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Thursday, January 20, 2022

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink | Comments (0)

Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink | Comments (0)

Drexel University VAP Positions

From Drexel University Thomas R. Kline School of Law:

The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

We seek candidates who hold (at minimum) a JD or appropriate equivalent degree.  We are particularly interested in candidates embarking on an academic career.  The Kline School of Law is committed to recruiting, developing, retaining, and rewarding faculty members who bring scholarly interests and life experiences that contribute to the diversity and success of our students, our University, and our communities.

Drexel University, founded in 1891, is an R1 comprehensive research institution.  Drexel established its law school in 2006, and it has rapidly developed a reputation for innovative scholarship across disciplines, a diverse portfolio of academic programs, and a focus on civic engagement.  The Kline School of Law is home to the Center for Law and Transformational Technology and the Center for Law, Policy and Social Action.   The law school has a vibrant scholarly culture, including an active workshop series.  Kline Law has moved up steadily in the rankings and is now ranked #81 by U.S. News.

Applications for this position should include a CV and cover letter.

Review of applications will begin immediately, and prompt application is encouraged.  Questions should be directed to Professor Bret Asbury. 

Apply online via Drexel’s HR portal: https://careers.drexel.edu/en-us/job/497570/visiting-assistant-professor-kline-school-of-law.

Posted by Sarah Lawsky on January 19, 2022 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, January 16, 2022

The Unequal Footing Principle

In Shelby County, the Supreme Court invented the principle that the states are on an equal footing with respect to sovereignty. The authority cited by the Court for that proposition was remarkably weak. And the analysis was unsound because the ratification of the Fifteenth Amendment (the basis for the Voting Rights Act) was not done with each state on an equal footing, as some states (like Georgia) were required to ratify the Fifteenth Amendment to return to Congress.

There are other problems with Shelby County's broad reading of the equal footing principle. One is that when Congress readmitted the former Confederate States, many of them were readmitted with a statute that imposed special conditions on them with respect to voting and officeholding, including the express incorporation of Section Three of the Fourteenth Amendment. Another is that (before the Civil War) John Bingham pointed out that the 1787 Constitution does not treat all states equally with respect to slavery. Article One, Section Nine, Clause 1, which discusses the importation of enslaved people, says that "the states now existing" could permit slave importation unless and until Congress imposed a ban. Bingham argued that this excluded states added after the original 13, otherwise the provision would have just said "the states."

The 1868 Act of Congress readmitting some of the ex-Confederate states with conditions could become relevant in future litigation. 

Posted by Gerard Magliocca on January 16, 2022 at 10:13 AM | Permalink | Comments (0)

Saturday, January 15, 2022

Mark Finchem and Section Three

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

Posted by Gerard Magliocca on January 15, 2022 at 09:43 PM | Permalink | Comments (0)

Some Additional Section Three Resources

I've found some additional cases and authorities on Section Three that are not in my law review article. None of them are terribly significant, but for those who are interested I thought I would just list them.

Opinion of Justices, 12 Fla. 651 (1868) (advisory opinion holding that members of the state secessionist convention were not subject to Section Three).

Hudspeth v. Garrigues, 21 La.Ann 684 (1869) (holding that a state court clerk under the Confederacy was not subject to Section Three).

Powell v. Boon, 43 Ala. 459 (1869) (mentioning Section Three in an offhand way).

Op. of the Attorney General, May 24th 1867 (defining "engaged in insurrection" as used in the Reconstruction Acts, incorporating Section Three of the proposed Fourteenth Amendment).

There's at least one more case from Kansas that I will discuss in another post.

Posted by Gerard Magliocca on January 15, 2022 at 08:42 AM | Permalink | Comments (0)

Friday, January 14, 2022

conference - Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy

Related to my post below about Dopesick and the opioid litigation, Samir Parikh sends word about a symposium he is organizing for Fordham Law Review that unpacks the issues at the intersection of aggregate litigation and bankruptcy, focusing on Purdue, USA Gymnastics, Boy Scouts of America, and other prominent mass tort bankruptcies register here  - https://t.e2ma.net/message/ettj4g/i485hj

great lineup and here's the description:


This symposium addresses the novel intersection of civil procedure and bankruptcy law.  Corporate defendants – including Purdue Pharma, Boy Scouts of America, and USA Gymnastics – facing substantial numbers of mass tort claims have filed for bankruptcy to exploit statutory loopholes and impose a new bargain on tort victims.  This interdisciplinary event will feature panels discussing bankruptcy preemption and multidistrict litigation, due process, representation issues regarding unidentified victims, settlement dynamics in complex cases, and victims’ rights.



