PrawfsBlawg

Political Cartoon on FDR's Constitution Day Address

I cam across this in my research. It was published in a New Jersey newspaper three days after the speech.

Some jurisdictionality in Biden v. Texas

I do not do Ad Law or Immigration, so I do not much to say on the merits of Biden v. Texas. But there was some jurisdictionality thrown in, which is worth discussing.

The district court had enjoined enforcement of the Biden rescission, in violation of § 1252(f)(1), which deprives lower courts (but not SCOTUS) of"jurisdiction or authority to enjoin or restraint the operation" of certain provisions in non-individual cases. The question is whether the district court nevertheless had jurisdiction over the action as a whole, even if it could not issue the remedy it did. The majority said it did, because § 1252(f)(1) limited the court's remedial power but not its subject matter jurisdiction to adjudicate the case. Although § 1252(f)(1) uses the word jurisdiction, jurisdiction to issue a remedy is different from subject-matter jurisdiction to adjudicate. Justice Barrett dissented for Thomas, Alito, and Gorsuch.* She rejected the sharp distinction between SMJ and remedial authority, because SMJ often connects to the remedy, citing examples of the amount-in-controversy in § 1332 and redressability in standing.

[*] Sort of. The three joined all but the first sentence reading "I agree with the Court's analysis of the merits--but not with its decision to reach them." Meanwhile, Barrett did not join Alito's dissent to the merits.

Obviously, I agree with the majority. Remedies, like the merits, should be independent of adjudicative jurisdiction. The problem is Congress using the word jurisdiction carelessly to refer to available remedies in a case the court can hear. I am glad the Court read through it. As to Barrett's examples, the amount-in-controversy is not about available remedies but about the size of the case. Meanwhile, the standing example just shows--again--why standing is about merits and not jurisdiction.

Cue the converse abortion ad hoc nullification machine

The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

The Pending Section 3 Litigation

Just to give anyone interested an update:

1. A state quo warranto action against Couy Griffin, a County Commissioner in New Mexico, is scheduled to go to trial in August. Griffin's federal suit for a preliminary injunction was rejected by the District Court this week on standing and abstention grounds.

2. The state appeal in the Marjorie Taylor-Greene case will be heard in July. The 11th Circuit has scheduled argument in her federal case for August, assuming that there is anything left to decide by then.

FDR on Incorporation and State Action

I'm am getting close to finishing a draft paper on Franklin Roosevelt's 1937 Constitution Day Address. A draft of the speech said the following that was cut from the final version:

Indeed I go further than the Framers of the Constitution. I insist that the Bill of Rights should be observed in the letter and in the spirit not only by the Federal Government, the State governments and the local governments, but by those in private places who have power over other men's lives.

Many of FDR's Supreme Court Justices adopted this view with respect to state and local governments, though not as much for private parties.

An Important Step...Sideways...in Legal Education

Again via Paul Caron, I note this post about USC becoming the sixth law school to offer an undergraduate degree in law. The Reuters story that Caron links to asserts that this is a trend that is "catching on" in American universities, which are "seek[ing] new ways to give students a head start on legal careers and help them better understand the role of law in society." (The Reuters story identifies three law schools doing so, but Caron points to other sources that add another three to the list.) The story offers the expected quotes about the general value of learning the law. One passage notes the value of such degrees in allowing graduates to pursue "law-adjacent careers in compliance and human resources." This is of some interest, since it connects the undergraduate degree "trend," if trend it is, to the unquestionable American law-school trend of offering one- or two-year degrees or certificates in "compliance." 

Without questioning the value of such programs or the sincerity of those advocating them, one is of course entitled to ask the standard "cui bono" question. Although stories and promotional materials from law schools always trumpet one-year increases in law school enrollment, the overall numbers have gone down from the period of steady increases that picked up speed around the 1980s and peaked around the time of the 2008 recession. Those of us who were around in the period around 2008-2011 can well remember what is was like to teach students who had enrolled at the height of the market and suddenly found themselves graduating into a very different and much bleaker market. Law schools have a physical plant, and its value and capacity is hardly exhausted by the (smaller) number of law students sitting in a given number of rooms for a limited period of time each week. After 2008-2010, it is surely fair to say that many deans (and provosts across campus) saw the potential value of turning to short-fuse "certificate," masters, and other programs. The tuition for such programs was or is often fully paid for (sometimes by employers) rather than steeply discounted. They can be staffed substantially by adjuncts with one or two faculty members serving as director. Such programs can extract more value out of the physical plant, make up for smaller JD enrollments and competitions to draw JD classes with US News-friendly metrics through scholarships and discounts, bring in additional revenue, and diversify law schools' business operations. And that's not even to speak of the role of online education, which allows one to extract value without even causing wear and tear on the building. One can sincerely describe the rise of compliance and the growth of HR departments out there in the real world as both a genuine need that ought to be filled with training programs, and a financial opportunity for law schools. 

