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Friday, December 31, 2021

2021 Chief Justice Year-End Report

This ball still drops, even during a pandemic.

This year's theme is the Judicial Conference (which marks its centennial in the coming year) and the importance of the judiciary's "institutional independence," as the "power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government." The opening historical ditty is about Taft and the origins and development of the Conference. Roberts then analyzes three topics flagged by Congress and the press as requiring the Conference's attention: Recusal obligations (in light of the recent WSJ report), judicial misconduct (implementing the Working Group's recommendations), and venue in patent cases.

I have an article coming in early 2022 in Stetson Law Review on the history of the Year-End Reports and how the chiefs have used them to address and push for changes in civil procedure and civil litigation.

Posted by Howard Wasserman on December 31, 2021 at 06:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, December 28, 2021

What does it mean to have gone to law school?

New York State Senator Brad Hoylman (D) announced a bill defining as a public nuisance (subject to public and private litigation) the promotion of "harmful, false, or unlawful" speech. It targets social-media sites whose algorithms promote or prioritize such "hateful or violent" content, treating it as an affirmative act (compared with passive hosting of third-party speech) not subject to § 230 protection. The obviously problematic piece is making actionable "a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public," a rule that would 1) empower the government to determine medical truth and 2) lacks the required imminence.

First Amendment scholars, lawyers, and commenters jumped to identify the obvious problems with the law under existing precedent and the likelihood its enforcement would be enjoined shortly after it takes effect. They also have pointed out that Hoylman graduated from Harvard Law School, a shot at HLS ("what the hell are they teaching there?") or at Hoylman ("did he not take a First Amendment class or did he just not pay attention?") or at both.

But consider three other possibilities.

    1) One must know the law to ignore it. HLS did a good job of teaching the First Amendment and Hoylman learned it well. But in his new position he does not care, choosing to score political points rather than adhere to the constitutional law that he was taught and knows well.

    2) One must know the law to find ways around it to serve (what one believes are) greater societal goals. HLS did a good job of teaching the First Amendment and Hoylman learned it well. And Hoylman is using that knowledge to find ways around that law in pursuit of a higher purpose or social goal. Whether one shares that goal tells us nothing about how well the law is taught and learned at HLS.

    3) Stop being judicial supremacist. HLS taught and Hoylman learned the First Amendment as interpreted by the courts. As a legislator, he is not bound by judicial precedent or that judicial interpretation and can proceed on his own understanding in drafting, introducing, and pushing legislation. His position may lose in court, but he has the departmentalist authority and discretion to pursue his competing vision within the legislative process. On this last point, perhaps we test the "HLS taught and Hoylman learned the First Amendment" hypothesis by whether Hoylman knows that his position will lose and chooses to pursue it anyway (a defensible position in a judicial-departmentalist world) or whether he believes what he proposes is consistent with prevailing judicial precedent.

Posted by Howard Wasserman on December 28, 2021 at 03:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

An inexplicable lawsuit

A class of of state med mal plaintiffs sued a bunch of doctors, hospitals, professional associations, health networks, the Attorney General, and several state judges; the plaintiffs want a DJ and injunction declaring that the Seventh Amendment is incorporated and that Texas' cap on non-economic damages violates the Seventh Amendment. Bloomberg reported on the order dismissing claims against the judges in light of WWH (because everything comes back to SB8). Otherwise, the case seems to be moving towards a hearing on the request for injunctive relief. But I am baffled by how this case is moving forward. Other than the AG arguing that plaintiffs lack standing because their federal claims depend on winning their cases and showing entitlement to non-economic damages that would be limited by the cap, the remaining defendants' briefing has focused on the merits of whether the Seventh Amendment should be incorporated and whether the damages cap is constitutionally invalid.

But this case should never go near the merits. That the parties and the court are steaming headlong towards that reveals how litigants and courts have disconnected constitutional litigation from, well, litigation.

First, we should be clear about context. This is not SB8--potential state-court defendants run to federal court with their potential federal defense to liability, seeking a remedy that would prevent state litigation. Here, the federal plaintiffs are the state plaintiffs and most of the federal defendants are state defendants; the plaintiffs have lopped off one piece of the state litigation that they initiated--their constitutional challenge to their anticipated defense--and turned that into a federal case, the resolution of which would control the state litigation. Let us count the ways that this is not permissible.

No Cause of Action. Both § 1983 and Ex parte Young require a defendant who acts under-color. Private litigants do not act under color when they avail themselves of ordinary laws and rules within litigation--especially when they are defendants in that litigation, dragged into court by the plaintiffs. So the state-court defendants (doctors, hospitals, and providers) should not be subject to this suit.

Eleventh Amendment/Lack of Standing. The AG did not argue, relying on WWH, that it does not enforce the damages cap, which arises in private tort litigation, not through any governmental enforcement. Maybe the AG has some "residual" enforcement power that has not been disclaimed. But it seems odd not to raise it.

Lack of Subject Matter Jurisdiction. Standing aside, I do not see how this action arises under federal law. Mottley provides the analogue--plaintiffs have state-law claim, defendants have a statutory defense (federal in Mottle, state here, but the point is the same), plaintiffs argue that the statute on which the defense will rely is constitutionally invalid. Mottley held that the defense and response to the defense does not provide federal jurisdiction under the Well Pleaded Complaint Rule; instead, the state court adjudicates the defense and federal response and the Supreme Court can review that judgment. But imagine that after filing their breach-of-contract claim, the Mottleys sued the railroad in federal court for a DJ that the free-pass law (which they expected the railroad to raise in defense) was constitutionally invalid--that is this case. But allowing that claim would undermine the WPC, by allowing the federal response to a defense to provide the basis for a federal forum, rather than leaving the entire case in state court subject to SCOTUS review.

If the medical defendants do not act under color and § 1983/EPY cannot provide the cause of action, the cause of action must be the DJA. But then we have a version of a Skelly Oil problem--a party impermissibly basing federal jurisdiction off an issue that would not arise on the face of the WPC in the enforcement claim in state court. And, again, this case is a step removed from Skelly because this is not the state defendant trying to beat the state plaintiff into court, but the state plaintiff trying to forum-shop by breaking up the case.

Now there is an argument, with which I would agree, that the WPC is wrong--cases such as the underlying med mal actions, in which a federal issue is certain to play a major role, should be deemed to arise under. But that is not the world in which we live. And plaintiffs should not be able to subvert the rule that we are stuck with.

Abstention. No one has raised Colorado River abstention, although it would seem to fit. The state actions were filed first (by the same people filing the federal action), it creates piecemeal litigation by breaking a key issue in the state case into separate federal litigation, and there is no reason to believe the state court cannot adjudicate the federal issues.

I do not understand the point of this strategy--what do they gain by pursuing the issues in this posture? They must want a federal forum, but they are not legally entitled to it. They must want one injunction and judgment stopping defendants from raising the damages cap. But not every doctor or (I presume) every hospital, clinic, and health-care provider is a defendant and thus not every doctor and provider can be subject to the injunction. No single person or entity can be enjoined in a way that protects the entire class. They are proceeding on the understanding that the law itself can be declared or enjoined, but that is not how this works--remedies run against persons ("any interested party" in the language of § 2201).

This action should be rejected on procedural grounds. But neither the defendants nor the court seem to recognize the many problems with this suit.

Posted by Howard Wasserman on December 28, 2021 at 02:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, December 27, 2021

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Sunday, December 26, 2021

Is "When Harry Met Sally . . ." a Christmas movie? Is it a Jewish movie? Is it both?

We watched When Harry Met Sally . . . with our 15-year-old last night. They enjoyed it and now understand the source of many cultural references (low maintenance, singing in front of Ira, not fucking with Mr. Zero, "because of God," etc.) that have bounced through our house for years. Next up, I guess, is Casablanca. Until then, two questions:

First, is this a "Jewish" movie? I saw an academic talk years ago that argued this is another version of the "Jewish man's opposites-attract relationship with the strange non-Jewish woman" story. I have never bought it. The movie is "Jewish" in that the writer (Nora Ephron), director (Rob Reiner), and male lead (Billy Crystal) are Jewish--but that is true of many movies (running Hollywood has its benefits). The story is loosely based on Reiner's experiences reentering the dating scene following his divorce. Sally is not Jewish (we twice see her buying a Christmas tree--more on that below). But is Harry meant to be Jewish? The story never makes that explicit. He is based on Reiner and played by a Jewish actor presenting "typically Jewish" mannerisms and personality. Harry Burns is a Jewish name, I guess, but it is no Isaac Herschkopf. Perhaps it does tell the Jewish-man-chases-shiksa story, sanitized for a mainstream audience. On the other hand, if you kept everything the same as the original movie and put Tom Hanks in the male lead (i.e., if you made Sleepless in Seattle or You've Got Mail*), would we think of this as a "Jewish" movie?**

[*]  In You've Got Mail, the Hanks character is Joe Fox and the mammoth chain bookseller is Fox Books. The irony for people watching that movie in Philadelphia was that Fox Books is a multi-generational independent bookshop around the corner from a Barnes & Noble, and its founder was Joseph Fox, who was Jewish.

[**] On a third hand: Ephron claimed that she based Sally on on herself and her friends. So you could tell a different Jewish story by remaking the movie with Jesse Eisenberg and Lizzy Caplan.

Second and more controversially: Is it a Christmas movie? The current-day (non-flashback) story appears to cover roughly 16 months--they reunite in late summer/early fall and the story ends on New Year's one year later. They pass through two Christmas seasons--captured in two winter-and-Christmas-in-New-York musical montages set to Christmas standards and buying Christmas trees (for Sally, not for Harry, of course). The different tenor of the Christmas montages evokes the different stages and states of their relationship, although with limited dialogue. The "action" of the seasonal scenes occurs not on Christmas but at two New Year's Eve parties--is New Year's part of Christmas for Christmas MovieTM purposes and should it be?

Posted by Howard Wasserman on December 26, 2021 at 03:02 PM in Culture, Howard Wasserman | Permalink | Comments (11)

Project Veritas injunction remains against New York Times

From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.

The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.

Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, December 22, 2021

Mandatory Vaccinations at the Court?

No, I don't mean the upcoming case about the Biden Administration's policy for private employers. I'm instead wondering whether the Court requires its staff to be vaccinated and what the individual Justices require of their law clerks and staff. I see no written policy on this issue. Perhaps someone should ask the Court's press office. I'm just curious.


Posted by Gerard Magliocca on December 22, 2021 at 09:31 PM | Permalink | Comments (6)

It's not just baseball

A New York Magazine story on Yeshiva men's basketball, which is ranked # 1 in the nation in D-III, has won 50 straight games dating back three seasons, and is blowing teams out. The undefeated Maccabees reached the D-III Sweet 16 when the tournament shut down in March 2020. They played only seven games last year before the season shut down. It is a great what-if for the school that COVID upended what could have been an historic run.

Ryan Turrell is the team's star, a mid-to-mid-major D-I talent who went to Yeshiva because he did not believe he could reconcile his Jewish practices with playing D-I basketball. Turrell hopes to be the first Orthodox Jewish player in the NBA and the counterpart to two young Orthodox baseball players (one in the minors, one playing at Wake). Lost in the story is perspective on whether Turrell's talents translate to the next level. There are no D-III grads in the NBA; the closest is Miami Heat guard Duncan Robinson, who began his career at D-III Williams, but transferred to Michigan after a freshman season in which he earned All-America honors. Turrell's lone D-I commitment was to Army, which is not a typical path to the NBA (David Robinson does not count--he grew six inches between 12th grade and 2d year at Navy). The likely make-or-break for Turrell is whether he is a good enough shooter.

Fun times.

Posted by Howard Wasserman on December 22, 2021 at 11:40 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, December 21, 2021

Abortions, Vaccines, and “Commerce”: Could NFIB v Sibelius’ “Great Powers” Doctrine Support a Bipartisan Federalism Compromise?

The Sixth Circuit’s dissenting opinions on OSHA’s power to issue an emergency vaccine mandate (panel opinion here, denial of en banc review here) point to what I shall call a “bipartisan federalism compromise” (BFC, for convenience’s sake) on abortion. The reason is that the judges’ arguments against mandated vaccination apply pretty much as well to mandated childbirth: If forcing someone to get vaccinated is the exercise of a “great power” not to be inferred from the Necessary & Proper clause under NFIB v Sebelius, then surely forcing someone to carry a pregnancy to term is equally “great” and in the same way: Both mandates are plausibly construed as unprecedented “affirmative” requirements that regulated persons engage in non-commercial activities.

Exactly how plausible are these arguments? As I discuss after the jump, from one doctrinal point of view, the arguments against forced vaccination and forced childbirth are equally false; from another, equally true. From the viewpoint of practical federalism, however, they are both equally useful. They promote a BFC over mandates intruding on citizens’ bodily autonomy. Red and Blue states fiercely disagree over how much to trust the government in controlling certain types of medical decisions: The Blues like vaccine mandates but reject anti-abortion laws, the Reds distrust mandated vaccines but are happy to intrude on decisions about childbirth. Why not, then, devolve both decisions to jurisdictions in which each side can have its fair share of a say and where the stakes are smaller “winner-take-some” subnational struggles rather than the federal “winner-take-all” sweepstakes that could provoke a civil war?

The doctrinal basis for such a BFC, alas, is less plain than its practical benefits. That doctrinal ambiguity springs from the arbitrariness of NFIB v Sebelius’s distinction between regulatory prohibitions and mandated action. That distinction, is normatively empty and analytically manipulable, allows judges to turn on and off the Sebelius spigot at will. (If one simply ignores Sebelius' "great powers" idea entirely, then both federal vaccine mandate and anti-abortion laws would likely be upheld under Raich, as Ilya Somin nicely explains here w.r.t. latter). After the jump, I will argue that there is a better doctrinal route to a sensible BFC: The SCOTUS could give heightened scrutiny to federal laws intruding into what Richard Primus and I call “suspect spheres” -- areas where there are special reasons to distrust federal regulation. It might be that mandates for vaccination and prohibitions on abortion both fall within such a suspect sphere, because they raise anxieties about bodily autonomy best addressed subnational governments. In any case, the argument for blocking Congress’ mandating childbirth and vaccines stand or fall together, which should provide some comfort to the opponents of either to the federal threat of mandating both.

