PrawfsBlawg

Common Sense

A former student recently recommended a book on Thomas Paine's Common Sense. I realized in reading the book that I had read Common Sense so long ago that I remembered almost nothing. Upon re-reading Paine's work, I was fascinated by his use of the Bible to make his argument against monarchy, the ways in which the Declaration of Independence piggybacked on Paine's arguments, and the verve of some of his prose. Here is one example that could apply to any modern dictator:

There is something exceedingly ridiculous in the composition of a monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the world, yet the business of a king requires him to know it thoroughly; wherefore the different parts, unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.

SCOTUS vacates stay of Texas social-media law (Updated)

SCOTUS vacated the Fifth Circuit unexplained stay of the district court injunction of HB20, Texas' social-media law; in other words, the law cannot be enforced pending appeal. This leaves the Texas law in the same place as Florida's, following  last week's 11th Circuit decision affirming the preliminary injunction prohibiting enforcement of that law. Justice Kagan would have denied the stay application, without explanation. Alito dissents for Thomas and Gorsuch.

Alito's dissent hits all the conservative Twitter talking points about social media that misapply or misunderstand First Amendment doctrine. Plus he adds a gratuitous footnote about § 230 requiring neutrality or creating a platform/publisher distinction. Special mention for accepting this verbal sleight-of-hand: "Texas contends that § 7 does not require social media platforms to host any particular message but only to to refrain from discrimination against a user's speech on the basis of viewpoint"--as if prohibiting a site from rejecting speech on the basis of viewpoint does not compel the site to carry that speech by eliminating one basis for the site to remove that speech.

Presuming the Fifth Circuit declares the law valid when it reaches the merits to create a circuit split and presuming Justice Kagan's position is based on posture and not First Amendment substance (she did not join Alito's opinion), the vote should be 6-3 that a state law violates the First Amendment in attempting to compel private entities to carry speech and speakers they would prefer not to carry.

Besides pushing troubling First Amendment arguments, Alito pushes a troubling procedural argument. He suggests that a pre-enforcement federal action is inappropriate because HB20 is enforceable for prospective relief (injunction, plus ancillary attorney's fees and costs) but not the sort of harsh retroactive relief (imprisonment or severe fines and penalties) as with the law in Ex Parte Young; a social-media site therefore can raise the First Amendment as a defense to a state suit for injunctive relief, also allowing the state court to interpret the law's vague provisions. But the Court has never held that EPY actions are limited to laws that impose retroactive sanctions for past conduct, especially where attorney's fees may impose greater financial consequences on rights-holders than retroactive damages or fines.

Although he did not cite it, I think Alito drew the wrong conclusion from WWH and SB8. The WWH Court was correct that re-enforcement offensive EPY actions are not constitutionally required and defensive litigation can be constitutionally sufficient. That does not mean an EPY action is improper whenever defensive litigation is available (which is always). The question is whether EPY's other requirements--an identifiable responsible executive officer whose enforcement can be enjoined--are met. SB8 could not be challenged offensively because the absence of public enforcement meant no responsible officer and no one to enjoin. HB20 is publicly enforced (while also allowing private enforcement), satisfying this element of EPY.

Update: On this last point about Alito's hostility to EPY actions, he includes this line: "While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty and Texas should not be required to seek preclearance from the federal courts before its laws go into effect." Putting aside the misuse of laws "go[ing] into effect," Steve Vladeck shows that since November 2020, Alito has voted publicly ten times on emergency-relief requests in offensive pre-enforcement actions that would stop enforcement of state laws pending resolution of federal pre-enforcement litigation. Of those cases, one challenged a Maine law; the others challenged New York or California laws. He never suggested those state courts should have a crack at interpreting the law. I do not believe he is trying anymore.

Blast from Leiter’s and My Past: Phyllis Schlafly and Slippery Slopes

Brian Leiter has recently re-upped his criticism of one of my old blog posts — from 2008, back when the iPhone was only a year old. (TL; DR — an expression that also didn’t exist back in ‘08 —- I thought that Phyllis Schlafly should not be disqualified for an honorary degree because of her opinions, and Leiter thought she should be).

In the same nostalgic spirit, I am re-upping my response to Leiter in the form of a taxonomy of slippery slopes. So crank up Sara Bareilles, break out those old Obama “HOPE” posters, and enjoy!

Misplaced anger over precedent: The example of DeShaney

Campaign-finance regulation advocates and much of the public regard Citizens United as one of the Court's worst decisions, responsible for the electoral mess that has followed. I find this unique attention on CU strange, as the Court built on a 30+-year-old framework that treated expenditures as protected speech, recognized corporations as equal speakers with individuals, and generally rejected equalizing and preventing drown-out as compelling government interests. CU did not break much new ground, yet it has become the alpha-and-omega of bad campaign-finance doctrine.

We are seeing this play out again amid reports that Uvalde police stood around and did nothing for almost an hour while the shooting continued. Everyone points to Castle Rock v. Gonzalez as establishing the (awful) principle that police have no constitutional duty to protect from third-party harms. But as with CU, Castle Rock broke no new ground. It built on the real culprit, DeShaney v. Winnebago County, which everyone is ignoring in the Twitter debate.

Castle Rock arose from a father who kidnapped his three daughters in violation of a restraining order. Despite pleas from the mother, officers did nothing to enforce the restraining order by looking for the father or the kids. About 10 hours later, the father appeared at the police station with the girls' bodies in his truck and committed suicide-by-cop. The mother sued the department on a theory that the failure to take steps to enforce the TRO deprived her of procedural due process; a 7-2 Court rejected the claim. Scalia (for 7) said the mother lacked a protected property  interest in enforcement of the TRO because the police had inherent discretion in when and how to enforce the order and enforcement had no inherent monetary value; Souter concurred (with Breyer) to argue that enforcement of the TRO is a process and there is no due process right to an underlying process.

The real constitutional injury should have been that the girls ls were kidnapped and murdered because the police did nothing--a substantive claim for deprivation of their life and liberty, not about the failure to provide process. That is, the injury was in the result (the girls were murdered), not by the failure to provide process. But DeShaney foreclosed that claim when it held that government action, never government inaction, violates substantive due process; government failure to protect people from third-party harms cannot be the basis for an SDP claim. The plaintiff in Castle Rock tried to use PDP to get around that limitation. DeShaney did not involve cops. But it, not Castle Rock, is the source of the problem and the reason there can be no constitutional liability for the Uvalde officers' failure to act.

DeShaney established or hinted at two exceptions. It acknowledged that the government has a duty to protect those with whom it has a "special relationship," typically where government has assumed involuntary custody over a person and thus an obligation to provide for his well-being. But every circuit holds that school does not constitute such a special relationship--school officials have no affirmative duty to protect students, which necessarily means police officers have no such duty when they are called to the scene.

DeShaney also stated that the government had not created the danger to the plaintiff or done anything to make him more vulnerable to it. From this language, lower courts developed the "state-created danger" theory, imposing SDP liability where the government takes some action that creates or worsens a plaintiff's vulnerability to third-party harms. Unfortunately for the families, the 5th Circuit is the lone court of appeals to reject this theory; short of the court changing its mind or using the case to get to SCOTUS, this is a non-starter in Texas.

If it were available, I am trying to figure out whether a claim is possible. An affirmative act is required--not mere inaction of doing nothing but some affirmative steps. So standing in the hallway waiting for a key cannot state a claim, nor can the failure to transmit or act on 911 calls showing kids alive in the classroom. Reports suggest the Uvalde police affirmatively stopped parents from entering the school (including cuffing one person) and affirmatively stopped federal agents from entering the school; that could do it, although plaintiffs must show causation (that their children might have been saved had local police not stopped others from helping) and that preventing help was conscience-shocking. Some courts have found liability on an inaction-as-message theory--the failure to act sent a message to the wrongdoer that he could act with impunity; I doubt that works here, because the shooter was not aware of or reacting to the inaction.