But it seems to me that the rise--if six schools can be considered a rise, and if more schools take this step--in undergraduate law school programs raises the obvious next question, one that was asked occasionally during the initial period of writing about the state of law schools: Why not go whole hog? Offering undergraduate programs in law, while maintaining the general structure of American legal education, strikes me as a step sideways. The step forward would be to move more fully toward a more European model. Is it really absolutely necessary to keep our awkward mixed model of law schools as both professional education in the practice of law and scholarly education in the subject of law? Does such a model do justice to either of these goals? Why not shift those--both students and faculty--who are interested in law as a legitimate academic subject to an undergrdauate and graduate Department of Law, while offering a two-year professional program for those who wish to become lawyers, one staffed largely by practitioners, clinicians, and more practice-oriented full-time faculty?

It seems to me that one great benefit of such an approach is salary cuts. The professional school would rely heavily on adjuncts. And the salary of truly academically oriented law professors could be greatly reduced, making them commensurate with the kinds of salaries that are offered in most academic departments. As law schools follow a model of hiring Ph.Ds, that seems particularly appropriate, and those doctorate-holders could decide whether to pursue their work in a law department or a department of economics, political science, psychology, or whatever their field is. There are many lawyers (and current law professors) who have a genuine and enduring vocation to study and write about law as a topic and would gladly accept a lower lifetime salary for the opportunity to do so, along with the other benefits of life in a university, including tenure. If law departments required a doctorate in law or some other subject as a condition of employment, many would take that step and invest that time. Others--including some excellent scholars--might have the skill, but not a vocation so strong as to make them leave more lucrative careers for a department of law, with a salary lower than those currently offered at "law schools" under the current model. Maybe that's a genuine but acceptable loss. And maybe those whose interest is more in advocacy from a comfortable perch than a genuinely academic vocation would opt instead to work for advocacy groups or to pursue their goals in other ways. I might add a flipside benefit of salary cuts and of bringing the academic study of law closer to the model of other academic departments: If salaries were lower, and if departments of law brought their tenure rates closer to the rate that prevails elsewhere in the university and down from the extraordinarily high tenure rate of contemporary American law schools, law departments could (if the student demand existed) hire more faculty and, more importantly, take more chances in hiring. It's hard to take a flyer on someone who is genuinely promising and heterodox in his or her views, but doesn't already have a long paper trail and the usual set of ready-made credentials, if you know that a hiring decision is tantamount to a "yes" vote on tenure.   

If this "trend" is just about filling empty seats and finding new revenue streams, so be it. But if ought instead to be food for thought--including, perhaps, the thinking of university administrators. Maybe the academic study of law and the training for the practice of law would both benefit if the ostensible trend for undergraduate degrees in law resulted in an explicit two-track, two-schools approach.      

No standing and no Injunction in Florida CRT suit

From the lawsuit filed in April challenging Florida's HB 7, the anti-CRT law: The district court denied a preliminary injunction, finding that plaintiffs failed to show standing for different reasons:

• Public-school teachers cannot show traceability or redressability as to the Board of Education because it has not done anything to enforce the law. Any restrictions on what they can teach come from the local school board and the school, acting out of the threat of loss of funds. The court refused to find standing to enjoin the Board (from enacting regulations and stripping funds) based on the layers of inferences of from the threat of funds to what school boards and schools might do. I see the point--the Board does not create the constitutionally violative rules. but it allows standing to ignore common sense and economics and force plaintiffs to wait longer to litigate their rights.

• The rising kindergartner has not show injury-in-fact because he cannot show what material he will not be taught in kindergarten because of this law, as opposed to in an AP History class he may take 8-10 years from now. And although the court does not address it, this claim should fail on traceability and redressability for the same reason the teachers' claims fail--the removal of any material was by the school or a teacher, not the Board, and the court already said school action based on Board threats is insufficient for a suit against the Board.

• The private DEI consultant has not shown an injury at the first step of third-party standing on behalf of his customers.

• The court reserved ruling as to the final plaintiff, a prof at Central Florida.

• The court concluded the opinion--in which he never touched the First Amendment merits--with a long block-quote from Barnette, preceded by this: "For those who applaud state suppression of ideas that the government finds displeasing--such as the 1619 Project--this Court offers the following observation." I am as forgiving of judicial tangents as anyone, but this is inappropriate and absurd. If we call out judges such as Justin Walker and James Ho for including gratuitous culture-war rants in their opinions, we should call out Mark Walker for including rants with which I might agree.

