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Tuesday, March 29, 2022

Joseph Story and Bushrod Washington

My biography of Justice Washington changes the story of the Marshall Court. We see the Court as more of a team on which Washington was a leading player. To some extent, this revisionist account comes at the expense of Justice Story. That said, the relationship between Story and Washington gets its turn in the sun. They had an apprentice/mentor connection given their difference in age and the fact that Bushrod had no children. But what they shared was an obsession with the law.

Put simply, Washington and Story were both law nerds. You see that in the detailed reports and commentaries that they sent each other about their circuit cases. The reports read as if they couldn't wait to tell each other about the complex issue they just decided or the nifty argument that was made. You don't see John Marshall writing these sorts of letters. My impression of Marshall after writing this book is that he was a very bright man who happened to be a lawyer. Marshall had many interests and probably did not think much about law in his spare time. Not so for Washington and Story. 

The chief difference between Washington and Story was their work method. Story was much more prolific and a much faster writer. But he also made more mistakes. Washington was slow and deliberate, in part because his poor eyesight probably forced him into that routine. These contrasting styles created some fascinating tensions in cases where Washington and Story disagreed. (I found one example where Story lost his majority opinion to Bushrod and ended up dissenting.) So I hope this book becomes part of the necessary reading for Marshall and Story scholars.

Posted by Gerard Magliocca on March 29, 2022 at 12:05 PM | Permalink | Comments (0)

Monday, March 28, 2022

Cert denied in John Doe relation back

The Court denied cert (without noted dissent) in Herrera v. Cleveland. The Seventh Circuit held (consistent with every circuit to consider the issue) that John Doe claims do not relate back under FRCP 15(c)(1)(C), because intentionally pleading a Doe placeholder when the plaintiff does not know the defendant's name is not a mistake concerning the proper party's identity. Too bad. I thought this case had a chance to get to the Court. The approach to mistake is arguably inconsistent with the Court's broad take on relation back in Krupski and has adverse effects on civil rights plaintiffs. Civ Pro professors and civil-rights activists filed amicus in support of cert.

Posted by Howard Wasserman on March 28, 2022 at 04:36 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Returning to Work: How COVID Changed Employment and Labor Law

This Berkeley Symposium promises important insights and timely conversation. free and open to all.

Posted by Orly Lobel on March 28, 2022 at 01:52 PM | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

Posted by Howard Wasserman on March 26, 2022 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, March 25, 2022

Some Thoughts on Today's Ginni Thomas Story

1: I'm focusing only on today's story, in which the Times reports that Virginia Thomas sent a series of texts to President Trump's chief of staff, Mark Meadows, urging him to take steps to overturn the results of the 2020 election. I abstract away, for the most part, from her, from any previous coverage, good or bad, and from Justice Thomas himself. 

2: We might view this as a subset of a subset of a general question produced by now-longstanding social and cultural change. The broad change is the rise of two-career spousal couples. The broad subset is two-career professional couples in Washington, D.C., the classic Washington "power couple." It is a well-established and bipartisan phenomenon. The conventional and safe view is that there is nothing wrong with it as such, and the further conventional and safe view is to raise serious concerns about it in particular cases, choosing one's focus and the degree of one's concern based upon one's political allegiances. The subset of a subset involves professional couples in which one partner is a judge. I will focus quite arbitrarily on high-level federal judges, although it seems to me that any potential concerns might well be graver in the case of federal or state trial judges.

3: Part of the reason for the contemporary conventional and safe view, apart from elite class prerogatives, is that there is obviously a significant gendered or gender-related component here. As a historical matter, the raising of concerns necessarily focused on working professional women in marriages or relationships, as greater numbers of them entered the professional workplace, including the political workplace. Whether the concerns were based on some kind of explicit bias or not, the attention and the burden surely fell disproportionately on women, just as they were fighting to emerge from legal and cultural barriers to professional advancement. Any treatment of the general question should fully acknowledge that fact. 

4: Acknowledgment is not dispositive, however. Whatever one might say about other power couples--Senator/cabinet secretary, House member/lobbyist, elected officeholder/agency chair, and so on--it seems to me a sound policy or norm that spouses of high-level judges, whatever the gender of either member of the relationship, should not be involved or active in politics at all. That certainly includes high-level partisan activity, and may extend more broadly to other work, such as high-level governmental work. Again with all due acknowledgment, that policy should apply whether or not such a policy stymies or stifles that partner's career, aspirations, calling, or passions. And it should apply whether the particular example is, in the eyes of the beholder, particularly gross in nature, or whether it is more conventional and commonly accepted by the professional class--say, the difference between texting the chief of staff and invoking the "Kraken" on the one hand, and being a conventional interest-group lobbyist, or attendant at various DC weekly meetings of public and private political forces, or professional apparatchik who works on increasing the flow of money to parties or mainstream candidates, on the other. 

5: We need not make it a personal thing. Indeed, there are good reasons not to, since our tendency to be guided by our own partisan identifications may lead us to condemn some such associations and excuse others, on the basis that Judge X is incapable of ruling impersonally but Judge Y would never dream of being influenced by his or her spouse's activities. The question has very little to do with the person of the judge and his or her capacities. Nor would I necessarily frame it in terms of recusal and the appearance of partiality. I think of it in terms of the judicial office. I've written (following some of the historical material in Philip Hamburger's book on law and judicial duty) that we should think of office much less in terms of power and much more in terms of duty and obligation. The power attaching to an office is an incident of that office, and dependent on and inseparable from the duties and obligations of that office. To be sure, only the officeholder and oath-taker truly occupies and personifies the office and takes on its burdens. But I worry that such a relationship, in which the judge's spouse is engaged in highly partisan work, publicly or privately, harms the honor and integrity of the judicial office. This is a somewhat old-fashioned and perhaps outdated or archaic view. But that's not the only reason to favor it. To the extent that our greatest crisis in American civic life is, as I believe it is, an institutional crisis--not just failures of and within institutions, or even a public loss of trust in institutions, but also a failure to take institutions seriously as such--the kind of conduct I'm talking about here is deeply corrosive of both institutions and trust in those institutions, and perhaps also corrosive even of the office-holder's view of his or her own institution.

6: The judge in such a situation must urge his or her spouse to cease engaging in that activity. Any person in a relationship knows that for all sorts of reasons, there are things we could not imagine asking of a partner and would not ask of them. We know too that there are things we might be willing to ask but that the partner will roundly reject. Where the judge won't or can't deter the spouse from so acting, he or she should step down from the bench. 

7: The policy should apply without respect to the importance of that judge, the importance of their holding the position in their own or others' views (say, the judge is on what the observer thinks is the "right" side of a 5-4 division on the court, with a president and Senate of the opposite party waiting eagerly to appoint a replacement), and, again, the gender of either partner in the relationship. To the extent that our concern with the gendered nature of the general issue, or our own gendered assumptions, begin with a preconception that the judge in any imagined case is a man and the person asked to sacrifice their own career aspirations is a woman, we should remember that the male partner is not locked into the judicial office. A judge, like any other partner in a relationship, is always free to prefer and elevate his or her spouse's interests and desires, including professional and political desires, over his or her own, and thus to step down from judicial office if the spouse is unwilling to give up politics. Judges ought to leave office more often in any event. Believing that the judge's spouse's career or desires come first is an excellent reason to step down. It is, in large measure, the fact that judges seem eager to occupy their offices on a "till death do us part" basis that gives rise to more frequent occasions in which a judge stubbornly refuses to step down "under fire."  

8: There is nothing dishonorable about stepping down under such circumstances. Quite the contrary: it shows greater honor to the judicial office, and to the person stepping down from it, than remaining does. Rather than view such an outcome as a scandal or embarrassment, we ought to view it as the judge doing the right thing. Nor is there anything scandalous or embarrassing about a spouse wanting to engage in political activity or follow some other calling that is, in my view, inconsistent with the spouse's judicial office. Lots of people pursue such callings. The question is only whether that state of affairs can exist or persist while the partner occupies a political office. Nor, finally, would I be inclined to draw conclusions about the views of the judge--that, say, the spouse's political activities "confirm" one's views that the judge is political, and so on. Spouses, professional or otherwise, can and do hold different views and preferences, in kind and degree. (My spouse--a former officeholder, incidentally--is a person of good sense and thus usually disagrees with me.) The partisan surround around such issues, the likelihood of gloating on one side or defensiveness and defiance on the other, are good for fundraising and commentators but bad for establishing a system in which we treat it as legitimate that two partners in a relationship may wish to pursue different careers, one of which is partisan and one of which is not, but treat the honorable thing to do in such circumstances as either having one spouse give up those political activities or having one spouse surrender a high judicial office. We ought to facilitate that honorable choice, not make it more likely that it won't happen.

9: One may worry that such a role creates an incentive to dig up real or questionable stories about judicial spouses and their activities, just as judicial confirmation hearings incentivize senators and interest groups to dig up real or questionable scandals. It's a 6-3 Court, and it may not be an accident that the focus here is on Justice Thomas. (Although Ginni Thomas has engaged in such activities for some time.) Plenty of investigative reporters are pretty obviously partisan, choosing their targets of investigation on that basis and ignoring other subjects that deserve equal attention and investigation; and plenty of people who engage in investigation are not journalists at all, but open combatants working for interest groups or parties or various other entities within the political-industrial complex. So be it. The general rule I suggest is a good one and the right one for preserving the integrity and honor of the judicial office. And it can't be employed strategically by advocates if the rule is observed in the first place, such that the spouse has already desisted or the judge has already chosen not to continue in judicial office.     

Posted by Paul Horwitz on March 25, 2022 at 12:45 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 24, 2022

Senator Jacob Howard on Section Three and Amnesty

Section Three of the Fourteenth Amendment was drafted by Senator Jacob Howard. In response to a question about the power of a supermajority of Congress to remove a disqualification, here is what Senator Howard said:

"I understand that the clause gives to Congress full discretionary power to grant an amnesty in an individual case, when applied for, or as a part of the whole. Any portion of persons here proscribed may be pardoned, or rather this disability may be removed as to any portion of them in detail or in gross."

Here the author of Section Three expressly compared Congress's waiver power to a pardon. A pardon could be given to an individual or in general just like a Section Three disability removal. But pardons are not prospective. And neither was the power to remove disabilities. Thus, a prospective reading of the 1872 Amnesty Act raises, at a minimum, serious constitutional doubts that should be avoided by reading the Act more naturally as applying to only ex-Confederates.   

UPDATE: The cite is Cong. Globe, 39th Cong., 1st Sess. 2900 (1866) (statement of Sen. Howard).


Posted by Gerard Magliocca on March 24, 2022 at 09:52 PM | Permalink | Comments (0)

Response to Hans Von Spakovsky

I want to concur in part and dissent in part from this new essay on Section 3 by Hans Von Spakovsky.

I agree with his point that voting against the certification the electoral votes on January 6th, 2021 does not-- standing alone--constitute engaging in insurrection under the Constitution. The vast majority of GOP members in the House are not subject to disqualification. I said as much in a piece written shortly after the Capitol riot.

I disagree with the rest of what Von Spakovsky says. First, he makes the same erroneous argument that the District Court in North Carolina embraced; namely, that the 1872 Amnesty Act applies to future insurrectionists. As I've said before, this is wrong because: (1) Section Three gives Congress no such prospective power; (2) the text of the 1872 Act does not support a prospective interpretation; (3) the legislative history of the 1872 Act does not support that interpretation; and (4) the House of Representatives applied Section Three in 1919.

Second, Von Spakovsky claims that U.S. Term Limits v. Thornton supports the proposition that the only qualifications for serving in Congress are age, citizenship, and residency. This is incorrect. A footnote in Thornton makes clear that Section Three of the Fourteenth Amendment is another possible qualification for Congress, though of course the issue was not presented in the case. Von Spakovsky's argument is therefore much weaker than the one by Professor Muller that Section Three is a qualification that only Congress may enforce. (I disagree with Professor Muller on that, as I've explained before.)

I will soon have more to say on the new Section Three action filked against Representative Taylor Greene. 


Posted by Gerard Magliocca on March 24, 2022 at 12:03 PM | Permalink | Comments (0)

Wednesday, March 23, 2022

John Marshall and Bushrod Washington

The relationship between Marshall and Washington is another pivotal one in my new book. I've posted about their close partnership many times already and don't want to beat a dead horse. But there is one angle that I've not discussed previously.

Most significant working relationships between or among Justices begin when they arrive at the Court. Before that they may know one another, but not in an intimate way. Washington and Marshall are unique in that they collaborated extensively before reaching the Court. This was mainly through their legal practice in Richmond, but also as members of the Richmond City Council, advisors to Martha Washington, and partners on George's official biography. Thus, they were able to hit the ground running when Marshall became Chief Justice in 1801, and they never looked back. 

Posted by Gerard Magliocca on March 23, 2022 at 09:46 PM | Permalink | Comments (0)

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Posted by Howard Wasserman on March 23, 2022 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Alabama Law Review Symposium: "The End of Animus: The Lifespan of Impermissible Purposes"

A substantial number of cases in recent years, including Trump v. Hawaii, Masterpiece Cakeshop, Ramos v. Louisiana, and Espinoza v. Montana Department of Revenue, have raised a question that has received surprisingly little sustained scholarly or legal attention, at least since the initial flurry of scholarship concerning motives in constitutional law. A lot of scholarship on this general subject asks when animus or improper purpose begins: what sorts of actions, speech, or facts trigger a finding of illegitimate purpose? That focus is understandable. But the question that has received much less attention is when animus or improper purpose end. When, given the initial presence of an illegitimate purpose, do later actions mitigate or purge the initial presence of "discriminatory taint?" When should later actions be treated as merely cosmetic, so that it is not too easy for a discriminatory actor to sweep improper purposes under the rug? Conversely, given a broader interest in effective governance and in encouraging proper, reasoned decision-making by political actors--even where that decision-making might lead to a policy result one personally disfavors--could we set the bar for purging discriminatory taint too high?