The facts of this case keep changing, so expect to learn more. But the police-critical narrative taking hold is "police get impunity for their actions, but have no obligation to act to protect the public" makes no sense as a democratic bargain. But the second piece of that narrative derives not from Castle Rock, but from DeShaney.

New Section Three Enforcement Legislation in the House

Yesterday a new Section Three enforcement bill was introduced in the House of Representatives. The bill is co-sponsored by Representative Raskin, which might be a clue into where the January 6th Committee is heading. The text of the bill is not yet available.

Missing Dan Markel

Hi friends,

For our readers and contributors who have been here for a long time, many of you knew Dan Markel and if not, have heard about his leadership in the legal academy and how his life was tragically cut short. All of us who knew him loved our dear friend. He had an infectious love of life, ideas, intellectual engagement, friendship, humor, and community.

I personally miss him constantly. I have shared my eulogy for him which I delivered at his Harvard University memorial. I also have written about his influence and impact on us newbies of his cohort in this article: The Goldilocks Path of Legal Scholarship in a
Digital Networked World.

Today especially, at the completion of a trial which I followed live for days, I wanted to remind our readers why Prawfsblawg has chosen not to cover the murder. We explained this a few times, but some of our readers are newer and I think it is important to emphasize that this was a choice about prawfsblawg celebrating what Dan create - an academic online community discussing ideas, law, academic life, and we want to keep that focus. Nothing in our non-coverage should suggest that we aren't following all of the trials and developments very closely. 

Taking away rights?

Since the Dobbs draft leaked, I have been trying to figure out what makes the apparent decision to overrule Roe illegitimate and some egregious act of judicial lawlessness.

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Orly captures where I had tentatively landed--overruling precedent to eliminate or limit individual rights (Orly describes them as "fundamental human rights") and to increase government power is different and something the Court has never done.

But I am not sure the distinction works. First, cases abrogating and overruling Lochner limited or eliminated the due process right to contract, which had been regarded as fundamental. Any potential distinction turns on substantive agreement or disagreement with the right recognized in Lochner compared with the right recognized in Roe. Second, crim pro scholars can correct me, but it seems that the Court has overruled precedent to narrow rights for criminal defendants. Third, at least as to abortion, the Dobbs majority might describe itself as vindicating a right to potential life that had been acknowledged but given undue weight in Roe. Thus the framing--eliminating a fundamental right--does not capture what the Court did (or believes it did). Again, I do not share this view. But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

To be clear, I am not calling out Orly; I had landed on a similar explanation. But I am less confident it works.

One Observation About Cawthorn v. Circosta

On Tuesday the Fourth Circuit held that the Amnesty Act of 1872 did not extend prospective relief under Section Three of the Fourteenth Amendment to any and all future insurrectionists. I hope that this opinion will extinguish the preposterous contrary argument, which is a distraction from the main issues in the current and future Section Three challenges.

I want to make one further observation about the separate opinion if Judge Richardson, who concurred in the judgment. In Footnote 16, he states that In Re Griffin, a Section Three case decided on circuit by Chief Justice Chase in 1869, is "too confused and confusing to help much." He then explains why that is so at some length, drawing on my law review article and on other scholarly sources. I agree that Griffin is an unhelpful source of authority and should not be relied upon in future Section Three cases.

The Future of Roe, Reproductive Rights, and Work Equality - my comments at today's USD event

As I posted a few days ago, we had today a panel on the Dobbs leak. It was co-sponsored by our new Center for Employment and Labor Policy CELP which I am honored to direct. I thought I would share my opening comments on the panel:

Thank you to our deans for initiating this important event, and for supporting our new Center for Employment and Labor Policy – CELP of which I am honored to be the founding director – we have a very vibrant and energetic employment and labor student association and together we will be planning many exciting events – so be on the lookout for all that – as I always say to my students, employment law intersects with every single field of law– so CELP will serve as a key hub for our community.

And of course – abortion rights have everything to do with the things we care about in employment policy: equality, privacy, and antidiscrimination, work-family support and balance, career trajectories, human capital enrichment, employee mobility, welfare and health care, and economic growth.

Now before I say something brief about women’s careers – I want to first say something more general – I am not quite a constitutional law expert; I am law professor, a woman, an immigrant, a mother of three girls, and a former clerk of the Israeli Supreme court so I do have some insight about the workings of justices and constitutional law and politics and i can say that what we are seeing today with the Supreme Court is far worse entanglement of law/politics than the traditional inevitable links – and expanding the court and imposing term limits is crucial. I want to say that the leaked decision has horrendous implications for our democracy that cannot be understated. If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights. And so, I hope just that fact should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now.

Now on women’s reproductive rights and the workplace: because of time i will just give you seven bullet points –

1. Decades of research shows how women’s education and workforce entry are significantly linked to family planning and to Roe. A 2021 study for example demonstrates that access to abortion is not correlated with population growth or decline – it simply means women choose when to have children, not how many.
2. Women who do not have access to abortion are far more likely to further sink into a lifetime of deep poverty in the years following their abortion denial. Overturning Roe will further widen economic and racial inequality.
3. Perversely, the United States is one of the world’s worst actors when it comes to family medical leave rights – it is basically the only developed country in the world that doesn’t have paid family and medical leave.
4. When you look at the ongoing gender pay gap, still 80 cents on the dollar and far worse for women of color, the strongest predictor of the gap is what I and others call in the research the motherhood penalty and the fatherhood bonus, and I have a recent Columbia law review just about this issue that I am happy to share.
5. In response to Dobbs, some corporate leaders like Microsoft and Amazon announced that they will support their pregnant workers by paying travel and medical expenses for employees who need to travel to get abortions in states where it is legal. This is of course an important private sector response, but:
6. The women who will be affected by Dobbs the most are poor women, disproportionately Black and Latina women will not be covered by these benefits that are granted to the already higher skilled corporate employees.
7. Finally, the States that banning abortion are the same states that lag in wages – that have lower wages, fewer workers' rights, and less access to health care.

So I will end by saying:

Abortion rights are Human Rights

Abortion Rights are Health Rights

Abortion Rights are Economic Rights

 

Judicial takings and alternatives to offemsive litigation

This Seventh Circuit case (Diane Wood for Manion and Scudder) is weird and I am trying to figure it out. I think it illustrates broader points about the problem of offensive-or-defensive litigation on constitutional issues.

A group of property owners brought a state-court quiet title action against Indiana, arguing that they owned Lake Michigan beach-front property to the low-tide mark, as reflected in their deeds; the Indiana Supreme Court (Gunderson) held that Indiana holds and retains submerged property up to the high-tide mark. The legislature then codifed the decision, declaring its ownership and declaring laekfront property owner's non-ownership below that mark. A different group of property owners (non-parties to Gunderson) brought this action against the governor, AG, against the governor, AG, and heads of the agencies on natural resources and state lands, alleging a judicial taking and seeking a DJ and injunction that they owned the property to the low-water mark.. The  panel dismissed the claim on standing grounds, finding no traceability or redressability to the state officials sued, since they do nothing to enforce Gunderson or the statute defining the property lines and can do nothing to grant the plaintiffs title to the challenged portion of the lakefront. The court also identified federalism-and-comity based caution (reflecting the ideals, if not applications, of Rooker-Feldman) in hearing a case raising a novel legal theory that requires a lower federal court to review the merits of a state supreme court decision. The court dismissed with leave to amend, although I am not sure what they can do to salvage this action.

The outcome is correct, but the case highlights some weird doctrinal interstices. It also shows how constitutional litigation occurs outside the ordinary pre-enforcement offensive action against a state executive. Assuming judicial takings can be a thing, what are plaintiffs such as these to do?

1) The appropriate course for a judicial-takings claim is to appeal the state-court decision effecting the taking to SCOTUS. That is not available to the federal plaintiffs, who were not party to the state decision. That also explains why the court did not dismiss on RF grounds--the federal plaintiffs were not state court losers.