Posted by Orly Lobel on January 14, 2022 at 08:33 PM | Permalink | Comments (4)

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Recommended: Dopesick, the Hulu series & book

If you haven't watched it, I highly recommend Hulu's limited series starring Michael Keaton, Dopesick, based on the book Dopesick: Dealers, Doctors and the Drug Company that Addicted America by Beth Macy. It tells the story of the lawsuits of over-prescription of addictive pharmaceutical drugs and the corporations and marketing schemes behind opioid crisis. It shows the pain and the magnitude of the epidemic and behind the scenes dramatization of the executive greed, the doctors who prescribed and the attorney generals who ventured to take on a privately held billion dollar pharma. There are dozens of ongoing cases and also interesting angle is the Sackler's family philanthropy (from Harvard to the Louvre to Tel Aviv U to Guggenheim) and new questions about name removal (I believe the Louvre is the first to remove their name from association with the museum). 

Posted by Orly Lobel on January 13, 2022 at 04:44 PM | Permalink | Comments (4)

Judges Participating in Cases

Before we return to more Section Three posts, I thought I'd ask a more esoteric question.

Suppose an appellate judge is part of a panel that hears a case. Before the opinion issues, though, the judge dies or retires. Then the decision is issued without her, sometimes with a notion that she heard the case but is no longer a panel member. This makes sense, in that you could say the relevant point in time is the decision rather than the argument.

Now think about a Justice who joins the Supreme Court after the start of the Term, the way Justice Barrett did. She was not part of the decisions from the cases argued that Term before she was confirmed. But she was on the Court while those cases were pending decision and when they were decided. Why, then, could she not vote on them? She could read the briefs, of course, and Justices do vote in cases where they cannot attend the oral argument due to illness. And the Court had a vacancy, so you can't say that the reason is because the Court was at full strength until she was confirmed.

The Court's custom, at least in recent years, is that a new Justice who starts after the Term begins and fills a vacant seat does not vote on or participate in the pending cases. But why? 

Posted by Gerard Magliocca on January 13, 2022 at 01:52 PM | Permalink | Comments (0)

I am officially old (corrected, still old)

A 1L in my Civ Pro class this semester is the child of a woman who took Civ Pro from me in fall 2002 at Florida State, the first time I taught the course as a VAP.

Posted by Howard Wasserman on January 13, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:


Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 12, 2022

Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) Some of these involve what we might think of continuity and succession issues between volumes and editors. Others involve what we might think of as changes in view among some law students about what their office as editors of scholarly journals--and it is an office--involves, allows, or demands. That larger category involves a good deal more than just flashpoints around the publication of particular articles, or even public statements issued by reviews or their editors about their aims, although there have been quite a few of those in the past few years. 

I was particularly interested in a post by Michael Smith, linked to by Caron, noting and complaining about what Smith calls "the sport of attacking law review editors." I take no view on most of what Smith has to say in his post, and am not in total agreement with his complaint that professors should not criticize law review editors by name. On the whole I am sympathetic to it. I would not be inclined to do it. It seems undignified and unnecessary much more often than not. And I must acknowledge my suspicion that a good deal of the time such posts and twits, even when they have a point on the merits and about larger concerns, are carried out in a fashion that reflects the awful mixed motives that characterize so much social media activity: not just making a point, but scoring a point, or promoting oneself, or feeding unhealthy controversy, or exaggerating for political effect, and all the other things that make so much of contemporary discourse a cesspool. But some instances of naming a law review editor seem to me more about fairly reporting and documentation than outright attack. And it seems fair to note that to the extent that journals and their editors are busy making public pronouncements of their own, their expectations of privacy may diminish accordingly.

Nevertheless, I am in sympathy with Smith's basic point, beyond my concerns about undignified discourse, insofar as it reminds us that if there is a problem, it lies elsewhere. Legal scholarship, like scholarship in any discipline, is an institution. And, with very rare exceptions, it is not an independent institution. (There is at least one prominent law review that is formally independent. Even there, I don't think it should be viewed as wholly independent of the law school with which it is associated.) Given the odd fact that most law reviews in this country are student-edited, it shouldn't be an independent institution. A scholarly institution is the responsibility of the members of its discipline. That's true in general terms, but also in the more specific sense that a law review is ultimately the responsibility of its law school, that school's faculty, and the review's faculty advisor. At a minimum, if someone is going to go to the trouble of naming the editor of a law review when complaining that it has failed in its duties, scholarly or contractual, that critic should note the name of the faculty advisor and ask for comment from that person. But beyond that, ultimately a law faculty itself should step in--has an institutional and disciplinary duty to do so--if one of its journals is acting in a way that violates, ignores, or weakens scholarly norms. 

