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Tuesday, November 30, 2021

Random law stuff

Nothing hold these together other than law and personal interest:

• Pennsylvania is seeking cert in the Cosby case. I wrote in July that the case offered some nice independent-and-adequate issues. The state court cited both state and federal cases and it is not entirely clear whether the grounds for decision was the 14th Amendment or its state counterparts. I still do not think the Court will touch it, but I expect some briefing on the I-and-A issues.

• NBA player Enes Kanter Freedom, who has run into problems for his opposition to the current Turkish government, appeared on Tucker Carlson to tell Americans to "keep their mouth shut and stop criticizing the greatest nation in the world and they should focus on their freedoms and their human rights and democracy." So two bits of irony, if not chutzpah. First, is the difficulty of focusing on freedoms and democracy by declining to exercise the most basic freedom and the one most central to democracy. Popehat compared this to the view that freedom is like your grandmother's slip-covered  sofa--not actually to be used. Second, it appears Carlson does not believe all basketball players should shut-up and dribble--some are allowed to speak out on public issues; guess which athletes and which issues.

• Any journalist not named Chris Cuomo would at least be suspended, if not summarily fired. If, as I expect, he screams "cancel culture," we will know that the term has lost whatever minimal meaning it had (and it already had none). Because it will be wielded to defend professional misconduct--breaking the ethical rules and employment agreements that guide the profession.

Posted by Howard Wasserman on November 30, 2021 at 09:06 AM in Howard Wasserman | Permalink | Comments (0)

Monday, November 29, 2021

Who's Afraid of Gradualism in Dobbs?

The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, the public and the Court itself would be far better served by a more gradual, judicious approach.

The initial problem is that, in Dobbs, the Court has not followed its normal deliberative process. Instead, Mississippi asked the justices to review an abortion prohibition that posed no disagreement among lower courts or any other conventional basis for review. After sitting on the case for nearly a year, the justices finally agreed to consider a single issue: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” That question focuses on viability, is concerned with whether “all” relevant restrictions are categorically unlawful, and identifies no specific precedent to be overruled. Onlookers were accordingly left to debate just what the Court had in mind in granting the case. 

Mississippi then seized the initiative by submitting a merits brief that primarily argued for overruling all precedents recognizing abortion rights—a possibility that the state’s certiorari petition had raised, if at all, only in a half-hearted footnote. So what had seemed like an important but limited challenge to abortion rights suddenly became a broadside attack on decades of case law. In response, the abortion providers objected to Mississippi’s bait-and-switch and briefly asked for dismissal of the case; but they also agreed that “There are no half-measures here.” So the parties ultimately offer the same unyielding choice between two starkly opposing options.

Yet advocates have strategic reasons for framing certain options for the Court while excluding others. Lawyers might avoid offering a half measure for fear of undermining their main argument, particularly when they are left to guess about the justices’ views. And political activists might prefer that the Court issue a precipitous ruling so that they can better mobilize against the judiciary. A partial defeat in court might be far less useful for politicos precisely because it would appear more legitimate or non-partisan. For these reasons, litigants do not necessarily speak for all affected people, and the fact that both sides pose a stark choice may only prove that the adversarial system has given way to political polarization. 

Normal caution might seem unnecessary in Dobbs because the issue of abortion rights is already so familiar to the justices. What law school graduate, after all, has failed to think about Roe? But partial knowledge is often the most confident, and deliberation has a way of revealing things we didn’t expect. Gradualism can also allow the Court to learn from experience rather than armchair speculation. The Dobbs briefs are full of predictions about what would happen—doctrinally, practically, and politically—if abortion case law changed. By moving incrementally, the Court can begin to replace those predictions with facts and ultimately make a more informed decision at a later date. 

The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes. 

The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding, a request for additional briefing and argument, or dismissal of the case.

In an indirect way, the Court has already produced something like incrementalism on abortion rights. By allowing Texas’s SB8 to operate for several months, the justices have essentially permitted a major state to create a post-Roe world. But while that experience has fostered public debate and been informative in some ways, litigation over SB8 has so far focused on complex procedural issues, not the substantive and precedential questions pertinent to Dobbs. Given those differences, and the fact that the briefing in Dobbs was well underway when SB8 came into effect, the events in Texas are no substitute for caution in Dobbs itself. 

Of course, judicial gradualism can only achieve so much. Because the nation is divided by starkly conflicting legal and policy views on abortion, Dobbs will be met with second-guessing, if not condemnation, no matter how it comes out. Criticism, as they say, comes with the territory. What the Court can control, however, is whether it treats the issue of abortion rights with the care it deserves. Roe itself was famously faulted, including by Justice Ginsburg, for moving too fast. It would be ironic if Roe’s latest critics have failed to learn that lesson.

Posted by Richard M. Re on November 29, 2021 at 11:00 AM | Permalink | Comments (16)

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 28, 2021

More on the preferred first speaker and the futility of "conversations"

The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.

Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches), there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."

This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.

(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).

Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

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

Friday, November 19, 2021

Why Stop There?

Josh Blackman suggests as a Gedankenexperiment that we eliminate the institution of Supreme Court clerk as it currently exists. He also muses that the Court could "hire a room of copy-editors and cite checkers--non-attorney career employees who can proofread the work, but not make substantive recommendations." So we might ultimately think of this not so much as a suggestion that the justices should have no helpers, but that the institution be significantly rethought and re-formed along more bureaucratic and centralized lines.

It's not a genuinely novel suggestion. (That's fine with me! Novelty is valuable but rare and deeply overrated, and may create a perverse incentive for ambitious scholars not to look at the reams of good legal academic literature that exist, especially those pre-dating the last 20 or 30 years. Almost nothing is new under the sun. I should note that one point he makes--that it would encourage earlier retirements--is not truly novel, but is more rarely mentioned and certainly interesting.) Many people have written about the rise of the modern Supreme Court law clerk institution, raised questions about it, and suggested we might do it differently or do without it. Reasons vary widely. 

Blackman focuses rather heavily on power and prestige in advancing his experiment. Another useful way to think about the issue is that changing or eliminating the institution simultaneously involves de- and re-personalizing the Court. Having a dedicated and diligent personal chambers staff--one that, because of the youth and inexperience of the staff and the particular skill set used in making hiring decisions, is characterized by hyper-technical skill rather than wisdom and judgment--allows the Court to write long opinions full of doctrinal detail and short on succinctness or personality. Getting rid of clerks dedicated to each single justice would thus re-personalize the Court by making the justices write in their own unique voices and, because of the reduction of extra time and technical skill that would result from the elimination of dedicated clerks, write with more economy and less kitchen-sink detail and hyper-doctrinalism. In short, less work by committee, more Holmesian aperçus. At the same time, the current institution is in other ways representative of and dedicated to the proposition that each justice is a "Justice:" a unique, powerful, and important figure, like Thanos. Having a room full of professional law clerks dotting i's and crossing t's on behalf of the entire Court rather than any individual justice would refigure the Court as a more bureaucratic institution, in which individual votes perforce still matter but the work is ultimately a collective, unglamorous, collective, and professionalized enterprise. Some would say the Court in the modern era is such an enterprise, and should be organized accordingly--and to make its true nature clearer, without the false superstructure of personal fame and distinction. 

Without judging the wisdom of such a move or the transition costs involved, I wonder why Blackman stops there. Other than the cert pool, which of the factors that he thinks support such a move don't apply just as well to federal circuit courts and their judges? They too are powerful, attract prestige games, engage in extracurricular activities, and risk becoming immured in their own chambers without substantial contact with their colleagues. Even the cert pool point could be analogized to what, in my day, were called "screeners"--opinions issued without oral argument. Viewed from the alternate perspective of personality and de-personality, again, I see little difference: Court of appeals judges partake plentifully in cults of personality, and court of appeals opinions are often highly bureaucratized in style. 