Shaviro, "'Moralist' Versus 'Scientist'"

Via Paul Caron, this paper by Daniel Shaviro: "'Moralist' Versus 'Scientist': Stanley Surrey and the Public Intellectual Practice of Tax Policy." Tax law is well outside my wheelhouse, but the kind of issues the paper discusses are most certainly not foreign to constitutional law. Indeed, they are a guiding dispute and overarching theme for much of modern academic life.

From the paper's introduction:

Tax scholars have long felt the dual call between functioning primarily as “scientists” who seek to advance expert understanding, and/or as “moralists” who seek to improve the world....

To this day, the scientist versus moralist dichotomy continues to be prominent in the field. We all can think of tax scholars whom we view as primarily engaged in either the one enterprise or the other. Moreover, those of us with a foot in each camp are often quite self-aware about the distinction between projects that aim at neutral analysis, and those that engage in deliberate advocacy with the hope of improving the world.

To the scientist, the moralist risks the intellectual sins of over-selling, over-simplifying, and perhaps even improperly tilting the analysis or conclusions for ideological or salesmanship reasons. To the moralist, the scientist risks aesthetic self-indulgence, and perhaps even the self- centered pursuit of academic reputation, at the expense of actually trying to make a positive difference in the world....

Surrey’s memoirs provide a valuable opportunity to interrogate both a prominent instance of the “moralist” approach to legal academic work and the grounds for his main tax policy stances (all of which remain rightly prominent, albeit reasonably contested) – along with the question of made him so sure that he was right. I aim here both to explore his own underlying moral premises, and to assess what his work both gained and lost intellectually by reason of his hewing so strongly to a set of career-long, deeply held beliefs.

All very familiar to all of us, I should think, but there is something tremendously useful and revivifying about seeing the question presented and pursued in a different substantive area, and thus without the deadening familiarity of seeing it argued by the usual suspects in one's own substantive field. I have not read the whole paper yet, but so far it is crisp, eloquent, and interesting. I happily recommend it.   

 

Some Supreme Court Miscellany and "Living Under an Anticanonical Legal Regime"

For various reasons, I'm inclined to avoid writing directly and on-point on the avalanche of important Supreme Court decisions. So here instead are some off-point questions and observations. Lest I be misunderstood, in a "people are starving and you're writing about a mere avalanche" way, I do not think many of these questions rise to the level of importance of the core issues addressed in these decisions. A few may actually be significant despite my best efforts, and I think a couple of points, which I naturally have placed toward the bottom of the post, raise genuinely useful questions that I hope others will take up. (Among other things, I'm recovering from surgery and more slowly than I had hoped, so I doubt I'll be the one to do it.)  

1) Isn't today's Bremerton decision, whatever else one thinks of it, good for academics? On the way to its decision, it discusses Garcetti, and emphasizes that the question whether a public employee's speech is "ordinarily within the scope of an employee's duties" should "be undertaken 'practically,' rather than with a blinkered focus on the terms of some formal and capacious written job description. To proceed otherwise would be to allow public employers to use 'excessively broad job descriptions' to subvert the Constitution's protections." Isn't that good for professors who may be engaging in speech for which the university would like to discipline them? I am more of a realist than a doctrinalist; I think any decisions on these issues will be guided more by what the Court thinks the scope of protections for academic speakers in particular contexts should be than by any prior formulae. But the language is there just the same and ready for use.  

[I'm leaving the paragraph above in. But I should note that I have been reminded by a correspondent that Garcetti did not answer the question whether and how it would apply to university professors, a question that was raised in dissent by Justice Souter and noted but left undecided by the majority. More important, the federal circuit courts--five of them so far--have refused to apply it to academic teaching and writing. I'm grateful to Prof. Jason Kilborn for writing to me on this point and for the citations--including to page 16 of Bremerton itself, where the Court notes that the case "does not raise questions of academic freedom that may or may not involve 'additional' First Amendment 'interests.'" I should add that as I write this, I realize that what I had largely in mind was writing by academics outside of the clearly academic field that a university might want to treat as writing that falls within the professor's scope of work for purposes of the chopping block. I wasn't thinking so much about statements inside the classroom or in whatever would clearly count as "academic writing." But, aside from my also realizing that it's far from clear that that kind of writing could ever be covered by Garcetti, the general point stands: that decision, which I had not reread in forever but should have before posting, does not clearly apply to professors, and so the preceding paragraph is something of a wet squib. Fabulous stuff below, though!]     

