PrawfsBlawg

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.

Supreme Court to Address Jurisdiction through Corporate Registration

SCOTUS granted cert for in Mallory v. Norfolk S. Ry. Co., on whether a state can require businesses to consent to general jurisdiction as a condition of registration. Before co-authoring the authoritative works on SB8 with me, Rocky Rhodes (South Texas)  published several piece on jurisdiction and consent/registration with Cassandra Robertson (Case). They have agreed to write a few posts now and perhaps to come back when the case is argued next Term.

The Roberts Court is still interested in personal jurisdiction, despite already hearing seven such cases over the last eleven years. These cases have re-shaped adjudicative jurisdiction, substantially narrowing the fora where plaintiffs can bring suit. Now, with its cert grant this week in Mallory v. Norfolk S. Ry. Co., the Court is poised to reconsider its cryptic century-old holding that states can require corporations to consent to personal jurisdiction within the state—even for claims arising outside the state—as a condition of registering to do business.

The Court’s earlier holding on jurisdiction predicated on registration pre-dated the “minimum contacts” approach that the Court adopted in International Shoe Co. v. Washington (1945).  The issue of whether a corporation’s registration authorizes adjudicative jurisdiction was a difficult question after International Shoe, befuddling courts and commentators for generations. But the question has become especially salient—and even more difficult—after the Roberts Court’s increasingly restrictive approach to personal jurisdiction, so it is not surprising that the Supreme Court finally agreed to address the issue. We’re very grateful for Howard’s invitation to post on this grant and its importance.

Contacts Jurisdiction and Consent Jurisdiction

Scholars familiar with civil procedure and conflicts are well aware that the Roberts Court has curtailed the scope of a state’s adjudicative jurisdiction. The Court limited “general” or “dispute-blind” jurisdiction to the forum in which the defendant is “at home,” such as a corporate defendant’s place of incorporation or principal place of business, rather than allowing such jurisdiction in any forum in which the defendant conducts substantial, continuous, and systematic activities. The Court further limited “specific” or “forum-linked” jurisdiction, which arises in states connected to the dispute, by demanding a tighter showing that the defendant itself established purposeful contacts with the forum state, rather than the contacts being created by an intermediary or the plaintiff. While the Supreme Court’s decision last summer in Ford Motor Co. v. Montana Eighth Judicial District Court recognized that, if purposeful availment exists, the state can exercise jurisdiction even if the dispute merely “relates to” rather than “arises from” such contacts, the Court repeated its prior normative objection to forum shopping by plaintiffs. So, while Ford was a step in the right direction, the overall impact of the Roberts Court’s decisions has limited the available fora that plaintiffs may choose under the traditional “minimum contacts” analysis from International Shoe.

But there are alternative grounds to establish personal jurisdiction. One that has been long recognized is that defendants may consent to personal jurisdiction, either by contract or litigation conduct. Even if contacts jurisdiction is lacking, consent may provide another jurisdictional hook. Plaintiffs have sought to employ this alternative jurisdictional hook as the Roberts Court has restricted contacts jurisdiction, asserting that a defendant’s consent to jurisdiction is conferred when a defendant corporation registers to do business in the forum state, which is the issue squarely presented in Mallory. This jurisdictional basis has a long history, although it largely became unnecessary until the Supreme Court’s sharp curtailment of general jurisdiction.

State Corporate Registration Statutes

            Every state statutorily requires out-of-state corporations transacting in-state business to register with and obtain a certificate of authority from a designated official to do business in the state. Without obtaining the required authorization, a nonresident corporation cannot access the state’s judicial system under all or almost all these registration statutes, with many states also imposing fines and other penalties, including the restraint of further intrastate business transactions, for the failure to comply. The Supreme Court has consistently upheld the constitutionality of both these registration and authorization statutes and their associated consequences for non-compliant nonresident corporations.

            Not all corporate business transactions, though, can constitutionally trigger a registration responsibility in the absence of congressional approval. The dormant Commerce Clause prohibits states from placing, in the absence of congressional authorization, an undue burden on interstate or international commerce, thereby barring state-compelled registration or the accompanying burdens on out-of-state or international corporations not conducting local business operations within the state. General corporate registration statutes thus limit their application to those nonresident corporations that “transact business” in the state, which is typically statutorily defined by excluding those in-state activities that are not sufficient to transact business (such as interstate business activities, isolated in-state transactions, or mere solicitations). Only those corporations engaging in an ongoing and regular course of intrastate or local business activity must register and obtain a certificate of authority, which implicates the regulatory authority of the state to attach conditions on the terms under which the nonresident corporation operates within the state.           