Taking for granted that circuit court judges need additional professional help, we might still reasonably ask: Do they really need individual "elbow clerks?" Is there anything a single clerk sitting in Louisville or Montgomery can do--anything we want them to do, that is, or ought to want--that can't be done by a room full of relatively nameless and faceless factotums at the Head Office in Cincinnati or Atlanta? Is there any reason we should look more kindly on the prestige, hiring bonuses, and future opportunities for power that attach to individual appeals court clerkships than those that accompany Supreme Court clerkships? Why not cry: Down with trivia-based application tests! Up with staff-clerk TPS forms! The argument for individual clerks is perhaps strongest for individual trial court judges. But it is not that strong. We could thus ask the same questions about federal district court clerkships, and about the various levels of state courts and their clerkships, which also participate in an economy of prestige and also serve bureaucratic functions. 

Again, it seems to me that such moves would recognize two odd-bedfellow points. First, it would shape our institution to recognize that in a gigantic modern economy, in a country with hundreds of millions of people and countless business entities, law is in many respects a bureaucratic and not a personal institution, and should be organized appropriately to its function. (Blackman writes that if John Marshall didn't need a law clerk, neither does John Roberts. That's the wrong way to think about it. The Marshall Court as an institution is not the Roberts Court as an institution, any more than the United States of 1803 is the United States of 2021. Roberts, who sits at the apex of a vast bureaucratic enterprise known as "the federal courts," may not need a personal law clerk--but not because the institution he heads is, in reality, the same one.) Second, by removing the closest level of bureaucratic layering from individual judges and making it a shared resource, it might force judges to be both less omnipresent and titanic, because deprived of the heavy lifting power devoted to him or her alone, and more personal and idiosyncratic.

Blackman conducts this purely as a thought experiment. But we need not be quite so arid. We have examples of courts that function perfectly well without precisely the same elbow-clerk organization we currently have. The Justices of the Supreme Court of Canada have individual law clerks. But the Ontario Court of Appeal, a powerful court in an economically mighty and sophisticated province--and, given Canada's legal structure, one that occupies essentially the same position as both a federal circuit court and a state high court--has a different system. Its clerks are "paired with either one or two judges of the Court and then change[ ] assignment[s] halfway through the year. This rotation process ensures that each law clerk is exposed to different approaches to judging and a broad range of areas of law." This disrupts the kind of culture that abounds in multi-member American federal courts, in which elbow clerks are typically chosen in part for political and ideological kinship and become partisans for their own judges, both in the long run and in terms of immediate internecine combat. Such an approach would be somewhere between the current American model and a wholly bureaucratized model. It might be a very healthy model for the Supreme Court to consider. So far as I know (which is not very far), the Court of Appeal has managed without leaks, conflicts of interest, confidentiality problems between chambers, or other concerns that might be raised against such an approach. State court clerkship structures vary widely, of course, but in some states, like Virginia, trial court clerks "are shared among two or more judges." Despite this arrangement, the Commonwealth still stands. This barely scratches the surface of the available information on state, federal, and comparative or international court/clerk arrangements.

I do not suggest that any differing arrangements are better or are suitable for transplantation. I merely suggest that our current arrangement is certainly not inevitable, almost certainly not necessary--and doesn't apply to the Supreme Court alone. Indeed, given the not-infrequent eruption of bitter disputes between judges within federal circuit courts and within state high courts, and the small number of appeals heard by the Supreme Court, I doubt it is the most important court to consider with respect to reimagining clerkships. Encouraging the consideration of expanding the bureaucratization of clerkships and eliminating individualized elbow-clerk arrangements beyond the Supreme Court is not just a matter of "go big or go home," although I think that's a legitimate suggestion about a thought experiment. It's also a matter of asking the question where it matters most--and considering that "where it matters most" might not be the Supreme Court, despite all the attention devoted to it.

Two final points in this short intervention. First, we might acknowledge that some of the current Supreme Court justices have shown a little more flair and individuality in their writing. Certainly this can be overstated, but it must be acknowledged. To the extent that we have associated law clerks with the "formulaic Constitution" style of opinion, we should consider that law clerks might have contributed to this style, but it was also a particular approach of a particular period in the history of the Court. We should be careful about generalizing across eras without making some effort to historicize. And we should consider how changes in the clerkship structure might affect approaches and styles on the Court or other courts other than the "over-long, hyper-technical, multi-part test" style. The most obvious candidate is originalism. Would that room full of depersonalized clerks conduct historical or historical-ish research on behalf of original justices? Would the staff-room include some non-lawyer historian assistants? Without elbow clerks, would the originalist justices do no originalism? Less originalism? Worse originalism? A different form of originalism, perhaps closer to Justice Black's than to the most contemporary versions? Originalism may be our law. But "our law," like everything else, is subject to, affected by, perhaps even a creature of the means of production.   

Finally: Would Blackman's suggestion eliminate those "distortions in legal markets" with respect to law clerks that are specifically related to power and prestige? Nope. Not in a million years. In fairness, Blackman does not suggest otherwise, and he has a variety of distortions in mind, not just things like Supreme Court clerks getting giant paydays and prestigious future jobs. (To the extent he does have that sort of thing in mind, we certainly should include court of appeals and district court clerkships in the thought experiment.) But I don't think it would be wrong to see this as one of his focuses. And I think we can say accurately that as night follows day, so the elimination of one form of prestige will give rise to others--or to more subterranean arrangements serving the same function, as in the good-and-bad old days. Status and prestige, like money, are hydraulic, and will flow somehow and somewhere.           

Posted by Paul Horwitz on November 19, 2021 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 18, 2021

Oh, good, Congress is looking into UF

The House Subcommittee on Civil Rights and Civil Liberties of the Committee on Oversight and Reform sent a letter to UF demanding information and threatening an investigation of the university's since-reversed refusal to allow professors to testify in cases adverse to the state. This is a waste that will achieve nothing but partisan grandstanding and partisan pushback. Plus, the letter was co-signed by Debbie Wasserman-Schultz, who, despite her last name, used the phrase "shouting fire in a crowded theatre" in Gosar censure debate and thus has forfeited any standing to advocate on First Amendment issues.

Posted by Howard Wasserman on November 18, 2021 at 04:45 PM | Permalink | Comments (0)

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.

Posted by Howard Wasserman on November 18, 2021 at 03:49 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

More on UIC (no longer John Marshall)

I wrote last January about Jason Kilborn at UIC (not John Marshall--why they changed it . . .), who was in the middle of a firestorm that began over a reference to a racial slur on an exam and went badly sideways. Andy Koppelman (Northwestern) has a long essay in the CHE updating the story, which includes a seemingly inaccurate committee finding of harassing conduct, continued student protests (with appearances by Jesse Jackson), and settlement of a brewing lawsuit.

It is a mess of administrative overreach and the collision of speech, academic freedom, and DEI. A la Yale. And it again illustrates my repeated point about recent academic-freedom controversies--When it happens at Yale or at UF, it makes The Times and the Post; when it happens at UIC, it makes the Sun-Times and the Chronicle. Not the same level of attention and thus not the same level of public pressure.

One final point of speculation: Would this have played differently if it had happened at the Former JMLS--stand-alone private urban law school--than when happening at UIC--large, majority-minority public university. Does the large administrative apparatus that accompanies a large public university exacerbate these types of incidents? Does it suggest that the public takeover--which I predicted 20+ years ago and regarded as an unalloyed good for the law school--has a substantial downside?

Posted by Howard Wasserman on November 18, 2021 at 03:39 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, November 17, 2021

Losing Alice and a Lost Chapter: The Bad Reader

There's an Apple TV show I highly recommend: Losing Alice. It is an Israeli noir psychothriller about creativity, self., and truth. And it stars the fabulous Ayelet Zurer. In one of the later episodes, a character accuses Alice of being the bad reader. He pulls out from his bookshelf the Amos Oz, A Tale of Love and Darkness (I've reviewed another Amos Oz book on Prawfs here). He reads out loud. I went back to find the original, and discovered that the English translation omits this whole chapter about the bad reader. The bad reader is the reader that focuses on who is in fact Elena Ferante, obsessing about whether she has a real life brilliant friend.