2) What will, or should, happen to con law casebooks? I am very slowly working on putting together my own constitutional law materials, so I tip my hat to published casebook editors, the best of whom do serious work in creating those books. But there are inevitably time lags, narratives that shape a casebook but become increasingly outdated, tendencies to fight the last war, overemphasis on cases and issues that engaged the editors' passions at the time but slowly faded into the general fabric--witness the growing and then shrinking space devoted to the Guantanamo cases or Bush v. Gore--and so on. Is this a Term that calls not for regularly scheduled annual supplements, but altogether new editions? (I am focusing here on the casebooks as books, without any other considerations. My views may be different if they are considered primarily as commercial operations. Although I'm sure new editions are greeted with delight by most publishers and many authors, my primary sympathies here are with students, who may not be delighted by the news that their recently purchased and incredibly expensive book has lost its resale value. That's why I'm putting together my own materials. In a better world, the average cost of materials for a casebook-centered course would approach zero dollars, and enough law professors would invest time in free materials that the great casebooks--and the great ones really are great--would at least face real incentives to reduce their price significantly.) 

Should annual supplements, at least, be different this year? Usually, they simply invite the person using the casebook to insert new case A at page X, and so on. Perhaps the editors instead should rewrite particular chapters, or offer a suggested table of contents for new chapters or sections of their casebooks, one that takes serious account of the relationship between the old cases in the casebook and the new supplemental cases that diminished or supplanted them. That's true not just of this year's blockbusters, but of other recent cases. Surely it's time for a rewrite of large chunks of the separation of powers chapters, particularly those that discuss appointments and removals and are still oriented around a narrative frame that starts with Myers and culminates in Morrison.  

At a minimum, I would suggest to published casebook editors that they include a serious introductory essay in their annual supplements assessing the state of affairs and how it affects their casebooks. They ought also to publish and distribute similar essays for those using their teachers' manuals, including new suggested syllabi. A serious "supplemental" effort this summer will involve some real work and major surgery. 

3) I mentioned casebook narratives above. Of course, they're not limited to casebooks. Narrative frames pervade how we talk about the Supreme Court and its jurisprudence. I suppose that is what supplies my own answer to the question posed by Gerard: "Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course?...If Lochner is not canon and is no longer meaningful anti-canon, [because one can simply use Roe and Casey as the arguably anticanonical cases and contrast them with Dobbs], then why teach it?"

Howard offers an answer below: "Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called 'First Amendment Lochnerism.' Can students understand that concept and what it entails if they have not learned Lochner?" By implication, his reply to Gerard is that there are good reasons to continue to teach Lochner and to make it an important part of one's narrative in a constitutional law course.

I tend to agree with Howard, while also agreeing that Gerard's question is a useful provocation. I cannot overemphasize how much I dislike the tendency to sum up doctrine and doctrinal developments, as well as political and cultural developments, in bumper-sticker phrases such as "cancel culture" or "First Amendment Lochnerism" or "weaponization." This kind of thing is not new, certainly, but it has arguably been supercharged in recent years, by factors such as social media and social media-like thinking, the effort to pursue and promote a mix of "academic" and openly political projects across "platforms," and the emphasis on branding as a way to claim novelty or importance and thus claim a spot in a fancy law review. Cardozo wrote of metaphors that they "start[ ] as devices to liberate thought [but] end often by enslaving it." Slogans like "First Amendment Lochnerism" and many more, of whatever political orientation, are similar but mostly skip the first stage. Whatever their original authors' intentions, which may have been sincerely descriptive, they are often deployed to arrest thought, to force someone to think only in a particular way; they are not liberatory or fertile, but constrictive. To the extent that they are deployed for political purposes, that's natural. Political slogans are meant to serve a particular end, not to encourage exploration, divergence, dissent, or heterodoxy on the part of their readers and listeners. But I can't say I find this sort of thing attractive in either serious thinking and writing or academic thinking and writing. There are a lot of valuable discussions to be had about the issues or incidents that gave rise to the phrase "cancel culture," but they do not include the many arguments that focus excessively and absurdly on the phrase itself when they insist that "cancel culture" exists or does not exist. I would say the same thing of the popular bumper-sticker slogans that are colonizing constitutional law writing on the part of judges and academics alike.  

Nevertheless, Lochner, or "Lochner" as a shorthand or place-holder, is very much a part of the 20th Century American legal tradition and extends firmly into the 21st Century so far as well. Roe may officially be bad law now, and it may have been criticized, by liberals and conservatives alike, since the day it was issued. But it is not "anticanonical" in the usual sense in which that word is used. And I see no serious likelihood that it will be treated that way by mainstream American legal culture any time soon. So, if only because of the narrative that continues to exert a strong and perhaps distorting pull on our thinking about these issues, there are still good reasons to teach Lochner, even for professors who do not emphasize historical arcs or narratives in their teaching but focus instead on current doctrine.

[Let me offer a self-serving plug for a very good recent book on some of these questions. Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Mary Umphrey, is good despite rather than because of my own contribution. But that chapter, "Fame, Infamy, and Canonicity in American Constitutional Law," does discuss many of these issues.]