As Joseph Blocher wrote some time back, "constitutional law does not currently provide a ready answer" to this question. And the answer to that question is relevant not only to the "end" of animus" but to finding its existence in the first place, as Blocher observes: "The questions are deeply inter-related....[J]udges’ willingness to recognize impermissible purpose depends in part on what they see as the costs of doing so. The harder it is for the government to clean its hands, the more reluctant some judges—or, looking into the near future, some Justices—will be to recognize when they are dirty." It's a question that runs across a variety of legal and constitutional areas, including antidiscrimination law, election law, immigration law, criminal procedure, and the First Amendment.  

This is the subject of this year's Alabama Law Review Symposium, "The End of Animus: The Lifespan of Impermissible Purposes," which will be held in person (with both in-person and remote guests) this Friday. The lineup of panelists will discuss the question as a general matter of law and legal theory, with particular reference to equal protection law, and with respect to current controversies in various fields. Bonnie DeCarlo, who has done a wonderful job as Special Works Editor for the Law Review, has lined up what I can call without exaggeration a stellar group of panelists: William Araiza (who will also deliver the keynote address), Dale Carpenter, Jennifer Chacon, Michael Coenen, Andrew Hayashi, Anil Kalhan, Joy Milligan, Louis Michael Seidman, Nicholas Stephanopoulos, and Robert Tsai.

I am tremendously interested to hear what they have to say. I have been thinking about this question for a fair amount of time now, and I am certainly not at a resting point, other than two general observations. First, I do think there is value in thinking about this question in terms of the crucial if oft-lamented question of governance. A reasonable approach here, one that does not too easily reject lawmakers' attempts to purge the taint of animus of illegitimate purpose, can do what constitutional law is supposed to do, at least in an Elysian sense but also according to many other conceptions of its function: channel decision-making to lawmakers and incentivize them to have in place, and engage in, sound procedures of governance, consultation, and deliberation. Second, I suspect that where I land on this question will end up altering my views on the rightness or wrongness of some recent rulings despite my priors on those cases. It might do so for others as well. 

More information about the symposium is available here. The symposium will result in a print issue of the Law Review in due course. I must again praise Bonnie DeCarlo and her Alabama Law Review colleagues, as well as the deans and staff of the Law School, for their hard work in making this event a reality. For all my complaints about "novelty," I think the symposium will actually result in new and useful contributions to an under-covered question. 

Posted by Paul Horwitz on March 23, 2022 at 11:03 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 22, 2022

Sunstein on Radical Economy

Larry Solum links to a new paper by Cass Sunstein on recent decisions involving injury in fact in standing doctrine. The article is useful--and 19 pages long. It joins a number of other useful recent doctrinal pieces by Sunstein, including: a paper in the Administrative Law Review on major questions doctrine (19 pages); a coauthored piece with Adrian Vermeule, in the Georgetown Law Journal, on presidential authority over independent agencies (27 pages including abstract and contents); an essay on Chevron in the Ohio State Law Journal (19 pages--it seems to be his sweet spot); another piece on Chevron, coauthored with Larry Solum, in the Cornell Law Review (22 pages); and an epic piece coauthored with Vermeule in the Supreme Court Review on the unitary executive (34 pages). That's not counting a number of others, some much shorter and only two (of the last 20 papers published by Sunstein in law reviews) longer than 40 pages. 

God bless him. I won't offer another rant on page inflation in law review articles. I'll just make a few shorter points: 1) These are all good pieces. We are not worse off for their economy. We are much, much better off.

2) This kind of economy is especially well-suited to doctrinal pieces and/or pieces focusing on a discrete case or doctrine. We don't need a history of the wheel every time someone writes a piece about the newest development in lug nuts.

3) Nor should every new case be an occasion or excuse to offer a new unified theory of some field. We--with "we" very much including high-flown scholars--are probably in greater need of good treatments of new cases or doctrinal developments than we are of new unified theories. And a new case is rarely a clincher or convincing basis for a unified theory, which probably existed long before the new case and wouldn't be abandoned no matter what the new case says. Often enough the case for the new decision's relation to the unified theory involves stretched language: "suggests," "can be read as," "illuminates," and so on. This is not a knock on theory or theory pieces. But one can write a separate and possibly shorter piece on the theory while using a separate piece to give the case or doctrine the more direct treatment it deserves, without having to combine both into a single leviathan and, in the result, making exaggerated claims about the case.

4) I read, or at least peruse, a fair number of new articles when I'm on the lookout for jots or doing research in my field. Vanishingly few of them would not benefit from whole sections being cut in favor of a straight focus on the one section that offers something new and interesting. The ones for which a cut would be least appropriate are often genuine essays, which are meant to be read from start to finish with some overall flow, not standard-form articles. 

5) Most of Sunstein's articles are published in major law reviews, and most of those reviews, when they publish younger and less famous scholars, tend to run those pieces only if they are very long--excellent, to be sure, but very, very. It is an old trope that where famous scholars are concerned, the journals will even publish the Great Man or Woman's grocery list if that's what they get. But given that the reviews are the ones that started pushing for word limits in the first place, perhaps their editors in chief and acquisitions editors would benefit from printing out a list of Sunstein's recent pieces, and reflecting on the basic lesson that no matter whether the author is established or "emerging," journals can run excellent work that is well, well under 60 or 80 pages. I would be delighted if they sent around their offices Sunstein's recent pieces on standing or Chevron or ad law with a note saying, "Please remember that excellent submissions don't need to do everything and probably shouldn't try"--and acted on it. They might find that the quality of their work was enhanced rather than harmed, that they could still publish pieces by young and emerging scholars (who would respond to the incentive), and that the pieces they ran might actually get read. 

6) More monographs, please! With more personality in the monographs, and fewer bureaucratized monograph-length articles altogether.  

I offer these thoughts with due humility for three reasons. First, for good and bad reasons, I've been less productive lately, so perhaps I'm not in a position to say much. Second, when I am productive I surely commit many of the sins I recount. Third, even my blog posts are too long. (Although a couple of my favorites among my own articles are on the shorter side.) But one can praise what one can't always emulate. 

Posted by Paul Horwitz on March 22, 2022 at 03:26 PM | Permalink | Comments (0)

Monday, March 21, 2022

Legal Misunderstanding March Madness

Via Mike Masnick at TechDirt. Here is the Spreadsheet for downloading.

Have fun. And watch for Fire in a Theater, underseeded at a 6.

Posted by Howard Wasserman on March 21, 2022 at 09:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

Posted by Howard Wasserman on March 21, 2022 at 04:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A Scandal or an Extremist/Utterly Brilliant and Wonderful

I gather the confirmation hearings for Judge and nominee Jackson begin this week. Ilya Somin argues in the VC today that confirmation hearings, although flawed, "serve useful purposes." Although I am sure he has considered views on the topic, to me this is not quite the right question. One should ask, rather, whether their useful purposes outweigh their detriments. More to the point, I think, is the question whether the optimal mix of pluses and minuses is not achieved by a paper confirmation process without the appearance of the nominee, whose function, it seems to me, is to say as little that is interesting as possible as briefly as possible while offering the Judiciary Committee the opportunity to say nothing interesting at all at much greater length. There is also something to be said for the power of the polite, disruptive "no." As I've said before, I think the whole pattern of norms and expectations and power relations--including those between the White House and the nominee--would be well served if at least one nominee would decline to appear and invite the Senate to judge his or her merits on the basis of the extensive nomination materials that are filed.  

In any event, all this is a motivation and excuse for me to pull something out of deep freeze. Spurred by an early post of Howard's several weeks ago, I wrote a post on what will happen in this or just about any other confirmation process for a Supreme Court justice--"process" being perhaps the operative word, since only a very little bit of it happens in the confirmation hearing itself. I'm not sure that much that I've seen in the coverage, which I've looked at only spottily, requires significant changes to what I wrote in the first week or two after Jackson's nomination, although I've added a note here and there. It's unduly lengthy, for which I'm only semi-apologetic. I wanted to collect all my thoughts so I could, in effect, get rid of them and worry about other things. Here goes.

* * * * 

I have not read more than the first sentences of Howard's post below, but they spur me to do something I have been meaning to do for the last few days: Discuss the positions taken now and that will be taken through the culmination of the confirmation process for Judge and Supreme Court nominee Jackson.

I do so now [that is, a month or more ago] because I think it is now, when I--like most of us--am mostly ignorant about Judge Jackson--that I am most likely to say something accurate, measured, honest, and consistent about her confirmation process. It is understandable that people who are politically engaged or hyperattentive (or, possibly, addicted) to commentary on current events, or whose living and sense of self depends on believing in a set of myths about the value of transparency, the power of reason, the pertinence of facts, and so on--in short, law professors and the commentariat--will think that more information is always better and that their judgment necessarily improves as they learn more. But it seems to me that at least in this area, ignorance and a certain kind of naive cynicism are underappreciated, as are the downsides of "engagement." It is certainly important for one's understanding to know the quasi-official grounds on which senators are permitted to vote, the terrain on which they operate, and the moves they will make accordingly. Beyond that, however, for reasons suggested below, actual facts may just get in the way; more than that, they may serve as incubators of bad faith. The more we (think we) know about Judge Jackson, I venture to suggest, the more seemingly particularized (although, really, mostly ritualistic, reflexive, and strategic) but less wise, sound, and instructive our discussion of her candidacy will be. Of course, as facts come in and debates arise, I, like others, may feel moved passionately to intervene and offer some further argument. If that happens, you shouldn't trust me--or others; or, perhaps, yourself.

Because I find it all somewhat interesting and also want to purge myself of opinions now so I can use my time more productively than actually paying attention to the proceedings and generating opinions about them, I develop my points at great length below. But in brief, I would suggest the following general prediction, which is more important than the facts or "facts" that will be slotted in consistently with them. Sometime between now and the end of the process, Judge Jackson will either face a "scandal" or be revealed as an "extremist," or both. Sometime between now and then, she will also stand revealed not as an acceptable nominee who can do the job, but as a secular saint of virtually unsurpassed brilliance, empathy, or both. The stakes may start out as low, but by the end they will be world-historical. None of this need be true. Nevertheless, some or all it will be fervently believed, even by people who didn't believe these things at first. And one more, perhaps less frequently spotlighted point: Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole.  

The longer version follows.

 1: For the most part, the most pertinent reasons to vote for or against a Supreme Court nominee--and the actual reasons why most votes will be cast--are forbidden reasons on which to publicly ground a vote for or against a Supreme Court nominee. Unrealistically, one could put this down to a deeply considered view about what advice and consent require. More realistically, one could put this down to a genuine but shallowly considered and vague sense about what advice and consent require. There is also very little payoff, except in honorable conduct of one's office and fulfillment of one's oath, for devoting time and effort to coming up with a detailed and consistent policy on the topic, not least because one might then feel obliged to follow it. Really, a reasonable senator with an eye to his or her own interests just needs a sufficiently plausible and sufficiently publicly acceptable reason for voting. To the extent it reflects the senator's actual view, I would prefer to have a senator vote openly for or against a judicial nominee because that person is being appointed by the wrong president, or because the nominee may be wonderful but fails a single-issue litmus test, or because it's Tuesday or the coin came down tails, or just because. Some of these positions might fail whatever the constitutional definition of advise and consent "is." But I'm not sure that voting for a different reason and then bullshitting about it passes that test either, and at least a candid partisan or arbitrary vote would clear away the BS and provide for political accountability. In any event, the current state of affairs, broadly speaking, is that "she's a Democrat" or "he's a conservative," simpliciter, are not generally treated as adequate fodder for the senator's floor speech or press release or tweet.

2: One might add to that a second problem: given our credentialist and bureaucratized, professionalized approach to Supreme Court nominations, most of the candidates will already have been confirmed to a prior federal judicial office. This limits the politically acceptable range of options for justifying a vote against a nominee, especially but perhaps not exclusively for senators who voted to confirm the nominee to the earlier office. Even for those who voted against the nominee the first time around, the senator may want, not just to say "I'm voting against--again," but to find a way to move the needle of both public opinion and the vote in the chamber. Although I think the argument is silly, a senator is permitted to say something like, "That was just the DC Circuit. This is the highest court in the land." Sometimes they do. But it might not provide enough of a cushion and certainly doesn't provide much political momentum. Nor can they say, no doubt accurately in many cases, "I confirmed him/her to a lifetime appointment of immense gravity as a package deal, or to secure agreement on something else, or because I'm fine with unreflexively taking the party line on lower court appointments, or because I think he/she is a fine lawyer and was comfortable with his/her sitting on a lower federal court, especially given that moving from the appeals court to the Supreme Court is chancy even for those identified as potential nominees. But it was understood that all bets were off for Supreme Court nominations." This seems like a perfectly sensible justification. But it's too inside-baseball and is unlikely to change anyone else's mind. Of course one response to this is to tighten the screws for every judicial appointment, or for confirmation of a possible future Supreme Court nominee to any prior job. And we do see this, of course, and not necessarily to anyone's benefit. But, again, actually getting a nomination to the Supreme Court is chancy even for serious prospects, and it's reasonable that the willingness to cut deals or otherwise accept the confirmation of that person to a lower court will operate according to a different cost/benefit calculus than will confirmation to a Supreme Court seat. 