The bad reader "pursues the secrets of the novelist rather than the secrets of the novel. The bad reader wants to know “the story behind the story.” If Dostoevsky gives us a man who robs and murders an old woman, the bad reader is sure that Dostoevsky himself must have been implicated, if only through private fantasies, in that sordid activity. If Nabokov gives us a pedophile, it is tantamount to a confession of pedophilia. And how, the bad reader wonders, could Sophocles possibly have manufactured such a vivid story of incest and patricide without the benefit of some personal experience along those lines?" “They come to take my message from me, dead or alive,” says Oz writes. "Invoking “the right of the public to know,” interviewers want him to identify the message, the moral and the political cargo his fiction conveys to the reader. Perhaps it is “The occupation corrupts,” or “Love triumphs,” or “The minorities are exploited.” Both the bad reader and the gasping interviewer share a “righteous puritanical hatred for creativity, for discovery, for obfuscation and exaggeration, for the games of courtship, for the ambiguous, the musical and the Muse, for the imagination itself."...Oz likens the bad reader to “a psychopathic lover” who strips off his victim’s skin, impatiently removes the flesh, dismantles her skeleton, “and at the end — when he is filleting her bones between his crude yellow teeth — only then does he finally attain his satisfaction: that’s that. Now I’m really, really inside. I’ve arrived.” The metaphor of “the psychopathic lover” forces us to consider the reader’s desire to control and possess a work of art, as if that were possible — as if anyone, even the artist, could enjoy such power. Oz sees a nihilistic urge at work in “the bad reader,” whose sole aim is to prove that, in the end, the characters in a story are no more than representations of the author and his relatives and friends and neighbors, doing the same mundane things that everyone else does — nothing extraordinary or mysterious — because in reality, “everyone is the same.” Bad readers convince themselves that any work of fiction will boil down to something utterly familiar, just as all the characters on a computer keyboard are reduced, in their little binary world, to a bunch of zeros and ones."

Incidentally, and tragically, Oz's family and private life has been the subject of a lot of pages after his death last year.

Watch the series, read the book, and, perhaps all we can do is try to be good watchers and readers.



Posted by Orly Lobel on November 17, 2021 at 11:27 AM | Permalink | Comments (2)

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

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

Tuesday, November 16, 2021

How Discretionary is Certiorari?

I recently outlined an account of the justices' discretion with respect to certiorari. Briefly, I suggested that a standard generally governs the decision to grant cert, a permission generally protects votes to deny, and that a presumption or mandate in favor of granting cert governs a special subset of cases.

In the comments, Orin Kerr thoughtfully expressed some doubts about my account, essentially suggesting that cert votes are purely discretionary. My post had criticized that view, but I have to admit that it's plausible. And I wondered how many people share it. So I put up an extremely unscientific twitter poll. Apart from lots of "What the FERC?!" comments, here are the results:

Screen Shot 2021-11-16 at 11.07.48 AM

This is of course a very crude survey, even apart from the obvious selection problems. What each of these categories means is unclear, and they might overlap.

There are also follow-up questions to ask. For those who reject the pure discretion view, for instance, is the problem more about granting all FERC cases, or denying all non-FERC cases? Should the answer depend, as one commentator suggested, on the subjective goals of the justice singling out FERC cases? And, to what extent are supporters of the precedent/custom option basically asking whether the current justices do in fact feel bound to vote in a certain way?

Naturally, I wouldn't want to put any weight on the vote breakdown here. Perhaps the poll offers some evidence that there are diverse views on the scope and source of the justices' certiorari discretion. Or maybe the poll's only use is to prompt more thought and discussion.

Posted by Richard M. Re on November 16, 2021 at 11:39 AM | Permalink | Comments (19)

Monday, November 15, 2021

Free Library of Philly, This Thursday conversation with Jorge Contreras on his new book The Genome Defense

Law professor Jorge Contreras has written a fascinating book, The Genome Defense, about the battles over genetic sequencing patents. I will be in conversation with him about the book and the intellectual property issues he’s researched. the event is free and open to all - register here for the zoom link:


Posted by Orly Lobel on November 15, 2021 at 03:58 PM | Permalink | Comments (6)

Resources for new and aspiring ad law profs

Christopher Walker (Ohio State) at Yale J. Reg's Notice and Comment, for the ad law scholar in your life.

Posted by Howard Wasserman on November 15, 2021 at 12:12 PM in Howard Wasserman, Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Sunday, November 14, 2021


Since I'm busy avoiding work, I'll take a moment to answer Howard's question: Does what the late Justice Ginsburg said about Colin Kaepernick tell us anything about how she would have voted in the flag-burning cases? My view is that the answer is a clear no. I'm not sure much evidence is needed. But while tributes are generally the last place one should look for the truth or for evidence of sincerely held views, I would just note that in her memorial tribute to William Brennan, 111 Harv. L. Rev. 3 (1997), Justice Ginsburg wrote, in a tone of implicit approval, of a variety of his noted opinions, and included Johnson and Eichman, with a description of those cases as being about "the tolerance the First Amendment exacts even for flag burners." Whether the flag-loving rhetoric in that sentence was sincere, obligatory, or somewhere between the two, I doubt she would have had any difficulty casting a speech-protective vote in those cases. 

None of this is meant to suggest that Ginsburg should have said what she did, or that Couric acted anything other than improperly in attempting to sanitize the interview to protect Justice Ginsburg's reputation. (As Couric saw it. The interesting thing about the episode is that while Couric's perception might be accurate with respect to elites, surely Ginsburg's off-the-cuff reaction to Kaepernick was close to the center of public opinion at the time. Couric may have thought, after literally consulting with other members of the establishment, that leaving in Ginsburg's comment would embarrass the Justice. Nevertheless, ultimately her editing had less to do with protecting Ginsburg's general public reputation than with safeguarding her club membership. Asking millionaire journalists for their thoughts on public opinion is like going to Marie Antoinette for tips on baking.) Couric clearly acted wrongly, and doubly so because her stated reason for editing out the remark--that Ginsburg "was elderly and probably didn't fully understand the question"--was far more newsworthy than the particulars of how she answered the question. Nor does it matter to me one way or the other what Ginsburg's celebrity trainer has to say about the matter. Ginsburg shouldn't have answered the question not because she answered it rightly or wrongly, but because she shouldn't have answered it--or given the interview--at all.

Whatever Ginsburg's thoughts on the flag, the national anthem, or protests were, however, I think her vote in Johnson and Eichman would clearly have been the same as Brennan's.     

Posted by Paul Horwitz on November 14, 2021 at 05:22 PM in Paul Horwitz | Permalink | Comments (0)

RBG and patriotic symbolism

Josh Blackman writes about an attempt by Bryant Johnson, RBG's longtime trainer, to defend the Justice against Katie Couric's report about RBG's comments on Colin Kaepernick. According to Johnson, RBG knew nothing about the Kaepernick controversy at the time of the interview. He subsequently explained to RBG that Kaepernick was protesting racial injustice rather than the country and that he chose this method at the suggestion of a veteran as a more-respectful alternative; RBG responded that she did not know the whole story and should not have answered the question. Josh calls B.S.

I return to my prior question: Does this tell us anything about how Ginsburg would have voted in Eichman and Johnson? Johnson's defense of RBG rests on the premise of her not having the full story and changing her mind once she realized Kaepernick was showing respect. But that leaves RBG's line at patriotic symbolic counter-speech showing unquestioned contempt for government and not allowed in the places their families came from, for which flag-burning qualifies. So what would she have done with flag-burning?

Posted by Howard Wasserman on November 14, 2021 at 04:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Most Important Sentence in Simon Lazarus's YLS Memo

Leaving aside all the other issues, there is surely one point in Simon Lazarus's memo, noted by Rick below, on which all right-thinking people can agree: "'Inflection point' is an overused cliché."

