October 13, 2021 at 09:02 AM | Permalink | Comments (5)

Tuesday, October 12, 2021

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Posted by Howard Wasserman on October 12, 2021 at 11:14 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, October 10, 2021

Fair Play and Democracy

Turning back to the subject of FDR's Constitution Day Address, here is one passage that stands out: 

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.

A common theme in the 1930s and 1940s was that democracies in Europe failed after World War I because nations could not respond effectively to economic distress and inequality. One implication of this view is that law was neither a cause nor the salvation. You see this idea in Learned Hand's "Spirit of Liberty" speech in 1944 and in some of Churchill's writings from the same period. This is the intellectual context for FDR's statement in the Address that the Constitution is a "layman's document, not a lawyer's contract." Lawyers are not the heroes in his constitutional narrative: they are the villains. The fact that they are the villains explains why lawyers and courts have ignored the Address for as as long as they have. (As I'll point out in my paper, the Constitution Day Address is a pre-civil rights era story of the United States. Lawyers look better after Brown.) 

When people consider the more recent democratic failures, they instead emphasize cultural factors. The Arab Spring, for instance, is not seen as something grounded in economics. Neither is the failure of democracy in Russia in the 1990s. But you could describe both events in those terms. Granted, there was a stronger link between economics and politics in the 1930s and 1940s (think of people like Keynes and Hayek and their influence). But even in the 1980s, I would venture to say that successful democracy was associated closely with economic success in a way that faltered in the 1990s. Perhaps that is because of the rise of China. More on that in a later post.

Posted by Gerard Magliocca on October 10, 2021 at 09:44 PM | Permalink | Comments (4)

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.

 

Posted by Howard Wasserman on October 10, 2021 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, October 09, 2021

Administrative Stay in SB8

The Fifth Circuit issued an administrative stay of the injunction and gave the U.S. until Tuesday to respond to the motion for stay pending appeal. The U.S. has the option of asking SCOTUS to stay the administrative stay or briefing the stay in the Fifth Circuit.

This is wrong. Because the district court (in 113 pages) issued the injunction, the status quo that the stay is designed to maintain changed to favor non-enforcement of the law. And the balance of equities favors the U.S. The state has an interest in enforcing its laws. But the state always has that interest, so that cannot be the end of the inquiry. Hundreds of pregnant people are forced to continue pregnancies or to incur the cost and burden of traveling outside of Texas while the litigation is ongoing. And non-enforcement pending review does not produce "chaos" with long-term consequences that the state cannot unwind. (Compare marriage-equality, where requiring licenses to be issued would have meant thousands of same-sex couples with valid-at-the-time-but-no-longer-valid that the state must either accept contra state law or retroactively invalidate).

SB8 attempts to account for this situation. A provider can be liable for abortions performed in reliance on a "decision" that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal.* So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction. That should be factored into the balance of equities, as decreasing the harm to the state. In fairness, the lawfulness of that provision as applied to injunctions is uncertain; the Court has never resolved whether a party can be retroactively liable for conduct taken while enforcement of a law has been enjoined. But that is on Texas, not the rights-holders on whose behalf the U.S. has sued.

    [*] I say appears because "decision" is a legally meaningless term--courts issue judgments and opinions. So that could mean the provider can be liable for relying on Roe and Casey if they are eventually overruled or for relying on the precedent of one SB8 case.

Posted by Howard Wasserman on October 9, 2021 at 08:24 AM | Permalink | Comments (3)

Friday, October 08, 2021

The Marshall Court and the Warren Court

Next year I'll have an essay on "Bushrod Washington and the Marshall Court" in the Journal of Supreme Court History, which is published by the Supreme Court Historical Society. Under their rules, I cannot share the draft on SSRN. Nevertheless, I can do a riff on a theme in the essay, which is also a theme in my forthcoming book on Justice Washington.