3: Given the narrowing of justifications that are acceptable under current political etiquette, and the frequent fact of prior confirmation to a different judicial office, the best bets, or at least the standard public positions, for rejecting a Supreme Court nominee amount to two: "Scandal" or "extremism."

A) Scandal: The nominee is fine, checks the credential boxes, is widely admired. I even voted for her last time around. But now that we have learned that she started that forest fire, or murdered those folks while she was in college, or whatever the scandal happens to be, forget it. Alternatively, now that we think it might be the case that she did something terrible, why take any chances? Fill in the usual rote invocation of "grave doubts" or "concerns" or whatever macro the staffer uses in writing the statement. The benefit of scandal is that it renders any prior confirmations irrelevant. It captivates the public, or some portion thereof. It only has to be plausible ("grave doubts"), not proved. And while it might not change the final vote, it allows the investigation process to be drawn out--twice: once in the protracted search for scandal, and again if something turns up that is close enough to squeeze out a case for further investigation and/or hearings--damages the appointing party and president, and, far from incidentally, is a fundraising goldmine both for the senator and for all the interest groups the senator might want to please or enrich. "Scandal" is also a conveniently variably defined term, although I suspect the relevant standard has tightened over the past 30 or so years. (And politically ambitious people now know to make sure the nanny's Social Security taxes are paid up.) In any event, a whiff of scandal, or a lesser scandal, may serve as sufficient grounds to justify delay and more digging, in the hope something worse will turn up. 

B) Extremism: Not everyone has lived a life filled with what count politically as sins, alas. (Although I admire most of the people I have met who have lived lives of conventional rectitude, I'm not sure we're better off with such a standard. Within limits, there's something to be said for eccentrics, freaks, and mild rogues--even as judges or justices. And, of course, what counts politically as a sin is very different from the actual scope of sin. It is a "scandal" to have cheated in law school. It is not a "scandal" to succeed honestly at law school, have a brilliant career, get a job teaching at a fancy school, and use one's wealth and position and connections to ensure that one's children also go to fancy schools and get fancy jobs, including at the same institutions. Heaven forfend.) In the absence of even a plausible and variable case for scandal, the next best bet is extremism: Of course I would vote for a judge nominated by a president of a different party. I only think about the merits. I have voted to confirm plenty of judges nominated by this president! But this nominee is too extreme. This was roughly the Obama line during his tenure in the Senate, but of course many use it. It has the advantage of sounding reasonable and thoughtful and occasionally being accurate. But its greatest advantages are political acceptability, variability, and opportunity. There is no definition of extreme. Nor is there are a threshold number of positions or decisions that must be taken or decided before one officially counts as extreme. In a pinch, one outlier view will do. Better yet, one outlier opinion will do--and given the trend of appointing Supreme Court justices with prior federal judicial experience, one can usually find that one opinion, preferably one whose facts make for good copy. ("Merely because some little old statute duly passed by Congress had a clearly stated deadline and no provision for exceptions, she was willing to deny poor Timmy access to lifesaving medical treatment! Is that the kind of person we want rendering judgments on the highest court in the...?") Even without a decision, if one is lucky enough to have a nominee with a record of academic legal writing, one can still get to extremism. ("Baby selling?")

I would much prefer a senator to oppose confirmation on the basis that a nominee is a "liberal" or "conservative" than because the nominee is an "extremist." Partly it's because the standard is clearer, and partly because it's more honest and conduces to more honesty; if "liberal" or "conservative" were sufficient, the senator would have less need to turn or distort a hard or odd or unusual case, or an easy case with terrible facts, into an "outrage." But there are other reasons. First, as with personal eccentricity versus clear, conventional, rather rigid rectitude, a hunger to avoid "extremism" or for providing any basis for an accusation of extremism encourages the advancement of the dull party-liner or clever trimmer over the occasionally terribly wrong but also brilliant and independent mind. In nomination-world, we all cast ourselves as the staid police colleague in the movies who dots all the i's and disdains that one "maverick" detective who, the rest of the time, we think of as the hero. Second, and admittedly not without basis, it fails to sufficiently appreciate the possibility that one's office affects one's work. The academic who never takes or so much as muses on an "extreme" position for fear of it affecting later advancement is failing at his or her current office; and the one who is willing to advance such positions may understand the judicial office as differing considerably in its duties and constraints from that of scholar. The lower court judge who duly and loyally, if dully, follows precedent in a case with awful facts may view the office of a lower court judge differently than that of a Supreme Court justice.

Regardless, scandal and extremism are the two most essential ingredients of a judicial nomination process, and whether they are real and serious (which surely happens) or more dubious, one or the other will turn up and be invoked. Other critical arguments will be invoked. Some of them will be arguments about something else entirely, arguments for which the nomination merely serves as a convenient platform. (I gather that a television celebrity demanded that Jackson's LSAT scores be divulged. I assume the goal of that was to make hay on the subject of affirmative action, although that strikes me as irrelevant to any concerns about the nominee herself). Senators will talk about abortion, Court-packing, religion, empathy, balls and strikes, and so on. But few if any of those are likely to alter a party-line vote. Neither will extremism, and scandal today will only rarely alter anything. But they are the only acceptable vocabulary that is left for trying to move the needle as long as we persist in excluding most of the actual reasons to vote for or against a nominee from open invocation by both those doing the voting and the attendant lords who engage in commentary and fundraising. 

[So far as I can tell, "extremism" has been the approach here, and it has focused on Judge Jackson's pre-judicial career, with the silly argument that she represented terrible people as a public defender. Since I'm not the constituency for such an argument or for those making it, I can't say how effective it has been. It does not seem to me to have much traction, and thus has mostly served--in the way that "too extreme" arguments generally do--as a politically sufficient justification for a "no" vote and for fundraising and speechmaking around that vote without having to say "I wanted a liberal/conservative judge" or "I oppose anything a President of another party does." Surely that was exactly the purpose of the frozen trucker case in the Gorsuch nomination.]

[I wrote above, "Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole." This line of extremism argument serves as a fine illustration. Those who think the "oh my God, a public defender actually represented accused criminals" line demonstrates the intellectual flaws, dishonesty, or general awfulness of those making it might remember that one of the criticisms of another prospect for this seat that was heavily if more quietly pushed within the Democratic party/interest-group complex was "oh my God, an employment lawyer who represented employers." Unlike the public defender argument, which will likely not alter the vote, it is entirely possible that the "she represented the wrong side" argument convinced President Biden to pass over Judge Childs, if only to be consistent in this administration's policy of truckling to interest groups who can help in losing gubernatorial and midterm election races.]   

4: On the other side, one can expect that supporters of confirmation will not be content to call the nominee good, fine, acceptable, okay, plausible, or anything like that. Most nomination and confirmation rituals involve someone calling the nominee the most qualified possible candidate, and every such process involves public commentary rightly scoffing at the very idea of a "most qualified possible candidate." I think the scoffers are right. But the pats on the back for making this point should soften in light of another phenomenon often observed among the very same scoffers. That phenomenon is what we might call the greatness inflation of the nominee. Not unlike bankruptcy, it will happen gradually and then suddenly. The gradual nature may have something to do with the time it takes to gather and disseminate inspiring facts and for a standard narrative to solidify; it may also have to do with the fact that the process usually begins with several possible nominees, at least a couple of whom are equally popular or acceptable, so that everyone, the eventual nominee included, starts out at the same basic level: equally and merely terrific. Once the nomination is official, however, greatness inflation process sets in.

Given the default "realist" position that multiple people would be good picks for the job, and the realist fact that contemporary nominees all have more or less the same elite credentials, one would think it would be awkward or unnecessary to inflate the greatness of the nominee. Any number of factors weigh against this, however, even for those who have some acquaintance with the judge and his or her record and can assess it fairly. The most obvious is the push for confirmation, which feels urgent to many even when they also believe everything will just come down to a party-line vote and even when the numbers in the Senate are comfortably in favor of confirmation. (It would be nice, if unimaginable, to see a confirmation process where the vote is sufficiently solid that the senators could simply call the nominee "a reasonable pick" or "a decent choice.") Another, related to that but with some twists of its own, is the ego and ambition of the person offering the praise. Those associated with the judge may want to burnish and publicize that connection. Members of the academic establishment might want to establish their bona fides and encourage a relationship with the Justice, in the same way that beat reporters will run a "source-greasing" story that praises some potential source for purposes of future access. Supreme Court advocates have excellent reasons to do the same thing. Many people just like having bylines on op-eds in major newspapers. 

Whatever the reason, the nominee will soon go from "a plausible candidate" to something closer to genius and sainthood. [I cannot say how much this has happened with Judge Jackson. I note that the Times has such a story today, and that it ran a "She's a super-mom too!" op-ed a while back.] 

5: What is perhaps most interesting about all this is that although it can all be described as a matter of strategy and tactics, mixed in with a certain amount of sincerity but resulting in more or less the same arguments made each time regardless of the nominee, at least in a heated confirmation process all this will become a matter of deep belief and conviction on the part of the people making or responding to these arguments, or at least on the part of the audience for these arguments. People who quite reasonably did not give a damn about the nominee a few scant weeks ago--because they had never heard of him or her--will care deeply about that person and believe whatever the standard line is with great fervor. One would think that after a few rounds of this, one would see the pattern and refuse to be used, to have one's strong feelings manipulatively engaged, in this fashion. But confirmation hearings, like other political events, are like tearjerker movies. You can see the strings, you know the filmmaker is pulling them with an eye on the box office gate and the opening weekend, you know the music and the lighting and the dramatic pauses and the actress lying the hospital bed are all tropes designed to manipulate your emotions. You may resent it. But the tears flow just the same. 

[I would have liked to develop this point more, but will let it go in the interest of timing, having already sat on this post for some time. If a last-minute "scandal" were to emerge, I suspect we would see it happen here. But so far, there has not, I think, been the same level of emotional engagement in this nomination, perhaps because of events elsewhere, which help place this event in a proper perspective, or perhaps because the nomination will have little effect on the vote count on the Court, or because the votes seem sufficiently clear, or because the downsides of going nuclear over this nominee are too great. I can't say. But the phenomenon is one I find fascinating, and certainly one we will see again, particularly in the case of a nominee who is replacing a justice with a different set of views or votes. Our capacity to convince ourselves that we care deeply about something, and to be made to feel deeply about arguments that we know are largely rote and strategic--including the arguments we are making ourselves--is perhaps the greatest weak spot of even ostensibly sophisticated and knowledgeable individuals, who, when it comes to politics and culture, are just as susceptible as the audience at some Hollywood weepie. Again, I think we would be much better off if senators did not spend their time looking for scandals or extremism and simply announced their votes openly on purely political, or political-substantive grounds. But as long as that's not a permitted move, I am not convinced that more knowledge and more information as helpful to the process as we are wont to think.]      

Posted by Paul Horwitz on March 21, 2022 at 11:03 AM in Paul Horwitz | Permalink | Comments (0)

JOTWELL: Endo and Beerdsen on discovery as practice

The new Courts Law essay comes from Seth Katsuya Endo (Florida), reviewing Edith Beerdsen, Discovery Culture, 57 Georgia L. Rev. (forthcoming 2022). The article and the review are great. I used this idea of discovery as norms and practices in teaching that section last week.

Posted by Howard Wasserman on March 21, 2022 at 10:45 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, March 20, 2022

Visiting positions at University of Nebraska College of Law

The University of Nebraska College of Law is looking for visiting professors for 2022-23. We are accepting letters of interest from professors to teach criminal law and/or contracts in fall 2022. We are also accepting letters of interest from professors to teach civil procedure in spring 2023. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send letters directly to Associate Dean Anthony Schutz, [email protected].

Posted by Howard Wasserman on March 20, 2022 at 01:42 PM in Teaching Law | Permalink | Comments (9)

Saturday, March 19, 2022

Compromise Culture

Successful newspapers and commentators, including academic commentators, have a knack for writing on-point, intelligent, even more or less important things about current events, provided always that they remain conventional and conform to the spirit of the times. In doing so, they have an equal and corresponding skill, one that is just as vital to their success and prestige, at leaving other large and potentially uncomfortable questions off the table. 

A case in point is the coverage--somewhat spotty depending on what you choose to read--of mainstream cultural institutions' sudden desire to cut ties with Russian artists (and, sometimes and wholly absurdly, Russian art). Most of these decisions, like many culture-war decisions at universities, can properly be read as business decisions, responding to fears about the reactions of paying customers; but where reason and calculation hold the reins, passion and sincerity come flying close behind, and no doubt sincerity has accordingly accompanied some of these decisions. A fine example is the recent actions of the Vancouver Recital Society. The artistic director of the Society told the press she has been trying to book Russian pianist Alexander Malofeev for six years. (Malofeev won major international awards in his early teens in 2014 and 2016.) The Society then announced that it was cancelling Malofeev's August performance, stating, "We at the VRS cannot in good conscience present a concert by any Russian artist at this moment in time unless they are prepared to speak out publicly against this war."