It is true that academics are not the most thoughtful or independent thinkers or writers. And it seems increasingly true that apart from all the other trend-chasing they may engage in, they--and their youthful editors--are caught in a moment (not an inflection point!) in which both academic and general-audience writing is infected by a hybrid of what I think of as social-media bumper-sticker phrases (see, e.g., virtually every current political and cultural debate) and bad grad-school-dropout essay style. (Try comparing the current movie reviews in the Times to those five or fifteen years ago--and read the staff bios. This is a case in which the hiring crisis in the humanities is a lose-lose scenario.) But the frequency of use of a phrase like "inflection point" serves as a nice illustration of how bad things have gotten. Here, based on a search of Westlaw's law review database, is a look at the number of times the phrase has been used per year in the past decade:

2021 to date: 114

2020: 139

2019: 136

2018: 93

2017: 80

2016: 79

2015: 64

2014: 56

2013: 49

2012: 31

Going further back at greater intervals, the numbers are 21 times in 2008, five times in 2005, six times in 2000, a whopping twice in 1995, and a total of seven times in a search of all uses of the phrase before 1995. The numbers are actually worse than that. The further back one goes, the more likely it is that when an article contains the phrase "inflection point," it is using it accurately as a term of art in mathematics, or quoting it as business jargon. That is far less true today.

I am sure that 1995 also had its trendy phrases. (And that I used them.) And I don't think this kind of trend--not so much an example of academic jargon, I think, but more an example of the increasing jargonization of normal language, and of its seeping from the Internet into every other corner of the language--is unique to the legal academy as opposed to other sectors. It might even be less common in legal academic writing, although one might think otherwise given the circumstances of its production: As an academic discipline, law is more undisciplined than most and its gatekeepers less qualified and, because they are younger, more subject to capture by linguistic fads. Still, given how often lawyers or legal academics trumpet the lawyer's ability to speak and write clearly and succinctly, we ought to be especially vigilant against this sort of trend. Evidently, we are not. 

It also strikes me--and this too is true of many of the phrases appearing in both online and offline discourse, including in the law journals--that most of the time it is used inaccurately even as a turn of phrase. In its non-mathematical sense--one closely related to its mathematical meaning--an inflection point is a moment of dramatic and fundamental change, one in which previous assumptions no longer apply. Most of the time, "inflection point" is merely used to mean something more like an "important moment." And a good deal of the time, its use is less descriptive and more rhetorically assertive and strategic than that. It is used to mean something like, "This is a moment that I want you to believe is urgent." Since the evidence given to support the assertion is often lacking, it is fair to say that its invocation in such cases meets Harry Frankfurt's definition of "bullshit:" it is intended to persuade without much regard for whether it is true or false in fact. (Why undertake this draconian legal change, despite the unanswered questions about consequences or the existence of known costs and risks or the presence of contrary precedent? Because we are at an inflection point.) Apart from its political uses--and a good deal of legal academic writing is intended to look as if it is politically engaged or make the writer feel he or she is politically engaged--I suspect that it fills a self-serving function supplemental to novelty claims, spurious or otherwise. Why publish this article, or publish it in a top journal--even though, strictly speaking, it is not novel? Because we are at an inflection point.

I don't much care for writing prescriptions. But if I were addressing law review editors, my advice to them would be straightforward: Redline every use of every phrase of this sort. (I'm sure many current instant-cliches will occur to you.) Ask the writer whether it is actually true (and demand support on that point) and actually needed. Encourage him or her to rewrite the sentence in plain English. (At a minimum, this would have the benefit of making many articles feel less important and exciting.) Then go after the older cliches as well. 

But the real target of any advice should be the professors, who are older and better situated to withstand the linguistic temptation to be timely and up-to-date. They won't be anyway. We all grow old and, if we are fortunate, unfashionable. So they may as well shoot for being clear and timeless.   




Posted by Paul Horwitz on November 14, 2021 at 01:24 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 12, 2021

Four-Jew World Series after all

I am ashamed to say I missed this when it happened--it turns out we had our four-Jew World Series. Garrett Stubbs of the Astros, the team's third-string catcher, was placed on the active roster for Games 4, 5, and 6 when the back-up went into COVID protocols. That made this the first World Series with four Jewish players on active rosters. And Game 6 was the first Series game to feature four Jewish players when Stubbs caught the ninth inning. Unfortunately, Joc Pederson had been lifted for defense in the eighth and Max Fried had been taken out in the seventh, so the four were not in the game at the same time.

My apologies for not being on top of these historic events.

Posted by Howard Wasserman on November 12, 2021 at 05:44 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Simon Lazarus on the Yale Law School "Trap House Affair"

Brian Leiter has posted a memorandum, dated Nov. 9, written by Simon Lazarus (Yale Law School '67), on the so-called "Trap House Affair" at Yale Law School, with which I am sure all Prawfsblawg readers are familiar.  Like Lazarus, and as a (grateful) YLS graduate, "I’ve become increasingly disappointed by the YLS administration’s persistent mishandling of the matter – which is largely responsible for escalating a small, apparently manageable misunderstanding between elements of the student body, into a focus for withering national and international criticism of YLS, by prominent journalists and academics."  And, I endorse Lazarus's list of five steps that YLS should take, as soon as possible, "to restore its stature as a bastion of basic rule of law and Bill of Rights-compatible principles."

UPDATE:  The "affair", it appears, is even worse than Lazarus suggests.  (HT: David Lat)

Posted by Rick Garnett on November 12, 2021 at 10:14 AM in Rick Garnett | Permalink | Comments (0)

Lisbon Living

In Portugal, in response to remote work, a new law makes it unlawful for companies to contact their staff outside of their contracted working hours. The laws also block employers from monitoring their employee's productivity, and require employers to pay for their employees' household expenses incurred while working from home, such as internet and electricity. Finally, employees with children will be given the legal right to work from home until their child turns 8 without approval from management. 

Work/life balance is a hard thing to achieve and a global pandemic and digital technology have made this balance even more challenging. We have nothing like these Portuguese laws on this side of the pond, and still a long way to go to level with European family and medical paid leave. It will be good to keep our eye on these comparative experiments as well as look at what companies that with the best policies are doing on their own to attract and retain the best workers in desirable productive work environments. 

Posted by Orly Lobel on November 12, 2021 at 01:11 AM | Permalink | Comments (0)

Jeopardy - Professors Edition

This should be fun to watch! and go law professor Guatam Hans!

Jeopardy professors

Posted by Orly Lobel on November 12, 2021 at 01:03 AM | Permalink | Comments (0)

Thursday, November 11, 2021

Do the Justices Have Permission to Deny Review?

What legal principles govern the Supreme Court’s decision to grant review? 

This basic question is surprisingly hard to answer. Supreme Court Rule 10 states, “Review on a writ of certiorari is not a matter of right, but of judicial discretion” and then gives a series of factors that “indicate the character of the reasons the Court considers.” Justice Barrett recently drew attention to this issue. In Does v. Mills, the Court denied a request for an injunction regarding a state covid-19 vaccine mandate. Joined by Justice Kavanaugh, Barrett concurred because the case called for a “discretionary judgment about whether the Court should grant review in the case.” How should we understand this “discretionary” practice?

One option is to endorse an amorphous standard, such as “important cases” or “cases where the Court can do a lot of good.” This approach is highly merits-dependent, in the sense that what qualifies as “important” or worth the Court’s time will largely turn on one’s views of the law. A Court that embraced this approach would therefore tend to unsettle the existing legal landscape and reshape it according to the justices’ current legal views. 

Another option is to adopt strict rules, such as “grant only cases that pose a circuit split and cases where the United States has sought certiorari.” This approach will be relatively merits-neutral, in the sense that the criteria identified are independent of one’s own view of the law. But this option affords other actors control over the Court’s docket and would inevitably leave out extraordinary situations where certiorari would seem warranted. 

A third option is a rule of pure discretion. The justices could either grant or deny certiorari for any reason or no reason at all. As compared with the merits-sensitive standard and the merits-neutral rule, pure discretion would allow the Court to get the best of both worlds: it could leave most law undisturbed while acting in extraordinary cases. But unbridled discretion of course invites worries of arbitrariness, bias, and partisanship.     