            Historically, the primary purpose of such statutes was to provide a basis for service on an in-state agent within state territory that would authorize jurisdictional power over the nonresident corporation while comporting with the then-prevailing sovereignty limitations on adjudicative authority. States in the mid-nineteenth century began enacting such statutes compelling corporations, as a condition for transacting in-state business, to register with the state and appoint an agent for service of process, thereby ensuring the registering corporation’s amenability for its in-state obligations. The Supreme Court first upheld such a scheme in Lafayette Insurance Co. v. French (1856), reasoning that a corporation “must be taken to assent to the condition upon which alone such business could be there transacted.” Yet the Court explicitly limited its decision to situations in which the suits were related to the business conducted within the forum.

            Subsequent nineteenth-century cases from the Supreme Court continued to describe the permissible corporate consent for the privilege of conducting business as limited to actions related to the corporation’s conduct of business within the forum. As the corporate presence fiction developed, though, service on a statutory agent became a jurisdictional basis in early twentieth-century cases to adjudicate claims unrelated to the corporation’s activities within the state, with some cases indicating that service on a registered corporate agent within the state sufficed for amenability. Yet these cases were linked to the then-prevailing “presence” by “doing business” construct. The Court was hesitant to predicate a defendant’s amenability on serving a registered agent when the defendant no longer was conducting business within the forum, several times construing state registration statutes as not encompassing such a questionable jurisdictional reach.

            Yet if the defendant was conducting business in the forum, the Supreme Court did not need to evaluate the impact of registration on the defendant’s amenability under other jurisdictional doctrines that developed in the twentieth century, such as corporate presence and implicit consent through in-state activities. While these early twentieth-century fictions were cast aside by International Shoe in favor of a more realistic analysis of the reasonableness of the jurisdictional assertion in light of the defendant’s forum activities, the new Shoe paradigm precluded the need in most cases to evaluate the continuing relevance of jurisdiction predicated on corporate registration alone. This caused the Supreme Court to never return to the constitutionality of jurisdiction predicated on corporate registration except in dicta until its recent grant in Mallory.

            The Split in the Constitutionality of Jurisdiction by Registration

            The permissibility of such jurisdiction based on corporate registration depends on interpreting the state’s corporate registration statute while recognizing the constitutional limits that may exist.

            Existing state registration statutes rarely specify the jurisdictional consequences, if any, of a corporation’s in-state registration to do business. Most of these consequences have depended upon case law interpretation. In Georgia, for example, Cooper Tire & Rubber Co. v. McCall reasoned its earlier decisions had interpreted registration as authorizing general jurisdiction, even though the state registration statute did not specify such a jurisdictional consequence. Pennsylvania, on the other hand, is the only state with an unambiguous statutory provision that a nonresident corporation’s registration to do business “shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction . . . .”

            But the statutory or case law interpretation must also comply with constitutional limits. Before the Supreme Court limited general jurisdiction to only those locales where the defendant was “at home,” state and lower federal courts were hopelessly split on the constitutionality of state authorization of jurisdiction based on registration to do business. But there has been a definitive trend in the decisions of state supreme courts and the federal circuit courts since the Roberts Court explicitly limited general jurisdiction to a defendant’s home states in Daimler AG v. Bauman.  

            These courts have indicated that the continued constitutional validity of all-purpose jurisdictional assertions via corporate registration is doubtful after Daimler’s stated concerns with “grasping” or “exorbitant” jurisdictional rules. The Second Circuit, for example, argued that all-purpose consent from registration would subject every corporation “to general jurisdiction in every state in which it registered,” which would rob the “at home” requirement “of meaning by a back-door thief.” But rather than confronting the issue directly, state high courts and federal circuit courts have adopted statutory interpretations of the registration statutes to avoid the constitutional issue, even in jurisdictions such as Delaware, Nebraska, and New York that previously interpreted their registration statutes as authorizing all-purpose jurisdictional assertions.

            There are only two recent cases where a state supreme court did reach the constitutional holding: Mallory, declaring the Pennsylvania explicit statute unconstitutional, and Cooper Tire, upholding jurisdiction under past Georgia case law. The losing parties in both cases sought certiorari review at the Supreme Court, with Cooper Tire filed first and attracting all the attention of amici. Our next post will discuss some of the differences between the two cases, exploring why the Court might have chosen to grant Mallory as the vehicle to examine registration while presumably holding Cooper Tire.      

Justice Thomas's Concurrence in Vaello-Madero

Justice Thomas wrote a thoughtful concurrence last week in a case raising an equal protection challenge against the denial of SSI benefits to Puerto Rico. He raised questions about whether Bolling v. Sharpe was correctly decided and suggested that the Citizenship Clause (rather than the Due Process Clause) was the better place to locate an equal protection guarantee against federal action.