Which he then did. The Society naturally responded by confirming that the performance was canceled anyway. Inevitably, it described its reasons as "complex and nuanced." The new statement acknowledged the obvious: that it is hardly costless for a citizen of an authoritarian regime to make such statements. It then offered a suite of reasons to cancel the performance regardless of anything Malofeev might say about the invasion: 1) sympathy with a Ukrainian staff member with family still in the country; 2) "grappl[ing] with the notion that even one cent of the proceeds from a VRS concert would go back into the Russian economy"; 3) the worsening situation in the Ukraine, which seems like the kind of "the situation has [predictably, and thus mostly irrelevantly] changed" makeweight that people and organizations often offer; and 4) a fear of demonstration or heckling, which would cost money to fend off. (I am not in agreement with some of what Howard writes on these questions. But it is at least true that one of the most important distinctions between mere heckling and a heckler's veto is the resources--and, centrally, the will--of the institutions that manage the space involved. Most "heckler's veto" cases at law schools and universities are a joint enterprise between the protesters and the administrations of those schools.) 

I am unaware of any defenses of the VRS's actions. I am aware of some criticisms of it. To the extent that the VRS was not lying about community sentiment, presumably there are people eager to have Malofeev's performance canceled. Since I am not on Twitter, I don't know whether there are full or roundabout defenses of Malofeev's cancellation there, but I feel sure they can be found there. Just about any opinion can be found there. But of course the VRS's actions don't stand alone. Everyone's doing it. Predictably, the discussion around such events has taken place within the conventional contemporary framework of denunciations and defenses of "cancel culture." Defenses of cancel culture by people operating within common convention usually are not direct defenses, but debate-society approaches: minimization, differentiation, distinction, argument by definition, distraction, and so on. But they are defenses and they are out there. And this is the standard frame within which the contemporary commentator of due standing is expected to conduct the argument about Russian art and artists and Western arts institutions.

What is interesting to me is not the current debate or some of the current decisions. Many of them, like the VRS's choices, are simply transparently silly and thus hardly merit much discussion. What I find much more interesting is, to point back to the history above, the six years during which the VRS was seeking eagerly to schedule the same Russian artist--presumably because he's good, and famous, and the VRS knows it will be rewarded for the appearance of a good and famous artist. So far as I can tell, little or none of the "cancel culture"-framed discussion focuses on the six or sixteen years leading up to the current moment.

Those were the years of Vladimir Putin's second, third, and fourth presidential terms and second premiership. As a Citizen Kane-like newsreel narrator might solemnly intone, "Those were busy years for Vladimir Putin." They include, inter alia, the arrest of Mikhail Khodorkovsky and seizure of his holdings for distribution to the state and its cronies; the assassination of Anna Politkovskaya; the organization of paramilitary groups to support Putin; the passage of a law against "gay propaganda"; the annexation of Crimea and Sevastopol; attempts to intervene in the 2016 election in this country (which, in fairness, Putin announced may have been conducted "not even [by] Russians, but [by] Ukrainians, Tatars or Jews [ ] with Russian citizenship"); the poisoning of Sergei Skripal; and, one imagines, one or two other things. While these events occurred, efforts to secure a performance by Malofeev in Vancouver, and similar efforts by countless other Western arts institutions, proceeded apace. 

If one had to choose, I would say that the current moment is relatively boring compared to the myriad choices made by Western institutions--artistic, academic, financial, financial-artistic (Hollywood is keen on foreign markets and, as with China, has made many deals with Russian distributors and filmed many movies there), cultural, political, and so on--over the past 20 or so years. I am not criticizing those choices as such. But they were hardly made behind a veil of ignorance. To the extent we think of any of these institutions and individuals as making and being capable of making moral choices--and they certainly wish to be understood in this way--what they did was what most of us, in smaller ways, do every day: they made compromises and lived compromised personal and institutional lives. In some cases they justified these choices and believed in those justifications (and not without reason). In some cases they sternly maintained a distinction, in a way that many of the same institutions currently are not, between the state and the individual, although they must have been aware that they could hardly tell, in an authoritarian and oligarchic state, in what way the artists or companies or other interests they were chasing after were or weren't complicit in or supported by or enjoying wealth and prestige within that regime. In some cases they chose other things to be concerned about when making choices: say, government policy in Texas rather than in Russia, or rejecting tobacco company sponsorship while taking money from companies using mistreated foreign laborers. In still other cases, they no doubt followed Billy Madison's sage advice: "Don't think about it." In short--and, again, like most of us, short of saints and recluses--they weighed and balanced, including weighing and balancing their financial interests and public standing, and made compromises, moral and otherwise, including the compromise of economizing on one's time in deciding which morally freighted issues to learn about and thus to care about.

These questions are, I think, more interesting and more difficult than questions about what to do today or tomorrow in response to immediate events. Or perhaps they should be thought of as continuous with those decisions and as casting light on them, and on whatever decisions we will argue about passionately one or eleven years from now. More generally, discussions of "cancel culture" (a phrase I don't much care for, despite my concerns about it, because reducing anything to a bumper sticker dulls the brain) would be more interesting if they were understood not as discrete and distinct moments or events, but as taking place within a much larger and much less unremarked-upon--partly because they are much vaster, and partly because to do so is much less comfortable to the ostensibly righteous participant in those debates--compromise culture. The facts of life of compromise culture are, I should think, no less important from a moral and institutional perspective than our responses to "cancel culture." And because they are less talked about but more universal, enveloping all of our choices, they may be much more revealing of our actual moral status and moral decision-making process. Indeed, as I think I've suggested, the fact of our not talking about them (in the same way, to pick a pet issue, that legal academics love to talk about "political economy" and "economic inequality" and other forms of inequality but are virtually mute about social class) is itself interesting and revealing. Again, commentators operating within convention say a good many interesting and valuable things. But often the really interesting questions lie in the aporias--in what falls outside the conventions.

I dare say one could make the same observation about recent law student efforts--the latest in a long line, albeit similar efforts have been more frequent and visible in the past few years--to pressure elite law firms to cut ties with Russia, which presumably will culminate in efforts to have law schools bar non-compliant firms from participating in on-campus employment efforts. I have nothing against such efforts as such, and absolutely nothing against law students who do not wish to work for particular firms for moral reasons of one sort or another. And I acknowledge the short life, so to speak, of the law student qua law student; today's objector was not around for a similar effort on a different issue ten years ago. But, as with previous efforts, what is interesting is not the resolute stand against one client or type of work, but the very long list of clients and activities that, by implication, students engaged in such movements are comfortable with, or at least comfortable not thinking and talking about much or calling attention to. In such movements, what I find interesting is not the push against a particular line of work--say, for tobacco companies--or the consequent debates over whether such movements are more harmful than beneficial. What's interesting is the vast set of compromises, whole- or half-hearted, involved in every other client these individuals are willing to work for, and every other employer the law schools are very glad to welcome on campus. There, I venture to say, in all the apparently unobjectionable clients and ventures and activities, is where the real moral action can be found. And it is no less personally defining for the participant than the official objectionable activity or client. 

Nor, I should perhaps not have to say, is compromise culture avoided by avoiding the big law firm (or, I guess, the concert recital hall) altogether. For, it should be clear, "compromise culture" is a redundant phrase. One might as well just say "culture" and have done with it. Every choice will involve moral weighing and balancing and concomitant compromises. One will represent the accused criminal but not the wrong accused criminal, one side of the criminal justice system (thus keeping the system going generally) but not the wrong side, clerk for the good prestigious federal judge but not the bad one (but not, God forbid, avoid a judicial system, or a system of prestige within it, that one might otherwise choose to question more categorically). One may campaign for the righteous candidate floated by dark money, or work for the righteous nonprofit supported by equally shadowy or questionable wealth or whose mission is shaped by the preferences of the donor market. Some lucky few may hope to avoid various taints, or put up with them just long enough, and end up in the academy. The dictionary definition of "research university" is "a large institution into which vast millions of dollars, foreign and domestic, public and private, flow, one is not entirely sure from whom, whence they came, or where they go, but do try not to worry about it." Next to the modern university, the Vancouver Recital Society is a piker.

That's just life. I do think the mainstream press should cover the current choices that are being made more, and more critically and prominently. But some of that coverage will happen. It falls well within convention, after all. It would be much more interesting if we broke from that frame and paid more attention, and gave more coverage, to the choices made over the past two decades.       

Posted by Paul Horwitz on March 19, 2022 at 01:28 PM in Paul Horwitz | Permalink | Comments (0)

Friday, March 18, 2022

Shouts, fires, theatres

My kid is at a high-school theatre competition this weekend, performing a scene about the Triangle Shirtwaist Factory. I guess Justice Holmes was wrong . . .

Posted by Howard Wasserman on March 18, 2022 at 01:41 PM | Permalink | Comments (0)

Maybe we have always been crazy as a nation

Long teaching story coming up.

I end the Discovery portion of Civ Pro by having the class argue the discovery issues in Coca Cola Bottling Co. v. Coca Cola. The case involved a contract dispute between a bottling company and Coca Cola following introduction of Diet Coke and New Coke; the bottler sought production of the formula for original Coca Cola, the court agreed and ordered production, and Coca Cola refused to comply with the order, resulting in sanctions. (Marcus, Redish, Sherman, Pfander included this as a note case--I repurposed it as an in-class hypo). I split the room in half, each representing one party. Many students highlight it as an especially fun class session.

Slate's Hang Up and Listen podcast ends each episode with the line "Remember Zelmo Beatty" (Beatty is a Hall of Fame professional basketball player from the '60s and '70s, the "remember" thing is a riff on an old interview in which David Letterman asked Shaq about old-time players and Shaq admitted to not knowing who Beaty was). I stole the idea end each Civ Pro class session by telling the students to "Remember" someone who is in some obvious or non-obvious way relevant to something we did in class that day. Sometimes it is clear--David Souter on the day of Twiqbal or Milton Shadur on the day of his quixotic effort to get defendants to follow the damn rules in their responsive pleadings. Sometimes it is more obscure--Raymond James Donovan on the day of relation back, Tennessee Williams on the day of International Shoe, or Preston and Charlotte Grace on the day of tag jurisdiction Sometimes it is about the day rather than the course materials--Robert Briscoe (the Jewish former Lord Mayor of Dublin) yesterday. (I leave it to readers to figure all of these out). Once students overcome the initial confusion of why they are supposed to remember some random person, they have fun with it; at least one person does an end-of-semester creative project with pictures or biographical information on everyone they are supposed to remember.

Today we did the Coca Cola problem and I told them to remember Roberto Goizueta Cantera, the CEO of Coca Cola during the New Coke fiasco. Goizueta was born in Cuba, educated in the U.S., and worked for Coca Cola in Cuba before defecting after Castro came to power. Nevertheless, in the public blowback to New Coke, some people pointed out that he was Cuban and suggested that New Coke was a communist plot.

Thus the title of this post.

Posted by Howard Wasserman on March 18, 2022 at 01:29 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Breached! new book by Dan Solove and Woodrow Hartzog

excited about this book by two of the leading scholars in privacy law. Dan and Woodrow will be speaking about the book in this terrific conference on Privacy, Security & Academy. I am particularly interested in how they draw on behavioral theory, studies of health risk and public health regulation to move forward our understanding of data security and human behavior. From Oxford Press:

Digital connections permeate our lives-and so do data breaches. Given that we must be online for basic communication, finance, healthcare, and more, it is alarming how difficult it is to create rules for securing our personal information. Despite the passage of many data security laws, data breaches are increasing at a record pace. In Breached!, Daniel Solove and Woodrow Hartzog, two of the world's leading experts on privacy and data security, argue that the law fails because, ironically, it focuses too much on the breach itself.

Drawing insights from many fascinating stories about data breaches, Solove and Hartzog show how major breaches could have been prevented or mitigated through a different approach to data security rules. Current law is counterproductive. It pummels organizations that have suffered a breach but doesn't address the many other actors that contribute to the problem: software companies that create vulnerable software, device companies that make insecure devices, government policymakers who write regulations that increase security risks, organizations that train people to engage in risky behaviors, and more.

Although humans are the weakest link for data security, policies and technologies are often designed with a poor understanding of human behavior. Breached! corrects this course by focusing on the human side of security. Drawing from public health theory and a nuanced understanding of risk, Solove and Hartzog set out a holistic vision for data security law-one that holds all actors accountable, understands security broadly and in relationship to privacy, looks to prevention and mitigation rather than reaction, and works by accepting human limitations rather than being in denial of them. The book closes with a roadmap for how we can reboot law and policy surrounding data security.

Posted by Orly Lobel on March 18, 2022 at 11:55 AM | Permalink | Comments (2)

Eliza Willing Powel and Bushrod Washington

Another important influence on Justice Washington was Elizabeth "Eliza" Willing Powel, who deserves (and will soon get) a biography of her own. Powel was the daughter of Philadelphia's Mayor and then married Samuel Powel, who himself became Mayor. She was the only woman with whom George Washington discussed politics, and she also held forth with the other Founding Fathers. The Powel mansion, which is now a museum, was a salon in Philadelphia that hosted delegates during the Constitutional Convention.

Powel was a surrogate mother for Bushrod while did his legal apprenticeship in Philadelphia under James Wilson. She was a Federalist and (later in life) an abolitionist. In addition to introducing Bushrod into high society, she gave him advice on all sorts of subjects, including how he looking in his first portrait, which is on the cover of my book. They continued a lively correspondence after he returned to Virginia, and she sent him a copy of Wilson's speech at the Pennsylvania ratifying convention to help Bushrod prepare for the Virginia convention.