Faced with this imperfect menu of options, a natural thought is, “Why choose just one?” The justices are free to mix and match decisional principles so as to create a hybrid regime. And, in my view, the Court has done just that.

First, the Court has established a standard for granting certiorari, focusing on whether a case poses an “important” question (Supreme Court Rule 10). This principle aims to ensure that the justices alter the law only when they have identified a legitimate reason for doing so. The upshot is a degree of accountability, both to the observing public and to themselves.

Further, there is a permission to deny certiorari. That is, the justices are generally entitled vote for inaction, leaving the law where it is. This permission is asymmetric, and unlike pure discretion, because it applies only to denials of relief. In essence, the permission encourages the Court to err on the side of caution by ensuring that inaction is readily available. 

Finally, there is a presumption, even a mandate, in favor of review in certain frequently arising contexts, such as well-presented circuit splits or invalidations of federal statutes. These rule-like precepts qualify the permission to deny, foster predictability in the mine-run of cases, and establish baseline practices that can help guide the Court's discretionary judgment. 

To my mind, the hybrid system just described is preferable to any one of the three norm types I described earlier (standard, rule, or discretion). Moreover, a hybrid system of some sort is probably the only decisional structure that can realistically be achieved, given the cross-cutting imperatives and views involved. Even functionalist justices want some determinacy and even formalist justices need an escape hatch every now and then.

This isn’t to say that the Court has already adopted and calibrated the perfect certiorari system. And we might want to embellish the account above, such as by adding a few “anti-permissions,” or considerations (such as invidious prejudice) that defeat an otherwise available permission. Still, recognizing the appeal and practical need for diverse norms is a critical first step to diagnosing any defects in the existing regime.

Similar hybrid systems can arise in other contexts, with one bearing special mention: stare decisis. Perhaps, as I have elsewhere suggested, stare decisis at the Court does or should operate not as a standard, rule, or principle of discretion, but rather as a mash up of all three. Consider the following simple schema: first, a standard for overruling; second, a permission to abide by precedent and so (as in the certiorari context) do no harm; and, finally, a mandate in favor of preserving statutory precedents.  

In other words, the certiorari process can be viewed, not as an exceptional opportunity for discretion, but rather as a miniature version of overall Court decision-making.

Posted by Richard M. Re on November 11, 2021 at 07:22 PM | Permalink | Comments (9)

Section Three in Indiana Law

Jack McNeil, a student in my Fourteenth Amendment seminar, has done some terrific research on Section Three of the Fourteenth Amendment. As part of that, he has discovered the first state statute that I'm aware of expressly mentioning Section Three. Indiana law states that a candidate "for the office of elector for President and Vice President of the United States must have the qualifications provided in Article, Section 1, clause 2 of the Constitution of the United States and Section 3 of the Fourteenth Amendment to the Constitution of the United States." Section 3 is not mentioned as a qualification for any other office in Indiana (state or federal), which is odd. (Why did the statute single out presidential electors?)

Anyway, there is more to uncover. 

Posted by Gerard Magliocca on November 11, 2021 at 01:09 PM | Permalink | Comments (0)

Wednesday, November 10, 2021

On Citations & Gender

There's been a lot of citation lists coming out in the past few weeks - 

The Brian Leiter 2021 rankings (covering 2016-2020) lists top-ranked scholars, including by law faculty and by subject matter lists. A new list is Labor & Employment which used to just be lumped with public law.  A just-published University of Chicago Law Review article, The Most Cited Legal Scholars Revisited, is a citation study which includes citations in books as well as in articles and provides all-time lists--that is to say not limited to just the past five years. Notable for us Prawfs (remember Dan Markel coined the name of our blog nodding to the fact us founding bloggers were newbies - that is RAW professor) is a Most Cited Younger Legal Scholars (born after 1970) list in the new Univ of Chicago Law Review Article authored by Fred Shapiro.

There is a lot that can be said (and has been said) about the methodologies of citation lists, and more generally, the comparative significance of various metrics through which we measure success in legal academia. I invite others on this blog to chime in on various aspects of this discussion. Shapiro in the Chicago L Review article has a very good discussion about the debates on citations, including the recent decision to not include citations in US News rankings. But I wanted to highlight something about the gender disparities of the various lists. 

In the Chicago L Rev study, only two of the fifty most-cited legal scholars of all time are women. Shapiro writes: "I attribute the low number of women scholars on that list to the historical scarcity of women in legal academia and the legal profession, prejudice against those women who did participate in law, and sociological factors such as the greater demands on women to juggle work and family obligations." I think the middle part mentioning prejudice is misleadingly phrased as in the past. And there is much to say about the vicious cycles in the advancement of women's careers, especially in places like academia. I'll point to two articles I recently wrote on gender pay gaps, Knowledge Pays Columbia Law Review 2020, and on the silencing of women's voices and opportunities in research, Innovation, Exit and Voice, Houston Law Review 2020. The thing about inequity is that it isn't caused by one thing. There are those who want easy explanations (and thereby caricature claims about bias) and easy fixes. But the multiple factors that contribute to inequality and bias create vicious cycles and self-fulfilling prophecies. In academia, women face barriers in unequal evaluations, expectations, geographic immobility, #manels, prestige associated with different fields of research that are gendered, leaky pipelines, and disparate perceptions when it comes to sharing ones work. For example, when women share their research, they are far more likely to be viewed as self-promoting. When they are contrarian to conventional wisdom, they are far more likely to face resistance and mansplaining. When they participate in online forums, they are far more likely to be personally harassed (and oh, the courage of the anonymous harasser). I recently heard a speaker - a fierce successful woman - who pointed out how every time she witnesses this she calls out the person who shamelessly doesn't give credit where credit is due at conferences when a woman just provided an insightful comment or question prior to his. All of these dynamics range from the very subtle, some subconscious, to the very conscious and not at all subtle. It isn't one thing, but all of these many thing become one big thing in their impact and results.

Shapiro finds hope in the future, and I am happy to cautiously share his optimism. He writes: "there is, however, evidence of progress to be found in my list of most cited younger legal scholars. Here, we see that six of the top sixteen are women." 

Shapiro continues: "It is highly likely that in the future the percentage of women among most-cited legal scholars will continue to increase. Over 52% of law students are now women. The most eye opening statistic is that, in 2020, every one of the editors-chief of the flagship law reviews at the sixteen law schools highest-ranked by U.S. News and World Report was female."

Hope indeed!

I will close though with the statement, which Shapiro quotes as well, by the Society for Empirical Legal Studies on the danger that relying too much on citations may pose on diversity: "Law faculties for many years were mostly closed to women and members of marginalized minority groups. Under a HeinOnline-driven ranking system, law schools would go to great lengths to retain faculty members with long tenures and publication records, even those who have more recently become less productive. This in turn would reduce schools’ ability to hire and tenure junior faculty members, who increasingly hail from more diverse demographic backgrounds. Simply put, using HeinOnline is bound to negatively affect these groups and, therefore, to harm faculty diversity nationwide."

Ah yes. From the perspective of appointments, I concur. 



Posted by Orly Lobel on November 10, 2021 at 12:42 AM | Permalink | Comments (2)

Tuesday, November 09, 2021

Buchanan on events at UF

Neil Buchanan, who teaches at UF and blogs at Dorf, has two great posts on events at UF, from a unique insider perspective--a new faculty member (he joined UF from GW in 2019), recruited to a chair and directorship, and lured by the university's stated goals of becoming another "public Ivy." He can focus on how this hurts the school's reputation and how it hurts faculty recruiting. Worth a read.

Posted by Howard Wasserman on November 9, 2021 at 03:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sartorial choices, on the sideline and in the classroom

Since the COVID bubble in spring/summer 2020, NBA coaches have moved from wearing suits during games to warm-up pants and 1/4-zip pullovers with team logos. Last week, Candace Buckner decries "pandemic chic. The haute couture of polyester and wrinkle-free pants" that makes her "long for the days when the NBA sidelines showed a touch of class." Buckner discussed the article on the Hang Up and Listen podcast (around the 48:00 mark).