One difference between Bolling and Justice Thomas's tentative position is that the latter would deny equal protection to non-citizens against federal action. This is part of a broader contraction in non-citizen rights that would occur by shifting doctrines from the Due Process Clause to citizenship provisions such as the Privileges or Immunities Clause. This contraction may be correct as an original matter, but would also present problems.  

HB7 lawsuit

Filed Friday. Plaintiffs are a history prof at Central Florida, two public-school teachers, a rising kindergartner, and the owner of a DEI consulting firm. The choice to file everything in one action has its drawbacks. Consider:

• The First Amendment analysis and likely conclusion varies among the four educational plaintiffs. The prof has the strongest free speech claim, given the scope of academic freedom and its incorporation into the First Amendment. The student has the weakest claim, because I do not believe students have a First Amendment right to learn or not learn anything or to receive (or not) any information as part of the public-school curriculum.* The public-school teachers are somewhere in the middle, claiming some mantle of academic freedom but generally treated like most public employees. Query whether it would have made strategic sense to bring separate suits, allowing the court to focus on the unique First Amendment analysis for each and to earn a strong victory on the one obvious winner.

[*] if they do, consider the unintended consequences--a conservative student would have a viable First Amendment claim against a school board that prohibits, for example, teaching that Jim Crow was anything other than an unalloyed evil.

• The consultant brings a claim as an employer, alleging that the law infringes her right to present certain views in employee and organizational trainings by defining certain trainings (those that present certain viewpoints) as employment discrimination. But I am not sure this claim is appropriate for an offensive pre-enforcement claim. Any employment discrimination would be challenged by the employer filing an administrative or civil action. No defendant--the governor, the AG, members of the Board of Education, and members of the Board of Governors--is responsible for enforcing those provisions in that context. To the extent the consultant is concerned about what her employees might do, she may have to wait and defend on First Amendment grounds.

The Perils of Constitutional Shorthand

Many people refer to Section Three of the Fourteenth Amendment as the Disqualification Clause. Of course, Section Three does not use the word "disqualification." And I did not describe the provision this way in my law review article. But I started doing so afterwards, as others were using that term and it seemed harmless.

Not anymore. An Arizona Superior Court dismissed a set of Section Three challenges yesterday in part by saying that the state eligibility statute refers to "qualifications prescribed by law" rather than "disqualifications" that are proscribed by law. Thus, the court said that the Disqualifications Clause is not enforced by state law.  

My first response is that there is no difference between a qualification and a disqualification. If I run for the Senate at age 18, have I failed to meet the age qualification or am I disqualified by being too young? But even if there is a difference, Section Three says nothing about disqualification. The Fourteenth Amendment's framers explained that Section Three added another qualification to the ones in the text. (The Arizona court responded that the Supreme Court has never so held, but that isn't saying much since the Supreme Court has said nothing meaningful about Section Three.) I want to take a closer look at the congressional precedents to see if they speak to this point, and if I find anything significant I will update the post.

UPDATE: Here is what the House of Representatives said about this point in excluding Victor Berger in 1919: "In the present case there is a fourth qualification prescribed by the Constitution, or rather a fourth prohibition, as the qualifications set forth in the Constitution are put in negative form . . ." Then the Report quotes Section 3.  This supports what I said above, which is that the Arizona Superior Court's distinction between qualifications and disqualifications cannot withstand scrutiny.

FIRE on Florida's anti-woke law

Gov. DeSantis signed HB7 (the anti-woke law) that attempts to regulate what and how we can teach certain topics, including in higher ed. FIRE sent letters to every public college and university in the state (here is the letter to FIU) explaining how the law offends academic freedom and the First Amendment freedom to teach and write what we believe appropriate and urging schools to interpret the law narrowly or not to enforce. The letters argue much of what I discussed at a faculty meeting of another FIU unit last week.

In memoriam, Michael Olivas

Ediberto Roman offers a tribute at Faculty Lounge (comments are open for those wanting to remember him).

Update On the Pending Section Three Challenges

1. Madison Cawthorn--The Fourth Circuit will hear oral argument on May 3rd.
2. Marjorie Taylor-Greene--The state ALJ will issue a report to the Georgia Secretary of State sometime in the next month.
3. Paul Gosar, Andy Biggs, and Mark Finchem--Today an Arizona Superior Court dismissed these cases. An appeal in state court will follow.
4. Couy Griffin. Griffin has filed a federal removal action in this New Mexico quo warranto case.

There is also a challenge in Wisconsin against Senator Ron Johnson and others, but I must admit that I don't know much about that case.

How is this not legislative immunity?