1. Do federal vaccination mandates and federal anti-abortion laws both regulate “non-commercial inactivity” under NFIB v Sebelius?

First, consider the argument that Congress cannot mandate workers to be vaccinated. Judge Bush’s Sixth Circuit dissent and Judge Duncan’s Fifth Circuit concurrence outline one theory that such mandates are a “great power” that falls outside the Congress’ Necessary and Proper implied powers to regulate commerce. The argument relies on an analogy to NFIB v Sibelius’ case against mandated purchases of health insurance: Forcing a worker to get vaccinated is the federal regulation of the non-commercial inactivity – the inactivity of refraining from getting a vaccine – just as the ACA’s individual mandate regulated the non-commercial inactivity of not purchasing health insurance. As Judge Bush put it in his Sixth Circuit dissent, “[i]f Congress cannot solve a perceived commercial problem with a ‘mandatory purchase,’ then how can it possess the authority… to solve a perceived commercial problem by mandating that Americans engage in a non-commercial activity?”

Whatever the merits or demerits of this argument (and I will address some obvious weaknesses below), it seems to apply a fortiori to a federal law prohibiting clinics from providing abortions. After all, by prohibiting clinics from providing abortions, such a federal statute would force women to carry pregnancies to term. The prohibition on the clinics is, therefore, a prohibition on women’s engage in the “non-commercial inactivity” of refusing to give birth to babies. If a mandatory purchase falls outside what is necessary and proper for protecting interstate commerce, then surely mandated childbirth does as well.

2. Are conditional mandates to get vaccinations or carry pregnancies to term exempt from NFIB v Sebelius?

The obvious difficulty with this argument against a federal anti-abortion law is that a prohibition on clinics’ performing abortions does not directly force anyone to do anything: It merely prohibits a clinic from selling a particular medical service to consumers. Prohibiting the sale of services looks like regulation of a commercial activity, not non-commercial inactivity. One might also argue that, unlike the ACA’s unconditional mandate to buy insurance, an anti-abortion law does not unconditionally mandate that any woman carry a pregnancy to term. Such a law merely imposes a condition on an activity: If a woman becomes pregnant, then she must not purchase an abortion. Again, the federal anti-abortion law could be re-characterized as a ban on a commercial activity, not a mandate to cease non-commercial inactivity.

Judge Bush’s case against a federal vaccine mandate, however, is vulnerable to precisely the same riposte. As a formal matter, the vaccine mandate is merely a conditional prohibition, barring employers from retaining or hiring unvaccinated (or untested, etc) workers. Employing people for wages is commercial activity, not non-commercial inactivity. As Judge Stranch noted in her opinion for the majority of the Sixth Circuit panel, “[t]he ETS regulates employers with more than 100 employees, not individuals. It is indisputable that those employers are engaged in commercial activity that Congress has the power to regulate when hiring employees, producing, selling and buying goods, etc.”

To hammer home the weakness of Judge Bush’s argument against vaccines, one could further note that extending NFIB v Sebelius’s anti-mandate rule to cover such conditions on employment would threaten a lot of ordinary workplace regulations. The law routinely mandates that employees ordinarily undertake a lot of onerous actions as conditions of being employed, from meeting expensive licensing criteria like bar exams to washing their hands when working in food preparation. It is difficult to believe that any court would be willing to attack all of these “mandates” under Sebelius.

3. Do federal vaccination mandates and anti-abortion laws both lack a non-pretextual commercial purpose?

Judge Bush, however, has a response to Judge Stranch’s characterization of OSHA’s vaccination rule as regulation of the commercial activity of employing workers: He argues that OSHA is not really regulating the workplace at all, because OSHA’s rule is note directed at workplace hazards. According to Judge Bush, “OSHA has…pretextually redefined what is at this point a hazard of life in the United States and throughout the world—COVID-19—as a hazard of the workplace.” Although Judge Bush does not elaborate on this “pretextual” characterization of OSHA’s motives, it is not difficult to fill in the gaps. Vaccination takes place outside the workplace, generates most of its benefits away from the workplace, and does not tailor those benefits to the dangerousness of particular workplaces. As Judge Sutton noted in his dissent, one does not doff and don vaccines like protective equipment when one clocks in and clocks out of one’s place of employment. Nor are the benefits of vaccination well-tailored to particular workplace risks: Unvaccinated young people who work in relative isolation at well-ventilated offices around mostly voluntarily vaccinated co-workers are likely in less danger at work than, say, in eating at a restaurant or shopping in a grocery store. It is plausible albeit not necessary inference, therefore, that the Biden Administration opportunistically imposed the vaccination mandate as a condition of employment merely to leverage Americans’ need for a job into pressure to get vaccinated.

On this account of OSHA’s motives, the true purpose of the vaccination mandate is to regulate citizens’ non-commercial inactivity of failing to get vaccinated. Focusing this mandate on the workplace is merely a convenient way to get leverage over this non-commercial inactivity. The Biden Administration simply wanted to force as many citizens as possible to obtain vaccinations by holding their jobs hostage.

Again, whatever the force of this “pretext” argument, it applies a fortiori just as well to a federal anti-abortion statute targeting abortion clinics. Although the immediate target of such a law might be businesses that perform fee-based medical services, the point of the law is to stop all abortions and thereby force women to carry their pregnancies to term. The pro-life movement would hardly be placated, after all, by clinics that performed services for free: It is the desire to stop the termination of pregnancies that is the point of the law, not the regulation of commercial exchange.

4. Is a pretextual commercial purpose insufficient to justify a federal law?

Here, a digression is in order to address a response to both of these anti-mandate arguments: Should the pretextually “commercial” character of a regulation matter if the regulation is actually imposed on an economic enterprise? SCOTUS has never really decided the question, but the logic of the necessary and proper clause suggests that Congress’ purpose ought to matter.

Sometimes United States v Darby is mistakenly cited for the proposition that the “motive or purpose” of Congress is irrelevant to the scope of Congress’ powers. That language from Darby, however, concerned neither the Necessary & proper clause nor the “substantial effects” test. It concerned instead Congress’ power to block the movement of goods and people across state lines. That commerce-blocking power is not an implied “necessary and proper” power to execute an express power: It is itself an expressly enumerated power. There is no need, therefore, to show a nexus between the blocking of interstate commerce and some other commercial end: The commerce-blocking regulation itself is precisely what is enumerated in Article I.

By contrast, intrastate regulations of workplaces are justifiable only as laws necessary and proper to control substantial effects on commerce. Some sort of nexus between the intrastate regulation and that interstate commerce, therefore, is required. Congress’ good-faith belief in a nexus between the two arguably supplies that nexus. The famous passage in McCulloch describing the SCOTUS’s duty to strike down laws enacted on the pretext of pursuing an “object” enumerated by Article I is best explained by this distinction between express and implied powers: It is Congress’ good-faith belief that a federal law is “really calculated” to advance an “object” enumerated by Article I that brings the law, otherwise outside the enumeration, into the enumeration’s gravitational pull. McCulloch’s use of the word “end” (“let the end be legitimate”) suggests the centrality of purpose to the “necessary and proper” inquiry: The “end” of a law is, in ordinary usage, the purpose that the lawmaker seeks to achieve with the law. An “end” cannot “be legitimate,” unless that end is actually on the list of ends permitted by Article I.

5. The vacuity of NFIB v Sebelius’ action/inaction distinction.

The real difficulty with Judge Bush’s pretext-based argument against vaccination mandate’s commercial character is not that pretext should never matter. The problem is that courts ordinarily defer to Congress’ (and OSHA’s) description of a federal law’s purpose. That deference is the whole point of the “rational basis” test in cases like Katzenbach v. McClung. Why, then, not defer here to OSHA’s attribution of a commercial purpose to the vaccination mandate just as SCOTUS deferred to the congressional attribution of a commercial character of Title II of the 1964 Civil Rights Act?

The lack of judicial deference cannot be explained by the distinction between laws that target commercial activity and laws that regulate non-commercial inactivity, because that distinction rests on a question-begging attribution of statutory purpose. If the laws are best understood as targeted at workers’ or women’s refusal to undertake an action (get a vaccine, give birth to a child), then they are mandates for action. If they are best understood as prohibitions on business practices (employing workers, selling medical services), then they are just ordinary commercial regulations. Why not presume the latter rather than the former purpose? Nothing in NFIB v Sebelius can answer this question. Chief Justice Roberts gruffly asserted that the significance of the action/inaction distinction “would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” Roberts, however, just assumed rather than explained the reasons for this practical significance that the framers allegedly recognized, so it is impossible to use those non-existent reasons to figure out how how to characterize federal laws that sit on the border of forcing and forbidding actions.

6. Heightened “Necessary & Proper” Scrutiny for Laws that Encroach on Important Liberty Interests about which the National is Regionally Polarized?

Rather than engage in the verbal shell game of figuring out whether some law forces or forbids action, one might instead ask whether a federal law raises a “major question” in a less legalistic, more practical way. Richard Primus and I have argued that judicial scrutiny of whether a federal law exceeds Congress’ enumerated powers ought to turn on whether a federal law encroaches into a “suspect sphere.” By “suspect spheres,” we mean areas where there are special reasons to think that the federal law-making process suffers from pathologies that are reduced at the subnational level.

As we explained in our article, this is how “great power” arguments worked in the past: Such arguments ignored Article I’s text and instead relied on unwritten traditions of suspicion about centralized government. Madison’s original argument for suspicion towards federal laws chartering private corporations, for instance, invoked a century-old suspicion of private corporations as vehicles or elite enrichment. In Madison’s words, the First BUS’s charter “involves a monopoly, which affects the equal rights of every citizen”: He compared the Bank of the United States to the East India and South Sea Companies, both of which were regarded by American revolutionaries as imperial vehicles of special privileges to financial insiders. To Madison and the Democratic-Republicans, Congress was peculiarly vulnerable to capture by the “monied interest,” because the heterogeneity of Congress’ constituents made their coordinating against elites difficult. By contrast, state governments were regarded as less vulnerable to corruption by financial elites because the states’ electoral districts were small enough for practical control by farmers and artisans.

If one focuses on law-making pathologies of centralized legislatures, then it is easy to see why both vaccination mandates and abortion enter a suspect sphere where federal law ought to be disfavored. In both cases, the regulations intrude into what Judge Sutton’s dissent called “highly personal medical decisions” support for which vary intensely by region. Forcing workers to inject a substance into their bodies might be good public health policy, but, to those distrustful of medical expertise in Red States, it also is an invasion of bodily privacy. The same goes for laws banning abortions: To women fearful of Christian patriarchy, anti-abortion laws look less like a good-faith effort to protect unborn children from harm and more like an effort to convert women into baby-making machines. This widespread suspicion of both sorts of bodily intrusion might explain why the federal government has never before attempted to impose these sorts of regulatory burdens on bodily autonomy through its regulatory power: The nation is simply too heterogeneous for a majority of Congress to reach consensus on such culturally contentious issues. As Judge Sutton phrased it, “[a] national vaccinate-or-test mandate…is unprecedented, whether with respect to OSHA or any other federal agency, presumably because the intrusion on individual liberty is serious….” Judge Bush’s lengthy description of federal involvement in vaccination likewise stresses that long history of epidemics in which the federal government has refrained from imposing vaccines on citizens. All these historical and privacy-based arguments are equally good reasons to be suspicious of federal mandates that pregnant women carry their pregnancies to term.

The “suspect spheres” approach to Congress’ enumerated powers, in sum, tends to mimic substantive due process in relying on unwritten tradition rather than constitutional text to define areas of heightened judicial scrutiny of federal statutes. For those who are distrustful of courts, this reliance on tradition makes federalism doctrine just as mushy and juristocratic as substantive due process. For those like Richard and me who believe that NFIB v Sebelius’ “great powers” doctrine is already a judicial invention untethered to any constitutional text, the focus on culture heterogeneity and tradition at least grounds heightened scrutiny in some intelligible and normatively attractive principle rather than some incoherent effort to distinguish mandated from prohibited action.

Regardless of whether or not you accept our “suspect spheres” approach to defining “great powers,” however, you’ll find it difficult to distinguish vaccine mandates from anti-abortion laws. Congress’ imposition of either exceeds what the federal government has traditionally imposed through regulation, and such impositions at the national level are equally likely to inflame partisan polarization. For what it is worth (not much in Richard’s and my view), either could be characterized as “mandated action.” If one sort of mandate is forbidden to the federal government, therefore, then the other ought to be equally forbidden. By forbidding both, courts might be adopting an activist stance – but at least it would be a more even-handed activism, with something for both Red and Blue states to embrace.

Posted by Rick Hills on December 21, 2021 at 06:44 PM | Permalink | Comments (11)

Section 3 and the Presidency

We are approaching the first anniversary of January 6th. One issue that may eventually be litigated is whether Section Three of the Fourteenth Amendment applies to former President Trump. On that point, I want to present some new research that is part of a fun conversation I've been having with Josh Blackman and Seth Tillman. This post is longer than usual, so I will put some of it below the fold.

In my article on Section 3, I briefly examined whether that provision applies to the presidency. Of course, I had no idea (in December 2020) that this question might become important. What I said then was the following: (1) the only time the issue was raised during the debate on Section Three in Congress, the answer given by Senator Justin Morrill was that Section 3 applied to the presidency; (2) when Section 3 was discussed in Congress or on the campaign trail in 1866, the prohibition was always described in general terms and never with a presidential exception. Indeed, John Bingham at one point said that Section 3 applied to any "position, either in the National or State Government;" (3) people in 1866 would probably have been perplexed if Jefferson Davis or Robert E. Lee could be elected President but could no hold no other office under the constitutional proposal.