I have been teaching this semester, masked, in shorts and a pullover (my favorite clothes matching my favorite weather), as a sop to what I perceived as the oddness of wearing a tie and a mask, combined with the habits of wearing comfortable clothes at all times. In explaining the change to my students on the first days of class, I used NBA coaches as my analogue--if they went all-casual, so would I. I assured them it did not mean I took their education or the class any less seriously. But others would say they long for the days when the front of the classroom showed a touch of class.

Incidentally, I recognize that dressing like this reflects male privilege. I can do this without, it appears, losing status or respect from students; an untenured colleague and (likely) a non-cis-male colleague may not have that luxury.

Posted by Howard Wasserman on November 9, 2021 at 08:54 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, November 08, 2021

State Insurrection Statutes

One thing I've noticed is that some states have criminal insurrection statutes. Here is Iowa's:

An insurrection is three or more persons acting in concert and using physical violence against persons or property, with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof, or to prevent any executive, legislative, or judicial officer or body from performing its lawful function. Participation in insurrection is a class “C” felony.

Here is Mississippi's statute:

The term “insurrection,” when used in any statute, means an armed assembly of persons having intent to resist or subvert lawful authority.

These very broad definitions would certainly apply to what occurred at the Capitol on January 6th. But other states have a narrower definition. Here is the Georgia statute:

A person commits the offense of inciting to insurrection when he incites others to overthrow or attempt to overthrow the representative and constitutional form of government of the state or any political subdivision thereof and he or they commit any violent act in furtherance thereof.

Here is Colorado's definition, which also looks narrower:

Any person who, with the intent by force of arms to obstruct, retard, or resist the execution of any law of this state, engages, cooperates, or participates with any armed force or with an armed force invades any portion of this state commits insurrection.

Anyway, food for thought.

Posted by Gerard Magliocca on November 8, 2021 at 10:56 AM | Permalink | Comments (17)

Sunday, November 07, 2021

What the hell is this supposed to be?

Spray-painted on a the cinderblock wall around a commercial trash bin. (Since someone asked--it looks to me like a Klan hood. I did mention that in the initial post because I did not want to prejudice commenters and did not want to appear to jump to conclusions if this image was somehow a thing).



Posted by Howard Wasserman on November 7, 2021 at 08:56 AM in Howard Wasserman | Permalink | Comments (5)

Academic freedom in Florida and the quiet parts out loud

Perhaps trying to prove my point that attacks on academic freedom are likely to spread throughout the Florida SUS, Florida Atlantic University (public university in Boca Raton) is considering a proposal to give the full Board of Trustees, not the Board president alone, final authority on tenure decisions.

One trustee, recently appointed by DeSantis, wants a complete file beyond the short bio. She also wants to be able to plumb that file for a lot of additional information to use in a nakedly content- or viewpoint-based decision. Money quote from the article:

One paragraph doesn’t tell us a lot about a professor, his viewpoints, his research, his political affiliations or potential donations,” among other factors, she said. “I’m concerned about tenure moving forward. I speak not just for myself but for the governor. I can’t think of any other position out there where people have a job for life."

This will be used as evidence by the first person denied tenure under this new system. It also demands to see and rely on information that goes beyond the tenure file reviewed in any department, college, or provost's office. My tenure file contained nothing about my affiliations or donations (I suppose people could guess, although they would be wrong based on some of my recent work). I would wonder how DeSantis feels about this person speaking for him, but he probably shares her views.

Also evincing my point about what this happening outside the national media eye when it happens at a place other than the flagship university, the story is from the South Florida Sun-Sentinal, not the Washington Post or even the Miami Herald.

Posted by Howard Wasserman on November 7, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, November 06, 2021

Standing problems in UF prof lawsuit

Despite UF backing down, the three professors filed suit Friday, seeking to enjoin as violative of the First Amendment "any policy or practice that provides the Univerity discretion to limit Plaintiffs' ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the “interests” of the State of Florida or any of its entities or instrumentalities."

Standing is a problem here. The plaintiffs got the relief they are suing for--permission to testify in the case and be paid for it--so they are not suffering an ongoing injury traceable to university policy or practices (or, in my preferred framing, their rights are not presently being violated). They try to get standing through Susan B. Anthony List, where the Court held a plaintiff can establish standing for a future injury where she intends to engage in arguably constitutionally protected activity that is proscribed by the challenged law and there is a credible threat of future enforcement. Consider ¶ 43 of the complaint:

Unless and until it is rescinded or declared unconstitutional to the extent it equates the University’s “interest” with that of the State, the University’s Policy will continue to impede Plaintiffs from serving as expert witnesses or otherwise lending their analysis or expertise to litigation challenging State policies, in violation of the First Amendment.

As pleaded, that does not work. It is framed as if the existence of the policy without a declaration of its invalidity is a unique ongoing or future injury, which it is not. A declaratory judgment requires standing beyond "this policy is in place and will impede us." They need more, but I am not sure if or how they show a likely future injury. They can allege that they regularly testify as experts, including against the state; they will need to request permission; and they risk being denied in a future case because of the anti-state positions they wish to take and the university's discretion. And courts are forgiving of standing in First Amendment cases.

The problem for the plaintiffs is that this is not the typical First Amendment case. In the typical free-speech case, standing is based on the plaintiff's unilateral intended actions ("I want to handbill;" "I want to make possibly false statements about a political candidate") and the obvious presumption that the government will enforce its laws against violators (arresting the handbiller or charging the false statements). Here, standing depends on actions of others. Five things must happen--the state must future rights-infringing laws; those laws must touch on subjects on which the plaintiffs possess expertise; someone must challenge those laws in court; those plaintiffs must need expert witnesses; and plaintiffs must seek to hire these profs as experts. Each is necessary before the plaintiffs would suffer a future injury traceable to the policy--seeking and being denied permission to testify because they are acting contrary to university interests. Until each happens, these plaintiffs need not request permission for these activities and will not be subject to the policy. The court must overlook how speculative and beyond the plaintiffs' control these facts are. Perhaps the court will decide that past history makes each likely to occur and perhaps it will not that this is a First Amendment case and be more forgiving. But a court is unlikely to abide such speculation in an environmental case.

The complaint is inconsistent in identifying the First Amendment problem with the policies, which might affect the standing analysis (showing, again, how intertwined merits and standing are). It identifies four defects. 1) The problem is making profs request permission before testifying, which it calls a prior restraint. 2) The problem is the discretion the policy vests in the university, a position the Eleventh Circuit rejected last year in a challenge to conflict policies at a different SUS institution. 3) The problem is the university denying permission to engage in positions contrary to Florida's "interests," which creates viewpoint discrimination (because a professor could testify in favor of Florida in the same action). 4) The problem is the university equating its interests with those of the state, which is problematic but not necessarily violative of the First Amendment.* These are distinct First Amendment theories with varying likelihoods of success. The likelihood of future injury varies depending on the theory of the case. For example, if the constitutional problem is making profs ask permission for any outside expert activity or testimony, that injury is more likely (since it is obvious they may testify in the future), although the constitutional merits argument is weaker.

[*] If the university and the state are the same, UF's position that the university is the state may prove too much, affecting the eligibility of federal judges to hear these cases. Many judges on the Eleventh Circuit and the Florida district courts serve as adjunct professors, whether teaching full classes or as part of a group of trial-advocacy instructors. They recuse in cases involving the university. But if the university and Florida are the same, then must they recuse in any case to which Florida is a party? That would have dramatic consequences.

The X-factor is the task force that the UF President convened to recommend a new policy for professors who want to testify in cases in which Florida is a party, which was charged to submit a preliminary recommendation by November 29. That new policy could end this dispute, depending on what it says and which of the distinct alleged constitutional defects it resolves. A court may not want to do anything with this complaint for a month, knowing that the situation will in three weeks and the complaint will go away or be materially changed. Perhaps the court will let the case sit until those further developments, especially since the plaintiffs do not need preliminary relief.