2) One possibility is that non-parties cannot suffer a judicial taking, since the state-court judgment had no effect on their property rights. Thus Gunderson may have taken the property of the owners who sued in state court, but not of the different owners who sued in federal court. This has intuitive appeal. Judgments in non-class-actions do not bind non-parties. It makes no sense to give a judgment a broader effect as a taking than as a judgment. Any "taking" of the federal plaintiffs' property arises from Gunderson's precedential effect in future litigation, but any taking should not happen before then. This point should apply had the federal plaintiffs brought a claim for compensation for the taking rather than an injunction (the court suggests they would have had standing to do that, because these officials could provide compensation). These owners are not (yet) entitled to compensation because Gunderson did nothing to their property rights, beyond precedential

The district court rejected any judicial-takings claim here because Gunderson did not strip these owners of established ownership rights, as required by the Scalia plurality in Stop the Beach. At worst it resolved an ambiguity as to ownership; at best it declared, as a matter of state law, that they never owned this land at all and it has always been state property. My argument provides another basis for rejecting that claim--as non-parties to Gunderson, their property was not lost because that decision did nothing as to their property.

3) The plaintiffs made a strange concession: that their challenge to the statute turns on their judicial-takings claim. "If Gunderson stands, it follows that the Owners never held title to the land below the ordinary high-water mark, and the legislation therefore had no effect on their property rights." I do not understand this point. The legislature owns state property, subject to judicial review and interpretation. The state supreme court having declared the state owns to the high-water mark, I do not understand why the legislature could not enact legislation declaring state ownership, whether consistent with Gunderson or consistent with the owners' deeds. To the extent state declarations of ownership below the high-water mark constitute a taking, why does the statute alone not effect that taking? This does not resolve the standing problem as the court sees it, since the defendant officials continue to lack power to grant ownership. But it makes the possible taking argument clearer.

4) Traceability and redressability fail because the court cannot order any of the defendants to grant the plaintiffs title to the contested land. How, then, can they assert whatever rights they might have? The court imagines how this comes up for the owners:

Gunderson recognized that members of the public have a right to walk on the beach in front of the Pavlocks’ house as long as they stay lakeward of the high-water mark; an injunction requiring the State to refrain from any action would not grant the Pavlocks the right to exclude. If Cahnman wants to sell his beachfront property, he may convey land only from the high-water mark. The requested injunction would not give him title to submerged lands that Indiana law (confirmed by both the state’s highest court and its legislature) says belongs to the state. To the extent the Owners’ deeds conflict with Gunderson and HEA 1385, the latter two sources govern. And if, for example, the Pavlocks tried to sue people who walked on the section of beach between the high- and low-water marks for trespass, or Cahnman tried to hoodwink a buyer by representing that he held title down to the low-water mark, an injunction against state officials would not prevent Indiana’s Recorder’s Offices from correcting that error, or Indiana courts from applying Gunderson.

This hints at how this sort of takings claim, if it can exist, should come to court. The Pavlocks sue people walking on  the beach for trespass; the trespassers cite Gunderson and/or the statute as the source of their right to walk there; the Pavlocks argue that the decision in their case applying Gunderson and the statute effect a taking; and that argument provides a basis for § 1257 review of the state court. Cahnman hoodwinks a seller; the seller sues him for hoodwinking him, citing Gunderson and the statute; Cahnman defends on the ground that Gunderson and the statute effect a taking; and that defense provides a basis for § 1257 review of the state court.

The hypothetical suit against the trespassers should sound somewhat familiar to Fed Courts geeks--it is basically Mottley. This suggests that the Mottleys could not have sued the executive when Congress enacted the law prohibiting free passes--like the plaintiffs here, they would have lacked standing. They would have been forced to proceed, in state court, as they did--Mottleyssue the Railroad for breach; RR argues impossibility based on the statute; Mottleys argue statute violates the 5th Amendment; argument provides a basis for § 1257 review.

Again, consider this another example of asserting constitutional rights outside the typical offensive EPY action. Some of these claims are somewhat offensive in that the Pavlocks initiate the lawsuit, although the federal constitutional issue is not the main piece of the claim and arises downstream in the litigation. Nevertheless, we accept this as appropriate procedure, not some conspiracy to eliminate judicial review.

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Game Theory, Behavioral Econ, and a Middle Ground? New Book by Hoffman and Yoeli

Many of us in the law and policy fields care about how game theory, and our behavioral inconsistencies that work around its rational predictions, shape our contractual and regulatory market relations. I am excited about this new book which I just got in the mail and started reading and enjoying. Here is the description from the jacket:

Two  MIT economists  show  how  game theory—the ultimate theory of rationality—explains irrational behavior.    

We like to think of ourselves as rational. This idea is the foundation for classical economic analysis of human behavior, including the awesome achievements of game theory. But as behavioral economics shows, most behavior doesn’t seem rational at all—which, unfortunately, casts doubt on game theory’s real-world credibility.  

In Hidden Games, Moshe Hoffman and Erez Yoeli find a surprising middle ground between the hyperrationality of classical economics and the hyper-irrationality of behavioral economics. They call it hidden games. Reviving game theory, Hoffman and Yoeli use it to explain our most puzzling behavior, from the mechanics of Stockholm syndrome and internalized misogyny to why we help strangers and have a sense of fairness.  

Fun and powerfully insightful, Hidden Games is an eye-opening argument for using game theory to explain all the irrational things we think, feel, and do.

 

NYC Bar Association Panel on "Ensuring Political Accountability"

I will be part of this virtual event on Wednesday evening from 6:00 to 7:30. The other panelists are Barbara McQuade and Joseph Sellers. We will discuss the criminal, civil, and Section Three cases arising from the January 6th insurrection.

Challenging the Qualifications of a Senator-Elect

Here's a question for fans of the Senate's customs. Suppose someone is elected to the Senate and other members want to challenge his right to serve on the ground that he "engaged in insurrection." The practice in qualification challenges seems to be that the person is swore in and allowed to serve until a Senate committee issues a report on the challenge. At that point, a majority can exclude the person. In some instances, though, the challenged person was not permitted to take his seat until the investigation was complete and the exclusion vote held.

The presumption matters because of the filibuster, which was not an issue in past challenges. If a member-elect is excluded until the Senate votes not to exclude, then I would think that the minority could block that vote and keep the member-elect out indefinitely. Not so if the person is seated and must be affirmatively excluded.

This issue could come up next year if, say, Mo Brooks is elected to the Senate from Alabama. His primary is Tuesday.

CFP: Beazley Institute Health Law Symposium 2022

From the Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law:

 

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and Annals of Health Law & Life Sciences invite original submissions for presentations at our 16th Annual Health Law Symposium: Evolution and Innovation in the Health Care Payment Landscape. The Symposium will take place at Loyola University Chicago School of Law on Friday, November 11, 2022; Loyola will have plans in place to host the Symposium virtually if the need arises. Please see the full Call for Proposals linked here. 

 

This year’s Symposium will explore the evolution of health care payment, with a particular emphasis on novel payment options. We invite submissions addressing different topics relating to health care payment, including but not limited to:  

• The impact of various of payment models, both new and established 

• Surprise billing and regulatory responses 

• Drug pricing and access 

• Compliance issues related to paying for health care. 

 

Submission Information: To be considered, please send an abstract of no more than 1000 words to [email protected] by June 10, 2022. It is our hope that some presenters will also submit articles for publication in the Annals of Health Law & Life Sciences (articles will be due by January 6, 2023); if you are interested in this opportunity, please indicate that in your submission. Applicants for participation in the Symposium will be notified of decisions no later than July 15, 2022.  

 

The Pending Section Three Challenges

Representative Madison Cawthorn lost his primary yesterday. We will see what the Fourth Circuit does with the pending appeal in his Section Three case. The most likely outcome is a vacatur of the District Court opinion with instructions to dismiss the case as moot, but at least one judge may wish to discuss the merits.