After Bushrod to Philadelphia as a Supreme Court Justice for sessions of the Court and circuit riding, he would dine every Sunday at Powel's home. She even bought him his judicial robe as gift. And when he inherited Mount Vernon in 1802, he turned to Powel for a loan to buy furniture for the house, which was empty. Powel died just six weeks after Bushrod passed away.

Powel is probably most famous for being the person who allegedly asked the question that prompted Benjamin Franklin to say that the Constitutional Convention proposed "A Republic, if you can keep it." She herself said she could not recall this conversation, but more or  less said it was a good story, so why spoil it?

UPDATE: Here is her Wikipedia entry.

Posted by Gerard Magliocca on March 18, 2022 at 10:33 AM | Permalink | Comments (0)

Thursday, March 17, 2022

Bromwich on the Current Awfulness

It's paywalled, but this interview with David Bromwich in the Chronicle of Higher Education is interesting and eloquent. (The Chronicle is decidedly a mixed bag, but the Chronicle Interview feature, which is conducted regularly by Len Gutkin, is one of the most consistently readable sections of that journal.) Among other things, Bromwich speaks about the current willingness of university administrators to "acquiesce to a social tendency--a wave of opinion and emotion"; argues that "the consensus on what constitutes good speech, speech that lends itself to the hygiene of the culture, has become too sure of itself"; notes "the absurd exaggerations of politeness"--and, as he notes, silence--"that you can see in classroom behavior over the last few years"; correctly states, about reactions to a recent op-ed from a University of Virginia student, that "the claim that what she’s describing doesn’t meet anyone else’s experience is just disingenuous"; criticizes the growth of a conception of the university in which the guiding assumption about its mission is that "it should be socially improving, interested in creating a good society or a model of a good society"; and notes that the way in which academics have taken to Twitter "simply goes against the vocation of being a scholar:"

I know of faculty, both here and at other universities, who are major personalities on Twitter. They tweet links to articles, and they tweet instant reactions, off the cuff, sometimes witty and sometimes not. And there is some demagoguing. On occasion, they are compelled by an inward or outward pressure to delete their tweets.

To me, this simply goes against the vocation of being a scholar. Let’s not be too high and mighty, but still — we are understood to be people who deliberate, who take some time to get at what we believe to be the truth. The whole ethic of snap reactions goes against that. In the long run, it’s going to reduce the prestige of professors. It makes us more like everyone else, which a lot of academics have wanted to be all along. That’s part of the problem — the idea that we should try to erase the distinctions that separate university life, academic life, from society.

Of course I am not interested in whether the prestige of professors goes up or down. If I had to choose only one, I would probably prefer down. But the point about temporality I find valuable and well-stated. It is a fundamentally bad thing, and a personally and disciplinarily corrupting one, for academics to adopt the time frame of social media. And Bromwich is right that it is a mistake to erase the distinctions between academic life and society--not because we should be above it or because we are outside it, but because we have a specific calling to answer to, a specific job to do, and that job is something, not everything. There are many things academics are free to do in their off-hours, and many other places they can work if they decide those are the activities they would rather dedicate their lives to. 

A note on Bromwich's point about overconfidence about what constitutes "good speech," and specifically the word "consensus." Academic consensus in general is, I would venture, both a dangerous thing and a very, very common one. The academy, like the New York Intellectuals that Harold Rosenberg was referring to with his aperçu, tends to be a "herd of independent minds." It is sufficiently consensus-oriented that even a relatively obvious and simple point of disagreement can seem like a striking bit of novelty and brilliance; and conversely, sticking with the consensus and making appropriate obeisance to it, while not a path to success, is the strongest hedge against failure. The problem is not agreement as such; saying that two and two don't equal four is novel but idiotic. It's the freezing power of consensus, the myriad ways it is enforced, and the manner in which it moves easily from tentative and sensible agreement, in lieu of a closer independent look at an issue, to casual, cheaply attained overconfidence. Anyone who has witnessed a conference in which four or five éminences grises expound as one on some common view, as if to think otherwise would be a sign of insanity, is familiar with the phenomenon. Although there are people and places in which treatment of this issue is serious and considered, it seems to me that overconfidence about what constitutes good speech is a common characteristic of most general discussions of or references to "disinformation" or "misinformation."   

Of course I don't agree with everything Bromwich says here, or in his other writing. It's still a fine read. 

Posted by Paul Horwitz on March 17, 2022 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

On permanent Daylight Savings Time

It is said that the fact that a law has bipartisan support proves it is a bad idea--if everyone agrees, there must be something wrong with it. I would add the same about any law that Marco Rubio proposes or supports.

Case in point is response to the bill--introduced by Rubio and passed in the Senate by unanimous consent--making Daylight Savings Time permanent. . Josh Barro takes down the idea (including a list of when sunrise might occur in major cities), which also was discussed on NPR's 1A. I have learned a few things.

    • As usual, bad understanding of public opinion has been used to support the law. Supporters insist an overwhelming majority wants the change. But what a majority wants is an end to twice-yearly time changes. There is no majority supporting permanent Daylight Savings as opposed to permanent Standard (I prefer the latter).

    • We tried this as a two-year experiment in winter 1974 (I do not remember it--I was 5); everyone hated it so much that Congress repealed the law that summer. Science supports permanent Standard time if anything--it is better for sleep cycles and energy levels to have light when waking up and starting the day than having light at the end of the day.

     • Some observant Jews are unhappy because it makes it difficult to attend morning prayers in synagogue before going to work or school in places where sunrise might be as late as 9 a.m. (although their bosses will be happy because they can work later on Fridays year-round, as Shabbat begins later).

Of course, the Senate did not debate any of this.

I cannot find the link, but one argument in favor of this change finds support in the habits of the pandemic experience. While working/schooling from home, people woke up later and went outside in the mid-to-late afternoon. Permanent DST conforms to those habits--no need for light at 7 a.m. if people are sleeping to 8 or 9, more need for light at 5 p.m. if that is when people venture out. Perhaps. But if the goal is to return to "normal" (i.e., pre-pandemic) life the disconnect between how we live and the light returns. My kid is back to  school at 8, which means leaving the house at 7, which means waking up at 6--all in the dark.

Posted by Howard Wasserman on March 17, 2022 at 10:11 AM in Culture, Howard Wasserman | Permalink | Comments (0)

George Washington and Bushrod Washington

My biography of Bushrod Washington is now out. While I have posted about the project over the past few years, I want to do a few more to discuss some of the book's broader themes.

One is the importance of temperament. The first half of the book focuses on Justice Washington's relationship with his uncle George Washington. Needless to say, George was an important mentor for Bushrod and exerted a strong influence on Bushrod's views. For example, Bushrod's support for ratifying the Constitution and embrace of Federalism as a governing philosophy are largely attributable to George. Justice Washington's Supreme Court opinions also reflect a more expansive view of the President's powers over military and foreign affairs (or federal power more generally on those issues) that probably reflect his apprenticeship under his uncle.

But the most important mark that George left on Bushrod was a sober sense of judgment. The sensibility of both men was described in remarkably similar terms. They were slow to reach a conclusion, but almost always made the wise choice. George Washington's careful approach was a crucial stabilizing force in the Revolutionary War and during his presidency. The same was true for Bushrod Washington on the Supreme Court. This contribution is harder to see because we know less about the internal dynamics of the Marshall Court than about the war or the Washington Administration, but I hope that the book makes a convincing case on that score.

How important is judgment in judging? The words are closely related, of course. But people tend to focus more on intellect or prose style in assessing what makes a great judge. Those are not unimportant. but how do they stack up compared to judgment? And what makes someone wise anyway? My book poses these questions.

Posted by Gerard Magliocca on March 17, 2022 at 09:11 AM | Permalink | Comments (0)

Wednesday, March 16, 2022

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

Posted by Howard Wasserman on March 16, 2022 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

The District Court Opinion in the Cawthorn Case

We now have a written opinion from the District Court. It's a slapdash effort. I'll confine my discussion to the Court's Amnesty Act analysis, and leave others to discuss issues such as abstention.

The fatal flaw in the opinion is that the Court assumes that Section Three of the Fourteenth Amendment gives Congress the power to provide prospective disqualification waivers. There is no analysis of that premise at all. This is a shocking omission in addressing an important claim of first impression. And since the District Court assumes the constitutionality of prospective amnesty, there is no need for the Court to grapple with the canon of constitutional avoidance, which counsels in favor of reading the Amnesty Act more narrowly. Life is easy when counterarguments can be ignored.

The opinion's statutory reading is no better. The Court argues that the Amnesty Act's use of the terms "imposed" and "whomsoever" to describe those receiving a waiver (except for those excluded such as Jefferson Davis) is unambiguous and applies to all other people; living, dead, and unborn. This is wrong. Imposed could mean "already imposed."  If the language is read to mean "already imposed," then that limits the term "whomsoever"  to ex-Confederates. Of course, the Court's assertion that this is a plain meaning case allows the opinion to ignore the legislative history of the Act, which provides no support for a prospective interpretation. (It's worth adding that nobody thought that a prospective reading was the meaning, let alone the plain meaning, of the Amnesty Act until 2022.)    

Congress's construction of Section Three confirms that a prospective reading of the Act is wrong. The House of Representatives applied Section Three to Representative Berger after World War I and stated: “Congress has no power whatever to repeal a provision of the Constitution by a mere statute” and “would not have the power to remove any future disabilities.” The Court attempts to distinguish this precedent by arguing that Berger did not rely on the 1872 Amnesty Act (he instead cited the 1898 amnesty that removed the disabilities that remained on the ex-Confederates). But the House's analysis applied more broadly. Berger probably did not cite the 1872 Act because he did not think that provided a plausible basis for prospective amnesty. He was right. 

If the Fourth Circuit chooses to reach the merits in the pending appeal of the District Court's order, then this erroneous decision will be reversed.

UPDATE: I'll add that no scholar that I'm aware of is defending the District Court's ruling as correct, which tells you something.

Posted by Gerard Magliocca on March 16, 2022 at 09:15 AM | Permalink | Comments (0)

Tuesday, March 15, 2022

More on the Amnesty Act of 1872

Over at the Originalism Blog, Andrew Hyman and Michael Ramsey have some thoughtful comments on my post about why the Amnesty Act did not and could not grant prospective relief. They agree with my conclusion, but not with all of my reasons. They make some good points that I will incorporate into any future brief I may write.


The appeal in the Cawthorn case is pending before the Fourth Circuit. I hope that the court reaches the merits rather than dismissing the appeal under something like the Purcell principle. 

Posted by Gerard Magliocca on March 15, 2022 at 09:14 AM | Permalink | Comments (0)

Upcoming Book Events

I'll be talking about Washington's Heir at two upcoming live events, and I will announce others soon.

First, on May 12th I'll be speaking in Richmond at the John Marshall House and the Library of Virginia. I'm very excited to talk about Bushrod Washington and John Marshall in a place where they met socially.


Second, I'll be speaking to the Federalist Society on June 9th at Noon in the Conrad Hotel (Indianapolis). (There is no web link available yet.) 

Posted by Gerard Magliocca on March 15, 2022 at 08:49 AM | Permalink | Comments (0)

Monday, March 14, 2022

Did US v Zubaydah Create Precedent?

The recent decision in US v. Zubaydah overtly implicated important matters like torture and state secrets. But it also raises an interesting, possibly consequential question regarding the relationship between judgments and precedents. 

In brief, the case involved a request for discovery relating to the alleged torture of Zubaydah while held in a so-called “black site.” The Court denied the discovery request in what looks like a normal majority decision. Most of Justice Breyer’s opinion was joined by Roberts, Kavanaugh, Barrett, and Kagan and so was labeled the “Opinion of the Court.” Yet Kagan did not join the judgment of the Court. Whereas the majority reversed and remanded with instructions for dismissal, Kagan would have remanded for further proceedings. 

But wait—the Opinion of the Court also has a majority on the disposition or judgment. Without Kagan’s vote, how was that possible? 

The answer is that Justices Alito and Thomas concurred in part and concurred in the judgment. Basically, the only part of the Breyer opinion that they joined was the statement of the proper disposition below. Because they supported a far more pro-government test, Alito and Thomas didn’t join any significant part of the Breyer opinion’s reasoning. 

The result is very strange. There are five votes for certain reasoning. And there are six votes for the disposition. But those votes are only partially overlapping. As a result, there is no five-justice group that supports both the Court’s opinion and its judgment.

This weird situation raises a pretty basic question: what is an Opinion of the Court, and why is it treated as precedential? A few different answers spring to mind. 

First, the Opinion of the Court could be whatever published text gets five joins. The fact of judicial endorsement, even in the absence of any deeper agreement, might be enough to create precedent. So whatever is marked as the “Opinion of the Court” just is. The main virtue of this approach is its clarity: it lets lawyers know right away what’s precedential and also gives the justices a straightforward way to offer whatever guidance they desire. 

Second, the Opinion of the Court might have to be the reasoning behind a particular, authoritative judicial action—a judgment. The Court, after all, isn’t a legislature and, traditionally, its legitimacy springs from the resolution of a party-based dispute. So a link to the judgment could be critical to explaining why the Court’s “Opinion” is legally relevant. On this view, there isn’t actually a precedential majority opinion in Zubaydah.

Third, maybe the Opinion of the Court represents the practically consequential, reasoned agreement of most justices. Several pragmatic reasons support this sort of approach. For instance, majority agreement as to actual case outcomes might tend to be especially accurate, wise, and/or predictive of future judicial behavior. By comparison, reasoning divorced from any outcome may be unreliably carefree, and an outcome supported only by conflicted reasoning may seem incoherent. On this last approach, any precedent in Zubaydah would be diminished, if not negated, by Kagan’s inability to agree on what comes next. 