Josh and Seth published a paper in which they raise doubts about whether Section 3 applies to a person who only swore an oath as President (which describes Donald Trump). Here's an oversimplified summary of their view: (1) the jurisdictional element of Section 3, which specifies which oath-takers are potentially subject to disqualification, does not specifically mention the presidency; (2) the understanding of "officer of the United States" under the 1787 Constitution and ante-bellum law was that the presidency was not included and only appointed officials were included; (3) the countervailing evidence in my paper is not enough to overcome the presumption that the original meaning applies to Section Three. In particular, they note that the Framers of the Fourteenth Amendment could have thought that there was no chance that any ex-Confederate who took an oath only as President could be subject to disqualification because there was no such person in 1866.

These are fair points. For purposes of this post, I'm going to assume that their reading of the 1787 Constitution is correct and focus only on what people thought during Reconstruction. I went back and did some additional research. The bottom line, as I will explain after the fold, is that there were many references to the President as an "officer of the United States" during Reconstruction in a way that there was not prior to 1865. Thus, I think reading Section 3 as applying to the presidency is well founded.

In 1865, President Andrew Johnson issued a series of proclamations establishing temporary governments in the South. In these statements, Johnson invoked his authority as "the chief civil executive officer of the United States" to justify his actions. You can find this phrase in his proclamations involving North Carolina, Mississippi, Georgia, Texas, Alabama, South Carolina, and Florida.  Johnson was the first president (and perhaps the first person) to describe his office in this way. Why did he do that? Because he was trying to shore up his shaky authority to set up new governments on his own in the South. He also cited textual provisions such as the Take Care Clause and the Commander-in-Chief Clause as well, but evidently he did not think that those were sufficient.

Senator Howard complained (in the 39th Congress) that Johnson's phrase did not appear in the Constitution or in any statute, but many people started using identical or nearly identical language. (The Proclamations themselves were widely reprinted in newspapers). Here are some examples:

  1. John Bingham described President Lincoln as "the executive officer of the United States" during his closing summation in the trial of the Lincoln conspirators in the summer of 1865.
  2. Congressman Benjamin Butler told voters on the campaign trail in 1866 that the President speaks as "the chief executive officer of the United States." (You can find this in the Chicago Tribune.)
  3. When Mississippi filed a petition in the Supreme Court challenging Military Reconstruction in 1867, the lawyers described Johnson as "the chief executive officer of the United States." (Mississippi v. Johnson).
  4. Senator Benjamin Wade described Johnson as "the executive officer of the United States" in a Senate speech in 1867. 
  5. Bingham described the presidency as "the executive officer of the United States" in a House speech in 1868.
  6. One of Johnson's attorneys during the impeachment trial described his client as "the executive officer of the United States" during the Senate proceedings.
  7. Some other members of Congress quoted Johnson's proclamations and the phrase "chief civil executive officer of the United States" without comment. 

Finally, President's Johnson's Proclamations were the law operating in several Southern states when the Fourteenth Amendment was proposed. It's not surprising, then, that Senator Morrill thought that Section 3 applied to the presidency.

Anyway, this does not exhaust the argument about Section 3 and the presidency, as I'll explain in a subsequent post. But I do think that this shows that whatever "officer of the United States" meant in 1787 or even in 1864, the term meant something different in 1866-1868 and included the presidency.


Posted by Gerard Magliocca on December 21, 2021 at 10:58 AM | Permalink | Comments (8)

Monday, December 20, 2021

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Friday, December 17, 2021

Dorf on limiting bounty hunters

In (properly, IMHO) rejecting what he called the courts-and-clerks theory in WWH, Justice Gorsuch argued that this litigation theory lacks a limiting principle--every defamation defendant with a First Amendment defense would sue the clerk to stop the filing of the threatened lawsuit. Michael Dorf offers a limiting principle; Rick responded on Twitter to question the idea that the federal Constitution prohibits states from selectively weakening their standing rules; pointed to my post arguing that the Florida law allowing parents to sue schools for teaching that slavery and Jim Crow were bad things is not like SB8; and urged me to respond to Mike's column. So here goes.

I think this is the money graf from Mike's column:

Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.

I will respond with three points.

I do not think there are any circumstances in which clerks and judges can be sued as the mechanism for enjoining enforcement of a law for which they are not the enforcing officials. Ex Parte Young nor § 1983 are designed to allow suits against those who enforce the laws--in § 1983 terms, those who "subject or cause to be subjected" the plaintiff to a violation. Judges and clerks do not do that.

Mike may be correct that there are federal constitutional limits on state standing or procedural rules, including equal protection limits to selectively altered standing or venue rules. But those constitutional defects do not create the predicate for offensive federal litigation where none existed; instead, they are further federal defenses to be raised in the state proceeding and that might provide a basis for SCOTUS review.

There is something to Mike's distinct between bounty hunters and ordinary plaintiffs. What flows from that is not an overhaul of the process. Instead, it is to convert the bounty hunters--who are the enforcers of the law--into state actors subject to pre-enforcement suit or to a post-enforcement § 1983 action for damages.

Posted by Howard Wasserman on December 17, 2021 at 12:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fed Soc Courthouse Steps on SB8

Stephen Sachs and I did an episode of the Fed Soc Courthouse Steps podcast on the SB8 cases and what happens next. We were wrong about one thing--the Court remanded not to the district court (the expected move after cert before judgment and the partial affirmance of the district court) but to the Fifth Circuit, where Texas now asks for certification to the Texas Supreme Court of the state-law question of whether the licensing boards can use SB8 violations as the predicate for administrative action.

These steps slow the already-limited effect of any pre-enforcement offensive injunction. The focus must shift to defending the three pending state-court actions.

Posted by Howard Wasserman on December 17, 2021 at 11:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

Anthony Colangelo (SMU) warned that people seem "hypnotized" by the admitted strangeness of SB8, at the risk of throwing away established procedure, much of which benefits left positions.

Case-in-point: Florida Governor Ron DeSantis announced Wednesday a new proposal giving parents a cause of action to sue schools for teaching Critical Race Theory (which a different law enacted earlier this year prohibits). This is a stupid proposal, which, given the source, is redundant. But the use of private civil litigation sparked immediate, and inaccurate, comparisons to SB8. Ed Kilgore in New York Magazine complained about "pernicious vigilante enforcement"  that allows parents who do not want their children to learn accurate history to "[s]trike a blow against wokeness and get paid!" It "create[s] a witch-hunt atmosphere complete with financial incentives for nuisance lawsuits."

This overeaction--again, to a stupid, pernicious, anti-intellectual, ahistorical proposal that should be opposed on its merits--threatens to throw away essential private civil rights enforcement in a way I doubt the author wants to intends.

An action under this bill is indistinguishable from a § 1983 action challenging the removal of a book from the library or the a school conducting a Mass as part of its Christmas play. The school has legal obligations (do not remove books in a way that violates the First Amendment, do not endorse religion), students (and their parents) have rights (not to lose access to a book, not to be compelled to engage in religious practice), § 1983 authorizes a person to sue the school and school officials for remedies for those practices, and § 1988 allows them to recover attorney's fees. This stupid bill imposes on schools an obligation (do not teach CRT), gives students (and parents) a right (not to be subject to learning CRT), and authorizes the students and their parents to sue for remedies for those practices, including attorney's fees. The rights at issue in the § 1983 action are constitutional while this is a state statutory right, but that distinction does not matter. (Imagine a federal statute requiring schools to "maintain age-appropriate literature in the library" and a private right of action and we would be in the same place).

The distinction lies in how critics of this law such as Kilgore feel about the substantive rights at issue. He (like most liberals) does not want school to pull Beloved or Slaughterhouse Five from the school library and does not want schools to impose on students participation in a Catholic Mass; he does not want schools barred from teaching CRT (which we all know is code for teaching the historical truth about slavery, Jim Crow, segregation, redlining, police abuse, etc.). But then frame the objection in those terms; focus on the inanity of saying that stopping the teaching of Jim Crow is necessary to stop the U.S. from becoming Cuba in 1961. The problem with this bill is its substance, not the enforcement procedures.

Kilgore's complaints about the private cause of action could have come from any conservative critic of students and parents who file civil rights lawsuits against schools: "Section 1983 allows parents to '[s]trike a blow against [Christianity, good morals, age-appropriate education, simple patriotism] and get paid!'" "Section 1983 and § 1988 create a witch-hunt atmosphere giving financial incentives to file nuisance lawsuits."  Framing the objection in procedural terms and treating all private attorneys general as the equivalent of SB8 undermines essential civil rights enforcement. And the point becomes more obvious if we take it out of schools and think about anti-discrimination laws or environmental laws. Conservatives have been complaining about these frivolous lawsuits against government for years. Making that the crux of the debate over this stupid Florida bill plays into their hands and will have harmful consequences for civil rights enforcement.

There is interesting potential for dueling claims that put schools in a bind. Can a parent bring a claim because Beloved is in the school library? And what happens if removing the book to appease that parent subjects the school to a First Amendment suit by someone who wants the book in the library? Fun times.

Posted by Howard Wasserman on December 16, 2021 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)


McSweeny's cares.

Posted by Orly Lobel on December 16, 2021 at 11:18 AM | Permalink | Comments (4)

Tuesday, December 14, 2021

Fake slides and the infield fly rule (Updated and Moved to top) (Twice)

I defend the infield fly rule as a response to sporting situations defined by four features: 1) A player acts contrary to athletic expectations; 2) that player gains an extraordinary, unique, and inequitable benefit; 3) that player exercises exclusive control over the play; and 4) the combination of ## 2 and 3 gives a player the perverse incentive to try # 1. The IFR responds by limiting # 1 to avoid the overwhelming cost-benefit advantage. (The IFR achieves this by calling the batter out and eliminating the force on the runners, thereby eliminating the cost-benefit advantage and thus the perverse incentive). A key to the defense is showing that the IFR situation is not unique--that similar problems arise in baseball and other sports and those sports respond to the problem with limiting rules similar to the IFR.

A new example comes from Saturday's ACC Championship between Pitt and Wake Forest. Pitt QB Kenny Pickett scrambled out of the pocket and ran upfield. After almost 20 yards and with two defenders closing in, Pickett slowed and begin to slide to the ground, only to stutter step, remain upright, and continue running for a 58-yard touchdown (video embedded in link). When a QB slides to the ground feet-first, defenders cannot touch him; the rule--instituted in the NFL in 1985 and the NCAA in 2016--is designed to protect quarterbacks.

How does this break out:

    1) Pickett acted contrary to the game's expectations, which are that quarterbacks slide in that situation. The health and safety considerations are built into the game's rules and expectations.

    2) Pickett gained an extraordinary benefit. When he pretended to start his slide, the defenders had to stop; when he continued running, it was too late for them to react.

    3) Pickett controlled the players and the defenders can do nothing to stop it. Pickett knew what he was going to do, but the defenders did not. The defenders had to stop chasing when they saw him begin sliding. If they continued moving, he actually slid, and they hit him, it would have been an unnecessary-roughness penalty (and perhaps a targeting ejection, if one of them unintentionally hit the sliding Pickett in the head). But once they stopped, it was impossible to start again when Pickett continued running. And Pickett knew this--he took advantage of a rule that prohibits defenders from hitting him.

    4) Quarterbacks have a perverse incentive to try this move, at least if willing to take a hit. At worst, they actually slide and get hit, gaining an extra 15 yards. At best, they can run upfield without fear of getting hit. Wake Forest Coach Dave Clawson suggested he would tell his QB to "fake knee" all the way down the field.

Pickett's play was not against the rules, but Clawson called for a rule change to prevent such fake slides. This would be a limiting rule a la the IFR. The question is what the rule would look like. The official could whistle the play dead when the QB looks like he is giving himself up. Or the move could be penalized, depriving the QB of the benefit of the fake and eliminating any yardage gained prior to the fake. Only the second deters the effort. Under the first, a QB might hope he can fool the official into not blowing the play dead, knowing that it is costless to try. Under the second, the QB loses something if he tries it and fails.  A new rule may not be necessary. Football has a foul for "palpably unfair acts," a discretionary catch-all unsportsmanlike penalty. Examples include players running off the sideline to make tackles and intentional blatant holding penalties to waste time on the clock. Perhaps it covers this sort of deception of a helpless defender.

Update, 12/11: The NCAA came through, ruling: "[A]ny time a ball carrier begins, simulates, or fakes a feet-first slide, the ball should be declared dead by on the field officials at that point."

Second Update, 12/14: A friend asks how the fake slide differs from Dan Marino's 1994 fake spike, when Marino faked that he was spiking the ball at the goal line with time running out, then pull the ball back and threw a touchdown pass. A good question. The difference goes to the defense's ability to counter the fake. The rules allow the defense to keep playing when the QB spikes (or appears to spike) the ball--if a player could move that far that fast, a lineman could sack a QB trying to spike the ball. The Jets defense infamously was fooled and gave up on the play, allowing the TD. But the rules did not require them to do that--they could have avoided that fake by not falling for the fake. By contrast, the fake slide forces the defenders to stop playing because they cannot hit the QB who appears to be giving himself up and cannot even come close; when Pickett continued running, the defenders could not respond quickly enough to the play unexpectedly continuing.

There is, as my friend argued, a "family resemblance" between the plays. But this shows the importance of the four features of the play, all of which must be present for the play to raise problems. Eliminating one eliminates the extraordinary cost-benefit imbalance that requires limiting rules. Rulemakers still may not like and seek to eliminate the play. They are not facing a fundamentally unfair situation.

Third Update, 12/15: Another reader makes the point that Marino did not really fake the spike. Everyone assumed he was going to spike it and the defense stopped playing, but he did not really try very hard to sell the fake. Which reenforces my original point--the defense could control this play and failed to do so. No need for special rules to protect them.

Posted by Howard Wasserman on December 14, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Should Justice Thomas Find Jurisdiction in Dobbs?

One fascinating wrinkle in Dobbs v. Jackson Women’s Health is the suppressed question of standing. This issue has a certain edge for Justice Thomas: given his past views, Thomas’s path to reaching the merits is a bit unclear and probably discretionary.

Originally included in the state’s petition for certiorari, the standing issue has to do with whether abortion providers can assert the rights of third-parties, namely, patients seeking abortions. The Court declined to grant review of this issue in Dobbs, perhaps because the issue had recently been resolved, in favor of standing, in June Medical (2020).