While there may be additional challenges filed this year, here is the status of the pending cases:

1. Marjorie Taylor-Greene. An appeal was filed in Georgia Superior Court in the state action. There is also an appeal docketed in the Eleventh Circuit in her federal action. The Georgia primary is on Tuesday.
2. There is a federal case in Wisconsin challenging the eligibility of Senator Johnson and two GOP members of Congress. As far as I can tell, nothing much has happened in that case so far.
3. Couy Griffin. Commissioner Griffin is seeking to remove this state quo warranto action to federal court. He has also filed a federal action, much like Cawthorn's, to enjoin the state proceeding.

UPDATE: There is also a new Section Three challenge to Dan Cox, a state legislator in Maryland who is running for Governor. I will try to learn more about that lawsuit.

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade - Web Event May 26 from USD Law

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade, co-sponsored by the new Center for Employment and Labor Policy and by the Center for Health Law Policy & Bioethics

Thursday, May 26, Noon
Zoom, Register Here
Free to all to attend

Please join us for a Noon panel discussion on The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade co-sponsored by USD School of Law's Center for Employment and Labor Policy (CELP) and Center for Health Law Policy and Bioethics (CHLPB). The panel will explore the many legal implications of the leaked Alito draft on the impending Supreme Court decision on whether to overturn Roe v. Wade. The event will include a short talk by each panelist as well as an extensive Q&A session. The panel will be conducted via Zoom and registration is required to receive a secure, personalized link.

 Moderator

• Mila Sohoni, Associate Dean of Faculty; University Professor; Professor of Law

Panelists

• Don Dripps, Warren Distinguished Professor of Law
• Dov Fox, Herzog Endowed Scholar, Professor of Law; Director, Center for Health Law Policy & Bioethics
• Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy
• Robert A. Schapiro, Dean and C. Hugh Friedman Professor of Law

John Marshall House

I did a book event last week at John Marshall's House in Richmond yesterday. It was a great thrill to sign some of my books in the Chief Justice's front parlor. Here are some pictures after the jump:

First, John Marshall's desk.

Second, the exterior.

Third, they let me wear his replica robe. The original is elsewhere. Marshall was taller than I am, as you can see.

ACUS call for information regarding Public Disclosure of Agency Legal Materials

Margaret Kwoka, Cary Coglianese, Bernard Bell, Michael Hertz and myself are part of an ACUS (Administrative Conference of the United States) committee on public disclosure of agency legal materials, including FOIA and other requirements, overlaps, inconsistencies, unclear or incomplete disclosure requirements, how limits on disclosure (trade secrecy; privacy) are defined, and how tech developments are/should be shaping disclosure.

Here is the request for public input:

ACUS is soliciting public input on key questions related to the public availability of agency legal materials such as regulations, guidance documents, and adjudicative decisions. The request for information is available on the ACUS website and will be published in the Federal Register later this week. Comments should be submitted to ACUS by July 18.

The request is part of a new ACUS project, Disclosure of Agency Legal Materials, which considers whether Congress should amend the Freedom of Information Act and other statutes governing the disclosure of agency legal materials to consolidate and harmonize overlapping requirements, account for technological developments, correct statutory ambiguities and drafting errors, and address other potential problems that may be identified.

ACUS has also engaged Professors Bernie Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, and Orly Lobel to prepare a research report as part of the project.

The project will, if warranted, recommend statutory reforms to provide clear standards as to what legal materials agencies must publish and where they must publish them. The objective of any recommended amendments will be to ensure that agencies provide ready public access to important legal materials in the most efficient way possible.

Please contact Todd Rubin ([email protected]) with any questions.

Online Symposium: Jessica Silbey’s Against Progress: Intellectual Property and Fundamental Values in the Internet Age

Jessica Silbey has written (another) groundbreaking book about the future of intellectual property, innovation, and equality. BU law review just went live with an online symposium about the book here.

contributions by Bartn Beebe, Margaret Chon, Jorge Contreras, Leah Chan Grinvald, Laura Heymann, Orly Lobel & Mark McKenna: 

Less as More in Intellectual Property Law
Barton Beebe
102 B.U. Law Review Online 61 (2022)

Precarity and Progress
Margaret Chon
102 B.U. Law Review Online 65 (2022)

A More Progressive Progress
Jorge L. Contreras
102 B.U. Law Review Online 69 (2022)

Against Progress: The Value of Distributive Justice in Intellectual Property
Leah Chan Grinvald
102 B.U. Law Review Online 74 (2022)

Whose Progress?
Laura A. Heymann
102 B.U. Law Review Online 78 (2022)

Progress is Less Intellectual Property
Orly Lobel
102 B.U. Law Review Online 82 (2022)

Equality Through the Photographer’s Lens
Mark P. McKenna
102 B.U. Law Review Online 87 (2022)

 

highly recommend ordering the book itself!

Northwestern University Law Review Exclusive Empirical Cycle - 2022

From the Northwestern University Law Review:

 

The Northwestern University Law Review will be opening its summer exclusive empirical cycle for the print journal this Sunday, May 15. Submissions will be accepted through Thursday, June 30. 

The Northwestern University Law Review accepts empirical articles on an exclusive basis only. Any author who submits an article by 5 pm CT on Thursday, June 30th, will receive a final publication decision regarding that submission by 5 pm CT on Friday, August 19. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

 

Interested authors must submit Articles and Essays via email to the Senior Empirical Articles Editor, Michael Bellis, at [email protected]. Please submit the Article as a .doc or .docx file with a cover letter or similar email; CV; and, if desired, supporting materials as discussed below. For more information and further suggested guidelines regarding format and length, please see the Empirical Submissions page on our website.

 

We look forward to reading your work. If you have questions or concerns, please do not hesitate to contact us. 

JOTWELL: Coleman on Reda on data and inequality

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Danya Sochair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 Colo. L. Rev. ___ (forthcoming 2023), on how data has been misused in a partisan rulemaking process to create and further procedural inequality.

More overlapping jurisdictional doctrines

Another example of overlapping "jurisdictional" doctrines, in which courts take the same fact--whether an executive official has a present or future intent to enforce an invalid law--going to ripeness, standing, and EPY. The Eighth Circuit held that sovereign immunity bars a challenge to a Minnesota law prohibiting certain false statements in campaign materials, because the four defendant prosecutors, while responsible for enforcement, had no present intent to enforce the law. The court discusses precedent in which the court found standing and ripeness but held the executive had sovereign immunity because, while the responsible executive, he had no intent to enforce.

I continue to have several problems with this. First, it makes no sense for three doctrines to turn on one fact. Second, it makes less sense for a fact to point different ways for different doctrines--if there is sufficient threat of enforcement to establish standing, there should be sufficient threat of enforcement to establish an ongoing violation for EPY. Third, this is all merits and it would be nice if we treated it as such.

Finally, note that the court cited the SB8 case for the basics of EPY and the absence of an enforcing executive.

Law & STEM Junior Scholars Conference 2022 - Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Fifth Junior Faculty Forum will be held at the Northwestern Pritzker School of Law in Chicago on October 21-22, 2022. The forum is currently seeking submissions from junior faculty interested in presenting papers at the Forum. The deadline for submission is Friday, July 1, 2022.

A group of junior scholars will be chosen on a blind basis from among those submitting papers. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

There is no publication commitment. Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

Any questions about the conference or submission procedure should be directed both to Professor David Schwartz ([email protected]) and [email protected]. 

For more information, see here.

Random reactions to some items in the news

My response to some random news items.

• Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

• Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

Academic Muppets

More confusion on legislative immunity

I wrote a few weeks ago about a Ninth Circuit case allowing a state legislator to pursue a First Amendment retaliation claim against legislative leaders who restricted his access to the capitol, wondering how this was not governed by legislative immunity. Further confusing matters, the Sixth Circuit holds that legislative immunity bars a First Amendment retaliation claim against the heads of a party caucus for expelling a member from the caucus (and denying her party resources). Unless there is a meaningful distinction in the legislative nature of "you no longer get to hang out with us in the legislative process" and "you must notify us before enter the chamber," both decisions cannot be correct.