Ninth Circuit allows a First Amendment suit to go forward by a member of the Oregon legislature against against legislative leaders and officials for imposing a rule requiring him to give notice before entering the building, in response to his public statements. Accepting this was retaliatory, how is this not the rules of proceedings of an administrative body as applied to a member of that body.

I am so confused I am leaving comments open (although will delete unrelated ones).

Bad legal journalism

I (and most lawyers) regularly complain about how badly the media covers courts and law. I am particularly attuned to sloppy and inaccurate use of procedural terms (e.g., "enjoining a law"). I hope for better from a publication such as Bloomberg, which is dedicated to talking about law. No such luck, as shown in a story about efforts of Gov. DeSantis and his legislative lackeys to punish Disney's objections to "Don' Say Gay" by repealing its exclusion from the state's social-media law. The story begins "Florida’s governor may be able to impose swift retribution against Walt Disney Co. for publicly disagreeing with the state’s “don’t say gay” education law."

First, the author seems quite blase about the governor of a state seeking retribution against someone who disagrees with state policy and about legislators agreeing that "the governor’s anger was well placed, and we’re happy to take it up." So new legislation targets an entity when that entity takes a political position that angers the governor and legislators back the governor. The reporter describes it as "retribution," yet treats that as an ordinary thing that happens (and, implicitly, should happen) when members of the public disagree with government officials. As opposed to one of the core things the First Amendment is designed to prohibit.

Second, she misconstrues the likely First Amendment validity of the social-media law. She writes as if the Disney exclusion was key to district court's reasoning in declaring the law invalid, quoting another Republican calling this a "good bill" because it treats all providers evenly. She also calls reversal of the district court "a real possibility" simply because it is on review to the 11th Circuit. But the Disney exception was not central or even necessary to the district court's analysis, functioning more as an absurd cherry on the constitutionally invalid sundae of this law. The court found the law compels speech under Tornillo, making it invalid no matter how even-handed--government can neither compel some people nor all people to speak or to carry the speech of others. And the court identified three reasons the law is "as content-based as it gets" before mentioning Disney. DeSantis, et al live in a fantasy world if they believe expanding the scope of the law eases its constitutional problems, yet the reporter echoes their points as if they are legally plausible. There also is no way the 11th Circuit, as conservative as it may be, reverses on this; these laws are not valid without overruling multiple areas of precedent.

I wish writers and editors did better than this; I would expect it from those at a publication that specializes in law.

Another SB8 funder suit

This one in federal court in Texas (HT: Josh Blackman). Plaintiffs are an abortion fund and individuals who work for and contribute to it; defendants are individuals who have initiated state proceedings or sent cease-and-desist letters; both should be enough to establish standing to stop future actions (and thus get a determination of SB8's validity). Two weird pieces. First, the complaint contains no allegations that the defendants act under color, despite being brought under § 1983; the lawyers dropped those allegations in favor of a lengthy description of SB8's legal scheme that should not be part of a complain. Second, it seeks a declaration that Texas' criminal abortion ban is invalid and unenforceable (as the law at issue in Roe), but did not sue anyone whose job is to enforce that ban; courts can be free-wheeling with DJs (which come close to advisory opinions anyway), but they at least demand a proper adverse party.

It's always something. This again shows that offensive, pre-enforcement litigation in federal court is possible and workable. It required more work and is more of a pain-in-the-neck. But it is available and consistent with ordinary rules of civ pro and civil rights litigation.

Nerd Alert for Federal Courts Experts

Here is a question. In Re Griffin was an 1869 decision by Chief Justice Chase, sitting as a Circuit Justice in Virginia. Is this decision binding precedent for the 4th Circuit today? There was, of course, no 4th Circuit then. But the current 4th Circuit includes Virginia. Does this make a nineteenth century Circuit Justice decision from Virginia a binding decision in that circuit? Curious minds want to know.

More universal injunctions

Sam Bray exposes the flaws in the district court's reasoning on issuing a universal injunction on enforcing the transportation mask mandate. I will add a couple points. First, the district judge committed every analytical error Judge Sutton identified as a problem with universality. Second, Sam's makes a point I have made and that is worth emphasizing: To the extent it may be difficult to identify who is protected by a particularized injunction, that is for the executive in its future enforcement decisions and the district court in enforcing its judgment; it should not be the predicate towards beginning with overbroad relief.

Finally, I co-sign Sam's conclusion:

[T]his is a deeply broken system.  * * * But it is a deeply broken system when the action and inaction of the various federal actors--House, Senate, President, agency reporting to the President--can be immediately swept aside by a single district court judge who chooses a remedy that is not only for the plaintiffs but for everyone.