But Justice Thomas cannot ignore the third-party standing issue. Thomas was emphatic in June Medical that abortion providers lack Article III standing, which is an essential requirement of subject-matter jurisdiction. Bearing out that strong jurisdictional claim, Thomas insisted that this problem was not subject to waiver. 

One might respond that Thomas could simply follow the precedent set in June Medical and similar cases. But there, too, lies a question, for Thomas has defended only a limited approach to stare decisis. In Gamble v. United States (2019), Thomas’s separate opinion argued that the Court had permission to follow precedent in two situations. 

First, the Court may follow precedent when the justices have been given no reason to doubt a precedent’s validity, such as when no “previous opinion persuasively critiques the disputed precedent.” That principle does not apply in Dobbs, however, because Thomas himself criticized the third-party standing cases in June Medical.

Second, the Court may follow precedent that permissibly interprets the law. Here is how Thomas puts the point: “Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law.” 

This second principle could apply in Dobbs—but only if Thomas believes that the third-party standing cases adopted a “textually permissible interpretation.” And that conclusion is in tension with Thomas’s June Medical dissent, which was based on “a proper understanding of Article III’s case-or-controversy requirement.” So if Thomas sticks to his views on Article III, he might be obligated not to find jurisdiction in Dobbs.

Even if the second principle does apply, another question would arise. To repeat Thomas’s words with added emphasis: “Federal courts may (but need not) adhere to an incorrect decision” that is permissible. So even if the precedents are permissible and Thomas has the option to follow them, he would also have the option not to. How should he exercise that discretion?

That question relates to a third principle. In June Medical, Thomas voted to “remand with instructions to dismiss for lack of jurisdiction.” But he also noted: “Alternatively, if I were to reach the merits because a majority of the Court concludes we have jurisdiction, I would affirm, as the plaintiffs [abortion providers] have failed to carry their burden . . . even under our precedents.” This passage seems to extend the option to follow permissible precedents by recognizing a similar option to follow the majority’s current jurisdictional views. So the question again arises: how should Thomas exercise his discretion?

Thomas’s general commitment to judicial restraint might seem to counsel against exercising discretion to reach the merits. To again quote Thomas’s June Medical dissent: “In light of the ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of an important dispute and to “settle” it for the sake of convenience and efficiency’” (citations omitted). Given this view, it might be odd for Thomas to vote for major changes in precedent while simultaneously denying that the Court has jurisdiction to rule at all.

Yet Thomas is at ease with discretionary adjudication in many situations. Apart from the above principles recognizing discretion as to stare decisis, in cases like AT&T v. Concepcion Thomas has played a critical role in forming majority opinions, even when he disagreed with the resulting precedents. And Thomas might further argue that normal principles of judicial restraint, even as to issues of subject-matter jurisdiction, do not apply in Dobbs. Perhaps the Court, in Thomas’s view, may be unrestrained when dismantling the products of unrestrained decision-making.

It will be interesting to see if Thomas addresses these issues—not least because his vote will likely be key to how Dobbs is decided. 

Posted by Richard M. Re on December 14, 2021 at 02:20 PM | Permalink | Comments (6)

Monday, December 13, 2021

Product Placement Gone Wrong

And Just Like That, the Sex and the City revival is not all that. But it's a Sex and the City revival. I will watch bad TV under certain circumstances. One thing that goes wrong in the second episode is that, presumably to get Carrie to start using Tinder, and to show that the show is of-the-time, Mr. Big is not only obsessed with his Peloton Bike, and his favorite Peloton riding coach (played by a real, favorite Peloton instructor), he also, sadly, has a heart attack while riding. The market responded with a big drop in -- not HBO - but Peloton stock. The New York Times has an article explaining whether Peloton can sue for brand tarnishment. Better than suing, Peloton strikes back with a great ad, explaining that spinning actually is good for your heart and that Mr. Big is alive and well, though if he died on the show it must have been because of his unhealthy lifestyle, from the days when Big was Bad and Sex and the City was Good.

Posted by Orly Lobel on December 13, 2021 at 08:12 PM | Permalink | Comments (0)

"The First"

Among the most-played tunes on my broken record is my criticism of the "novelty claim" and my fascination with what it says, not about novelty as such--I rather doubt the phrase says very much about that--but about the practice of American legal scholarship: its norms, tactics, motivations, means of advancement and accumulation of prestige, and so on. I thought I'd take a look at the frequency with which the phrase "this article is the first..." or "this is the first article..." appears in law reviews. Here are some results from a search of Westlaw's Law Reviews and Journals database by year:

2021 (to date): 142

2020: 195

2019: 163

2018: 162

2017: 171

2016: 152

2015: 178

2014: 127

2013: 124

2012: 106

2011: 80

2010: 69

2009: 72

2008: 71

2007: 41

2006: 40

2005: 32

2004: 23

2003: 34

2002: 28

2001: 26

2000: 27

1995: 12 

1990: 12

1985: 5

Obviously the whole thing is rather unscientific. I didn't check that each usage was a novelty claim or that it came from a law review rather than from other publications that appear in the database, such as bar magazines. In the aggregate, however, it's rather suggestive. A couple of points:

1) I did do some spot-checking. The further back one goes, the more likely it seems to be that the phrase is not in fact a novelty claim. Take 2003. That year, the two variations of the phrase appear 34 times. But if one removes the noise--phrases, typically appearing in bar magazines and other monthly service publications, such as "this is the first article in a three-part series" or "this is the first article by our new columnist"--the number of actual novelty claims using the phrases goes down to 14 for that year. 

2) As one can see, the growth appears to be somewhat stepwise, with the numbers jumping from time to time and then stabilizing in that area for a while. (With the year not yet out, I am guessing this year's final total will be somewhere between the 2019 and 2020 numbers.) Perhaps some linguistic virologist out there has written about how frequent this pattern is in language in general.

3) My speculations about this phenomenon are just that: speculations. Here are a few. A) Perhaps it's wholly adventitious. B) Perhaps the use of the particular phrase is adventitious, and one could go back and find other phrases, used just as often, that used to make the same novelty claim in different words. It would still be interesting that the norm has hardened around this particular, mechanically repeated phrase. C) Perhaps--but, again, I doubt it--it signals a real change in the amount of novel legal scholarship. D) Perhaps it reflects the growth of interdisciplinary scholarship, insofar as the journals may be printing articles that are the first empirical study of X in a law review or the first to apply methodological tool A to issue Y. E) Perhaps it is mostly a matter of competition for space and prestige, caused by both the torrent of article submissions and the vast universe of law journals of varying prestige levels.

4) If competition for prestige placement is the reason, we might reflect, given the dates, on the influence of three factors. One is the increase in the amount of lateral hiring. Another is the increase in the number of fellowships and other proxy-doctoral/postdoc programs. Both of these reflect the same thing at different career stages: the competition for hiring or advancement. The third is the size and (along some dimensions) heterogeneity and diversity of the legal professoriate, in which sheer numbers mean that names, institutions, and networks only get you so far. 

5) Again following on this point: the possibility that the growth in the standard novelty phrase reflects a competitive move does not mean the move works. I have not checked whether these claims appear more often in the Stanford Law Review or the Podunk Journal of Marine Insurance Law & Policy. Nor do I know whether a novelty claim makes the difference between getting published by the former or the latter. (I am assuming that, according to the norms and prejudices of our profession, placement in the former is preferable to placement in the latter.) I rather doubt it. But perhaps it is possible that a novelty phrase makes the difference, at both journals, between getting read at all and being placed almost immediately in the reject pile. I also do not know whether authors who make novelty claims are more likely to do well in entry-level or lateral hiring than other authors--and if so, whether it is because of the novelty claim as such, or because the presence of the novelty claim shows that they already know how to play the game. 

6) It does strike me as possible that what makes the difference in such a first-stage consideration of an article submission, apart from what ought to be but are not extraneous factors, such as the author's resume, is not the fact that this phrase appears, or even that a novelty claim of some sort appears, but that the author has provided, high up in the piece, a clear statement of some kind indicating why the article is worth reading. That still leaves open the question whether articles editors recognize the various reasons besides raw "novelty" why an article might be worthy of further consideration, or whether they have reduced their culling inquiry to the question of novelty vel non. (Again, apart from influential and improper sorting mechanisms such as resumes, which may dwarf the question of whether or not the article clearly explains why one should read it.) 

7) Apart from competing for prestige placements for hiring purposes, I wonder--another tune from the broken record--what role fellowships have in another sense. I gather that one piece of the fellowship process is the sharing of techniques and tactics, whether from a top-down level by program directors or mentors or horizontally through exchanges of wisdom, lore, and rumors among the fellows themselves. At some point it may not matter whether the novelty phrase works: it is simply part of their acculturation. They use it, and later (alas) encourage newer fellows or more junior scholars to do the same. Perhaps they pick up the idea from younger friends who are on prestige law reviews, and in turn the law review editors there and elsewhere come to expect it. The herd elsewhere inevitably follows suit; as writers, we are not a terribly original or independent bunch. And thus we move from 80 uses to 180 in the span of five years. It is worth thinking about whether all the advice given in such programs is actually all that good predictively, quite apart from whether it is a good or bad thing for legal scholars and their development or for legal scholarship. (And it might be that much or most of that advice is far less important than having the fellowship on one's resume, an article or two in print or on hand, and a raft of inflated references. If so, perhaps fellowship program directors should treat this as a reason to feel liberated to tell fellows to disregard most of the strategic advice they offer each other, or that their mentors offer, and just follow their muse wherever it leads.) Perhaps the advice is not so much good as it is self-reinforcing and self-perpetuating. It is hard to underestimate the centrality of tradition, fashion, ambition, and conformity among academics and intellectuals, at all levels and regardless of claims to be anti-traditional, iconoclastic, speaking truth to power, or what have you.

8) At back of a great deal of this, of course, is law review editors and their inevitable lack of discernment, for which a novelty claim serves as a substitute. But they need only accept their fair share of the blame. Law professors do not always have a broad range of knowledge or a deep education in their own academic profession. They forget the scholarly past, if they ever learned it. And they are called upon to judge candidates across a range of subjects far from their own expertise. (Perhaps they shouldn't be. It's not clear to me that the whole faculty should have an equal vote on all candidates regardless of subject matter.) They may be just as eager for the same proxies. They may prefer bad ones to none at all. And, in my view, however much they may know and profess to know that most such claims are unwarranted and strategic, they (like the rest of us) can easily fall prey to the habit of expecting such claims simply because they are the norm and of believing them more than they know they should. We forge the chains we wear in life, and soon stop seeing them as chains, if we see them at all.  

9) My view of all this, obviously, is at best jaded and at worst despairing. But let me end on a somewhat more positive note. I find the numbers given above depressing, in part because of what they say about the system and its determinants and in part because I think writing, scholarly or otherwise, should be a unique expression of personality. (And also, of course, because the sentence is often insincere and rarely true.) But, as I suggested above, perhaps the growth of the phrase and its mechanical invocation is a function of the fact that there is more competition among a much wider range of legal scholars, writing in a large number of fields and methods and coming from a large number of backgrounds. In some ways, and perhaps slightly counter-intuitively, one may be freer to be distinctive and eccentric in a smaller, more closed and elitist system, in which idiosyncrasies are more accepted because everyone already knows everyone else and everyone's work is read more closely and evaluated in a more individualized fashion because there are fewer people and less writing to sort through (and/or because the primary sortition in such a world occurs at the level of distinguishing the establishment from everyone else). Maybe the bureaucratization and standardization that a phrase like "this is the first" represents, even if those who write it don't see it as such, is just a way to deal with a larger, more specialized, more diverse universe of scholars. That's cause for good cheer. It's just unfortunate that it doesn't seem to be an especially good or honest way or one that makes for good reading. 

Posted by Paul Horwitz on December 13, 2021 at 03:02 PM in Paul Horwitz | Permalink | Comments (0)

Succession finale does Bus Orgs--please explain

Succession's Season 3 finale aired Sunday. The big story development involves Bus Orgs stuff about which I know nothing and that I hope someone can explain. (After the jump to avoid spoilers)

First, a preliminary shout out to Mog. Mog is a cat in a series of children's picture books. The episode opens with Logan reading  Goodbye Mog to his too-old-for-this-book grandson. In the book, the cat dies but hangs around as a ghost to guide the family's new cat. Using this as the episode opening references the cliffhanger of Episode 8, which left people wondering whether Kendall had died. We got a kick out of the scene because someone gave us this book (and only this book--nothing else from the Mog series) when our kid was a baby and we all found it a bit freaky for a children's book. We joke about our four former pets "mogging" our new dog to help her become part of the family.

OK, here is the bus orgs part.

The episode centers around Logan selling the family company to a larger company, a move that likely would push Kendall, Shiv, and Roman out of positions of power. They attempt to stop it through the following move: The articles governing the holding company (which owns the family company) provide that no move can cause loss of family control without support of a super-majority of the owners of the holding company. The owners include at least Logan and his four children. It is not clear if there are others, if the requirement is a super-majority of shares or shareholders, and how many shares each person knows; what is clear is that without their support the deal cannot go through. We also learn that the super-majority provision was established as part of Logan's divorce settlement with his second ex-wife, Caroline (Kendall/Shiv/Roman's mother), to protect her then-minor children.

The plan fails when Caroline screws the kids over by doing something that enables Logan to move forward without his kids' approval. The question is what, exactly, she does.

• Caroline tells the kids that she renegotiated the divorce settlement (in exchange for something, likely Logan's help getting her skeezy new husband a peerage) to eliminate the super-majority requirement. But its that possible? Can the divorce settlement legally create (and then eliminate) the super-majority requirement in the company's organizing documents and rules? It seems to me the settlement would have required Logan to put that requirement in the company regulations, where it now remains. Changing the divorce settlement cannot change the company regs; the company must do that. And presumably Logan cannot change those regs unilaterally without some notice and approval of the three kids who now enjoy legal rights as adult owners.

• Maybe the regulation requires a super-majority of shares, Caroline remains an owner of the holding company, and she threw her shares behind Logan's share to create a super-majority of shares that can outvote those of the kids? That would make a bit more sense, although it has nothing to do with renegotiating the divorce settlement.