Section Three and State Quo Warranto Actions

Today the Arizona Supreme Court issued an order affirming the dismissal of Section Three challenges brought against two Congressmen and against one state representative, Mark Finchem, who is running for Secretary of State. The Court held that the state law does not permit Section Three challenges against candidates. This point is just stated as a conclusion and is not well-reasoned, but that's the final word on state election law.

This may not end the dispute about Mr. Finchem's eligibility to serve. If Finchem wins the primary and is then elected in November, his eligibility to serve in office may be challenged in a state quo warranto action next year. The candidate eligibility statute does not apply to a state quo warranto action. 

Welcoming the Transnational Litigation Blog

My UNC colleague, John Coyle, along with Ingrid Wuerth (Vanderbilt), William Dodge (UC-Davis), and Maggie Gardner (Cornell), have recently launched the Transnational Litigation Blog.

The editors have been very active, posting on topics including the legal challenges presented by a possible Russian bond default, evaluating whether the U.S. should seize Afghan central bank assets to pay judgments against the Taliban, weighing the foreign relations aspects of contemporary climate change litigation, and recounting the disquieting origins of the modern doctrine of forum non conveniens. In addition to traditional blog posts, TLB includes pages that explain various topics, such as forum selection clauses, choice of law clauses, and the presumption against extraterritoriality.

For those of you who are interested in transnational topics--or for those of you who just can't get enough legal blog content--I hope you check it out!

State Interests for Jurisdiction by Registration

This is the final post by Charles "Rocky" Rhodes and Cassandra Burke Robertson (Case) on next Term's personal jurisdiction case. They will be back for the argument.

Our last post maintained that some state interest in the litigation is necessary for a corporation’s registration to support jurisdiction. This may appear counterintuitive. After all, if a corporation decides to register to do business when the state’s registration scheme specifies the jurisdictional consequences of registration, shouldn’t the registration operate as other forms of consent to jurisdiction, such as forum selection clauses, which do not typically necessitate a state interest?

But we think that the state-interest question is important enough that instead of joining an amicus brief supporting either party, we are working to draft a brief that charts a narrower course. Both the petitioner’s position (that the state may condition registration on consent to jurisdiction without exception) and the respondent’s position (that the state may not condition registration on consent to jurisdiction at all) raise serious federalism concerns.

First, the risk of state overreach is real, especially in areas where state policies are both diametrically opposed and politically salient. Imagine that Texas adopted a consent-by-registration statute as broad as the Pennsylvania one. National drugstores like CVS would have to register to do business and submit to personal jurisdiction as a condition of registration. Would the registration statute then allow someone to sue CVS in Texas for filling a mifepristone prescription outside the state of Texas? The threat of jurisdictional overreach reinforces the need for a sovereign interest, and it suggests that legislative jurisdiction and adjudicative jurisdiction can't be wholly separated.

At the same time, however, forbidding the state from extracting jurisdictional consent kneecaps state power so severely that it also undermines the federalist system. This is especially apparent in products liability cases, where it's common to have a seller, manufacturer, component-part manufacturer, buyer, and the injury in different states (as happened in the Cooper Tire lawsuit). In such cases, there may be no single state where all defendants could be subject to either general or specific jurisdiction. The state’s power to extract consent as a condition of registration allows the parties to be brought before the court in a single lawsuit. As Alexandra Lahav has recently noted, restricting states’ power to exercise personal jurisdiction in products liability cases undermines state tort law and risks granting effective “immunity from suit for manufacturers” that is at odds with state substantive law.

Our position is therefore different from either of the parties before the Court in Mallory: we think that the state’s authority to extract jurisdictional consent is a legitimate exercise of sovereign authority, but that its legitimacy extends only as far as the state’s sovereign interest.

This middle position fits with procedural principles, historical practice, and constitutional doctrine.

Differences exist between consent through registration and consent by contract or waiver by litigation conduct. As Tanya Monestier observed, contractual or litigation-conduct submissions to jurisdiction are limited to identifiable parties or specific lawsuits—a provision in a contract between private parties governs the forum for their dispute, or litigation conduct in an existing suit waives an otherwise available jurisdictional objection. In contrast, consent through registration represents the corporation’s acceptance of an obligation to defend those claims the state demands to acquire the benefits of engaging in intrastate business under the state’s sovereign authority.

Even though the Supreme Court has long viewed such statutory exchanges of obligations and benefits as manifesting a valid form of consent, the exercise of state sovereign authority in exacting such an agreement implicates constitutional concerns. These concerns, though, as Aaron Simowitz explained, do not doctrinally mirror the restraints for contacts jurisdiction. Courts should evaluate the constitutionally permissible scope of consent through registration under the limitations that have developed surrounding this type of jurisdictional assertion and other analogous statutory exchanges between sovereign states and citizens.

As discussed in our first post, the Supreme Court in the nineteenth century consistently expressed that the permissible bounds of jurisdiction against an appointed agent under a registration statute extended only to suits related to the business conducted in the forum. Although one reading of Justice Holmes’ opinion in Pennsylvania Fire in the early twentieth century is that a corporate registration statute may authorize jurisdiction for even unrelated claims without any connection to the sovereign authority of the State, the Supreme Court just three years after Pennsylvania Fire cautioned that it did “not wish to be understood that the validity of such service . . . would not be of federal cognizance.”  The original understanding thus presupposes some potential constitutional limits on the extent to which a corporation may be required to consent to jurisdiction to obtain the benefits of conducting intrastate business activities.

Due process ensures the government’s compliance with fundamental notions of fairness with respect to any of exercise of its power. As we have argued, in analogous statutory exchange situations, such as conditions on a land-use permit or implied consent to blood-alcohol testing as a condition for the privilege of driving on the state’s roads, the Court has required a congruence between the scope of the consent granted and the state benefits obtained as part of the exchange. Jeff Rensberger similarly relied on analogies to waivers of constitutional objections to state-court proceedings, exactions in takings cases, and the unconstitutional conditions doctrine to urge that a state sovereign interest is necessary to satisfy constitutional limitations.

Requiring the corporation to consent to all-purpose dispute-blind jurisdiction, for any claim filed by any person arising anywhere in the world, transcends this congruence when the state has no sovereign interest in the proceeding. Without a sovereign interest in the proceeding, the state is leveraging its permission to conduct intrastate corporate activities to regulate the corporation’s global activities, a disproportionate “deal” as the state has no generic interest in regulating a foreign corporation’s out-of-state conduct. On the other hand, if a sufficient state interest exists in the dispute, the arrangement is proportional. In exchange for the state’s forbearance in excluding, or attaching additional conditions on, the corporation’s in-state conduct, the corporation is agreeing to its amenability to suit for claims that have some connection to a state sovereign interest.

Jack Preis has argued convincingly that the Due Process Clause is not the only limit on personal jurisdiction—the Dormant Commerce Clause must also be considered, as a plaintiff’s forum choice over out-of-state corporations may burden interstate commerce. Under the Dormant Commerce Clause’s demand that state laws cannot discriminate against or impose an undue burden on interstate commerce in the absence of a sufficient local interest, Jack contends that registration statutes cannot authorize jurisdiction when the state does not have a strong enough interest in the proceeding, such as an in-state injury or a state citizen injured outside the state, a perspective we have mirrored in our own work.

Our view, then, of the correct answer to the question presented in Mallory—whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state—is neither yes nor no, but sometimes, depending on the state’s sovereign interest in the case. Of course, both parties will see things differently, with Mallory arguing the answer is always no and Norfolk Southern Railway urging the answer is always yes. We’ll be back in the fall during the week of argument, thanks to Howard’s kind invitation, to discuss the parties’ positions in more detail as fleshed out by their merits briefing and the Court’s lines of inquiry.