* * * It doesn't have to be this way.

But it will stay this way if conservatives object to "nationwide" remedies only against Republican presidents, and liberals object to them only against Democratic presidents. Selective outrage and what-about-ism on the other side's inconsistency are a recipe for continued stalemate. If you object to these remedies on principle, stick to your principle, no matter who is President and no matter what you think of the merits.

Critics of universal injunctions are like free-speech absolutists--cursed with intellectual consistency.

Restricting tenure, but not understanding why

Florida has passed a law designed to limit tenure by requiring tenured faculty to be reviewed by the Board of Trustees every five years. Gov. DeSantis announced the law at a press conference Tuesday (between promises to investigate Twitter's efforts to resist Elon Musk's takeover bid). The law does not specify a review procedure, so the devil will be in the details of what each university's Board comes up with.

The whiplash over the law's justifications is fun to watch. If I thought DeSantis or his minions had shame or self-awareness or that anyone in this state cared, I would say they have undermined their own cause. Instead, it is just Tuesday.

On one hand, DeSantis properly identifies the purposes of tenure--"to protect people so that they could do ideas that may cause them to lose their job or whatever, academic freedom"--and the supposed reason for limiting it--that "once you’re tenured, your productivity really declines." (Bracket for the moment whether the latter is true). On the other, he and others give the game away by ranting about indoctrination, smuggling ideology and politics, creating intellectual orthodoxy, and pushing ideas like socialism and communism. If  the purpose of tenure is to allow people to express unpopular ideas inside and outside the classroom, that must include those ideas that DeSantis and his henchpeople do not like and over which they want to fire tenure professors. So while purporting to limit tenure so it does not become a sinecure, they acknowledge they would limit tenure to stop professors from saying things they do not like or that students do not like. The goal is to ensure professors whose speech is "in line with what the state’s priorities are and, frankly, the priorities of the parents throughout the state of Florida."

DeSantis says he wants to protect "dissenting" ideas. But dissenting from what? It appears to be from the views that he and the state and the state's parents want. The point of tenure is that the governor should not dictate what professors teach and write. Unless he is not concerned that orthodoxy exists, only that professors may not share and express his orthodoxy.

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

JOTWELL: Campos on Gilles on compelled arbitration

The new Courts Law essay comes from Sergio Campos (Miami), discussing the legislative testimony of Myriam Gilles (Cardozo) on bills designed to limited compelled arbitration.

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

An experiment

I was able to reach Erie for the first time since spring 2019 (i.e., pre-pandemic). My approach to that has been to teach Erie and Hanna, then present the Erie flowchart we all use, then work through a series of problems demonstrating each analytical path.

But I am pressed for time. In 2019, I spent four 70-minutes classes on Erie last time. This semester, I reached Erie with about 250 minutes of class time (two 105-minute sessions plus another 50-or-so minutes).

My attempted solution was to have them reach Erie and Hanna, but to lecture on them in class, which took about 60 minutes of class time. I now have 210 minutes to work through the problems.

We'll see how it goes.

Tear Down This "Wall?"

Today's NYU Law controversy has something in common with earlier and by now routine Yale Law School controversies. That common feature doesn't seem to have gotten the attention it deserves.* That is the presence and role of a student listserv or "Wall" (as I gather the Yale student listserv is called) and the contribution that such spaces make to real or apparent controversies and unpleasantness at such institutions. 

I imagine that different schools run their student listservs different ways and have different reasons or justifications for having one at all. Of course one can imagine many ostensible justifications for having a student listserv and many of them are no doubt sound. (Others might be sound in some ways but not others: for instance, seeing it as a kind of consumer feature or customer service.) But one also imagines that ostensible purposes are not always actual purposes, that in many cases these spaces just sort of happened and then became taken for granted parts of the institutional landscape, that some of the justifications offered for them are rather post hoc,** and that in many cases, whatever the original justification was, such as making it easier to communicate news of upcoming events, their actual use now differs substantially.

Your institutional mileage may vary, but I suspect that what takes place on these listservs or walls is invisible to most professors. If anyone sees them at all, it may be only or mostly administrators. Some of my best friends are administrators, but there is no guarantee that they always make the right call about the function or value of communications in such places, or communicate what they hear to the faculty in a timely fashion. In other schools, professors may be part of the listserv but may or may not pay any attention to it.