A Chief Justice of the United States cannot be a successful leader of the Court without an able and willing partner among the Associate Justices. Bushrod Washington and John Marshall were close collaborators. This is largely why Marshall was a great Chief. Earl Warren found close collaborators in Hugo Black and William Brennan. He was also very successful. Same with Chief Justice Taft and Willis Van DeVanter. The Chief Justices that are forgettable or considered failures lacked a reliable partner. While a Chief Justice might not develop that sort of pivotal relationship due to blunders (maybe Warren Burger is an example), sometimes it's just not something he can control. Maybe Chief Justice Roberts is in this boat now. He cannot lead the Court effectively because he lacks a partner.

The myth of John Marshall clouds this picture. People generally think that he led the Court by himself, so they naturally ask why can't other Chief Justices do the same. But he did not, in fact, lead the Court by himself. Consider the following analogy. When people refer to the Warren Court, they do not mean that Chief Justice Warren did everything. Virtually everyone understands that the Warren Court was a collaborative effort among many strong Justices. The same thing is true about the Marshall Court.

Posted by Gerard Magliocca on October 8, 2021 at 12:31 PM | Permalink | Comments (6)

Thursday, October 07, 2021

How Important is the Rule of Law?

In some prior posts, I mentioned that I am finally writing an article on FDR's Constitution Day Address in 1937. I've been interested in this speech for years but unsure about how to approach the issues he raised there. Now I have a better sense on that point.

The question posed by Roosevelt's speech is why do democratic constitutions fail, which is a topic now attracting considerable attention due to democracy's decline around the world since the peak in the 1990s. You could answer this question in different ways. One is cultural. In effect, you need to develop a culture that supports democracy or harness cultural forces that can be supportive. Here you can look at Alexis de Toqueville and civil society, or Walter Bagehot and the idea of constitutional monarchy. Another answer is that the rule of law is indispensable to constitutional success. If you don't have a strong legal culture, the rest doesn't matter. (I'm not quite sure who is the best authority to cite here--perhaps readers have thoughts.)

FDR instead argued that democratic constitutions fail if they are inflexible and do not provide people with a growing standard of living. In other words, it's an entirely pragmatic explanation. He based his claims in part on the failures of the post-World War One democracies in Europe, though he also made them to advance his own domestic agenda. He said little about culture, except to acknowledge the vital role that civil liberties play in the Anglo-American tradition. And he definitely did not think the rule of law was the cause. Indeed, the speech is famous for its dismissive tone towards lawyers who are labelled, to paraphrase Ronald Reagan, the problem and not the answer.

This brings me to the present. How important is the rule of law for a democratic constitution? Is constitutional democracy in retreat due to culture, legal culture, or the failure to generate economic results? More on this in the next post. 

Posted by Gerard Magliocca on October 7, 2021 at 10:27 AM | Permalink | Comments (1)

Wednesday, October 06, 2021

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

Posted by Howard Wasserman on October 6, 2021 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Court enjoins enforcement of SB8 (Updated and moved to top)

Order here. I am beginning to go through it. I have already found some loose language about the US stopping states from enacting invalid laws, as opposed to enforcing. But it adopted the broad views of standing I expected.

OK, I am back. Nothing in here is too surprising. A few comments, mostly as it affects my interests in the procedure of the case. My overall conclusion is that the result is defensible in the unique context of a suit by the United States. But it is wrong in a number of points along the way, reflecting the common mistakes in the overall discussion of SB8.

• The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.

• The court ignores the distinction between enforcement of a law and the creation and existence of a law, treating both as a source of a constitutional violation and something to be enjoined. This is wrong, as stated in Massachusetts v. Mellon, a case the court relies on in according the U.S. parens patriae  standing. The court compares this case to Cooper v. Aaron. But Cooper was about enforcement--the local officials sued were members of the executive branch who were executing the laws surrounding school admissions and thus were proper subjects for an injunction. The legislators who enact a law do not enforce it and the executive officers do not do anything here. The court ignores that distinction.

• Both of the above are unfortunate, because there is another way. The court points out that the state delegated enforcement authority to private individuals--that is, the act of delegation is state action. Delegation makes the private actor part of the state, so the "state" should include those private actors exercising delegated state power, separate from judges and clerks. An injunction against the state reaches everyone acting for the state, including all authorized private individuals. I think that is justifiable and consistent with the idea that courts enjoin executives from enforcing laws, no one else.