The "Black Legend" (of American constitutional law) returns

Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic.  "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said.  "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.

Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here.  He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"): 

Stone's analysis generated an uproar, but it was correct then, as it would be correct now:  someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).

As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.  

I wrote then (I still cannot get over how long ago that was!):

[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."  What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.

It is interesting, I think, that Professor Stone invokes the example of Justice Brennan.  Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice.  And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith.  Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?

 

 

Ex-Confederates Interpreting the Fourteenth Amendment

Going back to Aristotle, there was the idea that there are different types of persuasive arguments. One is an appeal to personal authority. Person X was a great judge, scholar, leader, etc and thus her conclusion about a subject is entitled to great respect. This is the opposite of an ad hominem argument, where you say that Person X was terrible and thus you should disregard what she says. Neither of these focus on Person X's reasoning.

Here's a question along these lines: Can a former Confederate be a good source of personal authority for the interpretation of the Fourteenth Amendment? I would say no. No matter how great a legal career was before or after that, the very act of being a Confederate makes any conclusions about the Fourteenth Amendment suspect. (Unless you're talking about the rare Confederate who turned around and supported the 14th).

A former Confederate's reasoning about the Fourteenth Amendment should be assessed on its own merits.

 

The Fourth Circuit Argument in the Cawthorn Case

Today's argument in Cawthorn v. Circosta may be rendered moot if Representative Cawthorn loses his primary race in two weeks. That said, there was one detail from the argument that I wanted to highlight.

On the question of whether the Qualifications Clause makes Congress the exclusive judge of Section Three ineligibility for congressional candidates, one member of the panel cited Jones v. Montague, a 1904 Supreme Court case, as support. Montague does say in dicta that Congress is the sole judge of the qualifications of its members. The case strikes me, though, as a poor source of authority. The Court there rejected a challenge by Black defendants against the white supremacist Virginia Constitution of 1901 that established a system that excluded them from voting in violation of the Fifteenth Amendment. 

The better source of authority (though also dicta) is U.S. Term Limits v. Thornton, which said that Congress is the ultimate (not the sole) judge of the qualifications of its members.

Who assigned this and why? (Update)

Who assigned Dobbs to Alito--the Chief or Thomas?

Assume the following at conference: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett want to overrule Roe, declare the MS law valid, and enter judgment for the state; the Chief wants to declare the MS law valid as not imposing an undue burden  and enter judgment for the state. Who is the senior-most Justice in the majority? What is the "majority" when in Conference and before any opinions have been written--is it a majority for the judgment ("the law is constitutionally valid, plaintiffs lose, state wins") or is it majority for a rationale or an answer to a QP (Roe/Casey are overruled)? If the former, the Chief keeps the assignment; if the latter, Thomas gets the assignment.

I raised this question (without a satisfactory answer) over the now-meaningless June Medical, where four Justices (Breyer for Ginsburg, Sotomayor, and Kagan) declared the law invalid by balancing burdens and benefits under Casey and the Chief agreed the law was invalid but on the logic of WWH and considering only the burdens; did the Chief assign or did Ginsburg? Does the assignment work differently when there is a majority for a result but not for a rationale, as in June, as opposed to where there is a majority for a rationale plus extra votes for the result?

My best guess is Thomas assigned it. If so, I am impressed (and a bit curious) that he chose not to keep it for himself. Casey was decided during Thomas's first Term, meaning he has been waiting his entire time on the Court for this opportunity.

If Roberts assigned it, the choice of Alito creates all sorts of Kremlinology. If Roberts  (presumably) wanted to make the least noise, he would not have assigned it to Alito, knowing the likely tenor of the opinion. Or he assigned it to Alito intentionally, knowing he might draft an opinion (what my colleague called a "nuclear bomb overruling") that might scare off Kavanaugh or Barrett. In which case the "conservative leaker" theory makes sense as a counterpunch to that. Anyway, I doubt anyone thinks this way, which is why I believe the relevant majority was to overrule Roe and Thomas gave the opinion to Alito.

Update: This question was raised on the Con Law Prof listserv. No one knew for sure, although one former clerk says his understanding is that the majority is for the bottom-line disposition. This make some sense, the person argued, because some justices only have identified a conclusion but not a reason at conference. Alternatively, many cases may have a bottom-line majority but competing reasons, none garnering the initial support of any 5; the only way to identify a seniormost-in-the-majority is to go by majority for the judgment, meaning the Chief assigned Dobbs. It also would follow that the Chief, rather than Ginsburg, gave Breyer June Medical.

Of leaks and legitimacy

I am not as outraged by the leak as Paul is, although I agree it suggests something about the elevation of individual personalities over the institution. I want to weigh in on a couple points. (Update: Mark Graber argues that leaks, especially from the Court to the executive but also to the press, were common during the 19th century).

• Regardless of the source--Justice, clerk, court personnel--there are plausible arguments for the source coming from either side of the divide over reproductive freedom. A critic of the decision might leak hoping that public outrage might sway someone off the Alito opinion or, seeing that as a lost cause, to get an early start on generating political activism to prompt Senate action (a law codifying the right to reproductive freedom passed the House but is stuck behind the Senate filibuster*) or to get Democrats to the polls. A supporter of the decision might hope publicity surrounding the prospective opinion would shore-up Alito's majority; soften the public outrage when the opinion issues (closer to the election), so that the anger has dissipated by November; and distract from the story of the Court eliminating reproductive freedom (and perhaps other rights, more on that below) by offering the story of the leak, failed processes, and the Court-as-institution as a competing narrative. As a couple people have put it, the leak is a story, but not the story; the source might have hoped to make it the story, especially in the right-wing noise machine (which will suggest the source is from the other side). One person on the ConLawProf Listserv suggested Alito might be the source--knowing he will be forced to soften the language in the published opinion, he gets his raw thoughts into the world and becomes a Fed Soc rock star.

[*] Putting aside whether such a law is valid under the Commerce Clause or § 5, a question that the same five-Justice majority would likely answer in the negative two years from now.

• I do not understand the insistence that the decision is "illegitimate." I think it is wrong, uses (typically) bad history, and written with the usual Alito arrogance and causticity that grates on me (even when I agree with him). But it does not say anything that Roe/Casey critics have not been saying for years; it reads as the opinion overruling Roe that we have feared for years, at least as written by Alito or Scalia. But that should not make it "illegitimate" any more than Roe/Casey are illegtimate, as Alito suggests throughout the opinion.

What makes it illegitimate as a judicial decision--as opposed to wrong as a matter of substantive constitutional law--for people who do not subscribe to Eric Segall's view that the entire SCOTUS enterprise is illegitimate?

    1) It overrules precedent. No, because the Court has overruled or changed precedent in the past. It has standards for doing so. And disagreeing with how Alito applies those principles is a critique on the merits.

    2) It eliminates an existing constitutional right. That has never been part of the stare decisis or constitutional analysis. While perhaps a worthwhile constitutional principle (a judicial presumption of liberty, if you will), that again goes to correctness on the merits rather than structural legitimacy.

    3) Everything that went into how the five-Justice majority was formed--GWB and Trump losing the popular vote (such that 4/5 of the majority was appointed by a President who, at least initially, was a minority President); McConnell holding Gorsuch's seat open for more than a year; Kavanaugh perhaps perjuring himself; McConnell ramming the Barrett nomination through, Susan Collins Susan Collinsing, etc. But it seems to me that proves to much, rendering "illegitimate" any decision from this Court for the foreseeable future. And many might agree with that conclusion. But we cannot ignore the role of politics, a less "clean" process than the judicial is supposed to be, in the appointment process. Other Presidents and Congresses have gained or sought to gain political advantage through the Court. What makes this uniquely illegitimate.