Is there some other explanation? Is this another instance of the show (in the eyes of some profs) playing fast-and-loose with how corporate governance operates in the interest of the drama of how badly Logan and Caroline treat their children (as Shiv says, "we just walked in on Mom and Dad fucking us")? The story obviously defies reality in that they negotiate and complete a major corporate acquisition in less than a day, from a temporary villa in Italy. But I am wondering if anyone understands the mechanism that made the plot work.

Posted by Howard Wasserman on December 13, 2021 at 09:03 AM in Culture, Howard Wasserman, Television | Permalink | Comments (2)

Sunday, December 12, 2021

California threatens to follow Texas

California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.

I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.

The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.

Posted by Howard Wasserman on December 12, 2021 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

FDR, the Rule of Law, and Fair Play

I've finally begun writing my article on Franklin Roosevelt's Constitution Day Address of 1937. Here's an interesting fact about him and that speech. FDR never used the phrase "the rule of law" in any official statement or speech during his presidency. This is pretty telling in that the phrase was used by others at the time. Why did he not use that phrase? Probably because he was not terribly keen about lawyers, as he makes clear in the Address. This disdain reflected his brief and unhappy experience as a lawyer and his more general attitude, which was described by Robert Jackson as more about what was right or wrong rather than legal or illegal. 

Not surprisingly, FDR instead emphasized "fair play" in his speeches, including the Constitution Day Address. He thought that fairness was critical for democracy and constitutionalism. What he meant by that is something that I'm still working through, but the upshot is that  lawyers (understandably) overstate the importance of the rule of law for constitutional legitimacy or success.

Posted by Gerard Magliocca on December 12, 2021 at 08:13 AM | Permalink | Comments (1)

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

1) The sheriff and the litigation loser are not adverse, independent of the judgment. The adverseness remains between the defendant and the plaintiff who successfully sued him for violating the law. The sheriff and the clerk operate the state machinery in which the party's adverseness plays out (machinery that allows assertion of constitutional issues), at opposite ends of the process. But both are neutral between the parties and the rights, claims, and defenses asserted, other than as they are found by the court. The sheriff has no interest other than in enforcing a presumptively valid judgment.

2) It similarly interferes with the state judicial process by depriving courts of the opportunity to hear and decide cases within their jurisdiction. It rests on the same erroneous premise that having to litigate (as opposed to being held liable on the claim) violates rights. The state judge may rule in favor of the provider (in fact must, if she follows binding prededent), in which no constitutional violation occurs. A losing party cannot challenge an unfavorable state judgment by enjoining the sheriff from enforcing that judgment; the loser is expected to appeal. It makes no sense to allow a party who has not yet lost (or even been sued) to preemptively challenge the judgment before it is entered. Along those lines, note that no federal claim lies against the sheriff if the judgment is enforced and later reversed; the defending party goes through the state proceedings to disgorge whatever he lost.

3) The sheriff's task in enforcing the judgment is ministerial. The sheriff has no discretion whether to enforce the judgment, as the clerk has no discretion whether to accept the order. The sheriff likely does not know or review the substance or merits of the underlying judgment. Sheriffs would have to review and evaluate every judgment, perhaps having to parse a judgment on multiple claims, some of which can be enforced and others of which cannot.

4) The theory is boundless and without limiting principle. It cannot be limited to SB8, so every defendant would avail itself of this strategy.

5) The claim is too speculative. The sheriff violates rights by enforcing the judgment; that violation requires an intervening act by a separate actor--the judge must enter judgment against the provider. But that may not happen, if the judge acts as she should in following precedent to reject liability under SB8. The court will not presume the state judge will do this. The sheriff theory goes a step beyond the clerk theory. The latter required one presumption--that someone would file the suit they are authorized to file. The latter requires that presumption, plus the additional presumption that the judge will get it wrong.

My guess is the WWH plaintiffs and their lawyers recognized this. They threw every defendant they could think of into that lawsuit. That they did not include sheriffs must mean they knew that was a longer shot than the unprecedented theories they attempted.

Posted by Howard Wasserman on December 11, 2021 at 11:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 10, 2021

Some Things Never Change

This is a political cartoon from 1904 criticizing Congress (controlled then by Republicans) for failing too enforce Section Two of the Fourteenth Amendment. It's still relevant in 2021.


Posted by Gerard Magliocca on December 10, 2021 at 09:19 PM | Permalink | Comments (1)

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

Posted by Howard Wasserman on December 10, 2021 at 11:05 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

7th Annual Civil Procedure Workshop

Seventh Annual Civil Procedure Workshop
Cardozo Law School
May 19-20, 2022

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2020 include Pamela Bookman, Maureen Carroll, Zachary Clopton, Brooke Coleman, Myriam Gilles, David Marcus, Elizabeth Porter, Alexander Reinert, and Diego Zambrano.

We welcome all civil procedure scholars to attend. Please register for the conference here (if the link does not work please use the following address: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop). Those wishing to present a paper for discussion should submit a two-page abstract by February 11, 2022, using the same registration site: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 18, 2022.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. If you have any questions, please feel free to contact Alex Reinert ([email protected]) or Myriam Gilles ([email protected]).

Posted by Howard Wasserman on December 10, 2021 at 10:08 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sponsored Post: Beating the Licensure Game with MBEs for the MBE

The following post is by O.J. Salinas (,Clinical Professor of Law and Direct of Academic Excellence at University of North Carolina Schol of Law, and is sponsored by West Academic.

As bar results from New York, D.C., and California trickle in, we are getting a more complete picture of the passage rates for the July 2021 bar examination. Passage rates for first time takers are far from great. And passage rates for repeaters remain dismal.

The passage rates confirm something that all of us who have taken the bar exam know: the bar exam is hard.

The bar exam is a high-stakes, pressured-filled exam that covers *a lot* of law. This is particularly true for the Multistate Bar Examination (MBE), which, in most jurisdictions, is valued at 50% of a test taker’s overall score. This post focuses on a new resource for preparing for the MBE.

Never Say Never

I have been working in law school academia since 2011. If you would have asked me, back then, whether I envisioned writing a 700+ book on the MBE, I would have absolutely laughed in your face.

I did not enjoy studying for the bar exam. Who does? There’s just so much law to review for the exam and so little time to review it. And there is so much pressure to try to pass the bar on the first try. Careers. Finances. Livelihood. All (and more) are often tied to passing this closed-book exam that is only offered twice a year.

I initially didn’t think that I had anything worthwhile to say about bar preparation and the MBE. But as I started to engage more and more with bar support, including teaching for-credit bar preparation courses, I began to feel like there was a bit of a disconnect between the typical bar vendor materials and the experience and struggle that our test takers face. While the traditional bar vendor materials are super helpful, they are also super comprehensive. There are outlines, and outlines, and outlines of law to review. But there often is not a lot of direct focus and practice on the most commonly tested topics on the MBE.

I found that test takers were not studying smart. I found students were spending just as much time trying to learn the law for privacy torts as they were on negligence. They were spending just as much time on the presidential veto power as they were on the First Amendment. They were also struggling to remember the law that they most needed to remember. And they were not answering enough practice questions on the topics that they were most likely going to see on the MBE.

I wanted to try to find a way to get test takers to study more effectively and efficiently. I wanted to try to find a way to get test takers to focus on studying and practicing what they most needed to study and practice. And I wanted to find a way for them to be able to better recall and understand the law.

And that (plus COVID) is what lead me to write my book, MBEs for the MBE: Mnemonics, Blueprints, and Examples for the Multistate Bar Examination.

Working with Blueprints

A large part of my book includes summaries (or “Blueprints”) of the seven substantive areas of law tested on the MBE. The Blueprints are the outlines of the law and the foundation for the book.

Within each Blueprint, I highlight certain black letter rules or fact patterns that I want test takers to focus their studying on. I include all the highlighted rules and fact patterns in the Appendix of the book so test takers have an easy-to-read summary they can review. This can be particularly helpful during the last few days before the bar exam—when test takers are looking for something concise to focus their attention on right before the exam.

Working with Mnemonics

Many test takers rightfully find it particularly challenging having to deal with the tension and pressure of having to remember so much black letter law under such a high-stakes exam, like the bar exam. We need tools to help us categorize the information that we want to remember. And we need tools to help us recall that information when we need to remember that information. The mnemonics in my book can be those tools for us.

Working with Examples

I am especially excited about my partnership with AdaptiBar®.

AdaptiBar® is a user-friendly online program that has helped thousands and thousands of bar takers increase their MBE scores. I have selected 150 AdaptiBar® questions for my book that assess the most commonly tested topics tested on the MBE.

Almost all of the questions on the AdaptiBar® platform are licensed MBE questions. They are not simulated MBE questions. They are questions that actually appeared on prior bar exams. And when you are studying for one of the biggest exams in your life, it’s helpful and super important to practice answering the type of questions that you will be expected to answer on the exam. The AdaptiBar® questions for my book provide that practice.


There are legitimate criticisms as to whether the bar exam tests too much law and whether the bar exam is an appropriate assessment of a test taker’s minimum competency to practice law. These criticisms predate the (still unexplained) technological problems that plagued the July 2021 bar exam.

Test takers may complain that the many mnemonics and highlighted rules in my book prove that the bar exam is flawed and hyper-focused on memory and not on skills and competency. They may be right, and that is (hopefully) going to change with the update to the bar exam—which we are told may arrive in 2025 or 2026. However, until the exam is changed, test takers who want to get licensed will have to play the game that is presented to them.

MBEs for the MBE is my way of helping folks to better play (and hopefully beat) the licensure game.

Posted by Howard Wasserman on December 10, 2021 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

Thursday, December 09, 2021

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Posted by Howard Wasserman on December 9, 2021 at 08:20 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Non-Delegation Doctrines: How Political Specifics Make Constitutional Law

Bagley-Mortenson's erudite article provides voluminous evidence that no Anglo-American polemicist or lawyer between the Glorious Revolution and the Election of 1800 complained about broad legislative delegations of power to executive agencies. Bagley-Mortenson's critics reply, however, that no one specifically disclaimed this position. (See e.g., Ilan Wurman here, stating that "there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the Founding"). In this game of presumption tennis, where's the ball?

Here's a general claim about constitutional history to make sense of the dog that doesn't bark. As I have argued earlier, constitutional abstractions emerge from political particulars. The cobbler shapes shoe to where it pinches the foot. One would expect, therefore, only specific objections to particular types of delegations, with the constitutional antidote pitched towards those particular delegees' proneness to venality or oppression. They may have endorsed non-delegation doctrines (emphasis on the plural) but not any one master doctrine to rule them all.

And this is precisely what one finds: Certain types of agents like excisemen and private banks inspired distrust, but no one denounced broad executive powers as such. Walpole's Country Party critics, for instance, bitterly denounced excisemen in 1733; North American colonists picked up the theme in 1776 by attacking George II for sending "hither swarms of Officers to harass our people," those swarms consisting primarily of customs officials. Country Party propagandists also attacked the Whig Junto's appointing the Bank of England to be England's fiscal agent, and Madison picked up this theme that private corporations were untrustworthy agents of the People in decrying the First Bank of the United States. Kevin Arlyck masterfully illustrates the particularity of delegation worries with his description of the 1797 debates over renewing the Treasury Secretary's 1790 statutory power to remit (waive) customs penalties. In Arlyck's account, Representative Edward Livingston warned of the risk that the Secretary might "favor a chosen few" in granting remissions, framing this objection in constitutional terms. Livingston was a New York Democratic-Republican congressperson and later a fierce Jacksonian: Of course, he would worry about the patronage opportunities provided to insiders by Federalist Treasury Secretaries wielding discretionary customs policy in the Port of New York, where Burr was trying to build a machine based on workingmen's access to credit. As Arlyck notes, these Democratic-Republican worries about over-powerful Treasury Secretaries all dissipated after Dem-Rep Albert Gallatin became Secretary of the Treasury.

AFAIK the nondelegationists have never provided any historical experiences explaining why 18th century politicians would fear all executive officers as a general matter. As Eric Nelson has shown, many American Revolutionaries were actually wanted to enlarge rather than shrink the power of executives. So I am inclined to believe that the non-delegation dog did not bark for the reason offered by Bagley-Mortenson: There simply wasn't any such dog.

Posted by Rick Hills on December 9, 2021 at 02:27 PM | Permalink | Comments (1)

Wednesday, December 08, 2021

Hard-line Advocacy in Dobbs—and Casey

To what extent can judges rely on the positions that advocates put forward? Last week’s oral argument in Dobbs tees up this question, as the parties generally threw cold water on any option other than a total upholding or overruling of existing precedent. But it turns out that that hard-line strategy has been tried before—in Planned Parenthood v. Casey.

Here is the first question from the Casey oral argument, with the counsel for Planned Parenthood at the podium:

Justice O’Connor: Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe against Wade in all its aspects. Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?

The advocate then resisted O’Connor’s suggestion, which led to additional questions in search of a more focused or nuanced analysis. The Court’s frustration culminated in the following remarkable exchange: 

Petitioner (Kolbert): It is our position, Your Honor, that if this Court were to change the standard of strict scrutiny, which has been the central core of that holding [in Roe v. Wade], that in fact, that will undercut the holdings of this Court and effectively overrule Roe v. Wade. To adopt a lesser standard, to abandon strict scrutiny for a less protective standard such as the undue burden test . . . would be the same as overruling Roe . . . .

Justice Kennedy: Well, if you are going to argue that Roe can survive only in its most rigid formulation, that is an election you can make as counsel. I am suggesting to you that that is not the only logical possibility in this case.

Of course, the Court’s pivotal justices ultimately did “abandon strict scrutiny for a less protective standard,” namely, the very “undue burden test” that the advocate had ruled out of bounds. And it turned out that that approach absolutely was not “the same as overruling Roe,” full stop. There were degrees of difference after all, and abortion advocates have come to celebrate and defend Casey’s preservation of what the Court deemed the “central holding” of Roe.

Now, in Dobbs, abortion providers are again asserting that any deviation from precedent is tantamount to overruling all relevant precedents. In their brief, for instance, the abortion providers state, with emphasis in the original: “any abandonment of viability would be no different than overruling Casey and Roe entirely.” And later: “There are no half-measures here.”