It's also unclear to me how many students pay attention to the communications or fights on student listservs. As with other social media, however, it may be that the loudest voices are not necessarily the soundest or sanest ones, with the result that some small number of students drive controversy and disagreement while a larger number of students react by disengaging altogether. (Law professors who participate in subject-matter listervs, in which most people stop reading them while five or ten people regale themselves with repetitive and unpleasant debate and grandstanding, have no shortage of experience with this phenomenon.) As some of the Yale controversies suggest, these spaces may also encourage an unhealthy culture in which, again, some number of students actively scour the written record for evidence to use against their fellow students, while a larger number, for this very reason, stop saying anything at all. And all this is just about the political issues. On topics like exams, course selection, and other matters more relevant to the day to day life of the institution, they may drive up anxiety and bad information instead of calming it.

We seem to take student listservs or walls for granted. I don't see why we should. Not all communication is good communication and, even if we adopt the general view that more speech is better, not all communication structures are designed or managed in a way that achieves that goal well. Peer-to-peer communication is not always better than top-down, one-to-many communication. I generally favor cheaper speech, but clearly it has bugs or side-effects as well as positive features. There is something to be said, sometimes, for making it more costly and difficult not only to say the first thing that comes to mind, but to broadcast it instantly to a wide audience. There is lots of value in forcing reflection or delay before communication, or simply treating some forums as having a limited purpose rather than serving as open forums for general discussion.

That's especially true for institutions, and schools are institutions, with specific institutional goals and purposes, however much they may prefer the language of "community" or, worse, "family." And it must be said that nothing about these issues is unique to law schools or universities. They affect (or afflict) other institutions as well. Full many a New York Times staffer, to name just one prominent example, must rue the day they first heard of the "Slack app" or "Slack channel"; conversely, some staffers may love those spaces, but not necessarily the right people or for the right reasons. It seems to me that far from serving the institution and its purposes, sometimes these spaces serve those who have no particular interest in institutions, including their own, but instead think that every space, including institutional spaces, should be a space in which they can and should discuss and push on every issue of interest to them.

The discussion around these controversies generally dives immediately into either the substance of the debate or the usual arguments around "cancel culture," "hate speech," and so on. It is rarer for the discussion to start by asking about the structures that facilitated or enflamed the controversy in the first place. Perhaps when such controversies arise, and we find that a good deal of the controversy has to do with or takes place in a particular communicative context hosted or facilitated by the institution, such as a listserv or Slack channel or "wall," we might ask some prior questions, such as: Why the hell do we have such a space in the first place? Is it still serving the purpose--if any--for which we introduced it, or has it become more a source of trouble than a useful feature? Is it serving the entire population equally well, or is it disserving or driving away a larger percentage of the institutional population than the few for whom it is, apparently, a hobby or obsession? Why not get rid of it, or at least significantly alter the way it works? To be clear, I don't know what the right answer is. But it seems reasonable to me to ask the questions, rather than take the current setup for granted. It would be especially useful if all this were a faculty discussion, not one confined to and addressed by a few administrators, who might or might not be making the right call on these questions.      

*David Lat has commented at various times about the effects of the Yale Wall and the ways in which current students seem to use it differently and in, to use an awful contemporary word, a more "weaponized" fashion compared to his own time at that school.  

**Thus, one perfectly reasonable argument for keeping a law school listserv or its equivalent, or for concluding that whether one does or not is unimportant, is that students will do it themselves anyway. A friend or two have written to suggest that student connectivity is ubiquitous at every school regardless of the official setup. I have no reason to doubt that. But I'm not sure it's the reason the listservs were established in the first place, and I should think the chronology suggests otherwise. It seems to me, strictly anecdotally, that more of the public controversies involving fights on and evidence taken from listservs have involved official rather than unofficial sites, but I could be quite mistaken. (They also seem more often than not to involve the elite law schools. I assume the reason for this is not that these students are any better or worse than anyone else, although I could certainly imagine that there are some schools where students are too busy seeking jobs and learning practical skills to spend much time issuing statements and counter-statements. Rather, I imagine it has to do with these schools' visibility, their students' media savviness, the interconnectedness and shared social capital of American elites, and the odd shared view of elites and others, both within and outside these institutions, that what goes on in these places is somehow particularly significant.) If I'm not wrong about this, it would be worth asking why that is; perhaps it's the easy and/or automatic universality of the official site. In any event, in light of my view of institutions and their duties, I'm not crazy about futility arguments of this sort. The fact that nasty free-for-alls might erupt somewhere else is not much of a reason for an institution to host a site of its own for such free-for-alls. But I should certainly acknowledge that what law schools and other institutions do with their own resources will not prevent their members from doing unwise and intemperate things elsewhere.  

 

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part II

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

Upcoming Virtual Talk on "Washington's Heir" on May 11th

I will be talking about Bushrod Washington's life in Philadelphia for the Historical Society of Pennsylvania on Wednesday, May 11th at 6:30PM. Here is a link to the event if you would like to attend.