This leads me to some additional questions. They deserve posts and discussion of their own, if someone else if not by me. In any event, building on my response to the question of Roe and Lochner and the status of the constitutional law canon, I would offer the following suggestions or questions:

A) Isn't it likely that many professors will, in a sense, teach Roe and Casey as canonical and Dobbs as anticanonical, despite the fact that the latter case is "good law" and the the former cases now are not? Are there good arguments for doing so? Whatever its consistency with many constitutional law teachers' jurisprudential and political views, is it good teaching? Or is it in tension with the role of a law teacher qua teacher?     

B) Following on this question, and in keeping with the view that a lot of American constitutional law thinking and teaching  takes place within a narrative frame, won't a good deal of American constitutional law writing and teaching for the next little while take place within the narrative of living under an anticanonical legal regime? As novel and dispiriting--or motivating and energizing--as this idea might be for many, it should hardly be shocking for legal academics in this area. But it might provoke some interesting (and some awful) writing. Reserving my views about whether it is sound or proper teaching, I'm sure it could also make for an interesting narrative frame for a basic con law course. 

4) Two final questions. First, what will be the relationship between the current Supreme Court and the lower federal courts, especially the circuit courts? It has seemed to me in recent years that at least in some areas, the relationship between the two has been one of two solitudes operating on more or less separate but antagonistic tracks, with some decisions suggesting that some appellate court panels were resisting or ignoring the Court. Despite that description, I actually think some of these instances were productive, not in the sense that they were necessarily correct or successful, but in the sense that the antagonistic dynamic, along with governmental responses to the intermediate court rulings, ended up producing some reasonable outcomes. Will this trend continue, or even increase? (And conversely, will there be instances of appellate panels overreading recent precedents and trying to push the Court farther than it wants to go?) 

Along the same lines, in the post-Brown years, there were famous instances of lower federal courts offering dubious efforts to distinguish Brown and other precedents, such as by focusing on Kenneth Clark's doll studies and concluding that they, and Brown itself, were undermined by competing social science. They are not celebrated. Will we see similar efforts now to resist some of the Court's recent opinions? Will some of them be similarly dubious in their deployment of the facts or law? How will these decisions be regarded? Quite differently, I expect.

And last, will we see one of the regularly-predicted and little-noticed revivals of state constitutional law?     

Last Call - Northwestern University Law Review Exclusive Empirical Cycle - 2022

From the Northwestern University Law Review:

Thursday, June 30, is the final day for submissions to the Northwestern University Law Review exclusive empirical cycle.

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. 

Cert dened in Coral Ridge Ministries

Beginning on p.11, with dissent from Thomas but not Gorsuch (who has called for reconsidering NYT v. Sullivan) or anyone else. I guess the Court is not ready to undo the foundation of modern free speech.

This case was never a good vehicle for overruling NYT because the statements at issue (labeling a ministry a "hate group") are clear protected opinion; the district court dismissed the claim on opinion and actual-malice grounds, while the court of appeals addressed the latter. Unless the Court wanted to undo the entire defamation edifice (at this point, who knows?), this was not the right case. My guess is that explains why Gorsuch did not join Thomas, as opposed to him changing his mind about undoing the First Amendment.

CFP: Penn Law Review: Debt Market Complexity

The University of Pennsylvania Law Review will host its annual symposium on Friday, October 7, 2022, in-person. This year’s topic, “Debt Market Complexity: Shadowed Practices and Financial Injustice”, will explore the rise of increasingly complicated debt structures associated with private equity. We are issuing a call for papers for publication in the Law Review’s corresponding symposium issue.

To submit a paper for consideration, please provide an abstract no longer than 750 words to [email protected] by July 31st, 2022. If selected for publication, completed drafts will be due January 1st, 2023. 

The complete call for papers, which includes more detail, is available here. 

More zombie laws and litigation strategy

Dobbs has created a new puzzle with respect to zombie laws that I had not considered. It is usually obvious when a law has been de-zombified--the judicial constitutional precedent under which that law is invalid changed. Dobbs thus de-zombifies all abortion laws (subject perhaps to rational-basis scrutiny for extreme laws). But sometimes it is less obvious, because the Court suggests de-zombification through its reasoning and analysis, although the precise issue was not before the Court. So does the logic and reasoning of Dobbs, along with Thomas' concurrence, de-zombify other laws violating other substantive-due-process rights that it cast into (at least) some doubt?

Relatedly, how does that affect the posture in which the constitutional question will be litigated and resolved? Does the logic of Dobbs render a threat of renewed enforcement sufficiently likely or imminent to allow offensive pre-enforcement litigation to determine the state of judicial precedent and the constitutional validity and enforceability of the law. (Courts would call this whether the rights holder can show a sufficiently imminent injury for standing; I argue we should call this whether a constitutional violation has occurred or is likely to occur). Strict adherence to imminence (which courts follow for everything other than the First Amendment) limits offensive litigation, requiring rights holders to await actual renewed enforcementand challenge the law defensively.* At a minimum, they must wait longer to see if the state expresses some intent to renew enforcement based on its reading of Dobbs.