Of course what those norms are is subject to the usual contestation. But the ultimate duty to step in and at least temporarily resolve those contests belongs not with student editors, but with the larger institutions that administer the law reviews and that bear responsibility for the state of their piece of the discipline. Were it otherwise, the existence of student-edited journals would be even more absurd than it already is. No doubt that duty can and perhaps should usually be exercised lightly--not deferentially, since there is little basis for deference, but lightly. In the past, when I have been faculty advisor to a journal, I've told the editors that it's "their" volume and  that they are generally free to make their own calls about which articles to publish and about the direction in which they want their volume to go. The editors of one volume may be concerned with "national" scholarship and prestige, while the editors of another might want to place a greater emphasis on scholarship and writers focused on their own state or jurisdiction, and so on. Most of that is fine with me, although I offered advice up front and along the way. But if the editors decided they wanted to run a year of Alexandrine verse, not for any recognizably legal-scholarship-related reason but because they are keen on Alexandrine verse, I would have an obvious duty to step in and say no--and if I didn't, my colleagues and administration would.

I suspect that some potential controversies don't arise, or don't get publicity, or end up being resolved appropriately, because the faculty advisor or the law school itself steps in, quietly, either before the fact or to resolve a problem. That's as it should be. (I gather that in the case of at least one of the journals named above, that's what ultimately happened. And NYU issued a statement on its own behalf and that of the law school objecting to the NYU Review of Law & Social Change's action.) But when we are talking about the controversies that do end up arising and gathering traction, or about larger concerns about law reviews, we should certainly remember that however much autonomy we appear to give law reviews, they are not actually autonomous, and for disciplinary reasons cannot be. Ultimately, they are the responsibility of the discipline, generally through the office of the faculty advisor and in a broader sense of the law school and its faculty and administration, and beyond that of all of us. We may act or talk most of the time as if these reviews are independent and autonomous, but the buck still stops with us. It is at least possible that we should be more hands-on in our disciplinary responsibilities on this front than we currently are. Law reviews and their editors are, at least in this system, free to talk about exciting "new" visions about what legal scholarship should be and do, what positions law reviews should take (if any), and so on. (They're often not actually "new," of course.) But if we as a discipline or as individual institutions think their vision is wrong, or that they have acted wrongly or outside scholarly norms in a particular instance, it's still our job to step in and settle the matter.            

Posted by Paul Horwitz on January 12, 2022 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, January 11, 2022

State Ballot Eligibility Regulation

Derek Muller has a post arguing that states lack the authority to enforce federal constitutional eligibility requirements against federal congressional candidates. He says this means that 15-year olds can, say, run for the Senate even though they are obviously ineligible. Only Congress can (if such a person wins) exclude them from office.

There are several problems with this argument. But one is that I don't think this tracks actual practice. I once represented a woman who was excluded from the ballot for the House of Representatives because she was too young. (Basically, I made Muller's argument and lost.) I find it hard to believe that I'm only person to ever have had such a case. States also commonly require candidates for Congress to swear that they are eligible to serve, citing the Federal Constitution. If you don't complete the form, you can't run.

If Muller's argument were correct, I would also tend to think that all least one state would have a similar rule for state legislative elections. Many state constitutions just copied the Qualifications Clause in Article One, Section Five. I do not know of any state that reads this clause to say that state election officials are disabled from enforcing state constitutional eligibility requirements on legislative candidates. (But on this point I'm happy to be corrected if I'm wrong.)



Posted by Gerard Magliocca on January 11, 2022 at 09:46 PM | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, January 09, 2022

Interesting conference about law school student evaluations

via zoom - Validity and Equity Problems in Law School Teaching Evaluations Thursday, January 20, 2022, 12 – 2 pm CST. register here. from the organizers:

Student evaluations are, as shown by study after study, not valid measures of teaching quality and are biased along the axes of gender, race, accent, age, disability, attractiveness, and other instructor attributes unrelated to teaching ability. Yet, even as many universities and colleges have begun reckoning with these established problems with teaching evaluations, and while many law schools have started tackling other barriers facing women and minorities in academia, attempts to reform evaluations have lagged behind in the legal academy. This panel brings together a multidisciplinary group of scholars to discuss the most recent research on teaching evaluations and how law schools should proceed given what this work shows about the issues with such evaluations.