Update: I should clarify the above. A  court enjoins actors from doing certain things. It enjoins the executive from executing, but cannot enjoin the legislature from legislating and cannot enjoin judges from judging. If one enjoined party does all three things, then the order must be limited to enjoining that executive function, but not the other functions. The rough analogy is Supreme Court of Virginia v. Consumers Union, an action against the state supreme court and its chief justice over bar disciplinary rules. The court performed three functions--it legislated in enacting the rules, executed in initiating disciplinary proceedings, and adjudicated in ruling on those proceedings. The Court allowed the injunction, but only as initiating disciplinary proceedings. Similarly, the court could enjoin Texas from enforcing, capturing everything and everyone under Texas law authorized to enforce, including deputized private individuals.

• The court buys the United States argument that meaningful judicial review means federal judicial review that begins in a federal district court. Anything else--including SCOTUS review of state-court judgments in which constitutional rights are raised defensively--is constitutionally deficient, precludes individuals from vindicating their rights, and warrants federal judicial intervention before anything can happen in state court.. The court emphasizes how state procedure limits providers' ability to defend SB8 actions in state court through (the court implies) invalid restrictions, without considering that the validity of those restrictions can be challenged in state court and can form the basis for SCOTUS review. Everyone on the left is lauding this is "indisputable," as calling Texas out on a cynical and invalid ploy to avoid judicial review.

But this position means that state tort law is invalid, to the extent a tort is defined in an unconstitutional manner. To use the example we include in our papers: Imagine a state anticipates the overruling of New York Times and redefines its defamation law to not require actual malice. Since tort law can only be enforced in private litigation, would that procedure also be improper, justifying an injunction against state judges? And if not, what is the difference between this case and my hypothetical new tort law? The implicit answer is SB8 is not tort law, because the authorized plaintiffs have not been injured. But that begs the question of what "tort law" is and whether a state can adopt a broader understanding of what injuries are or should be sufficient for suit. The court never addresses this.  This case is different from ordinary tort law, but those differences go to why SB8 plaintiffs act under color when ordinary tort plaintiffs do not. But it should not change anything about the routine and proper nature of private civil litigation and of raising constitutional rights in a defensive posture.

• The court addresses Texas' concern that this opens the door to the United States suing states, insisting the U.S. will limit itself to the exceptional case. I have described this as the U.S. suing when it can get "more bang for the buck" through a single big case. The court identifies some features that make this a big case.

• I agree with the broad take on U.S. injury and an equitable cause of action even absent congressional authorization. And I agree that there is causation and redressability, but not for the reasons the court identifies.

• Texas filed a Notice of Appeal to the Fifth Circuit (PIs are immediately reviewable) and stated it as related to the pending appeal in the WWH case. The question is whether the Fifth Circuit or SCOTUS stays the injunction pending review. They should not stay it. This is a blatantly invalid law. Once a court finds the correct procedure to enjoin enforcement, the irreparable harm from actual or threatened enforcement means the injunction should be in effect until resolution of the litigation.

More to come, almost certainly.

Posted by Howard Wasserman on October 6, 2021 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

JOTWELL: Vladeck on Siegel on habeas

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Jonathan R. Siegel, Habeas, History, and Hermeneutics, Ariz. L. Rev. (forthcoming 2022), which traces the history of habeas in the shadow of Edwards v. Vannoy.

Posted by Howard Wasserman on October 6, 2021 at 01:23 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, October 05, 2021

The Supreme Court's New Oral Argument Process

One unexpected effect of the pandemic is the significant improvement in the Court's oral arguments. We now regularly hear from Justice Thomas. The Justices don't talk over each as much. It's much easier to follow what is being said. It's great.

The live audio is also a plus. I must say that I'm much more inclined to listen to arguments now rather than just read the transcript. Why? 'Cause it's live! Who knows what might happen? (OK, nothing that dramatic is going to happen, but still . . .)

One revelation, though, is that the quality of many of the oral advocates before the Court is worse than I thought. Transcripts make presentations look much better than they actually are because they remove all of the awkward pauses. I was taught about this as a rookie lawyer learning how to take depositions, but the difference between how the arguments read and how they sound is greater than I expected. (Though not for everyone--Jeff Fischer was outstanding today, though that is no surprise.)