[*] Ex parte Young says rights holders need not wait, that it is unfair to force rights holders to violate the law at their peril and risk liability as a condition of litigating their constitutional rights. How to square that with Whole Women's Health, which I argue was correct? The problem in WWH was the lack of a target defendant and a governmental enforcer to enjoin.

Take Texas's sodomy law, which remains on the books. It is at least an open issue requiring new litigation whether constitutional precedent must change because Lawrence is incompatible with Dobbs. The question is whether that is sufficient to allow offensive pre-enforcement litigation or whether rights holders need some greater indication that the state intends to resume enforcing that law. Stated differently, can rights-holders, having read Dobbs and identified an open constitutional issue, initiate offensive litigation to declare the state of precedent and determine whether the sodomy law remains constitutionally invalid and unenforceable? Can Texas defeat such offensive litigation by insisting that it takes the Dobbs majority at its word, that it sees Lawrence as good law, and that it knows it cannot successfully enforce the law and has no intent to do so?

Does the answer change when the zombie post-dates the apparent change in precedent? Could that rights holder show imminence of enforcement more readily if the legislature enacts a new zombie? Returning to Texas' sodomy law--suppose the Texas legislature re-enacts a sodomy law post-Dobbs; does that allow a rights holder to argue that the state reads Dobbs as calling Lawrence into doubt and thus intends to enforce the new law (otherwise, why would it have bothered enacting it).

A separate strategic question: Should rights holders push the issue of what Dobbs did to Lawrence now or should they wait to see what states do? On one hand, there may be a benefit to striking now. People are paying attention and discussing Dobbs' effect on other rights; the charge of hypocrisy would land with the public (not that the Justices care) if the Court follows Dobbs to overrule Lawrence two years after insisting it would not. On the other, this is a frisky majority and rights holders may be wise not to test what it is willing to do.

First Amendment Roe-ism? (Updated)

Gerard asks a good question. I discussed a similar question after the draft leaked. Let me try another pass.

Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called "First Amendment Lochnerism." Can students understand that concept and what it entails if they have not learned Lochner?

Two more thoughts. 1) Lochner is important because the conservative desire to revive it affects doctrines such as the Commerce Clause and federalism; the "Broccoli hypothetical" in the ACA case was about importing Lochnerian limitatons into the Commerce Clause. 2) Although both involve unenumerated rights/substantive due process,they reflect different forms--one about economics and business and one about private personhood; there may be value in covering both.

Pedantry

Is it overruled Roe or overturned Roe? I say "overrule," which is the term the Court used. Shepard's (ah, the days) used that term--courts "overrule" precedent and "reverse" lower-court judgments." I do not believe courts "overturn" anything in the formal (as opposed to colloquial) sense.

Now that we have the opinion and not only the draft, do we have any better sense of whether Roberts or Thomas assigned the opinion? And why would either give it to Alito? Roberts must have known Alito would produce a toxic opinion. And it seems Thomas would want to keep the opinion (this and the gun case would have made the Fed Soc two-fer). Did Thomas know he wanted to call all SDP into question so he needed to write separately rather than lose a majority on a small piece?

How should we describe the vote count? I went with 5-1-3 (majority, concurrence for result but not reasoning, dissent). I have seen others offer two related framings as a pair--6-3 for judgment (MS law valid, MS wins), 5-4 for overruling Roe.

Thoughts on Hopeful Retreat from Darkness: A (short) response to Howard

Unlike Howard -- and, I realize, most Prawfsbloggers and readers -- I have longed hoped for, and yesterday welcomed, the overruling of Roe and Casey.  Both were wrongly decided, and both distorted badly both the Court's role and our political life.  In my view, the traditional stare decisis factors weigh in favor of the majority's decision and I regret the Chief Justice's implausible argument that the Mississippi law can be reconciled with a re-imagined abortion right.  The three dissenters' views about Casey and judicial legitimacy are, I think, upside-down.  And, I believe that pre-natal human beings share in the equal dignity that entitles all of us to protection from violence.  (If anyone is interested, here is a law-review-type version of the amicus brief I and some others did in Dobbs.  Nutshell version, Rehnquist -- in Roe, Casey, and Glucksberg -- was right.)