Posted by Orly Lobel on January 9, 2022 at 05:54 PM | Permalink | Comments (1)

Saturday, January 08, 2022

Closing Comments

With regret, I must tell you that I will no longer be opening my posts to comments. I don’t have the time to moderate the thread, and lately many of the comments (from one account) have been spouting anti-vaccine gibberish. 

Thank you for all of your comments over these past 13 years, if you include my stints at other blogs. It’s been a blast. 

Posted by Gerard Magliocca on January 8, 2022 at 12:37 PM | Permalink | Comments (0)

Friday, January 07, 2022

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

Posted by Howard Wasserman on January 7, 2022 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, January 06, 2022

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

Posted by Howard Wasserman on January 6, 2022 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 04, 2022

The Marshall/Washington Court

My biography of Bushrod Washington will (as all biographies do) provide many fascinating details about the subject and the times in which he lived. If there is one overarching theme of the book, though, it is that we should understand the Marshall Court as a partnership between John Marshall and Bushrod Washington.

One way to view constitutional law is as a series of remarkable collaborations. For the Warren Court, there was Earl Warren and William Brennan. At the Founding, there was: (1) George Washington and Alexander Hamilton, and (2) Thomas Jefferson and James Madison. These pairs sometimes worked together and sometimes were opposed, but each member of each pair complemented the other and made the whole greater than the sum of its parts.

When we turn to the early Supreme Court, though, the focus is almost on John Marshall alone. Or sometimes we say John Marshall with a little help from Joseph Story. My book argues that the answer is really John Marshall with a lot of help from Bushrod Washington and a little help from Joseph Story. Bushrod Washington and Marshall balanced each other both personally and professionally. Indeed, there are echoes of the Hamilton/George Washington relationship there, with Marshall playing a version of the Hamiltonian role with Bushrod displaying George's sober temperament.) The proof of this will be in the telling of the book, and I may expand on this idea in other posts.  

Posted by Gerard Magliocca on January 4, 2022 at 05:03 PM | Permalink | Comments (1)

Beyond Imagination?: The January 6 Insurrection

The following post is by Mark C. Alexander, Arthur J. Kania Dean and Professor of Law at Villanova and is sponsored by West Academic.

As United States citizens, we have long prided ourselves on the peaceful transfer of power after elections. Every four years we hold a presidential election, resulting in a winner. Dissenting voices may object, but the winner is accepted, and the loser moves on. At least this was the case until January 6, 2021.

Since that fateful day, we have been consumed with and concerned by that day’s events. Amounting to nothing short of an insurrection, a violent and deadly mob stormed the U.S. Capitol while the Congress was meeting to perform the essential, yet largely ceremonial, task of counting the ballots from the Electoral College to formally declare the winner of the presidential election. That task has occurred without much attention for 200+ years, but this time it was different. Instead, Americans watched the unimaginable happen—an attack on our democracy, the rule of law, and the foundation of America’s constitutional democracy.

While our nation has always been a work in progress, the rule of law serves as the guide to achieve the promise of equal justice under law. Throughout our nation’s complex history, the rule of law and our carefully balanced constitutional system has allowed the nation to confront and successfully navigate many unique existential threats.

As law professors, we train the next generation of lawyers; therefore, we are obligated to examine these seditious acts, with an eye on the lawyers involved, the rule of law, and our system of laws and government. As lawyers, we also must act according to certain standards of conduct, which reflect the great trust placed upon all members of our noble profession.

In the immediate aftermath of the events of January 6, 171 deans of American law schools came together and wrote an open letter addressing the attack. After that open letter, I reached out to a number of colleagues, and 14 of us decided to write a book, entitled Beyond Imagination?: The January 6 Insurrection. The book is not a partisan undertaking; it is instead intended to expose the problems that led to January 6 and to help us move forward and heal. Our cause is the rule of law; our loyalty is to the Constitution of the United States. We support the American people, not one candidate, elected official, or individual. Each co-author wrote one chapter—relatively short and accessible, but still erudite. We write from our perspectives as legal scholars, as deans of our institutions, and as individuals who have been engaged in leadership in various ways, primarily (but not exclusively) in the law.

As lawyers and legal educators, the ongoing legitimacy of our nation’s republic requires us all to engage. This work will not be easy. We hope that all may be interested in reading this book as an exercise in civics and that it will challenge the reader. It could form the basis for a stand-alone course or, you could use select chapters in a course on any number of myriad subjects. It would work well for a sort of “One Book” course, or for CLE offerings as well.  We hope that this work can serve as a sober reminder of the weight and responsibility that attends the oaths we have taken to uphold the Constitution and the rule of law.

Posted by Howard Wasserman on January 4, 2022 at 09:35 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)