I am not trying to downplay how bad this opinion is. I am concerned that "illegitimacy" is the new "judicial activism"--an illegitimate decision is any decision I disagree with written by a justice I do not like. That is not helpful to the discourse or to the functioning of any institution. Or it is the new obscenity--I know an illegitimate or judicial activist opinion when I see it (usually because I disagree with it).

• I cannot tell how much mischief the opinion can do in the future--whether it also takes out marriage equality, freedom of intimate association, contraception. Alito tries in several places to distinguish those rights as not involving potential life, although query whether that holds true for contraception, given some religious views about what constitutes abortion and the misunderstanding of how some contraception works. The rigid historical approach to substantive due process does not bode well for rights and interests that have developed in a modern, more open, more technologically advanced, and more accepting society.

Justice Alito's New Draft Paper

Available widely, though not on SSRN. Here is the Abstract:

This paper offers a revisionist account of Roe v. Wade and Planned Parenthood v. Casey. Incorporating recent critical commentary from judges and scholars, the paper argues that Roe was "egregiously wrong" and should be overruled. The author welcomes feedback, though only from four other individuals. 

Leaks and a Look Backward

I'm sure there will be lots of commentary on the apparent leak and, with luck, I will not add to it. But I do have a couple of immediate thoughts, albeit they come at the least useful moment, since a) as the leak itself suggests, one often acts and reacts foolishly in the moment and b) one doesn't know whether, assuming a leak did indeed occur, it came from a member of a chambers--a Justice or a law clerk--or from someone or somewhere else. That matters for some reasons and not for others.

The first thing I must suggest is something I have been saying to myself plenty over the past five or six years--somewhat ruefully, since I wrote a completely true but, it appears, ill-timed book on the value of institutions in the First Amendment--and that is that the true, encompassing crisis of our times is an institutional crisis. In this case, the crisis might be manifest in the failure of the institution to stanch such leaks; it might be manifest in the petty leaks and apparent off-the-record interviews with justices that have occurred over the past few years, all of which were contemptible; and it might be manifest in a different and possibly generational way, in the sense that there is no greater sign of an institutional crisis than that its constituents no longer understand the nature, role, and value of an institution and its norms, and no longer have the faintest capacity to understand why their own desires might be less important than that institution. We spent a great deal of time talking about that during the Trump presidency--about the idea that staffers, officials, or, God help us, the chief executive might not understand that they filled a particular institution and must inhabit and respect its norms, whether they liked it or not and despite their own views in the moment. That would certainly be true of a justice or clerk who thought, "Every institutional norm forbids this action. But I'm doing it anyway."

The second is that, to the extent we are talking about a law clerk leak, it is somehow incomplete, if not dishonest, to do so without talking about money and its equivalents. Supreme Court law clerk signing bonuses are in the neighborhood of $450,000 these days. Some people consider that pretty decent money. But people value all sorts of things, and there are lots of ways to cash out the value of a Supreme Court clerkship, all at highly inflated sums, and a signing bonus is just one, as any former clerk working at a desirable law school (which is any law school, given the desirable nature of the job) could tell you. It seems to me that any anonymous leak by a Supreme Court clerk cannot be discussed or understood with any openness and intelligence while pretending that the context of almost endless remuneration just for having had the job doesn't exist. I would disagree with a law clerk who openly, by name, leaked a draft opinion, but I might feel a kind of respect for that person. Of course I would still call for their prosecution, possible imprisonment, and lifetime ineligibility for the bar, and rightly so. (This would hardly disable them, of course, from profiting substantially from such an action. In this country, everything can be monetized at some point and in some way. A memoir entitled "I Did it For Principle!" would get an advance from any publisher in the land large enough to make Croesus blush.) Still, I might respect the action, in its way, and at least doing so in that way would be preservative of the institution: violating institutional norms openly and for reasons of alleged principle reinforces those norms in the very act of violating them. But--again, if it is a clerk doing the leaking--we cannot understand an anonymous leak without understanding the money, goods, connections, and reputation involved in the commodity of having clerked for the Court. Leaking anonymously strikes me as worse than cowardly--it's chickenshit. (I should add an edited point here. I understand that Orin Kerr argues, in a Place I Do Not Visit, that there may in fact be no criminal penalties available if a law clerk was the culprit. Fair enough. I should not have assumed otherwise, and it ought to temper my rhetoric, even as I think any available remedies and punishments should be sought. On the other hand, in a way it underscores the cowardice involved in leaking anonymously and the degree to which there is no point discussing a leak by a law clerk--if it was a clerk, which it may not have been--as some great act of principle without also discussing the unwillingness to give up the myriad prizes that come with the Certificate of Clerkitude. Taking prosecution off the table would elevate the level of cowardice and unworthiness of the clerk-leaker from "But for Wales" territory to "But for Denbighshire?")

I'm also interested in looking back. My rather visceral reaction to this story makes me reflect on past news, even if this case is unusual and extreme. It is worth recalling the number of law clerks who apparently lined up--all anonymously, of course--to perform their outrage by leaking information to that august institution, Vanity Fair, about the deliberations concerning Bush v. Gore. Those leaks happened after the fact, of course, although this point cuts both ways: it did no harm to the institution in the moment, but it also can hardly be said to have been done in the heat of the moment. It was a studied act of cowardice. Years ago I called their stated justifications for doing so "insufficient and melodramatic," and I see no reason to change my view now. If anything, with that decision having gone from scandal to footnote, it seems more appropriate, and a reminder that a clerk's view of what constitutes "urgency" or "necessity" pales next to the wisdom of the  longue duree. But while we share our shock or outrage (or glee, for some) at the idea of a leak, we should remember that it happened before, and that those leakers did very well for themselves. Their names are public; you could look it up, as the old saying goes. A look at the clerks from that Term reveals any number of people I would happily curry favor with today, lickspittle that I am. But I also continue to think that their anonymous leaking was cowardly and that they too should have been prosecuted (or, per my note about Orin above, subjected to actually existing penalties). At a minimum, it is not too late for them to write to their bar or bars, presumably copying their current employers, reveal their violation, and see whether the bar or their employer cares to take action. If you have nowhere to go but down, why not try that?  

Finally, what of Justice Potter Stewart? After all, this leak might have come from a Justice--and, at a minimum, a number of justices in recent years have been happy to give off-the-record interviews to the press. Stewart, of course, did a good deal more than that. He leaked like a sieve. His role as unofficial reference librarian to Bob Woodward and Scott Armstrong, authors of The Brethren, was not revealed officially until after his death. But of course he knew it, and could have disclosed it any time he wished. And doubtless it was an open secret for many more. Stewart today is, I think, fairly evaluated as an okay justice but more or less a footnote and certainly not a star in the Court's history. (As are most Justices, after a long enough time, in fairness.) But in his day, he happily took his full measure of victory laps: the usual double-round of tributes and encomia from his servitors, both on his retirement and at his death. I think The Brethren did no lasting harm to the Court. It certainly did not at the time harm Stewart, who surely leaked in part precisely to buff up his own public reputation. But I also think it is entirely fair to conclude that by many a reasonable reading of his oath, of the judicial role, and of the norms of the Court, Potter Stewart spent the last decade or so of his service on the High Court as a sitting justice who was fully eligible for impeachment. Should that not somehow be factored into our mentions of Justice Stewart, on the rare occasions that he is mentioned at all? There is a bit of a trend right now of law review articles articles talking about the need to add moral considerations to parentheticals in citations. Should we not at least refer to him, when we mention him, as "Stewart, J. (committed impeachable offenses)"? Or do something similar in remembrances by former clerks? ("I remember the time that Justice Stewart, who was then committing impeachable offenses on a regular basis, said sagely to me, in his inimitable gruff voice,....")

Perhaps, in short, as we reflect on the cowardice and greed (with whatever added alleged soupcon of asserted principle or outrage) of the current leaker, we might spare a thought or two for the pusillanimity of the leakers of the not-so-distant past.    