Finally, not to (again) beat a dead horse: But how much simpler would it be for a court to say "your First Amendment rights are not being violated in this situation, so you lose your claim"?

Posted by Howard Wasserman on November 6, 2021 at 11:33 AM in Civil Procedure, Constitutional thoughts, First Amendment | Permalink | Comments (2)

Friday, November 05, 2021

More on academic freedom at UF (Updated)

Updated: The university backed down, at least for the moment. The president convened a task force (including Clay Calvert, an excellent First Amendment scholar who teaches in the journalism school, and law dean Laura Rosenbury) to develop policies for "how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." That framing is problematic, still conflating the university with the state of Florida, but we have to see. The president also ordered the university conflict's office to reverse recent decisions and allow faculty to testify, for compensation, in cases to which Florida is an adverse party.

The University of Florida Chapter of United Faculty of Florida issued a list of demands. After the jump, I summarize and comment.

1) Allow the three faculty members to provide paid expert testimony in the voting-rights litigation, as well as allowing other faculty to do the same in other cases. They also want the university to issue a formal apology. Makes sense. This is what started this whole thing, which has brought to light other academic-freedom concerns at the university, such as state laws requiring schools to conduct "intellectual environment" surveys and limiting what faculty can speak to students about.

2) Affirm the right of faculty to "conscience, academic freedom, free speech rights, and expertise in an expert witness context, regardless of whether they receive payment for their expertise." Obviously.

3) Affirm its support for voting rights and commit to opposing ongoing efforts to suppress voting rights in the state of Florida. This is stupid, over-grasping, and unnecessary. There are good arguments (from scholars across the political spectrum) that academic institutions should not take institutional positions on public issues, no matter how obvious the issues. This demand says "it is not enough that we be able to express our preferred position, you also must tell us that we are right in our position." It also plays into the narrative of liberal academics controlling the university and silencing those who oppose their messages by insisting that their views be the institution's views.

4) Formally declare that the University's mission to serve the public good is independent of the transitory political interests of state officeholders. Instead, UF should uphold its mission statement as the prime directive for all University activities. Good.

5) Donors should withhold donations unless UF complies with the four main demands, including explaining why they are withholding. Interesting, but unlikely to do much. One of the faculty members at the press conference announcing these demands said he had donated to the school in the past and would stop doing so. But I doubt that the donors the university cares about--those who build buildings and endow centers and chairs--would follow suit.

6) Officials at other schools should tank UF in their US News and other assessments, because of this, as well as its response to COVID, its "poor commitment to environmental sustainability," and broader attacks on employees' speech, academic freedom, and labor rights. This is trying to hit UF where it hurts. The university made a big deal about becoming the #5 public university in the 2021 US News (trailing UCLA, Berkeley, Michigan, and Virginia and tied with UNC and UC-Santa Barbara)--there is a photo circulating of DeSantis with university officials, holding a # 5 Gators jersey. Again, though, why drag an unrelated political issue such as the environment into this?

7) Professional associations should call out UF.

8) Accrediting agencies should investigate, since failing to protect academic freedom undermines its ability to provide a world-class education.

9) Artists, scholars, and intellectuals who are invited to perform at the University of Florida should decline these invitations until the University complies with our academic freedom demands. When declining an invitation to appear at the University, invitees should clearly specify why they are declining the invitation and, if they are active on social media, should use the hashtag #NotAtUF.

I asked Steve Lubet (Northwestern) for his thoughts, as he criticizes calls for academic boycotts. He writes:

Academic boycotts are bad in principle because they undermine the free exchange of ideas. I understand the impulse here, which is to exert maximum pressure on the administration, but it would be performative and counter-productive. Desantis and his acolytes don’t care much about artists or visiting scholars appearing at UF, so only the students and faculty will be hurt. They should try demanding that other universities drop UF from their sports schedules, which might actually have an impact.

I would add that it would create a political imbalance in the exchange of idea, because conservative speakers will be happy to speak at UF, not only for the opportunity to speak but also to own the libs.

10) Call for a UF Faculty Senate resolution affirming these demands.

11) Employees should refuse to disclose outside activities and conflicts of interest via the UFOLIO system. Until the University can be trusted to use this information responsibly, it should not be trusted with this information at all. Nothing like some civil disobedience as a topper. But they might consider Tracy v. Florida Atlantic University, a different conflict between an SUS entity and faculty speech. Tracy, a professor of communications and media studies, ran a blog that questioned Sandy Hook; the university asked him to disclose the blog as an outside activity, Tracy refused, and the university fired him for insubordination. The Eleventh Circuit affirmed summary judgment in favor of the university, concluding that the disclosure policy was not constitutionally invalid and thus firing him was not inappropriate. That one does not trust the university to use information responsibility, divorced from any apparent constitutional violation in the disclosure rules, does not excuse the obligation to comply with the disclosure obligations. I suppose if enough people stop complying the university cannot fire everyone for non-compliance, so maybe it works in the short term.

I presume the university will back down on this; it does not want this to remain a national story. I remain focused on how this trickles down to my school.

Posted by Howard Wasserman on November 5, 2021 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

"Washington's Heir" Now Available for Pre-Order

I'm pleased to announce that my biography of Bushrod Washington is now available for pre-order. I'm still waiting too see what the cover will look like, but hopefully that will happen next week.

Posted by Gerard Magliocca on November 5, 2021 at 11:03 AM | Permalink | Comments (0)

Thursday, November 04, 2021

JOTWELL: Pfander on Bray & Miller on equity

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022), including a shout-out to the SB8 litigation on everyone's mind.

Posted by Howard Wasserman on November 4, 2021 at 02:20 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 03, 2021

Academic freedom in the Florida State University System

I have been watching the situation at University of Florida closely, especially now that it appears this has implicated three law professors who sought to put their names on amicus briefs. This could spread to other schools in the State University System. It is front page of the Washington Post because it is UF, a flagship public university in a large state that purports to be a top public research institution; I would worry about stuff like this sliding under the radar at a smaller institution in a smaller state. Keith Whittington has been covering this at Volokh in his role with the Academic Freedom Alliance.

Meanwhile, the FIU Faculty Senate entered the fray. Interesting to see how FIU and the state respond.

Posted by Howard Wasserman on November 3, 2021 at 02:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 02, 2021

The Cart Before the Horse

I think the Court is taking the wrong approach to the S.B. 8 litigation. The better response was: "Stayed pending Dobbs." Then after Dobbs is handed down:  "Vacate and remand in light of Dobbs."  Dobbs might moot the S.B. 8 cases, or at least clarify the underlying substance.

Instead, the Court is going to decide complex procedural issues that they need not decide now. Worse still, they will probably feel pressure to decide those issues before Dobbs is argued on December 1st. I mean, what's the point of doing so after Dobbs is argued? At that point, the procedural issue might be moot to them, though only they will know until Dobbs comes out.  

Posted by Gerard Magliocca on November 2, 2021 at 12:17 PM | Permalink | Comments (8)

Courthouse Steps on SB8 arguments

As mentioned, I will be on the Fed Soc's Courthouse Steps to discuss the SB8 arguments with Stephen Sachs. Noon EST today, register here.

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

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.


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

Monday, November 01, 2021

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

Posted by Howard Wasserman on November 1, 2021 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A solution in WWH (Updated)

That did not go as I expected. If I had to read tea leaves, the Justices seemed inclined to let WWH go forward while allowing US to die on the vine, whether by rejecting the US's theory of the suit or counting on the US to voluntarily go away in deference to the private action. Some thoughts after the jump. I had predicted the opposite, thinking that the "this is a unique law" would justify a unique case by the US, whereas allowing WWH to go forward opens up a new realm of federal constitutional litigation that the Justices are not anticipating.

My theory has been that WWH cannot work because there is no one to sue--no executive enforces and Mark Dickson has not shown an intent to sue. WWH's theory--sue the judges and clerks--does not work because they are not responsible executive officers and they are not adverse to WWH and other providers. But Justice Sotomayor, with Kagan and Breyer weighing, offered something that works (which I had not thought of) without the slippery-slope concerns.