In one sense, these theoretically inflected options are academic. But, in another sense, they’re acutely practical: when called upon to apply Zubaydah, will lower courts, and the Court itself, eventually choose among these options, or even consider them?

Posted by Richard M. Re on March 14, 2022 at 11:02 AM | Permalink | Comments (16)

What is a SLAPP law?

The Southern District of New York denied Donald Trump's motion for leave to amend to add an affirmative defense and counterclaim under New York's amended (and-retroactive?) anti-SLAPP law. I will test on this case this year or next, because it discusses several elements of denying leave to amend--undue delay, dilatory motive, futility. The court called out Trump's incompetent newish attorney for insisting that leave should not be denied for futility because they should not have to defend every use of the SLAPP at this stage; that argument ignored (or did not understand) that futility applies a dismissal analysis at the amendment stage--the court explores whether an amendment can survive dismissal and if it cannot, the court denies leave. The case also raises a nice Erie question--Judge Rakoff in Palin held the SLAPP law is retroactive but an intermediate state court held it is not; what is a district court to do going forward?

For this post, I want to focus on the court's analysis of the SLAPP law as it affects the futility analysis, because I think people are confused as to what a SLAPP law is and does. Trump wanted to add an affirmative defense and a counterclaim under the SLAPP law. The court rejected both. I think it reached the right conclusion for the wrong reason as to the former and may have been wrong as to the latter.


The court rejected the affirmative defense as futile because the SLAPP does not create an affirmative defense. It does not involve new facts and does not "knock[] plaintiff out of court if all the allegations of her complaint are true." Instead, it provides for recovery of fees for success and changes procedures applied to state-law actions.

But this seems to hang on semantics. We typically think of two types of defenses--failure of proof (the plaintiff cannot prove her alleged, disputed facts) and affirmative (new facts preclude liability if the plaintiff proves her facts). The SLAPP law does require new facts--the speech sued on must have some "connection with an issue of public interest" to trigger special procedural protections or to make attorney's fees available; although it is not clear Trump's lawyer pleaded them in the proposed amended answer (a distinct basis for futility), they are additional facts. Without those new facts, the SLAPP law still provides some type of defense--a way to avoid liability for a claim.

If the court is correct that SLAPP is not an affirmative defense to be pleaded in an answer, how or when does a defendant raise an anti-SLAPP law? Perhaps the law comes into play by providing the legal standards and mechanisms when Trump moves to dismiss. It is not a distinct defense, but the legal standard governing dismissal. I am not sure that is right. A party can assert failure to state a claim as an affirmative defense in a pleading rather than via motion; the SLAPP law provides a different standard for deciding a plaintiff  fails to state a claim. We might think about it this way--would/could Trump have pleaded the SLAPP law as a defense in an original responsive pleading? If a defendant planned to ask for anti-SLAPP attorney's fees (which are available in federal court) should he prevail, would he include that among the defenses pleaded in the answer? If so, it is a defense that can be raised in an amended responsive pleading.

If the court is right, this decision does not hurt Trump. Without this new answer, he can move to dismiss the complaint (coming post-answer it would be a motion for judgment on the pleadings, but same difference for these purposes) and argue that SLAPP procedures apply to that motion. He will lose on that, as explained below; but he will be able to at least attempt to assert the law not as an affirmative defense but as the legal standard for attacking the validity of the claim.

If the court is wrong and the SLAPP law is a defense that can be raised in a pleading, the court correctly denied leave as futile for a different reason--the SLAPP law's procedural provisions (other than the fees provision) do not apply in federal court, where FRCP 12 and 56 provide the standards and mechanisms for pre-trial review and rejection of a state claim. The amendment would be futile because the new defense would not survive a Rule 12(f) motion to strike an insufficient defense.*

[*] Futility generally applies to new claims that cannot survive a motion to dismiss. But an affirmative defense, which involves new facts and new law in the same way as a claim, can be futile if it cannot survive a motion to strike (the counterpart to dismissal for a defense).


The court held amendment was futile as to the counterclaim because the SLAPP law does not apply in federal court, so the counterclaim would not survive a motion to dismiss. This was wrong.

New York's amended SLAPP law allows a defamation defendant to recover compensatory and punitive damages on a showing of improper purpose in bringing the defamation action; it is analogous to the tort of abuse of process (which often is asserted as a counterclaim to a specious tort claim). A counterclaim cannot be swept aside on Erie/Hanna grounds. Used as a counterclaim, the SLAPP law does not dictate the manner and means for adjudicating substantive defamation rights in Carroll's claim (the manner and means derive from the FRCP); it provides a distinct set of state-law rights and remedies for Trump for a distinct injury. Regardless of the counterclaim's chance of success, it is different than ordinary procedural rules for defending the defamation claim and cannot be deemed categorically unavailable in federal court.

Again, I am criticizing the court's reasoning more than its conclusion to deny leave, which was probably correct. It might have found the amendment futile (and denied leave to amend) by focusing on other reasons  the counterclaim would not survive a motion to dismiss. Perhaps the SLAPP law is not retroactive; perhaps the proposed amended pleading did not allege facts showing improper purpose. Alternatively, the court may have rightly denied leave for reasons other than futility, such as undue delay--Trump waited more than 14 months before seeking leave without good explanation. But the court's reasoning in rejecting amendment is problematic.

Posted by Howard Wasserman on March 14, 2022 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, March 13, 2022

Purdue basketball as model for Duke basketball? (non-law)

Purdue lost to Iowa in the Big Ten Tournament final today, which undermines the logic of his post. But I decided to go with it anyway.

Duke coach Mike Krzyzewski will retire at the end of this NCAA Tournament, handing the reins to Associate Head Coach Jon Scheyer as hand-picked successor, over apparent objections by the university president. The impending change has prompted numerous stories about the history of former assistants or parts of the "coaching tree" replacing legendary long-time coaches at Blue Blood programs--Adolph Rupp at Kentucky, Dean Smith at UNC, John Wooden at UCLA, Bobby Knight at Indiana, John Thompson at Georgetown. The prevailing theme is that none has returned the program to prior heights. The common theme has been early success followed by a steep drop-off (and the school moving on from the chosen successor) or the successor bailing relatively quickly under the pressure. Thompson's son stuck around Georgetown for 13 years, but had only one season that mirrored his father's level of success (and, FWIW, Thompson III never played or coached for his father). Roy Williams at UNC provides the exception, winning one more championship in half the time than Smith--but note that Williams was not Smith's immediate successor, returning to Chapel Hill six years and two coaches after Smith had retired.

In the run-up to today's games, I had been thinking that Matt Painter at Purdue provides an interesting example. Gene Keady coached there for 25 years; he won six Big Ten regular-season titles, went to the NCAA 17 times, and reached the Elite Eight twice and the Sweet Sixteen three times. He was as associated with his school (as well as with wearing a hideous gold sports coat and drinking Diet Coke from cans on the bench) as the above coaches were with theirs. Painter played for Keady, then was recruited back to Pursue for one season as associate head coach/heir apparent, then took over in 2005.* Painter has come close to Keady's success--three regular-season championships, a conference tournament title (and just missed another today), four Sweet Sixteens, and an Elite Eight in sixteen seasons.  It is true that Purdue was never in the conversation with these other schools, and Keady never on a national championship or reached a Final Four. So that creates different and higher expectations. If Scheyer does at Duke everything Painter has done at Purdue (including a three-season drop in the early '10s that included a 12th-place conference finish), Duke fans may be calling for his head. But we do have one example of a chosen immediate successor matching his mentor's legacy.

[*] According to a new book about Coach K, when the university wanted to hire Harvard Coach Tommy Amaker (a former Duke player and assistant), Krzyzewski insisted that Amaker would have to follow the same steps, which would require bumping his current assistants, including Scheyer, down.

Posted by Howard Wasserman on March 13, 2022 at 08:08 PM in Sports | Permalink | Comments (0)

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Posted by Howard Wasserman on March 11, 2022 at 01:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Teaching Positions - Northwestern MSL Program

The Northwestern Pritzker School of Law invites applications for three full-time faculty positions in its Master of Science in Law program, with an expected start date of July 1, 2022.  Candidates will be considered for appointment on the law school’s lecturer track (Lecturer or Senior Lecturer); these positions are not tenure eligible.

The Master of Science in Law (MSL) is an innovative legal master's degree offered by the Northwestern Pritzker School of Law.  This program is geared specifically towards STEM professionals who are interested in topics at the intersection of law, regulation, business, and policy.  The residential full-time program began in 2014; the online part-time format was added in 2017.  The MSL program has a diverse student body, with both domestic and international students, and students of different ages, levels of work experience, backgrounds, race and ethnicity, and career goals.  There are currently over 200 students enrolled and the program has over 400 alumni.  Graduates of the MSL work in a variety of industries, including consulting, finance, pharma, biotech, engineering, healthcare, and law (including intellectual property, legal operations, and others); some go on to further study in medicine, business, law, and other fields.

The duties of the positions include teaching a full-time load of courses each year within both formats (residential and online) of the MSL program; there may also be the opportunity to teach in the JD program.  Administrative responsibilities of the positions include advising and recruiting students.  We seek applicants with a record of or potential for excellence in teaching, an aptitude for mentoring students regarding academic and career goals, and the ability to work collaboratively with others.

Preferred qualifications include a JD and 3-5 years of experience teaching or working in a field relevant to the MSL curriculum, such as a legal, business, entrepreneurship, or regulatory setting.  In addition, we seek applicants who have experience with or interest in working with international students and global issues.

For more information, and to submit an application, including a CV and a cover letter explaining interest in the position through Northwestern’s online application system, go to this link: https://facultyrecruiting.northwestern.edu/apply/MTQ2Mg==.  Applicants are encouraged to apply by April 8, 2022.

Posted by Sarah Lawsky on March 11, 2022 at 01:20 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Thursday, March 10, 2022

Section Three Lawsuit in Wisconsin

A federal lawsuit was filed in Wisconsin today against Senator Ron Johnson and two Republican members of the House alleging that they are subject to disqualification under Section Three of the Fourteenth Amendment.

I have not yet seen the complaint, but I am skeptical that this will succeed. Standing may be an issue. And on the merits, I am unaware of any credible allegations that Senator Johnson or the members involved were involved in the January 6th insurrection.

Posted by Gerard Magliocca on March 10, 2022 at 04:28 PM | Permalink | Comments (0)

The Legal Status of Antarctica

I'm serious. The wreck of the Endurance, Ernest Shackleton's ship, was discovered yesterday in Antarctica. Shackleton is far better known in Britain than in the United States, but here's my question. How exactly does jurisdiction over Antarctica work? Can a salvage claim be asserted against the wreck? I know that there is a treaty that governs Antarctica, but I don't know the details. Any help on this would be appreciated.

UPDATE: I've received some great responses. Thanks

Posted by Gerard Magliocca on March 10, 2022 at 09:36 AM | Permalink | Comments (0)

Monday, March 07, 2022

Textiness in Statutory Interpretation

Is there any point to "textiness" in statutory interpretation? I use the term to refer to performative textualism -- that is, judges' emphasizing hair-splittingly technical points of English usage or grammar as a display of their self-restraint about judicial policy-making. Like Stephen Colbert's "truthiness," textiness conveys a mood rather than a method: The point of the exhibition is not to obtain some objectively ascertainable good (factual truth, semantic meaning) but rather to demonstrate judicial seriousness about semantics, even when the semantics do not actually do all that much to resolve a dispute.

Does textiness nevertheless serve any useful function? Professor Tara Leigh Grove has argued that, by "emphasi[zing] semantic context, rather than social or policy context," such "formalistic textualism" could "help protect the legitimacy of the judiciary itself." According to Professor Grove, formalistic textualism allows "even the most apparently 'reliable' progressive or conservative member of the Court" to vote like "a 'swing Justice' in statutory cases, because "the method" of textual formalism interacts with "the mix of federal statutes...and the mix of baseline requirements and exceptions within each statute" in ideologically unpredictable ways.

After the jump, I assess the promise and problems with Professor Grove's suggestion that textiness could build cross-partisan judicial coalitions. One problem: Textiness does not constrain case outcomes very much and so gives little assurance that "liberal" and "conservative" outcomes will balance out over the run of cases. The promise: Assuming one or two justices who want to balance case outcomes for other reasons, textiness might provide political cover for swing votes that ultimately produce balanced case outcomes. A further problem, however, is that arbitrary swinging by one or two justices might not improve SCOTUS's legitimacy very much.

1. Why doesn't textiness yield plain meaning?

Before evaluating whether textiness has instrumental value, I should spend a few more words explaining more precisely what I mean by the term and why I believe that textiness yields no "plain meaning" capable of genuinely resolving disputes.

"Textiness" occurs whenever judges split ever-finer semantic hairs rather than consult statutory purpose as a way to demonstrate their commitment to judicial restraint, even when those semantics have low case-resolving power. The implicit assumption behind textiness is that judicial examination of a statue's apparent practical purpose is like a gateway drug that will lead judges to impose their own judicially devised policies on statutes. Textiness calls attention to the judge's abstinence from this dangerous drug with an ostentatious forswearing of what David Pozen and Adam Samaha call the "anti-modalities" of interpretation -- that is, forbidden techniques of interpretation emphasizing policy, morality, or other judicial trespassing into the domain of the political branches.