Boston's flagpole program not government speech

A unanimous-in-the-judgment SCOTUS holds in Shurtleff v. City of Boston that Boston's program of flying private flags (on a pole usually reserved for the city flag) did not constitute government speech and denying permission to a group to fly a "Christian" flag violated the First Amendment. Breyer writes for six. Kavanaugh joins the majority but writes a short concurrence to argue that "religious persons, organizations, or speech" cannot be excluded from "public programs, benefits, facilities, and the like." Alito concurs in the judgment, joined by Thomas and Gorsuch, to offer a different approach to government speech. And Gorsuch, joined by Thomas, concurs in the judgment to complain about Lemon.

The meaningful dispute is over how to identify government speech. The majority relied on a multi-factor balancing test, considering the history of the expression, the public's likely perception or who is speaking, and the extent to which government shapes or controls the expression. The Court found that the first favored the city (with a lengthy discursive on how government communicates through flags, including the story of Boston flying the Montreal flag following a bet on a Bruins-Canadians playoff series) but the third favored the speaker, because the city exercised no meaningful involvement in selecting flags or crafting their messages. Labeling this  as private speech ended the case, as the decision to deny permission to the plaintiffs was unquestionably viewpoint discriminatory.

Alito continues relitigating Walker v. Sons of Confederate Veterans (the specialty license-plate case)--he includes a footnote explaining why the Court got that wrong. He rejects the balancing test, arguing that any of the factors can indicate government speech or government censorship. Instead he urges a clearer and more specific approach to government speech. First, the government must speak in the literal sense--a person acting within the scope of power to speak for the government must purposefully communicate a governmentally determined message. Second, government cannot express its message through a means that abridges private speech (citing, e.g., Wooley). As to the first point, government can deputize private persons as its agents who voluntarily agree to convey the government message or government can adopt private speech as its own, such as taking ownership of the private speech), but not by subsidizing, facilitating, or providing a forum for that speech.

Although Alito's approach is cleaner on paper, I am not sure it is clearer in application or produces more obvious results. Shurtleff did not involve government speech under any approach and Alito's first point (was the government communicating an intentional message) turned on the same control that drove the majority's third factor. Walker represents the point at which Alito and the majority will reach different conclusions. The question is where the different approaches go in the many cases in between.

A different issue--and possible future bomb--involves whether government has speech rights. Alito drops a footnote arguing the federal government does not have such a right, but that states might have free-speech rights against the federal government. The text of the First Amendment--prohibiting Congress from abridging--eliminates any free-speech right for the federal government against itself. But extending that restriction to state governments in the 14th Amendment as to private individuals does not answer the question of the speech rights of states as to the fed. So is the next line of lawsuit against anything policy from a Democratic administration going to be a claim that it violates Texas' free-speech rights?

Why Mallory?

This is the second post on next Term's SCOTUS case on general personal jurisdiction by Rocky Rhodes (South Texas) and Cassandra Burke Robertson (Case).

As we mentioned in our last blog post, scholars and practitioners have been waiting a very long time for the Supreme Court to take up the question of the states’ power to require consent to personal jurisdiction as a condition of registration to do business. Another case, Cooper Tire & Rubber Company v. McCall, appeared to be a strong candidate for a cert grant. It attracted substantial cert-stage amicus support, and we predicted that the Court would be interested in it.

Instead, however, the Court granted certiorari in Mallory v. Norfolk Southern Railway Co. and appears to be holding Cooper Tire for the decision in Mallory.

Both the petitioner and respondent in Mallory argued that Mallory presents a cleaner legal issue. In some ways, the parties are right—but Mallory does have some quirks of its own.

What is cleaner in Mallory is the legal background. Pennsylvania’s long-arm statute is unique in that it explicitly provides that by registering to do business companies consent to general personal jurisdiction in the state. This transparency is important to the case in two ways.

First, in a case challenging the state’s power, it is helpful to have a clear statement of the state’s law. The Georgia law at issue in Cooper Tire was less clear; although the Georgia Supreme Court followed state precedent concluding that registration impliedly demonstrated all-purpose consent to personal jurisdiction, the court expressed some uncertainty as to whether that precedent reflected the legislature’s intent and recommended that the legislature clarify the long-arm statute.

Second, Pennsylvania’s clear statement is helpful in determining the scope of consent. That is, as Tanya Monestier has convincingly argued, implied consent is not consent at all—it is, instead, a trap for the unwary corporation that would have no reason to expect that business registration would give the courts of a state the authority to hear any and all claims against that business, including claims that have no connection at all to the forum.

Pennsylvania’s explicit statute, on the other hand, gives fair warning to corporations about the effect of their decision to register. In that sense, it makes registration-based consent mirror an arbitration clause in a contract of adhesion—not a term that the signing party necessarily wants, but one that the party is willing to accept to obtain the benefits of the contract. The Supreme Court, of course, has been highly deferential to contracts including arbitration and forum selection clauses, even in contracts of adhesion.

A clear long-arm statute and fair notice are helpful to enforcement. But are they enough? We have argued elsewhere that there is one more essential piece of the puzzle that makes state-required consent different from private agreements: a sovereign interest in the case. That is, the state can explicitly condition benefits on consent to jurisdiction—but only insofar as the state has a sovereign interest in the underlying case. Jack Preis and Jeff Rensberger have similarly separately argued that some state benefit or a state sovereign interest is required to satisfy constitutional limits on exacting consent through a registration statute.

On that point, Cooper Tire appears stronger than Mallory. The plaintiff in Cooper Tire was a passenger in a car that was involved in an accident in Florida. But the driver of the car, who was also a defendant in the suit, was a Georgia resident, as was the used-car dealer who sold the car and inspected the tire. Because the plaintiff wanted to sue the driver, the car dealer, and the tire manufacturer, it made sense to sue in Georgia. And Georgia has a clear sovereign interest in ensuring the safety of the cars sold in the forum as well as adjudicating the liability of state residents. Furthermore, it is not clear that any other forum would have had personal jurisdiction over all three parties—the used-car dealer, for example, seems to have no Florida contacts.

With Mallory, it is not evident that there is a sufficient state interest. The respondent has argued that there is no tie to Pennsylvania, but that is not entirely true—the plaintiff’s complaint notes that Mallory worked for Norfolk Southern in Pennsylvania for the last part of his career before retirement, although there was no allegation that any asbestos exposure took place in Pennsylvania. And by the time suit was filed, Mallory was living in Virginia, not Pennsylvania. Still, the employment connection may provide some basis for the state to have an interest in the outcome of the suit—the state would, after all, have at least some interest in the employment relationship within the state. But if the Supreme Court were to adopt our view of the importance of the underlying sovereign interest, it may need to remand the case for further fact-finding. Neither the plaintiff nor the defendant has fleshed out the state connection.

Private enforcement and the state court option

Oklahoma enacted (although it awaits the governor's certain signature) an SB8 copycat. Reproductive-rights advocates have brought an original-jurisdiction action in the Supreme Court of Oklahoma. This is the other option for rights-holders, to the extent state procedures are more forgiving than federal.

On the other hand, the hell with Oklahoma AG John O'Connor, who said this:

Once again, the people of Oklahoma have spoken through their representatives in defense of the rights of unborn human beings, and once again abortion clinics have run immediately to the courts to attempt to trample on the people’s voice and the most innocent humans among us.

Indeed, with SB 1503 they have literally attempted to sue before the bill has even gone to the governor’s desk, even though the U.S. Supreme Court dismissed preliminary challenges to a similar law not six months ago.

As to the first, hasn't Oklahoma joined with the rest of the Republican states to ?\"run immediately to the courts to attempt to trample on the people's voice" as reflected in laws and regulations enacted and enforced by the Biden Administration? As to the second, what does SCOTUS have to do with a challenge under Oklahoma law; I thought the people in Washington should butt-out of Oklahoma's business.

And kind of the hell with Bloomberg for reporting such a dishonest statement and politically hypocritical statement. But that is par for the course.