Materials in the Some of the Section Three Cases

For any of you who wish to read the submissions in the ongoing North Carolina, Georgia, and Arizona Section Three challenges, this link provides access to those materials.

https://freespeechforpeople.org/the-14point3-campaign/

Northwestern University Law Review Online Essay Series

From the Northwestern University Law Review Online:

Northwestern University Law Review Online is seeking essays for its first annual Online Essay Series to be published in May 2023. The topic for NULRO’s inaugural essay series is “Climate Change and Infrastructure: Existential Threats to Our Built Environment." NULRO encourages scholarship on all aspects of the intersection of climate change, infrastructure, and national security. Possible subtopics include economics, ecology, policy, litigation, advocacy, and international concerns. Essays should be between 3,000 to 10,000 words and submitted to Scholastica or via email at nulr.online@nlaw.northwestern.edu. The deadline to submit manuscripts is October 15, 2022. Authors can expect decisions on their submissions by November 15, 2022.

If you have any questions, please direct them to Taylor Nchako (Online Editor-in-Chief) at nulr.online@nlaw.northwestern.edu. 

Civil Procedure in the Chief Justice's Year-End Report on the Federal Judiciary

Published in Stetson Law Review, part of a SEALS symposium on the Roberts Court's renewed interest in civil procedure.

University of Florida seeks visitors

The University of Florida Levin College of Law is looking for visiting professors for the 2022-23 academic year. We are accepting letters of interest from professors to teach criminal law, patents, trademarks, antitrust, international law, environmental law, and property. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send a letter, CV with at least three references, and relevant course evaluations, directly to Associate Dean Amy Stein, [email protected].

UCLA School of Law seek Legal Research & Writing faculty

UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2022-23 academic year. The appointment will be effective July 1, 2022.

Each section of the Legal Research and Writing is a year-long five-credit course, designed to introduce students to the fundamentals of legal reasoning, the structure of objective and persuasive arguments, legal research methods, statutory interpretation, and additional skills, such as oral advocacy, fact investigation, and client counseling. Students complete a variety of written assignments, both graded and ungraded, designed to reinforce the overarching lessons of the course.

This is a full-time academic, non-tenure track appointment as a Lecturer in Law.

For a complete job announcement, see here.  The deadline for applying is May 1, 2022.  Please contact Dave Marcus, Vice Dean for Curricular and Academic Affairs, with any questions ([email protected]).

Penn and Capitalizing on the Model Poor Student

I can't stop thinking about this story - every person who cares about academia and students, teaching and leadership, university ethics and the politics of merit, admissions and excellence needs to read this

https://www.newyorker.com/magazine/2022/04/04/mackenzie-fierceton-rhodes-scholarship-university-of-pennsylvania 

A wild hypothetical

So something that proved more complicated than expected.

In transitioning from Subject Matter Jurisdiction to Personal Jurisdiction, we discuss the underlying process of World Wide--Audi and VWA paid for WW and Seaway to successfully challenge PJ through state court and to SCOTUS, then removed when SCOTUS held there was no PJ and the state trial court dismissed the claims against them.

But then I posed the following to the CivPro ListServ and no one could figure out the answer: Suppose the trial court found lack of personal jurisdiction and dismissed the claims against WW and Seaway. The case is now removable. If Audi and VWA remove, how does Robinson appeal the dismissal of the other defendants? Can Robinson's intent to appeal render the case not removable, perhaps by filing a notice of appeal before the Audi and VWA can file the notice of removal? If the defendants get into federal court before Robinson can appeal, his options seem limited.

This hypo is limited because unlikely. The strategy Audi and VWA followed is unavailable in most cases because § 1446(c)(1) prohibits removal of a diversity action that becomes removable more than a year after filing; it takes more than a year to brief and argue a motion to dismiss and more than one layer of appellate review. That limitation did not exist in 1980, which is why Audi and VWA could remove more than 3 years after the suit was filed. So this scenario likely does not arise in either direction.

Still, it exposes an interesting gap in the statutory framework. And it forced some creative solutions. Robinson might ask the federal court to stay the proceedings so the state appeal can proceed (and to not attempt to enjoin the state court from proceeding with the case). Or Robinson might amend in federal court to re-add the dismissed defendants, then ask the federal court to certify the propriety of the PJ dismissal to the state supreme court.

I stumbled on a third possibility this morning--Audi and VWA remove, then Robinson seeks a writ of mandamus to the 1oth Circuit, asking for review of the PJ dismissal. That prior order is part of the removed case. Robinson can satisfy the requirements for mandamus. This is extraordinary case. He does not have other adequate means to obtain relief, because the PJ issue affects whether the case should be in federal court in the first place--if the state court erred, the case should not have been removed and Robinson should not have to litigate in federal court, something that cannot be adequately protected if he must await final judgment in federal court. Robinson also faces the risk that the court of appeals would affirm subject matter jurisdiction, even if it believes the state court erred on PJ, because there was jurisdiction at the time of trial.