The telltale sign of textiness is the judge's obsessive focus on semantics even when such pondering of grammar or ordinary usage does little to resolve the dispute before the court. A little apophasis sanctimoniously disclaiming any consideration of statutory purpose while simultaneously hinting at the practical sense of the semantic distinctions that allegedly preclude such consideration reveals textiness in all of its glory. Recent examples of textiness include Niz-Chavez v. Garland, Van Buren v. United States, Facebook v. Duguid, but the practice extends back at least a decade to include decisions like Lockhart v. United States, Ali v Bureau of Prisons, and United States v. Hayes. In none of these cases could pure semantics, divorced from consideration of statutory purpose, satisfactorily resolve the dispute, but the majority opinions nevertheless ponder grammar and usage in an almost comically intense display of linguistic erudition as if to say, "No policy-making here! We’re just trying to divine the grammar of the Last Antecedent Rule."

Take, for instance, Niz-Chavez, a case allegedly turning on the “plain” meaning of the phrase "a notice to appear.” Removable non-citizens who receive such "a notice" may not count any post-notice presence in the country towards the 10-year statutory period necessary for a suspension of removal. But what if the non-citizen receives two different notices, neither of which alone, but both of which in combination, contain all of the statutorily required information? Has the non-citizen received "a notice" in conformity with the statute? Or merely some notices in violation of the "plain" statutory command?

Justice Gorsuch, writing for six justices, expended five pages of a slip opinion exploring the finer points of how indefinite articles are used with "countable objects" having nothing to do with legal notification ("a car," "a bank") as opposed to "noncountable abstractions" ("cowardice or fun"), concluding that "notice" can function in either capacity and concluding without apparent irony that this fact plainly suggests that Congress used "a notice" to mean "a discrete, countable thing...a single statutorily compliant document" rather than multiple documents. Chastising the dissent for its focus on administrative convenience, Justice Gorsuch notes that that the majority's interpretation of "a notice" avoids the danger that multiple notices strung out over months or years might be confusing to a "person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies." The opinion, however, then renounces the tempting blandishments of inquiry into practical statutory purpose, insisting instead that "no amount of policy-talk can overcome a plain statutory command." "Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license," the majority opinion modestly concludes.

The problem with this display of virtuous textiness is that the context-independent meaning of indefinite articles is not very helpful for deciding what the phrase means when used to instruct immigration officials on the statutory notice required for non-citizen residents. As Ryan Doerfler has shown (to my satisfaction, at least), what we care about in statutory interpretation (as in ordinary linguistics) is the speaker's broad pragmatic meaning. It is a pointless exercise, therefore, to plug in some phrase or word pattern into pragmatic contexts utterly unrelated to the statutory context in order to prove that the statutory text is too “plain” to allow inquiry into statutory purpose. We necessarily assess “plainness” in light of likely statutory purpose. Displays of textiness, therefore, make a virtue out of a linguistic mistake. As explained (very convincingly IMHO) by Baude & Doerfler, it makes little sense to give lexical priority to semantic meaning over non-semantic statutory purpose if the latter is useful at all for determining statutory meaning. Judicial asides about the "incidental" policy wisdom of the allegedly "plain" semantics, therefore, are not just obiter dicta but rather the stuff that's actually doing the work in the opinion: As Richard Re has noted, courts do not really apply such a rule of lexical priority for semantics, whatever they might say to the contrary.

I emphasize that Niz-Chavez's reading of the statute is perfectly plausible -- but its plausibility is guaranteed not by its ruminations about usage of indefinite articles with words like "bank” or “fun” but rather by the "policy-talk" about fairness that the opinion sternly insists is legally irrelevant. That "policy-talk" supplies the statutory context that makes sense of the excruciating disquisition on noncountable nouns, a disquisition that otherwise makes the opinion ridiculous. (For a similar apophasis in which the policy sense of the opinion's interpretation is discounted as merely "extra icing on the cake already frosted," see Van Buren v United States).

2. Can textiness deliver cross-partisan coalitions through a cross-partisan method?

As annoying as textiness in judicial opinions is to read, it would nevertheless be worth the vexation if it could yield cross-partisan coalitions promised by Professor Grove. Professor Grove is surely correct that divisions on collegial benches along partisan lines undermines judicial legitimacy. Reducing polarization with coalitions that cut across those divisions would be well worth putting up with judges' learned disquisitions on linguistics that do little beyond signal judicial virtue.

But can textiness deliver what Professor Grove promises? Maybe, but not for the reasons suggested by Professor Grove.

Professor Grove treats "textual formalism," defined as "emphasi[zing] semantic context, rather than social or policy context," as a "method" that yields determinative yet non-ideological results. I think this view is mistaken. This mistake is both theoretical and deeply practical. As a matter of theory, Ryan Doerfler bluntly states what I take to be the correct position: "whether some instance of context-sensitivity falls on the semantic or the pragmatic side of the divide is, for legal purposes, basically irrelevant." As a matter of practice, that semantic context cannot really resolve many disputes without a big dollop of "social or policy context." Professor Anita Krishnakumar has documented how canons with impeccable semantic pedigrees like ejusdem generis and noscitur a sociis depend covertly on assumptions about statutory purpose. It is simply impossible to know whether a series of nouns belong to the same kind or class without some sense of the purpose for which those nouns are being assembled. Likewise, textualists' invocation of "whole act" context, ostensibly a purpose-neutral effort to examine the "structure" of a statute, tends in practice to depend on the judge's speculation about the overall purpose that a statute is designed to serve. Textiness -- e.g., avoidance of purpose-talk in favor of Latin-titled canons -- merely conceals this dependence of the ostensibly semantic on policy context in what Professor Krishnakumar calls "backdoor purposivism."

Stripping out policy context, therefore, simply makes semantic canons and "whole act" speculations more arbitrary, not more predictable. The "structural" argument deployed by the majority opinion in Lockhart v. United States provides my favorite example of such arbitrariness. Lockhart is chiefly famous for Justices Sotomayor's and Kagan's debate over whether the "Last Antecedent Rule" or "Series Modifier Rule" should be applied to the phrase aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Sotomayor (for the majority) and Kagan (in dissent) offer lots of examples from ordinary usage purporting to demonstrate some general principle governing the extension of modifiers across series of "parallel" nouns. We learn that "an actor, director, or producer involved with the new Star Wars movie" probably all must be involved in the Star Wars franchise but that "a defensive catcher, a quick-footed shortstop, or a pitcher from last year's World Champion Kansas City Royals" need not all come from that final baseball team.

None of this display of verbal dexterity, however, sheds much light on that phrase in the sex offense statute at issue, so Justice Sotomayor turns to what she calls a matter of statutory "structure": The three nouns in the disputed clause defining predicate state-law offenses are similar to three nouns in three separate sections of the statute defining predicate federal offenses. Because "[t]his similarity appears to be more than a coincidence," Sotomayor insists that "we cannot ignore the parallel." This non-coincidence somehow entails that, because the federal-law offenses are not restricted to crimes against children, the state-law offenses should also not be so restricted.

Why, beyond cabalistic mysticism, should this symmetry indicate anything whatsoever about the coverage of a federal statute? "[T]he majority has no theory for why that should be so," Justice Kagan complains. Indeed. But the majority certainly hints at such a theory in asking precisely the same question about Justice Kagan's reliance on legislative history: "the terse descriptions of the provision in the Senate Report and DOJ letter do nothing to explain why Congress would have wanted to apply the mandatory minimum to individuals convicted in federal court of sex­ual abuse or aggravated sexual abuse involving an adult, but not to individuals convicted in state court of the same.” In this one line, Justice Sotomayor tips her hand that the statutory purpose underlying this otherwise mysterious textual symmetry is to insure equal punishment for equal culpability. Without that purpose-based account for why symmetry matters, Justice Sotomayor's discussion of textual symmetry is simply baffling — a sort of weird claim that Congress pointlessly buried secret messages in statutory text in the manner of an anagram.

Textual formalism, in short, often cannot deliver consistent results without some overt or covert reference to statutory purpose. But this means that formalism stripped of purpose cannot anchor a cross-partisan coalition, because conservatives and liberals can reach whatever result they please deploying "texty" rhetoric. Bostock is a good example of this indeterminacy. As I have noted elsewhere, Justice Kavanaugh's dissent is no less "textual" than Justice Gorsuch's majority opinion. The difference between Gorsuch's literalism and Kavanaugh's ordinary language is not "textual formalism" but rather the former's winning the votes of three liberals plus Roberts. One suspects that those four allies were less seduced by the persuasive power of Gorsuch's texty exegesis and more by the practical common sense of not trying to distinguish between discrimination based on sex stereotypes (forbidden by Title VII) and sexual orientation (somehow permitted as an acceptable stereotype by Kavanaugh's wooden "ordinary language" reading). Likewise, again as I have elsewhere noted, textual formalism will not resolve Gun Owners of America v. Garland, the "bump stock" case pending before SCOTUS.

Cross-partisan coalitions can be anchored by an interpretive method that promises rough justice to each side of the partisan divide. But a "method" that is merely rhetoric anchors nothing. A "liberal" opinion today like Bostock that is laced with texty rhetoric offers no credible assurance to conservatives that textiness will later deliver "conservative" outcomes tomorrow, because any result can be reached while sprinkling an opinion with semantic seasoning.

3. Can textiness deliver cross-partisan coalitions by encouraging swing votes?

Nevertheless, there is an outside chance that textiness might deliver cross-partisan coalitions just by encouraging swing voting against ideological type-casting. Semantic context is not really a rigorously closed set of rules for interpreting text. The triggering conditions for so-called “intrinsic aids, for instance, are rarely fully specified in textualist precedents, and the choice between literal, technical, or ordinary usage is likewise not specified by statutory text itself.

Justices of a textualist bent, therefore, will have some freedom either to admit that there is an ambiguity requiring consideration of extra-textual sources for its resolution or, alternatively, just pretend that there's nothing but plain text foreclosing such consideration. Such justices may be tempted to establish the credibility of their “method” by opting for the latter — what Professor Grove calls “textual formalism” — whenever the “textualist” choice enables them to vote against the outcome most preferred by the political party of the President that appointed them. What better way, after all, to signal the credibility of textualism than to vote against one’s expected ideological preferences while claiming that the plain text ties one’s hands? If one is a Chief Justice anxious to vindicate the non-partisan legalistic professionalism of one’s courts, then one has an additional incentive to join such an opinion.

It might be that Bostock and Niz-Chavez are both best explained as such an effort to burnish the reputation of textualism and/or SCOTUS itself as a reliable, apolitical method. Textiness in the opinion might not dictate the result, because reasonable interpreters might (for instance) disagree about whether literal or ordinary usage should govern. But such results produce cross-partisan votes that nevertheless protect the method’s or Court’s legitimacy against claims of partisan bias.

Do such cross-partisan voting patterns reduce polarization by depicting the SCOTUS as less partisan? I do not know. A cynic might note that, given the inherent arbitrariness of either ignoring or recognizing textualism’s escape hatches, the self-consciously “textualist judge” could fashion themselves as the swing voter in statutory interpretation cases — a heady experience that Justice Kennedy used to play in constitutional cases by emphasizing a kind of mushy balancing methodology. Such opinions might be expected to generate dissents from the Left and Right wings of the Court impatient with the pretense that texty rhetoric really resolves the dispute. For sophisticated observers, the choice to recognize or ignore semantic ambiguity tends to seem arbitrary or, at least, under-specified, so texty poses can seem, at best, naive and, at worst, sanctimonious.

Does a succession of such opinions with inevitable dissents really build up SCOTUS’s legitimacy? Search me. The answer probably varies with the sophistication of the relevant group making the judgment about legitimacy. I am more confident, however, that textiness in judicial opinions will have staying power. The temptations of striking that Olympian pose of pure legalism is just too great for some judges to resist.

Posted by Rick Hills on March 7, 2022 at 08:37 PM | Permalink | Comments (7)

Rick Hasen's new book Cheap Speech out tomorrow

This morning I had the pleasure to listen and learn from Rick Hasen speaking with Dahlia Lithwick on Amicus, Slate's podcast about his new book, Cheap Speech: How Disinformation Poisons Our Politics -- and How to Cure It. The book is out tomorrow, and I can't wait to read it. From Yale Press: 

An informed and practical road map for controlling disinformation, embracing free speech, saving American elections, and protecting democracy
 "A  fresh, persuasive and deeply disturbing overview of the baleful and dangerous impact on the nation of widely disseminated false speech on social media. Richard Hasen, the country’s leading expert about election law, has written this book with flair and clarity.”—Floyd Abrams, author of The Soul of the First Amendment
 What can be done consistent with the First Amendment to ensure that American voters can make informed election decisions and hold free elections amid a flood of virally spread disinformation and the collapse of local news reporting? How should American society counter the actions of people like former President Donald J. Trump, who used social media to convince millions of his followers to doubt the integrity of U.S. elections and helped foment a violent insurrection? What can we do to minimize disinformation campaigns aimed at suppressing voter turnout?
 With piercing insight into the current debates over free speech, censorship, and Big Tech’s responsibilities, Richard L. Hasen proposes legal and social measures to restore Americans’ access to reliable information on which democracy depends. In an era when quack COVID treatments and bizarre QAnon theories have entered mainstream, this book explains how to assure both freedom of ideas and a commitment to truth.