A similar story played in the Dobbs oral argument, with several justices (Thomas, Roberts, Kagan, Alito, and Gorsuch) asking different advocates about the possibility of narrow or nuanced ways of resolving the case. And, much as in Casey, the advocates offered little more than discouragement.

Were the advocates in these cases right to be so rigid? In Casey, the abortion providers’ decision to draw a hard line was obviously frustrating to critical justices and nearly led to complete defeat—except that, in the end, it didn’t. So perhaps Casey teaches that nuance is unnecessary for good advocacy, or even counterproductive. 

But whatever its lessons for advocacy, Casey does offer a clear lesson for the Court: a litigant’s resistance to giving an inch cannot be taken at face value.

Posted by Richard M. Re on December 8, 2021 at 04:05 PM | Permalink | Comments (7)

"Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment"

Brad Snyder's eagerly awaited biography of Felix Frankfurter is now available for pre-order on Amazon. This should be a fantastic addition  to the scholarship on the Court.

Posted by Gerard Magliocca on December 8, 2021 at 09:30 AM | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Northwestern University Law Review Winter Exclusive Submission Cycle

From the Northwestern University Law Review:

The Northwestern University Law Review will hold a winter exclusive cycle for print submissions, accepting manuscripts from Sunday, December 26 to Sunday, January 9, 2022. We guarantee a final decision to all submitting authors on or before February 1, 2022. Please see our website for more submission information. Questions about the article selection process can be directed to Senior Articles Editor Eliza Quander at [email protected]northwestern.edu or Editor-in-Chief Sarah Chanski at [email protected]northwestern.edu.


Posted by Sarah Lawsky on December 7, 2021 at 08:51 AM in Law Review Review | Permalink | Comments (0)

Monday, December 06, 2021

It is a medium-sized university, and yet there are those who love it

Monday's argument in Hughes v. Northwestern University, on stating claims under ERISA.

Posted by Howard Wasserman on December 6, 2021 at 03:48 PM in Howard Wasserman | Permalink | Comments (1)

Will (Should) Congress Use Its FF&C “Effects” Power to Regulate Post-Roe “Abortion Tourism”?

Neil Buchanan over at Dorf on Law has asked about the odds of Republicans in Congress proposing a post-Roe/Casey statutory ban on abortions, a proposal that, Neil suggests, would expose the GOP’s insincerity on federalism. Over here on Prawfsblawg, Howard has suggested that such a GOP proposal would not necessarily be hypocritical, because Republicans object not so much to the centralization of the abortion issue but rather to juristocracy: According to Howard, Congress’ democratic credentials would legitimize such proposals from the GOP’s point of view.

Contrary to Neil, I think that the odds of the GOP’s enacting any federal ban on abortion are vanishingly small, but not because the GOP reps are sincere about federalism. (I assume that all pols are mostly sincere only about one thing: getting reelected). Rather, federalism gives political cover to GOP representatives who need to duck a risky vote: “Let the States Decide!” is a great way to placate the suburban parts of one’s district without openly antagonizing the median (not diehard) pro-life voter. Contrary to Howard, however, I do not think that the GOP has any antipathy for juristocracy: The GOP’s 2016 Platform embraces both centralization and juristocracy by calling for a fetal right to life protected by the 14th Amendment.

There is, however, one sort of federal statute on abortion that Congress might be pressured to enact despite the electoral insurance provided by federalism described above: Congress might exercise its power under Article IV, section 1 to “prescribe…the effect” of states’ “public acts” prohibiting abortion. As I suggested in an earlier post, “abortion tourism” might severely undercut the power of pro-life states’ anti-abortion laws. If substantial numbers of women who can afford the trip travel to abortion clinics in pro-choice states, pressures might mount from anti-abortion activists for Congress to step in to decide what law ought to apply to such interstate transactions. (Note btw that out-of-state clinics are sometimes physically closer to women’s hometown than intrastate clinics, because the latter are few and far between in anti-abortion states). The model for such legislation would be the Parental Kidnapping Prevention Act, which provides federal standards governing the obligations of state courts to give full faith and credit to the child custody decrees of other states.

Does Congress have the power to choose a conflicts-of-law rule under which the pro-life states’ anti-abortion laws would follow their domiciliarles wherever they travel? After the jump, I suggest that SCOTUS has reasons to place constitutional limits on Congress’ “Effects” power to prohibit such a rule. Moreover, even anti-abortion members of Congress might be secretly pleased by this judicial limit on their power. Why? Because both SCOTUS and those congresspeople might value what I shall call a “Maltese civil peace” in which anti-abortion restrictions are tempered by the right to travel. For SCOTUS and Congress, this right of exit has the virtue of a safety valve: It protects the stability of the federal compromise on abortion by reducing the incentives of middle-class, educated women to lobby for the imposition of a centralized pro-choice rule on the entire nation.

1. What do precedent, history, and structure say about Congress’ use of the “Effects” power to impose either a domicile- or territorial-based conflicts-of-law rule on abortions?

On the legal merits, I think that the law is ambiguous. Stephen Sachs has laid out an originalism-inflected theory of the “Effects” power that gives Congress virtually unlimited power to declare the effect of a state law. I have criticized that theory on the pragmatic ground that it would create a “preposterously centralized regime…for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.” You should decide for yourself.

But, as you decide, keep in mind that it would not be completely far-fetched for the SCOTUS to allow congressional selection of a domicile-based rule for abortions. As I noted in my earlier post, the interest-based FF&C analysis favored by the precedents seems to allow states to extend their laws to protect their domiciliaries, and maybe a fetus/unborn infant counts as such. Again, the obvious analogy is child custody: Lower courts have generally held, despite the parents’ right to travel, that states may bar parents from leaving the state as part of the enforcement of child custody decrees.

Against such a domicile-based rule is the very long tradition of states’ using the law of the place of alleged offense to govern crimes. Most categorically stated in Nielsen v. California (1909), the rule provides that “for an act done within the territorial limits of [a state], under authority and license from that state, one cannot be prosecuted and punished by [another state].” (Dicta from Bigelow v. Virginia offers much the same categorical declaration regarding anti-abortion laws).

Could a tradition-minded SCOTUS cite Nielsen to bar Congress from extending states’ anti-abortion laws across state lines to cover out-of-state abortion clinics? One obstacle to such a judicial limit on Congress’ “Effects” power is that the latest batch of anti-abortion laws in the model of Ohio’s SB 8 are not actually “criminal laws” in the strict sense, because they provide for private enforcement. Nevertheless, such laws might plausibly be best described as “penal,” and the traditional rule for “penal laws” is still “territorial” to protect the “sovereignty” of the state in which an allegedly wrongful act occurs. In international contexts, a “passive personality” rule (see Restatement (Third) Foreign Relations Law, section 402(2) allows nations to extend their laws to govern the conduct of their citizens abroad. But it is not obvious that the retained sovereignty of states would not restrict the domestic imposition of such a rule by Congress.

My very tentative intuition, therefore, is that a tradition-minded SCOTUS (e.g., Gorsuch and Thomas) could go either way, either imposing a territorial limit on Congress or allowing Congress to choose a domicile-based rule. To back up the former, they might rely on Doug Laycock’s classic 1992 article arguing that the very concept of equal and territorial states requires such territorialism. Against this option, however, they could instead opt for Sachs’ erudite originalist position and give Congress a free hand.

2. The incentives to choose a territorial rule to secure a “Maltese civil peace”

Suppose that you agree with me that the law here is ambiguous. What larger “pragmatic” concerns, beyond straight doctrine and history, might play a role in SCOTUS’s decision regarding the “Effects” power?

Suppose, in particular, that both SCOTUS and GOP congresspeople wanted to reduce the political conflict arising out of abortion restrictions. One way to achieve such conflict reduction is to impose a “territorial” conflicts-of-law rule on Congress. Such a rule leaves anti-abortion jurisdictions’ laws intact but also insures that women with sufficient means can migrate to pro-choice jurisdictions to obtain abortions free from fear of civil suits or criminal prosecutions.

Why would either SCOTUS or anti-abortion congresspeople want a rule that actually undermines enforcement of anti-abortion laws? One reason might be what I will call the desire for a “Maltese civil peace.” I base the term on the system of abortion regulation in the European Union, where Malta maintains one of the most restrictive anti-abortion laws in the world. In Vo v. France, the ECHR adopted the same regime that would govern the USA in a post-Roe/Casey world: Neither the fetal right to life nor the woman’s right to obtain an abortion are protected by central law. Such a regime naturally provokes a lot of “abortion tourism” by Maltese women seeking abortions abroad, sometimes aided by abortion referral services and underground travel networks.

Whatever its merits or demerits from the point of view of either pro-choice or pro-life advocates, this “Maltese civil peace” has attractions for those in charge of any federal system where pro-life and pro-choice jurisdictions are supposed to co-exist. The reason is that the right to travel provides a safety valve that reduces visible conflict over abortion. The people who can take advantage of that right to travel will usually be people with sufficient money and education to identify and pay for travel options to abortion providers abroad. Because wealth and education are highly correlated to political influence, these constituents will also tend to be the most vocal and effective activists in favor of centralizing a pro-choice regime. To the extent that politicians and judges want to reduce conflict arising out of abortion politics, therefore, they might favor a safety valve that reduces the incentives of this group for abortion-related political activity. One might regard the “exit” option provided by the “territorial” conflicts rule as a way to mute abortion-related “voice” with an “exit” option as described by Albert Hirschman: By providing an abortion option to those most likely to overturn the federal accommodation, the territorial rule thereby protects that accommodation.

If the SCOTUS overrules Roe/Casey, then it will be in the same position as the European Union under Vo v. France: There will be neither a centrally protected right to life nor a centrally protected right to choose abortion. That sort of mixed federal regime is naturally unstable, as Will Baude has noted. The moral intensity with which pro-life and pro-choice activists approach the issue of abortion impels each to nationalize their preferred rule. It is not obvious that a house so divided can stand.

SCOTUS — or, at least, Chief Justice Roberts — might be aware of this instability. Allowing anti-abortion regimes to be extended into neighboring states with a domicile-based rule increases that instability. It cuts off exit and thereby provokes more vocal dissent from the mixed regime protected by the federal accommodation. One can imagine, therefore, that Roberts might favor a conflicts-of-law rule that shores up an uneasy federal compromise. The “Maltese civil peace” described above has at least that attraction.

As for anti-abortion members of Congress, they would likely welcome any conflicts-of-law rule that did not mobilize suburban women against them. The territorial rule has that virtue, from their point of view. Moreover, a SCOTUS decision that barred Congress from overturning such a rule would provide them with political cover, protecting them from their more diehard anti-abortion constituents. For this reason, they might secretly welcome a SCOTUS decision that struck down a domicile-based rule that allowed anti-abortion states to be maximally grabby, even as such politicians loudly denounced the SCOTUS for the decision. Following the Whittington theory of judicial review, the SCOTUS would be helping out politicians by taking issues off the agenda that expose those pols to more political risk.

In short, I do not have confident predictions to make, but, if forced to place a bet, I would guess that SCOTUS and Congress will gravitate towards a territorial rule for governing state regulations of abortion clinics. Whatever the ambiguities in the precedents and originalist history, the territorial rule best reduces political risks for the pols and protects the stability of the post-Roe/Casey system of federalism.

Posted by Rick Hills on December 6, 2021 at 03:14 PM | Permalink | Comments (8)

Sunday, December 05, 2021

What we mean by "let the states decide"

Neil Buchanan is taking bets on how quickly after Dobbs overrules Roe/Casey congressional Republicans propose a federal prohibition on abortion. Buchanan sets the over/under at two days after the start of the next Congress with Republican majorities. I will take the under--a bill will be introduced in this Congress the day after Dobbs, although the first bill with a chance will be when Buchanan suggests.

But is it fair to label this Republican hypocrisy? Yes, the anti-choice mantra has been "let the states decide," a phrase repeated during the Dobbs argument. But the mantra has not been about states v. federal government; it has been about popular/democratic branches (at whatever level) against the court. The objection to Roe and Casey is that it removed the decision from political debate and lawmaking; it did not mean to identify the level of government at which that debate and lawmaking will take place. What they mean by "let the states decide" is "let the majority (as reflected in representation) decide."

I believe a potential ban is a bad idea. I do not necessarily see it as hypocritical.

Posted by Howard Wasserman on December 5, 2021 at 07:58 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Will state officials actually enforce their new restrictions on abortion against women? Some Evidence from 2016

In my last blog post, I suggested that state officials might be reluctant to enforce their post-Roe/Casey Abortion restrictions against pregnant women as opposed to abortion clinics. I slathered this suggestion with appropriate qualifications, noting that “I am, after all, just a law prawf, not a political scientist” and that “[m]y prediction is worth what you paid for it,” because “I repeat that I am not an expert here.” I nevertheless suggested that there was evidence that anti-abortion activists and politicians do not want to enforce anti-abortion laws against pregnant women because

[t]he optics of such enforcement actions simply do not fit with the preferred narrative of the pro-life movement, which has been focused on the alleged villainy of abortion clinics and the alleged victimhood for their clients. Pro-life rhetoric pitches itself in a pro-woman key, arguing that those women seeking abortions are victims exploited by “abortion mills” who later regret their decision to terminate their pregnancies. I humbly submit that nothing could be more devastating to this rhetorical stance than photos of women in orange jumpsuits, awaiting punishment for crossing state lines with the immoral purpose of ending a pregnancy.
I linked to a 2011 Ph.D dissertation by Alex Trumpy, an Ohio State sociology grad student, that documents “Pro-Woman Framing in the Pro-Life Movement” to support that claim about pro-life rhetoric. (I have not read the whole thing, but chapter 4, on feminist framing in the pro-life movement, is nicely supported IMHO by survey data and individual interviews of movement leaders).

My claim about anti-abortion activists’ political incentives to prosecute abortion clinics rather than pregnant women, even thus qualified and supported, attracted a bit of skepticism. Professor Sepper wrote on twitter that “those of us who have been following abortion politics more closely would not find [such a theory of anti-abortion politicians’ incentives] reassuring,” because “you're imagining that antis pretend they are motivated by women's health and fetal wellbeing. that's gone. it's over.”