Part of the EPY fiction is that enjoining the attorney general (or whomever the responsible executive officer is) reaches everyone below the AG who enforces the law; an injunction barring the AG from enforcing a criminal law would prohibit a DA from initiating an individual prosecution.* So apply that idea to the deputized private SB8 plaintiffs who act as the equivalent to DAs--enjoin the AG based on his residual enforcement authority and the injunction applies to every individual private enforcer beneath him. The theory requires the additional step (which never came up during argument) of whether and why SB8 plaintiffs act under color of state law, which would have cut through Stone's resistance to the idea that private individuals were agents or deputized. They are not agents or deputies, but they are performing a traditional-and-exclusive public function in enforcing law for the public benefit. Under SB8, private individuals serve the role of individual DAs or other enforcing officers captured in an injunction against the highest responsible state officer.

    [*] Texas SG Judd Stone pushed back on Texas DA's independent authority. Kagan attempted to get at this by asking what would happen if a state enacted a heartbeat ban with ordinary criminal punishment. She never got a good answer. But she (and I) cannot believe that if Texas enacted a law criminalizing all abortions that an injunction prohibiting Greg Abbott from enforcing that law would not be read to prohibit every DA from enforcing the law).

WWH narrowed its theory in its Reply and in the argument, focusing clerks as the real target of the suit and remedy. My guess is they ran from language in EPY saying federal courts cannot enjoin judges from adjudicating, as well as the argument that judges do not enforce and are not adverse to the litigants. Docketing a case is "administrative" in a sense, so it fits better with the idea of stopping enforcement. The problem remains that clerks are no more adverse to the litigants than the judge is. The clerk is a neutral recipient and processor of the lawsuit enabling the (neutral, non-adverse) judge to adjudicate. [Update: Stephen Sachs explains why suing clerks makes no sense, including why the shift from enjoining enforcement of the law to enjoining "commencement" of the suit does not work, because the enforcer and commerncer remains the party bringing suit, not the clerk who puts it in the system).

Sotomayor's new theory works because it does not eviscerate private civil litigation or the state power to decide what laws to enact and how to enforce them. It applies to unique circumstance in which the delegation of exclusive enforcement authority for the benefit of the public renders private state-law plaintiffs state actors/persons acting under color of state law It would not apply to ordinary civil litigation to remedy a personal injury that will be met with a federal constitutional defense. This theory works because the expansion of the injunctive power under  fits the elements of the law being challenged. "Sue the AG to reach the deputized enforcers" can be limited to the extraordinary law that deputizes private plaintiffs to enforce state law--absent deputized enforcers, the theory does not work and so does not affect other lawsuits.

On the other hand, thereis no logical way to limit "sue-the-clerks" to the extraordinary case than by fiat--declaring SB8 (and presumably its imitators) as unique (based on several elements the Court and WWH identified) and creating a Bush v. Gore-good-for-this-trip-only process. Otherwise, the option of suing clerks to avoid the chilling effect of having to litigate defensively in state court logically must be available to any state-court defendant with a constitutional defense. Suing clerks also has serious administrability problems. Clerks ordinarily do not (and cannot) review or analyze lawsuits before docketing them, so an injunction would require them to do something they typically do not do. Moreover, Alito offered the hypothetical of a plaintiff who brings an SB8 claim along with a malpractice or IIED claim; lawyers for WWH said that the clerk could not accept that suit, although it would be under ordinary tort law, with none of the special problems of SB8. This suggests that "sue the clerks" cannot be limited to SB8 claims.

Update: Consider a real-life example, courtesy of Eugene Volokh: There is ongoing debate about whether the right of publicity can exist in light of the First Amendment and the constitutional limits on the scope of that tort. The First Amendment battle is fought defensively--plaintiffs suing for violations of the right of publicity and speakers defending on First Amendment grounds. If the Court allows suits against clerks, any speaker fearing a right-of-publicity claim would take that option rather than waiting for a suit and a defensive posture. The only way to avoid that is for a court to say "SB8 is different," although those differences have nothing to do with the choice between offensive and defensive litigation.

Now we wait, I expect for a few weeks--I believe the Court will decide this before argument in Dobbs on December 1. The question whether the Court takes the smart way to resolve this without blowing up the ordinary rules of constitutional litigation. Sototmayor's question offers a way that is less destructive than allowing EPY actions against clerks and judges.

Posted by Howard Wasserman on November 1, 2021 at 03:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The most-Jewish World Series has not been good for the Jews (at least so far) (Update)

As we head back to Houston with the Braves leading 3-2, it has not been a good series for The Tribe.

• Alex Bregman has two hits in 18 at-bats and has struck out five times. He was moved from third to seventh in the line-up for Game 5. He drove in the Astros first run in Game 5 with a second-inning double, although he failed to come through with the bases loaded and with a runner on second later in the game.

• Joc Pederson has one hit in 11 at-bats and has struck out three times. He did not start two of three games in Atlanta (played without a DH). He pinch-hit as they tying run in the bottom of the sixth, but popped out in foul territory to third. The defense was shifted, so the play required a long running catch--by Bregman.

• Max Fried took the loss for the Braves in Game 2, giving up six runs on seven hits in five innings. Reports on the game say he did not get hit hard, but everything the Astros hit found a hole. He has a chance to redeem the Series for Am Yisrael when he starts a potentially clinching Game 6 on Tuesday. Here's hoping.

Update, Nov. 3: The Brave won the Series in six games. Fried was the star of Game 6. He pitched six shutout innings, giving up four hits (none particularly hard hit) and striking out six on 74 pitches. He got Bregman (again batting seventh) twice--a strikeout in the fifth (a bad call-the pitch was low) and a foul fly to right in the first that was caught by Pederson on a nice play. Pederson was 0-for-4 and Bregman 0-for-3, making them a combined 3-for-36 for the Series. Pederson did become the ninth player--and first Jewish player, obviously--to win consecutive World Series with different teams.

Two more historic points. First, Fried became the fourth Jewish pitcher to win a Series-clincing game, after Larry Sherry ('59 Dodgers), Koufax ('63 and '65 Dodgers), and Holtzman ('73). Second, people are calling Bregman's flyout the most Jewish play in World Series history--Jewish pitcher, Jewish hitter, Jewish fielder credited with the putout.

Posted by Howard Wasserman on November 1, 2021 at 09:09 AM in Howard Wasserman, Sports | Permalink | Comments (0)

The solution cannot be worse than the problem

In advance of this morning's arguments in the SB8 cases ( US v. Texas and WWH v. Jackson), Ilya Somin endorses the amicus brief of the Firearms Policy Coalition against the validity of SB8 (it is concerned that a Blue state will enact a similar law targeting firearms owners). The gist is that the enactment and existence of a constitutionally violative law that chills the exercise of constitutional rights violates those rights and the courts can enjoin whoever "adopts and implements" the law, including judges and private individuals who have not revealed themselves.

This position has broad implications. It rejects a number of established principles, especially with respect to suing judges and with the question of what constitutes a constitutional violation. It would be least appealing to Justice Thomas, the staunchest advocate of gun rights. It also places a centrality on offensive/preemptive federal-court adjudication, resting on the belief that defensive state-court litigation is per se insufficient to protect constitutional rights. That undermines among other things, Younger and perhaps the well-pleaded complaint rule as applied to constitutional defenses (which is the best solution to this). It shifts massive amount of litigation into federal court--any tort defendant with a First amendment defense would be entitled to a federal forum and adjudication of the federal issues in federal district court.

The beauty of resolving this case through United States rather than through WWH is that it does the least damage to the ordinary flow of constitutional litigation. The federal government will sue only in the extraordinary case, so a broad take on its powers to seek anticipatory relief will be be more limited than one that says any rights-holder facing enforcement of state law in a way that might violate their rights is gauaranteed a federal forum by suing the state-court judge.

Posted by Howard Wasserman on November 1, 2021 at 08:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)