Posted by Orly Lobel on March 7, 2022 at 02:43 PM | Permalink | Comments (0)

New Treasury Dept Report on Labor Market Competition

Today, the Department of the Treasury, in partnership with the Department of Labor, Department of Justice, and the FTC, released a report on "The State of Labor Market Competition." The report concludes that the lack of competition in the labor market results in wage declines between 15 and 25 percent  - this New York Times article summarizes the report's key findings. 

As many of you know, labor market competition has been a focus of my book Talent Wants to be Free, as well as many collaborative research and articles. In 2021 Mark Lemley and I wrote a Day One Report on the subject calling the Biden Administration to address these issues on a federal level, and it is terrific to see that these agencies are moving things forward. 

As part of the Treasury Dept report release, the White House will host a roundtable today at 3:30 pm ET with Secretary Yellen, Secretary Walsh, and Attorney General Garland, as well as CEA Director Cecilia Rouse and NEC Director Brian Deese on the "State of Labor Market Competition in the U.S. Economy." The roundtable will feature stories from workers on how non-competes, among other anti-competitive practices, have negatively impacted their lives and careers. You can listen to the event here

Posted by Orly Lobel on March 7, 2022 at 02:36 PM | Permalink | Comments (0)

University of Alabama School of Law Seeking Assistant/Associate Legal Writing Professor Applications

I am pleased to announce that my law school is seeking applicants for the position of Assistant/Associate Professor of Legal Writing. The notice follows below. If you have questions, feel free to contact Prof. Russell Gold at [email protected]. Legal research and writing is, as I often tell my students, the most important course they take in law school. 

Assistant/Associate Professor of Legal Writing

The University of Alabama School of Law is seeking applicants for the position of Assistant/Associate Professor of Legal Writing. This position has been created to expand and further strengthen the Law School’s program in legal writing. The successful applicant must demonstrate a strong commitment to contributing to the growth, development, and improvement of the legal writing program. Working under the supervision of the Law School’s Director of Legal Writing, our legal writing faculty collaborate with colleagues on core assignments and on teaching strategies but otherwise select and develop their own materials and lessons.

The non-tenure-earning position will be on a contract basis with an initial three-year term and the possibility of additional three-year terms. The successful candidate will teach two sections in the first-year program and will also develop an upper-level writing or drafting course and teach that course twice during the three-year contract. The successful candidate, in consultation with the Associate Dean of Academic Affairs and Director of Legal Writing, may be eligible to coach a moot court team for additional compensation.

Applicants must have a law degree from an ABA-accredited law school and a strong academic record. Applicants must demonstrate effective legal writing skills and should be admitted to and in good standing with a state bar. Preference will be given to applicants with four or more years of legal experience and to applicants with teaching experience. 

All applicants must apply for this position through the University of Alabama’s job site at https://facultyjobs.ua.edu/postings/50013. Applications must include a resume, cover letter, list of three references, and a writing sample (which can be uploaded via the “Other Document 1” section). Applications will be received until the position is filled, but preference will be given to applications received by April 1, 2022.

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.

“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf

“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on March 7, 2022 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Disaggregating government and its employees

Civil rights doctrine suffers from strange and inconsistent disconnects between government and government officials, especially law enforcement. Municipal liability is difficult (and state liability impossible) because individual officers are the presumptive targets of litigation. Individual officers have qualified immunity because it is unfair to hold them individually liable for all but the most egregious mistakes (and even then . . .). But indemnification means the municipality pays any judgment and thus bears the costs, if not the liaiblity, for the rare non-immune constitutional misconduct. The government bears the burden (and costs) to handle misbehaving officers outside of constitutional liability.

But that disconnect leaders to this Second Circuit case holding that the New York Police Benevolent Association, the officers' union, could intervene in a lawsuit challenging New York and NYPD policies during the 2020 George Floyd protests. The PBA, on behalf of its members, had a distinct interest in defending police policies and practices against constitutional challenge, an interest the government of New York City could not adequately protect. It is true that an employer's interest may diverge from that of its employees. But the logic of this decision places the union, on behalf of its members, on an equal footing with the municipal government and the department (which has never shown itself hostile to or willing to do anything about misbehaving officers) in making public policy and in deciding what policies are constitutionally valid and wise.

Posted by Howard Wasserman on March 7, 2022 at 09:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

West Ford and Slavery at Mount Vernon

In this week's New Yorker there is a feature article about West Ford, a former enslaved person who was almost certainly a member of the Washington family though Bushrod, his father Jack, or his brothers. West Ford plays a prominent role in my new biography of Justice Washington.

Posted by Gerard Magliocca on March 7, 2022 at 07:29 AM | Permalink | Comments (0)

Saturday, March 05, 2022

The Correct Reading of the 1872 Amnesty Act

Here is a concise explanation of why the 1872 Amnesty Act cannot be read to give prospective relief from Section Three of the Fourteenth Amendment. 

  1. The Fourteenth Amendment did not give Congress that power. Nothing in the original public meaning or anything afterwards supports a prospective view of Congress's power to waive disqualification. Moreover, such a power would smack of the "dispensing" authority that was rejected in Angl0-American law after the Glorious Revolution of 1688 and be inconsistent with the interpretation of the pardon power.
  2. To conclude otherwise would mean that Congress repealed Section Three of the Fourteenth Amendment in 1872. How can Congress repeal a constitutional provision by itself? This would be an unprecedented loophole in the Article Five process that should be viewed with considerable skepticism.
  3. The constitutional avoidance doctrine strongly suggests that we should not read the 1872 Act as granting prospective relief, to avoid the difficulties posed by Point #1 and Point #2.
  4. The plain meaning of the 1872 Act does not support prospective relief. The title of the Act refers to disabilities "imposed," which is in the past tense. And the Act's use of the term "whomsoever" is not unambiguous. It can "whomsoever is alive," "whomsoever is alive or dead," or "whomsoever is alive, dead or unborn."
  5. Nobody in 1872 thought that prospective relief was granted by Congress.
  6. The House of Representatives excluded Victor Berger on Section Three grounds in 1919. The House did not think that Berger received amnesty in 1872.

The Federal District Court's holding yesterday that the 1872 Amnesty Act bars a Section Three challenge to Congressman Cawthorn will not be upheld by the Fourth Circuit. Of course, the Congressman made other arguments that were not addressed by the District Court and will probably be renewed in any appeal.

Posted by Gerard Magliocca on March 5, 2022 at 03:43 PM | Permalink | Comments (0)

Thursday, March 03, 2022

If only they could sue the state

SCOTUS holds that the (new) state AG should have been allowed to intervene when the (new) secretary of health services declined to continue litigating the offensive challenge to the constitutional validity of a 15-week abortion ban. Justice Alito writes for 6; Kagan writes for herself Breyer, agreeing that intervention should have been allowed but objecting to majority grounding its analysis in constitutional imperatives surrounding state power to defend its laws; and Sotomayor dissents.

Of course, all of this could be avoided by recognizing that the state enforces state law (through whichever individuals state law designates) and allowing rights holders to sue the state to stop enforcement of the law (by whichever individuals state law designates). Were the challenges to the abortion ban able to sue and litigate against Kentucky, there would be no need for the federal court to consider intervention; the question of who is deciding Kentucky's litigation choices and strategy could be resolved within the state executive.

Posted by Howard Wasserman on March 3, 2022 at 05:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Heckling, counter-speech, and heckler's vetoes (again)

UC-Hastings Fed Soc invited Ilya Shapiro to speak, but he was shouted down by the audience (several videos in links). FIRE labeled this a heckler's veto. The Hastings administration condemned the students because "the act of silencing a speaker is fundamentally contrary to the values of this school as an institution of higher learning; it is contrary to the pedagogical mission of training students for a profession in which they will prevail through the power of analysis and argument." And it is threatening to enforce conduct-code provisions for disrupting the event, while continuing "efforts to ensure that we equip all community members with the knowledge and skills to engage respectfully, thoughtfully, and sensitively with each other and with a wide array of theories, identities, political viewpoints, and perspectives."

I have discussed the uncertainty about the lines among counter-speech, heckling, unprotected counter-speech, and hecklers' vetoes. But what I wrote here bears repeating and elaborating. The protesting students were in the wrong, but for narrow reasons. And it cannot be resolve by invoking the dreaded heckler's veto.

The students did not engage in a heckler's veto. They engaged in heckling, a form of Bradneisian counter-speech. Were Shapiro speaking on an open campus sidewalk and the protesting students shouted back from an adjoining sidewalk, this should be the result. Same if the students remained outside the room or outside the building producing similar noise. There is nothing improper in heckling or attempting to "shout down" a speaker.

The protest crossed the line and lost its protection via the neutral rules of the classroom forum,. Those rules presumably granted Shapiro (and the student group that invited him and reserved the room) a greater expressive right than the dissenting audience members; those neutral rules made Shapiro and Fed Sco preferred first speakers. The source of the heckler's veto is not the protesting students or the attempt to shout Shapiro down and prevent him from being heard. The source lies in the administration failing to remove the disruptive students or otherwise control the situation; governmental inaction or failure to protect deprived him of the ability to speak. The government could have shut the protesting students up or removed from the room; it can sanction them after the fact. The removed students cannot claim their speech rights were violated; by heckling in that time and place, they engaged in civil disobedience, an unlawful act for which they must be willing to pay a price. The open question is whether post-event sanction of the (improperly) protesting students is sufficient to overcome the charge of a heckler's veto; I would say not, but this is a separate question.

I continue to reject the administration's command for respectful, thoughtful, and sensitive engagement with competing viewpoints and theories. Shapiro, like any first speaker, bore no such obligation--he could say whatever he wanted and need not listen to or respectively engage with any disagreeing audience member or what she had to say (I am not saying Shapiro would have approached it this way, only that he bore no obligation to hear and engage with any audience member). The administration was wrong to impose such an obligation on the heckling students. The students were in the (legal) wrong because of the forum rules, not because of some broader compelled commitment to respectful dialogue to which only they are subject.

Posted by Howard Wasserman on March 3, 2022 at 12:03 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Hearing in the Cawthorn Case

Tomorrow a Federal District Court in North Carolina will hold a hearing on Congressman Cawthorn's request to enjoin the state election proceeding that would inquire into the claim that he is ineligible under Section Three of the Fourteenth Amendment. I would expect a decision next week, with an expedited appeal to the Fourth Circuit to follow no matter what the District Court does.

Posted by Gerard Magliocca on March 3, 2022 at 11:51 AM | Permalink | Comments (0)

Pre-Vacancy Confirmation

If Judge Jackson's confirmation process proceeds smoothly, the Senate may well vote to confirm her more than two months before the end of the Supreme Court's Term. Thus, she will be a sort of "Justice-elect" between April and July. Is there any precedent for that? None come to mind.

Posted by Gerard Magliocca on March 3, 2022 at 10:02 AM | Permalink | Comments (0)

Egbert v. Boule argument

My SCOTUSBlog recap and the transcript. A couple of moments of levity, which I used in the headline. The first involves Gorsuch saying the Smuggler's Inn "has been disparaged in its quality today" and Boule's counsel interjecting "unfairly." The second involves Alito, asking why Boule told Egbert about his arriving guest and wondering what he might do if "one of us was going to check in" and Kagan adding "suspicious characters," which made Alito laugh.

I do not predict these things because I always get them wrong. But the argument went better for Boule than I expected. Everyone pushed Egbert's counsel and the U.S. about how this case differs from an ordinary 4th Amendment Bivens claim and did not push back much on Boule's argument that the analysis ends when events occur near the border. I do not know if that means Boule wins. But they seemed to be wrestling with the mess they created in Abbassi.

Posted by Howard Wasserman on March 3, 2022 at 09:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 01, 2022

The future of Bivens

I am covering Egbert v. Boule for SCOTUSBlog; argument is tomorrow. My preview is here. The plaintiff is a character--he runs the "Smuggler's Inn" B&B near the Canadian border, has "SMUGLER" as his license plate, knew that some guests used his property to get into Canada (his land abuts a fenceless border), and was convicted of violating Canadian immigration law for helping people cross the border. The case arose from Boule trying to keep a Border Patrol agent from questioning a B&B guest and the agent getting pissed off and reporting him to the IRS and other agencies. Given the characters involved, the case resembles Wilkie v. Robbins--western iconoclast who does not trust or want to cooperate with the government and government officials responding by abusing legal apparatuses to make his life difficult.

The case will tell us what, if anything, remains of Bivens. The cert petition asked the Court to reconsider Bivens, but the Court did not grant on that QP. The agent (although not the U.S.) argues that Bivens extensions are categorically barred. The question is whether being a Border agent and/or being near an international border overcomes the many ways this case is closer to Bivens than to the Court's recent rejections.

Posted by Howard Wasserman on March 1, 2022 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Restraint of Princes

In maritime contract law a "restraint of princes" refers to excused non-performance due to a government holding a vessel against its will. We will be seeing many examples of this with the sanctions imposed on Russia. Some Russian vessels bound for foreign ports will be held. Some vessels bound for Russia will be held.

What will happen to these ships and their cargo? To some extent, they will become compensation for civil damage claims brought against Russian interests by individual Ukrainians, Ukrainian firms, and the Ukrainian government in maritime nations. (The current Ukrainian government will continue to be recognized by most of the world as the legitimate authority even if driven into exile by the Russian army.) This will break new ground, as we've not seen seen such severe and sudden sanctions on shipping by neutral nations in a long time, if ever. 

Posted by Gerard Magliocca on March 1, 2022 at 09:41 AM | Permalink | Comments (0)