More posts starting tomorrow. The pause that refreshes is over. 

Posted by Gerard Magliocca on October 5, 2021 at 09:16 PM | Permalink | Comments (8)

SB8 and SCOTUS politics

SB8 is getting caught up in debates over SCOTUS politics, whether the justices are partisan hacks, and the shadow docket. This is skewing some of the discussion of the validity of the law and how providers and advocates should navigate it.


The Court was right to deny emergency relief. The WWH lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.


SB8 critics--in the media, in academia, and in the WWH dissent offer three basic arguments. The first is that the Court can enjoin SB8 itslef (and keep it from taking effect) because it is so clearly invalid and it hid intended to avoid preenforcement reveiw, so it does not matter who the defendants were. That, of course, is not how constitutional litigation works. Court enjoin enforcement, not laws. The Constitution does not dictate that states adopt any enforcement mechanism or that offensive litigation be an option in challenging a law.

The second is that the usual target (AG or governor) was unavailable, so WWH sued everyone it could think of (true), therefore the Court should have enjoined enforcement because someone in that mix must be a proper defendant. That would have given some court time to dig through and find that proper defendant. But that is not how this works. It is on the plaintiffs to identify proper defendants. And there may not have been a proper target for offensive litigation at this moment. Dickson or another individual could be subject to a federal suit, but he must make some move towards bringing an SB8 suit that he has not yet made. Sometimes (e.g., defamation) state law is enforced only through private litigation and challenged only defensively.

The third argument is that the outcome in SCOTUS would have been different if the political valence of the law had been different--that five-Justice majority would have granted relief, despite the glaring procedural problems, if California banned gun purchases and allowed private suits against gun owners. This assertion is neither provable nor disprovable. But accept it as true (it probably is). So what? Granting emergency relief in that situation would be wrong and it would expose the Justices as the results-oriented partisans they insist they are not. But the solution to that problem is not that the Court should have granted relief here --that it should have been wrong when the case carried a different political valence.

Posted by Howard Wasserman on October 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, October 04, 2021

A Jewish post-season (Updated)

As baseball's post-season begins, my side interest will include following the Jewish players competing for a championship. No concerns for missing holy days this year, since they have passed. There is a greater risk that if play continues too far into November it will run into Chanukah, which begins on November 28.

We have: Pitcher Max Fried and outfielder Joc Pederson of the Braves; third-baseman Alex Bregman (who at this point must be closing on the record for post-season games by a Jewish player) and backup catcher Garrett Stubbs of the Astros; and Rowdy Tellez of the Brewers, activated off the IL. The unknown is pitcher Ryan Sherriff of the Rays, who is one of several lefty relievers from whom the team will choose. [Update: Sherriff is not on the Rays' roster for the ALDS, although there is a chance he could be for later series if they advance]

A Braves-Astros World Series (possible but unlikely--the Braves won a weak division and have the worst record of the six NL post-season teams) would produce the first four-Jew Series.

Posted by Howard Wasserman on October 4, 2021 at 04:31 PM in Sports | Permalink | Comments (0)

Northwestern Pritzker School of Law Faculty Hiring

Northwestern Pritzker School of Law invites applications for tenured or tenure-track faculty positions with an expected start date of September 1, 2022. This is part of a multi-year strategic hiring plan, and we will consider entry-level, junior, and senior lateral candidates.

Northwestern seeks applicants with distinguished academic credentials and a record of or potential for high scholarly achievement and excellence in teaching. Specialties of particular interest include: tax, anti-discrimination law, international law (joint search with the Buffett Institute for Global Affairs), health law (joint search with the Feinberg School of Medicine), and business law. Northwestern welcomes applications from candidates who would contribute to the diversity of our faculty and community. Positions are full-time appointments with tenure or on a tenure-track.

Candidates must have a J.D., Ph.D., or equivalent degree, a distinguished academic record, and demonstrated potential to produce outstanding scholarship. Northwestern Pritzker School of Law will consider the entry level candidates in the AALS Faculty Appointments Register, as well as through application directly to our law school. Candidates applying directly should submit a cover letter, C.V., and draft work-in-progress through our online application system: https://facultyrecruiting.northwestern.edu/apply/MTE3Mw. Specific inquiries should be addressed to the chair of the Appointments Committee, Zach Clopton, zclopton at law dot northwestern dot edu.

Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes, including veterans and individuals with disabilities. Women, racial and ethnic minorities, individuals with disabilities, and veterans are encouraged to apply. Click for information on EEO is the Law.

Posted by Sarah Lawsky on October 4, 2021 at 01:33 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Saturday, October 02, 2021

Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.

Posted by Howard Wasserman on October 2, 2021 at 11:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, October 01, 2021

ICYMI: My thoughts on the Alex Jones Defamation Cases (Fall 2018--First Amendment News)

Libel, Lies, and Conspiracy Theories

       Alex Jones of Infowars certainly knows how to monetize controversy, or at least he did until now. Since 1999, Jones has built a vast audience and has made millions of dollars by peddling conspiracy theories and survivalist supplies via the radio, Internet, and social media. He’s asserted that the U.S. government was behind the attacks on 9/11, that Democratic officials were using a pizza parlor in D.C. to operate a satanic child porn ring, that the Sandy Hook Elementary School shooting was a hoax, that a man who witnessed the killing of a woman protesting against armed white nationalists in Charlottesville was actually a deep state operative and accessory to the murder, and that a Boston man who had never been to Florida perpetrated the Parkland shootings. Several of the people targeted by Jones, including the Sandy Hook parents he labelled “crisis actors,” have sued him for libel and other torts. As a result of public pressure, Jones’ content has now been “de-platformed” from Facebook, YouTube, Vimeo, iTunes, LinkedIn, Pinterest, Mailchimp, Stitcher, YouPorn, and Spotify. He has also been suspended temporarily by Twitter.

It is worth examining the Sandy Hook libel suits against Jones to gain clarity about the limits of the First Amendment and contemplate some of problems libel law faces in the “post-truth” era.

If Jones were simply peddling conspiracy theories perpetrated by unnamed actors or large anonymous groups, such as “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And this protection would hold even if his conspiracy theories targeted broad groups such as African-Americans, Jews, or Muslims with hateful or pejorative lies.

Although the Supreme Court has held that false information has “no constitutional value,” lies that do not cause direct, tangible harm to individuals are constitutionally protected. The government may not censor such lies (though private actors such as Facebook and Twitter may). For at least the last fifty years, the Court has not deemed interests such as preserving the dignity of a group or protecting society from “fake news” as sufficient to justify imposing liability upon speakers who peddle lies. Moreover, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views, although it may punish incitement, discrimination, threats, crimes, and defamation.

The reason for protecting vague conspiracy theories and the theorists who propound them rests in part upon an unwillingness to unleash the government to serve as a roving truth commission. The government’s temptation to suppress criticism would be far too great, and the history of censorship is replete with examples of the suppression of truth and enshrinement of error. In general, therefore, the remedy for false speech is counterspeech. As the Court stated in Dennis v. United States: “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.”  A further pragmatic rationale for letting even hateful conspiracy theorists seek adherents (as long as their theories do not target individuals) is that government suppression can sometimes lend them and their theories more legitimacy (as I’ve discussed here). In such situations, it is better to leave them peddling their wares in the back alleys of the marketplace of ideas than risk bringing them to the fore by censoring them.

Jones crossed a critical line, however, when he went beyond vague conspiracy theories to disparaging the parents of murdered children by accusing them of fabricating their children’s deaths. As libel cases go, this is about as easy a case as one can imagine. Inventing supposed “facts” that cause reputational harm to vulnerable individuals is the essence of the tort of defamation. The central issue in a defamation claim is whether the defendant published or posted a statement that was false and defamatory. Here, copiously available evidence testifies to the falsity of his statements, and the accusation that parents fabricated a child’s death to advance a social agenda is certainly one that would harm their reputation in the eyes of their community.