Maybe Professor Sepper is correct. There is, however, more recent evidence that anti-abortion activists still “pretend they are motivated by woman’s health” and are extremely reluctant to admit publicly that they would enforce restrictions on abortion against women. When Donald Trump remarked to Chris Matthews during a 2016 “town meeting” that bans on abortions would require women to be “punished” for obtaining an abortion, there was an immediate outcry from anti-abortion activists so intense that it forced Trump to retract the statement. Using rhetoric straight out of Trumpy’s dissertation, Marjorie Dannenfelser, president of Susan B. Anthony List, declared, “let us be clear: punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.”

I would like very much to hear contrary evidence from Professor Sepper or others who have been following abortion politics more closely than I have that these statements do not reflect anti-abortion activists’ actual political calculations. IMHO Dannenfelser and many others really seem to believe that enforcing abortion restrictions against pregnant women would be a huge political liability. That belief does not guarantee that such laws would not be enforced against women if Roe/Casey were reversed. But maybe (assuming I am correct in my admittedly lay assessment) one should exploit the belief to undermine anti-abortion laws’ enforcement rather than deny, without much evidence, that the belief really exists. [Update: Parts of Professor Trumpy’s dissertation have been published in Sociological Spectrum as Woman vs. Fetus: Frame Transformation and Intramovement Dynamics in the Pro-Life Movement]

Posted by Rick Hills on December 5, 2021 at 08:34 AM | Permalink | Comments (7)

Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?

Over the last three decades, commentators have provided both skeptical and optimistic assessments about whether and how federal decentralization might cope with abortion were Roe-Casey to be reversed. The optimistic view is that Roe-Casey’s reversal would promote pluralism by allowing each state to go its own way on a divisive topic, thereby reducing political polarization and gridlock at the national level. The pessimistic take comes mostly from law profs familiar with the train wreck known as conflicts of law “doctrine.” In a post-Roe/Casey world, women in anti-abortion states would have to migrate to pro-choice jurisdictions in order to take advantage of less restrictive abortion laws, but conflicts of law doctrine does not define plainly which state law ought to govern such interstate transactions. State legislatures seeking to end abortion will attempt to extend their bans into pro-choice states, perhaps by penalizing those who facilitate interstate migration or by bringing criminal actions against women upon their departures from, or return to, their states of domicile. The resulting controversies over which state’s laws should apply will simply reproduce the divisiveness of Roe/Casey, especially if judicial measurements of rival state’s interest in regulating abortion turn on assessments of the value of fetal/unborn infant life. In the words of then-2L Will Baude back in 2006, “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” (For the extended scholarly version of this take, read Seth Kreimer’s classic 1992 article, The Law of Choice and Choice of Law. And, if you are not sated by Baude and Kreimer, Dick Fallon’s 2007 essay, If Roe Were Overruled, provides another similarly sober assessment).

In my view, both the optimistic and pessimistic predictions about a post-Roe/Casey world are likely mistaken. Federal decentralization will not produce a diversity of different states’ responses to abortion but rather a fairly uniform policy of de-regulation. Put bluntly, in a world of federalism-based interstate migration, deregulatory states will always have the advantage, in the same way that pro-plaintiff states win the forum-shopping war in torts. But the pessimists are also mistaken in thinking that, because conflicts of law doctrine is a mess, the question of which state’s law to apply will be messy.

My prediction is that, to the contrary, state legislatures, courts, and Congress will all gravitate towards a fairly crude “territorial” rule that enforces the law of the place where the abortion was performed, a rule that insures nationwide victory for pro-choice states. My reasoning, explained in more detail after the jump, is rooted more in politics than doctrine — to be precise, the politics of case captions. No politician, even one clad in black robes, wants to put an abortion-seeking woman on one side of the “v.” in a criminal case. The great political advantage that anti-abortion legislators have enjoyed since Roe was decided is that there have been few Roes as parties: Abortion clinics (often Planned Parenthood) have instead appeared in the captions. Roe-Casey’s reversal will end that political advantage, because the domicile of the migrating woman will be the most likely legally available basis for applying the restrictive abortion laws of a regulating state to an out-of-state transaction. Anti-abortion politicians will find it politically unpalatable, however, to drag women rather than abortion clinics into courtrooms, so they will shrink from using the only regulatory tools left open to them by interstate migration. The result will be that anti-abortion laws fall into practical desuetude by foot-voting women escaping such restrictions with bus tickets rather than lawsuits. [Update: In light of a misrepresentation of this post by Professor Liz Sepper on twitter, I guess I should repeat before the jump what I originally wrote below the jump: “Foot-voting” described here does not require a change of domicile and would not be acceptable “foot-voting” if it did, because “changing domicile is extremely costly, especially for low-income persons dependent on networks of family, friends, and employers in their home state”].

1. A Quick Summary of Conflicts of Law and Abortion

Start with the messiness of conflicts of law doctrine. Not only are such state-law doctrines chaotic but federal constitutional law also does little to make sense of the chaos. Under the half-dozen or so “conflicts theories” that jostle for predominance among state courts, the applicable law is defined by some “controlling contact” (to use Doug Laycock’s phrase) that variously include the domicile of an actor, the location of an activity, or the location of the deciding forum. Due Process and Full Faith & Credit doctrine imposes only minimal limits on a state’s extension of its own law to a dispute, just so long as the regulating state coincides with either the location of the disputed activity or the domicile of a disputant. Such domicile or physical location of an activity suffices if the connection suggests that the state has some sort of “interest” in the resolution of the dispute. (Allstate Insurance v. Hague (1981) and Phillips Petroleum v. Shutts (1985) remain the most-cited precedents, although their relevance to criminal law is open to doubt: For expositions of both conflicts and conlaw doctrine applicable to abortion, Seth Kreimer’s classic 1992 article remains the best discussion; for other expositions, see Bradford (1993) and Dellapenna (2008)).

In theory, therefore, anti-abortion states would be free, insofar as the Constitution is concerned, to impose their abortion restrictions on women who migrate to other states seeking to take advantage of less restrictive rules. Yes, there is some language in Bigelow v. Virginia (1975) stating that “[a] State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.” But Bigelow’s language, perhaps dicta, is probably superseded by the Hague/Shutts doctrine allowing states with an interest to impose their law on disputes arising out of activities taking place in other state’s territory.

With Roe-Casey’s demise, therefore, it would likely be constitutionally permissible for an anti-abortion state like, say, Texas to prohibit women from traveling to pro-choice states like New Mexico to terminate a pregnancy. The obvious precedents for imposing Texas law on transactions occurring in New Mexico would be cases dealing with child custody, where state courts have repeatedly upheld court orders limiting parents’ rights to relocate without the permission of the other parent. If the state can protect the best interests of the child by barring a parent from traveling to another state, then the state can probably likewise protect the best interests of a fetus/unborn infant in the same manner. Of course, it remains theoretically open for SCOTUS to hold that states have no legitimate interest under Hague/Shutts in protecting the fetus/unborn child by so limiting the movement of mothers, because the former is not really a “person.” But that sort of analysis would likely run up against the reversal of Roe-Casey. In any case, such a holding would reproduce all of the controversy created by Roe-Casey that federalism is supposed to defuse.

In sum, at least so long as the person seeking an abortion remains domiciled in the regulating state, that state has an interest in regulating that domiciliary’s behavior, even if that behavior takes place in other states. As Don Regan observed 35 years ago, even if “one can…abandon one's state and its laws by changing one's citizenship,” it does not follow that “one can take a holiday from the state's laws, while remaining a citizen, by sojourning elsewhere.” It might be that women could place themselves beyond the constitutional reach of their home state’s restrictive laws by changing their domicile, but changing domicile is extremely costly, especially for low-income persons dependent on networks of family, friends, and employers in their home state. “Abortion tourism,” in short, is likely regulable by the home state of the “tourists.” The old cases placing ex parte divorces in Nevada beyond the reach of the divorcee’s home state are instructive here. Those cases required those divorcees to acquire Nevada domicile while they were getting their quickie divorce). As Justice Douglas observed back in Williams v. North Carolina (1945) in requiring parties to an ex parte divorce to acquire domicile in the state conferring the divorce, the regulating state “ought not to be foreclosed by the interested actions of others, especially not a State which is concerned with the vindication of its own social policy and has no means, certainly no effective means, to protect that interest against the selfish action of those outside its borders.”

2. A Quick Assessment of the Politics of Case Captions

Does this doctrinal permissiveness, allowing aggressive extension of anti-abortion laws to interstate abortion transactions by enforcing those laws against migrating women, really mean that (in Will Baude’s words) states will actually “use child custody laws to curtail the movements of pregnant women”? A Disclaimer: In answering this question about political prediction, I concede I am on shakier ground than when I discuss legal doctrine. I am, after all, just a law prawf, not a political scientist.

Speaking purely as an informed lay observer, however, I am skeptical that Texas politicians will be eager to deploy cops waving ultrasound wands on the New Mexico border to interdict buses containing women headed for a clinic in Albuquerque. I also doubt that Texas prosecutors will relish arresting those women on their return and arraigning them on charges of evading Texas’ anti-abortion laws. The optics of such enforcement actions simply do not fit with the preferred narrative of the pro-life movement, which has been focused on the alleged villainy of abortion clinics and the alleged victimhood for their clients. Pro-life rhetoric pitches itself in a pro-woman key, arguing that those women seeking abortions are victims exploited by “abortion mills” who later regret their decision to terminate their pregnancies. I humbly submit that nothing could be more devastating to this rhetorical stance than photos of women in orange jumpsuits, awaiting punishment for crossing state lines with the immoral purpose of ending a pregnancy.

In short, the only way that state politicians can interdict pro-choice migration is to sacrifice their most valued rhetorical posture of attacking the clinic rather than the woman who uses it. I predict, therefore, that the politics of case captions will deter anti-abortion DAs and attorneys general from bringing such cases or state legislators from allowing them to be brought.

Just to be clear, I am not suggesting that such cases will never be brought by the more diehard opponents of abortion: We live in strange times where bad politics do not deter fanatics on either side of the aisle. I am certain, however, that the political strategists of the abortion movement will reasonably regard such prosecutions as a political liability. Undoubtedly, such politicians will strain to drag out-of-state abortion clinics into anti-abortion states’ courts, perhaps by using on-line advertisements as the minimum contact sufficient to create personal jurisdiction. Unfortunately for them, the absence of the clinics’ domicile or physical presence in, or any other “purposeful availment” of, the regulating state probably dooms such efforts under Bristol-Myers Squibb.

Or maybe fortunately for such politicians: Nothing would provide them with better political cover than to enact grabby long-arm statutes purporting to drag abortion clinics into anti-abortion states’ clutches only to have federal courts veto such prosecutions invoking boring personal jurisdiction doctrine. Such a post-Roe/Casey strategy protects both politicians and courts from the diehards while allowing the politicians to avoid the political suicide of prosecuting likely indigent women for crossing state lines to escape an unwanted pregnancy.

In sum, I predict that the theoretical availability of extra-territorial regulation based on domicile will yield to the political necessity of avoiding lawsuits and prosecutions against pregnant women. My prediction is worth what you paid for it: I repeat that I am not an expert here. The important point, however, is that, by decentralizing abortion law, the reversal of Roe/Casey changes abortion politics by changing the “localizing contacts” that trigger state law. Those contacts determine the caption, and the caption importantly affects the political optics of anti-abortion prosecutions. Concede me that much, and I am happy to yield on political odds-making.

3. Two Cheers for the Faux Decentralization of Federalism

The likely consequence of ending Roe/Casey, in short, is to nationalize the pro-choice states’ deregulation of abortion through interstate migration. Yes, I am aware that such migration is not costless. Given the paucity of abortion clinics even under Roe/Casey, however, the marginal increase in migration costs from reversing Roe/Casey will be small, and it is the marginal increase in cost from that reversal, not the absolute cost of travel, that is relevant to predictions about how reversing Roe/Casey will affect behavior. Right now, a woman in Lubbock has to travel hundreds of miles within Texas to get an abortion: Traveling to Tucumcari or Albuquerque NM might be a pretty small additional increase in cost above the Roe/Casey status quo. Moreover, organizations like NARAL and Planned Parenthood will, post-Roe/Casey be able to devote the resources they now use for litigating “undue burden” to defraying those travel costs: As they switch from hiring law firms to paying for hotel rooms and buses, they can also re-deploy besieged clinics within restrictive states to the frontiers of pro-choice states. That shift in strategy should reduce further the costs of interstate travel.

Should we applaud or deplore this deregulatory consequence? Obviously, the answer to this question will mostly depend on where you stand on abortion. My predictions, therefore, should be comforting to pro-choice readers and sobering to those pro-life readers who thought reversing Roe/Casey would practically advance their cause.

But what about those few who, like me, actually care about federalism as a system for handling divisive social questions? Should I applaud federal devolutions that lead to nationally uniform deregulatory outcomes? After all, federalism is often defended as a form of pluralistic tolerance. (I myself have made such a defense of federalism in both articles and blog posts. It turns out, however, that, at least on the issue of abortion, formal federal decentralization is not likely to lead to a pluralistic diversity of state policies. Instead, such devolution leads (if I am correct in my prediction above) to nationally uniform deregulation via interstate migration. Some states’ deregulatory policies will practically defeat other states’ restrictive policies across the national board, because women will vote with their feet for less regulation, turning those restrictions into dead letters, on the law books but not actually stopping any abortions.

Should we regard this practical national deregulation through de-nationalization as a bug or a feature of federalism? I am of two minds on this question. There is both a problem with and a benefit from practical nationalization of policy through decentralized foot-voting. The benefit is that the nation gets to choose sides in a divisive fight in a covert and, therefore, less divisive way. The problem is that the mechanism by which this choice is made — interstate migration by those burdened by regulation — arguably does not give fair representation to regulation’s beneficiaries. Nationalizing foot-voting, in short, might be politically advantageous for civil peace but nevertheless be illegitimate from the perspective of promoting pluralistic democracy.