Like (I assume) everyone else, I am not confident I know what the political/electoral/social consequences of the ruling will be.  I do not expect a substantial reduction in the number of abortions in the United States; I do not know which political camp Dobbs helps; I am not optimistic about the possibilities for reaching a European-style equilibrium nationwide; I do not think it is likely that Dobbs will lead to judicial retreat from other previously recognized unenumerated rights, such as those enforced in Pierce, Griswold, Loving, and Obergefell; I am sure Howard is right that the courts are not and will not soon be out of this issue; and it seems to me very unlikely that either "side" -- or, for that matter, supporters of some kind of compromise -- will secure either a constitutional amendment or nationalizing legislation. 

I hope that what (in my view) has fairly been characterized as the "abortion distortion" in other areas of law will dissipate, and also that political actors will make serious, good-faith efforts to come together on policies that generously support children and those who care for them.  I expect, but regret, that most law students, going forward, will be taught, as an orthodoxy from which dissent is at best suspect, a particular -- and, in my view, inaccurate -- narrative of Roe/Casey/Dobbs and the place of that narrative in our constitutional history, politics, and doctrine.  Those who are will be ill-served. 

Zombie Laws

We have a real-time illustration of zombie laws and judicial departmentalism. A zombie law remains, precedent changes, and new precedent reanimates the zombie, at least prospectively.* Texas announced it will begin enforcing its pre-Roe zombie, prompting clinics in the state to cease all abortions. This chart shows three other states with an intent to enforce zombies, although Wisconsin seems less unlikely to enforce.

[*] Jonathan Mitchell argues that retroactive application would be permissible. I doubt states will try that.

Meanwhile, other states are enjoined from enforcing abortion restrictions. Those states move to dissolve the injunction, citing Dobbs as the changed legal circumstance, and the district court will grant the injunction, making those laws enforceable.

Thoughts on fearing for the darkness

Some random thoughts on a legal earthquake.

• The opinion appears substantively unchanged from the leaked draft, other than responding to the other opinions and obvious proofreading. Clearly Kavanaugh was the Chief's target. We can read his concurrence as trying to carve a gentle and less-provocative middle ground between the majority's muscular overruling and the Chief's decide-nothing-more.

• This day has been coming like a slow-moving train since Election Night 2016, if not Election Night 2014 (when the Republicans regained the Senate and Justice Ginsburg had not resigned). I recommend Orin Kerr's Twitter thread that captures how Democrats/abortion-rights supporters went from "Garland-as-fifth-vote-to-secure-Roe" to Dobbs in less than a decade. Anyone (*cough* Susan Collins) who did not recognize this day as inevitable since Election Night 2016--or at least since Kennedy's resignation--is naive or ignorant (or, as someone suggested, lying about believing those assurances).

• Did the leak work? If the goal was to hold a shaky majority, yes; if the goal was to pressure someone to leave the majority, no. If the goal was to soften the opinion's effects by creating a distracting process story or softening the sting of the opinion, no; people seem pretty worked up and ready to protest and act, even if they saw this coming. It depends on if we find out who the leaker is and why they leaked.

• There is no easy answer to what happens next, but some things to watch:

    1) How much did this decision embolden anti-choice states? Do they ban abortion without exception or do they allow exceptions (life, health, rape, incest, a month of leeway)? Do they resume enforcing restrictive pre-Roe zombies? Do they go after pregnant people or only providers? Do they go after those who provide information and funding? How aggressively will prosecutors investigate and prosecute miscarriages and other "bad" behavior by pregnant people?

        Consider Arkansas' (now-valid) trigger law banning abortion with only a life-of-the-mother exception. Governor Asa Hutchinson suggested the state might add a rape-and-incest exception if Roe is overruled. This is a version of the dog-catching-the-car. States have performatively enacted extreme laws that would hurt millions, knowing they were unenforceable but allowed for political points. Now that those extreme laws are enforceable, Hutchinson realizes the immorality or unpopularity of the extreme and might walk it walk it back. Do other states follow suit and show restraint when their choices have real effects on real people or do they continue the race to the bottom because they can?

    2) Relatedly, does Dobbs embolden those states to go after the other rights that conservatives hate as much as abortion--same-sex marriage, contraception, sex? The assurances from Alito and Kavanaugh (and many who criticized Steve Vladeck and Leah Litman) focus on the wrong actors at the wrong time, at least for the moment. The action occurs in two other forums first: 1) Will states push the envelope in other areas--will they enact and enforce new laws banning purchase and use of contraception or whether states will begin enforcing existing zombie laws prohibiting sodomy (the Texas law at issue in Lawrence remains on the books) or same-sex marriage (same in many states); 2) What will restless lower-court judges do with the signal from Dobbs and from Thomas' concurrence if states get frisky--it is not hard to imagine a panel of the Fifth Circuit declaring valid a Louisiana ban on certain contraception. These steps are necessary before we see what the Justices will do. And that process could take several years, during which the make-up of the Court changes or people stop paying attention to Dobbs' "abortion-is-different" promises.