Jones’ lawyers have argued that his statements are not defamatory because they are mere opinion. They are not—at least not in the constitutional sense that would bring them within the mantle of First Amendment protection. In considering protection for opinion, the Supreme Court held that the government may not award plaintiffs damages for harm to their reputations based upon a defendant’s publication of statements about matters of public concern that are unverifiable or cannot reasonably be interpreted as stating actual facts about the plaintiff.

Jones’ lawyers have asserted that no reasonable readers or listeners could interpret Jones as stating actual facts about his targets. I have long and repeatedly argued that context is crucial in discerning whether speech is asserting actual facts or instead is mere hyperbole. Although Jones’ statements as a whole should certainly be taken with a grain of salt by reasonable readers, there is little about his statements targeting the Sandy Hook parents by name that brand those statements as non-factual. Admittedly, Jones uses a ranting or hectoring tone in many of his videos, and it is public knowledge (easily discoverable via a Google search) that some of his prior conspiracy theories have been proven false. But Jones appears to have taken pains to bolster his credibility with segments of his very large audience and overcome any assumptions that he might be engaging in schtick or hyperbole. On the Infowars website, Jones asserts that his radio show, which is “syndicated on over 160 stations across the country . . . routinely breaks huge stories in addition to featuring some of the most insightful and news making guests from across the world.” He touts his “team of news reporters who provide cutting edge analysis” and his past interviews with prominent political figures such as Rand Paul and Noam Chomsky. He has also been praised by President Trump, who appeared on his online show. Moreover, Jones knows that some of his audience members clearly do not view his statements as mere hyperbole, because at least two of them are in jail for responding to his statements with violence or threats of violence against those Jones accused of wrongdoing.

The other argument Jones is likely to employ in the libel cases against him is that he lacked actual malice. “Actual malice” is a legal term of art that entails actual knowledge of falsity or reckless disregard of the truth on the part of the speaker. The Supreme Court has stated that actual malice requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The very examples of actual malice given by the Court describe Alex Jones’ conduct to a T. In St. Amant v. Thompson, the Court said that actual malice exists if a defendant invents a story, bases it on “an unverified anonymous telephone call,” publishes statements that are “so inherently improbable that only a reckless man would have put them in circulation,” or publishes them despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports.” Granted, it is not clear that the parents will even have to prove actual malice, because they may be private rather than public figures. It is an open quesiton whether granting media interviews after one’s child is murdered is enough to transform a person into a public figure for libel purposes. This is a hard and important issue that deserves clarification by the Supreme Court. Be that as it may, the plaintiffs suing Jones ought to be able to prove actual malice even if they are deemed to be public figures due to the nature of his remarks.

Another defense Jones might assert is one that might be dubbed the “Courtney Love defense”—namely that Jones did not recklessly disregard the falsity of his statements because he irrationally believe them to be true. As my co-author RonNell Andersen Jones and I pointed out with regard to the Twitter libel cases against Courtney Love, there is no insanity defense to a libel claim. However, the determination of whether a defendant acted with actual malice is subjective, meaning that a defendant’s delusional belief in the truth of his own lies might absolve him of responsibility for libel. It would be highly problematic, however, to give mentally disordered or vengeful defamers license to embark on campaigns of character assassination based on fantasies they concoct. As a practical matter, the problem is likely to be solved by the skepticism of juries, for it is hard to believe a jury would accept Alex Jones’ assertions that he believes his own baseless accusations. Moreover, one can hardly conceive of more sympathetic plaintiffs than the parents of murdered children who were subjected to death threats because of one man’s cruel accusations.

            Even ardent defenders of free expression must concede there are limits to the right lest they lose credibility. Drawing the line is easy when purveyors of malicious lies are harming the reputations of innocent individuals, such as the Sandy Hook parents. Defamation law exists to enforce baseline norms of civility and respect for the dignity of the individual.  It also rewards the investment of individuals in their good names by giving them redress when those names are smeared by unscrupulous speakers such as Jones. Moreover, defamation law helps guarantee that public discourse retains a necessary anchor in truth, because public discourse without such is meaningless.

            Given these important interests, proper resolution of an easy case is a good way for the law to remind speakers like Jones that we do not truly live in a post-truth era.

Posted by Lyrissa Lidsky on October 1, 2021 at 01:53 PM | Permalink | Comments (2)