Start with the benefits of nationalizing foot-voting in terms of civil peace. Unlike the national rule established by Roe/Casey, the nationalization achieved through foot-voting is covert. There is no rule announced, no general principle based on legalistic concepts like trimesters and viability. There are only hundreds of thousands of individual choices that, in the end, amount to a pattern of deregulation without any single set of reasons justifying or explaining that pattern. Unlike Roe/Casey, such results without reasons do not contradict anyone’s beliefs or criticize anyone’s arguments. Mere results take no position on when life begins or what personhood consist of. They will be, I predict, much less divisive than judicial opinions that take loquacious stances on contentious issues. Will Baude predicted in 2006 that “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” I predict, to the contrary, that the legal complexities will fall away, because political incentives will deter domicile-based regulation of women, leading politicians, grudgingly or happily, to regulate the clinics alone using a simple lex loci delicti conflicts of law rule. As for political divisiveness, I have no doubt that anti-abortion activists will be frustrated (and pro-choice ones, elated) by caravans of buses crossing state lines. Those activists will, however, lose SCOTUS as a visible target for their frustration. They will have to content themselves with enacting anti-abortion restrictions that will gradually become as emptily symbolic as fault-based divorce laws did in the 1960s. Just as the latter lost all practical effect with the rise of ex parte divorces in Reno, the former will gradually become impractical relics that can be evaded with a bus ticket rather than a lawsuit.

In short, I predict that overruling Roe/Casey will promote civil peace. But will it provide pluralistic respect to both of the contending sides, by giving pro-choice and pro-life factions geographic enclaves in which their respective views can prevail through subnational democratic processes? I am doubtful. The decentralized uniformity produced by foot-voting is faux pluralism: It shortchanges any constituencies that benefit from the regulations that foot-voters evade. For pro-life voters, those constituencies consist of footless fetuses/unborn infants whose interests the pro-life voters believe are ignored by foot-voting migrants who carry them. Pro-life voters might rightly argue, therefore, that the diversity of legal regimes produced by federal decentralization is a practical fraud. Federalism does not equally accommodate rival views on abortion, anymore than devolution of usury law has produced diverse regulation of credit cards. Instead, women seeking abortions will escape restrictive laws by visiting uniformly pro-choice states just as banks evade limits on credit card charges by sending their card operations to South Dakota.

My tentative view, therefore, is that the federal devolution of abortion scores higher on civil peace than on democratic pluralism. It is difficult to argue, however, that Roe/Casey performs better on either of these criteria. So two cheers for the Potemkin pluralism of federal devolution: It will likely disappoint anti-abortion activists, but it will do so without endlessly miring our politics in the bitter struggle that Roe/Casey has provoked for almost a half-century.

Posted by Rick Hills on December 5, 2021 at 06:31 AM | Permalink | Comments (15)

Saturday, December 04, 2021

Tushnet on pet peeves in legal scholarship

Co-sign. Some colleagues were having a discussion about the practice in non-law disciplines of reading one's paper.


Posted by Howard Wasserman on December 4, 2021 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, December 03, 2021

Associate Deans for Research at Law Schools

A decade ago, I was the Associate Dean for Research at my law school. I'm curious, as part of a report that I'm writing, what Associate Deans for Research at other law schools do for their faculty beyond providing informal mentoring and advice. I would be much obliged to hear from any of you who currently serve in that role to tell me what you do for your colleagues.

Posted by Gerard Magliocca on December 3, 2021 at 09:20 PM | Permalink | Comments (0)

Now what with SB8?

As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.

New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.

Posted by Howard Wasserman on December 3, 2021 at 11:27 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 02, 2021

Books Never Feel Real Until . . .

there is a cover.


Posted by Gerard Magliocca on December 2, 2021 at 10:25 PM | Permalink | Comments (0)

“Liquidation” vs. Stare Decisis in Dobbs: The Incoherence of Madison’s Theory of Precedent

I might be one of the few people whose views on precedent are more confidently felt than their views on abortion. I find the latter topic agonizingly difficult. On the former topic, however, I have this strong view: Madison’s theory of precedent, articulated most famously in his June 1831 letter to Ingersoll, is incoherent.

That theory maintains that, when some interpretation of a constitutional ambiguity is endorsed by “the uniform sanction of successive Legislative bodies, through a period of years and under the varied ascendancy of parties,” then that interpretation forms a binding precedent that settles the constitutional dispute. As I argue after the jump, this Madisonian theory requires the assumption of stable “parties” whose joint decisions virtually represent later generations who were not members of such parties. But “parties” are always in flux, as their constituents and platforms shift. The fact that Democratic Republicans of the Henry Clay-Calhoun stripe ratified the Bank of the United States prior to 1816 says little about the views of Jacksonian Democrats post-1832, because the latter simply did not exist as an organized political force during the Era of Good Feelings. Likewise, the ratification of Roe-Casey by Business Republicans on the Burger and Rehnquist Courts says little about the views of New Right GOP voters who despised the GOP Business Establishment.

The failure of Madison’s theory of “liquidation” (to use his term for the clarification of constitutional ambiguities by precedent) points to a deeper problem with every theory of constitutional settlement that relies on popular consensus to resolve contentious disputes: “The People,” as a statistically significant, demographically stable, inter-generational entity, rarely exists and, therefore, seldom have settled views on the sorts of questions that “the People” are asked to resolve.

1. A Quick Summary of Madison’s Theory of Precedent

For those of you who do not routinely assign Madison’s famous letter as mandatory reading in Constitutional Law (Aside: you should), here is Madison’s view of precedent in summary form. (Will Baude has an excellent extended exegesis here). In explaining why he acceded to the constitutionality of the Bank of the United States after more than a decade of arguing that the BUS was unconstitutional, Madison stated: “an exposition of the law publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sanction of those, who having made the law through their legislative organ, appear under such circumstances to have determined its meaning through their Judiciary organ.” The “constituted authority” is the Sovereign People who, through their ratification of the Constitution, created various “organs” (judicial, executive, legislative) to act as their agents. The “repeated confirm[ation]” that counts as such popular “sanction” is not merely any past decisions by such agents, even if such decisions are “repeated.” Instead, genuinely binding precedents are decisions that have “the uniform sanction of successive Legislative bodies, through a period of years and under the varied ascendancy of parties” (emphasis added). The Bank of the United States had allegedly received such sanction, because both Federalists and Democratic Republicans like Henry Clay (who initially opposed the BUS) eventually came to support it in the wake of the War of 1812 when the lack of such a federal fiscal agent was sorely felt.

Stated more generally, when an “organ” of the People (say, SCOTUS) repeatedly “confirms” a decision (say, Roe v. Wade’s constitutional protection of the right to terminate a pregnancy) when rival political parties (e.g.,justices appointed by both Democratic and Republican Presidents) enjoy “varied ascendancy” over that “organ,” then that decision is owed extraordinary deference by political decision-makers, because such a decision amounts to an interpretation of the constitutional ambiguity by The People — in Madison’s words, “the requisite evidence of the national judgement & intention.”

2. What’s Wrong with Madison’s Theory?

So stated, Madison’s theory of precedent surely looks like it ratifies Roe-Casey as a super-strong constitutional settlement entitled to extraordinary deference. So why do I think that the theory is incoherent? Simply put, the “varied ascendancy of parties” that is Madison’s condition for settlement is impossible to meet when those parties’ identities (not just their names, but their platforms and constituents) are in flux. And they are always in flux. The Jacksonian Democracy simply did not exist as an organized movement in 1816, when President Madison signed the Second BUS’s charter. (Fighting stance: Jacksonians really did not exist as a coherent faction at all until after Jackson’s 1832 veto message). Why, then, should they be bound by the assent of parties that did not include their voice? Likewise, the New Right, consisting in large part of a coalition between Catholic and Evangelical voters that helped elect Ronald Reagan, did not exist until the 1980s. As a decisive influence on in the GOP’s program for selecting federal judges, this constituency really mobilized sometime between 1981 and 1987, as ably described by Professor Mary Ziegler. That’s a bit late to be a decisive influence on the appointment of Anthony Kennedy, hardly an outspoken exponent of Meese’s 1980s theory of originalism.

There is a more general point underlying this difficulty in defining “varied ascendancy of the parties”: Such “varied ascendancy” seems normatively relevant by the terms of Madison’s theory only to the extent that it speaks for “the People,” but those who oppose some precedent can generally (and reasonably) complain that the parties who handed down the precedent did not reflect the interests and values of the precedent’s current opponents, because those opponents were not politically mobilized at the time that the precedent was decided.

One might raise both an empirical and a normative objection to this rebuttal of Madison’s theory. As an empirical matter, one might argue that the dominant parties at any moment in history sometimes really do reflect the views of The People at the moment that the precedent was decided. As a normative matter, one might argue that, even if those earlier ascendant parties left out some important interests and values, the parties’ decisions are appropriately binding on everyone because all interests and values could have been raised and discussed earlier even if they were not actually part of the earlier political debate.

I am unpersuaded by these two ripostes. As an empirical matter, I subscribe to the old “Michigan School” of voters’ views, best described by Campbell, Converse, Miller, and Stokes. In a nutshell, the Michigan School maintained that, until mobilized by elites, the vast majority of voters are largely devoid of any stable views about public affairs. There’s always a “silent majority” who could oppose a precedent, simply because the majority of people are always silent about ideological abstractions and even specific political issues. Until some organization actually rallies some segment of public opinion to take a stance on some issue, therefore, the claims that actual partisan platforms represent the latent views of The People are fictions, because the People actually are view-less. As a normative matter, I am not impressed by the idea that such a fiction is a useful legal fiction. Such rests on the idea that, if voters remain silent when an important issue is decided, then they have tacitly consented to the decision. Put another way, the passive citizen has no right to complain about decisions made in his or her name, because they had the chance to bestir themselves and “ought” to have done so.

IMHO that normative theory makes for a good tee shirt slogan, not a plausible set of reasonable expectations about actual popular behavior. Put aside “oughts” for a second and focus on political reality: There is zero evidence that We the People are cowed by precedent-based rhetoric into abandoning our passionate desire to overturn precedents we hate. Jackson’s Democrats were unimpressed by the Madison/McCulloch Theory that the BUS’s constitutionality was settled by precedent. Likewise, Lincoln and the Republicans he rallied were unimpressed that the Compromise of 1850 settled the controversies over the Fugitive Slave Act. And so on. It turns out that Madison’s theory of precedent is a “directly self-effacing” theory in Parfit’s sense: We the People reject the idea that We the People settle constitutional ambiguities by the sorts of decisions specified by Madison.

3. Was Madison sincere about his theory of precedent?

Madison, of course, was a smart guy, which leads to the question: Did he seriously endorse the theory of precedent that he laid out in his 1831 letter?

I have my doubts. In any case, I suspect that Madison was actually addressing an entirely different constitutional problem than the BUS’s constitutionality, the ostensible topic of that letter. My suspicion is that Madison was hinting to Ingersoll that the problem of slavery’s status under the United States Constitution could and should be settled by morally arbitrary precedents like the Missouri Compromise. In June of 1831, the time was ripe for a Virginian with ameliorative instincts to make such an argument. William Lloyd Garrison had just founded The Liberator, incensing Southerners with fears of “incendiary” northern publications’ inciting slave rebellions. (Nat Turner would launch his rebellion just a couple months after Madison’s letter, confirming in Southern minds these fears). It would naturally be appealing to a member of the founding generation that the growing moral impasse over slavery’s constitutional status could be laid to rest by a precedent like the Missouri Compromise that assiduously avoided taking sides about slavery’s moral status.

Alas, if I am correct, that fond notion is unsustainable. The agreement of multiple parties to some deal through those parties’ “varied ascendancy” in government will always meet with the rejoinder that those parties really did not speak for Us the People. And the proof that this rejoinder is correct will always be the sheer brute fact that We the People won’t shut up about disagreeing with the precedent that is supposed to settle the dispute.

Posted by Rick Hills on December 2, 2021 at 02:25 PM | Permalink | Comments (20)

Graded assignments

In Fed Courts and Civil Rights, most grading is based on a written assignment and oral arguments as SCOTUS reviewing lower courts. Each student argues one case, serves as justice for one case, and writes an opinion on one case. From a list of cases, I assign each student the case to argue and the case to judge; they choose their third case from the remainder of the list.

First problem: More than 1/3 of the class--13/30--wrote on the same case (standing to challenge North Carolina's 20-week abortion ban).  Part of the reason for doing it this way (rather than giving an exam) is not having to read multiple versions of the same answer; this undermines that. Is this a problem and is there anything I can or should do about it?

Second problem: Two students reversed the lower court; everyone else affirmed. Even when the political valence of the lower court went against what I imagine would be students' preferences (e.g., finding moot a challenge to a limit on absentee voting). And even when the lower court included a strong dissent. Part of me thinks it is easier to affirm (the starting point for the analysis is there). The alternative is to require the authors to reverse, but that makes the assignment too difficult (and gives an edge to those working with cases that have dissents). Again, is this a problem and is there anything I can or should do about it?

Posted by Howard Wasserman on December 2, 2021 at 02:10 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Wednesday, December 01, 2021

Ontario Buzzing - Talent Wants to be Free in More than One Way

Ontario’s newest buzzy legislation, just passed yesterday – it (mostly) bans noncompete clauses. It also, like the recent European reforms, requires employers to let employees disconnect after the workplace (no late-night emails). The act is called Working for Workers and it passed with all-party suppor:


The right to disconnect is spreading and will fascinating to watch how it unfolds especially given how connected, and how we are working more and more remotely, we all are.

City skyline reflected in Lake Ontario

Posted by Orly Lobel on December 1, 2021 at 04:58 PM | Permalink | Comments (0)

What Was the Point of Hearing the S.B. 8 Case?

Now that Dobbs is submitted, I don't see why the Court would decide the S.B. case at all. An opinion on S.B. 8 prior to Dobbs would probably be confusing. Once Dobbs comes out, though, they can just remand the S.B. 8 case in light of Dobbs. 

Posted by Gerard Magliocca on December 1, 2021 at 02:56 PM | Permalink | Comments (0)