However unlikely, a fun problem that might expose a weird hole in the statutory scheme.

Tulane Forrester Fellowship - 2022

From Tulane Law School:

Tulane Law School invites applications for a Forrester Fellowship. Forrester Fellowships are designed for promising scholars who plan to apply for tenure-track law school positions. The Fellows are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.

Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to two sections of first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Candidates should apply through Interfolio at http://apply.interfolio.com/104393

If you have any questions, please contact Erin Donelon at [email protected]. The law school aims to fill this position by April of 2022. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Personal or Impersonal Precedent?

Our co-blogger Richard Re has a new article coming out in the Harvard Law Review on "Personal Precedent at the Supreme Court." Here is the Abstract:

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

I want to highlight Richard's piece because there is a significant counterexample in my new book. As a circuit judge, Bushrod Washington held that the Bankruptcy Clause of Article One vested exclusive authority over that subject in Congress. But when the issue came before the Supreme Court, he wrote an opinion upholding the constitutionality of prospective state bankruptcy laws. He explained this by saying that he still thought his circuit opinion was sound, but that subsequent Supreme Court precedent had rejected his view.

Frankly, I think that we see too little of this deference today. In other words, the Justices tend to emphasize personal consistency at the expense of collective consistency. But the right balance is not easy to strike.

"Favorable termination" requires non-conviction and nothing more

Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).

JOTWELL: Bartholomew on Borchers on tag jurisdiction

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.

Plain Meaning and Plain Speaking

I've never given much thought to theories of statutory interpretation. But here's one that comes from being involved in some of the Section Three litigation.

Plain meaning arguments are largely circular. For example, suppose I say that the plain meaning of a statute is X. You respond by saying: "But lots of people said that's not so." I respond: "But you can't consider that because the plain meaning of the statute is X." The plain meaning argument therefore excludes some of the best evidence against itself (statements in the legislature, the context of the statute, subsequent commentary, etc.). Circular.

The only time, I think, that a plain meaning argument is not circular is if we agree on the plain meaning but then argue about whether an exception should be made. Maybe I take the strict view of "no exceptions allowed" to the plain meaning. Maybe you say there is some implicit exception or that equity demands one. But we're not in that case disputing the plain meaning of the text.

Working and playing on Shabbat

There Orthodox Jewish athletes have entered the Jews-in-sports conversation. Ryan Turrell was the star of some good Yeshiva basketball teams and has declared for the NBA draft; pitcher Jacob Steinmetz (coincidentally, the son of Yeshiva's basketball coach) plays in the Arizona Diamondbacks organizations; and pitcher-turned-catcher Elie Kligman plays at Wake Forest. Each hopes to make the top level of their sports as Shabbat-observant Jews.

What does having Orthodox Jews in The Show entail? According to reports, Steinmetz and Turrell plan to play on Shabbat, while avoiding driving to the game. One commentator sees this as a wise compromise and the evolution of full Jewish participation in American life, in which Jews need not choose between their identities as "Americans" and "Jews."

But how does this square the law of Shabbat, in which we can neither work nor play (barring the workaround they found for Hank Greenberg on Rosh Hashanah in 1934)? Do rabbis apply some sort of "necessity" principle--these players cannot pursue these activities, and thus use the gifts Hashem has bestowed upon them, without this workaround? An everyday baseball player who cannot play on Shabbat is guaranteed to miss about 35 games, almost 20 % of the season; no team could afford to miss a key player for that much of the season. And what might Steinmetz do on Yom Kippur, when (unlike Shabbat) most American Jews take at least a partial day off? It would be ironic if millions of less-observant Jews (and the occasional less-observant Jewish player) take the day off and attend synagogue on Yom Kippur, while a player who follows more of Jewish law and ritual in his daily life takes the mound. Not worried about being a role model for American Jews, he need only worry about the Koufax Curse.

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

"Who Decides?"

I'm now reading Judge Sutton's new book on state constitutional law. It's just as good as his prior book on the subject, which was 51 Imperfect Solutions. In particular, I like how this book draws attention to scholarship on subjects such as how territorial judges functioned (something I'd never thought much about before).

After reading 51 Imperfect Solutions, I thought about how I could incorporate state constitutional law into my Con Law curriculum. The trouble is that it's pretty hard when you have only one semester to cover the material. Just doing the major Supreme Court cases takes so much time. But perhaps this book will inspire me further.