    3) It is nonsense to believe the courts are out of this area. The dissent shows why, as does this paper by David Cohen, Greer Donley, and Rachel Rebouche. These controversies extend beyond substantive due process to free speech, the right to travel, and other non-disfavored rights implicated in an abortion context. Scalia warned about the "abortion ad hoc nullifcation machine," in which the connection to abortion limits other, supposedly stronger rights (he complained about restrictions on clinic protesters). Will we see that in reverse--will the connection of other rights to the no-longer-favored abortion context limit those other rights? For example, will the Court allow states to sanction political expression concerning illegal-in-a-state abortions, remaining "scrupulously neutral" about abortion and allowing states to limit certain speech in the name of limiting (unprotected) abortion? Alito and Thomas have supported restrictions on speech with which they disagree; will others follow suit?

    4) How much teeth does rational-basis review have here, if a state goes to the extreme? Is it unreasonable to make a pregnant woman endanger her life or health in favor of a fetus? Is there any other context in which the law requires an ordinary person to risk her life for another?

• Biden's statement attempted to create a campaign issue. He called on Congress to codify Roe (whatever that means). He add that if Congress lacks the votes to do that (which it does), people must elect representatives who will, making. The question is how politically salient this is for the (apparent majorities) who support reproductive freedom--can the issue galvanize supporters to turn out in large numbers in the way it galvanizes opponents? Supporters have had Roe as the guardrail for 50 years. Does its actual loss awaken everyone to the ballot in a way its threatened loss (which was obvious in 2016) did not?

Supreme Court Seminar Inquiries

I am teaching a Supreme Court seminar this coming year. I would welcome any thoughts from those who have taught or are currently teaching such courses about how they structure their seminar, what materials they assign, what kinds of preliminary classes they teach before directly getting into individual cases, and what they have found works well or poorly. I am just as happy to hear from students on the same questions. My email can be found at my faculty bio page. I'm grateful in advance for any communications about this. 

§ 1983 giveth, § 1983 taketh away

Everyone will be talking about the gun case and the prospect that, given this Court's direction, it will soon to be easier to wave a gun in public than to engage in some speech in public. So let me focus on two cases about the scope of § 1983.

Nance v. Ward (Kagan for the Chief, Breyer, Sotomayor, and Kavanaugh) that a prisoner can use § 1983 to challenge manner of execution where the plaintiff's proposed execution method is unavailable under state law and would require the state to change its law. The need to change state law or regulations does not necessarily prevent the state from executing the plaintiff (the touchstone for Heck cases) but delays the execution until the state brings its law into compliance with the Constitution. Many § 1983 claims declare state law invalid and send it "back to the drawing board" to amend the law to comport with the Constitution (as judicially interpreted). Challenges to conditions of confinement can brought through § 1983 and those claims operate like challenges to method of execution--both challenge the implementation of a sentence (death or incarceration) and both may compel changes to state law (e.g., challenges to laws limiting the number of prison doctors or the regulations for prison population) to remedy that violation.

Vega v. Tekoh (Alito for the Chief, Thomas, Gorsuch, Kavanaugh, and Barrett) held that Miranda violations cannot form the basis for § 1983 claims for damages. The point of deparure, unsurprisingly, is whether Miranda is a constitutional rule and thus a "right . . . secured by the Constitution and laws." The majority describes it as a constitutional prophylactic rule but not the Constitution itself, while the dissent (Kagan for Breyer and Sotomayor) argues that the rule is constitutionally grounded (per Dickerson) even if it secures a deeper constitutional commitment against compulsion. Miranda thus is enforceable only defensively, as a basis to suppress evidence in the criminal proceeding.

I confess to not finding this case a huge deal for a couple of reasons, even as an another instance (See Egbert) of the Court eliminating ex post remedies for constitutional violations. Maybe I am missing things. First, Miranda is an odd fit for a § 1983 damages claim against the police officer who took the unwarned statement because the violation is complete only if the statement is offered by the immune non-party prosecutor and accepted by the immune non-party judge. Thus the officer's constitutional liability turns on the actions of two other people. Assuming the officer did not use coercion or force, he did nothing "wrong" unless someone else does something.

Second, I do not understand why this plaintiff does not lose on issue-preclusion grounds. He twice moved to suppress his statements on Miranda grounds and the state trial court twice rejected his arguments. Unless there is something I do not know about California preclusion law, the state court's resolution of the Miranda issue should be preclusive in the § 1983 action. This point also undermines the majority's argument as to why a prophylactic rule is not a "law" for § 1983 purposes. The Court identified numerous problems--judicial economy, conflicting decisions, and federal review of the prior state decision admitting the evidence--weighing against allowing damages suits over even a prophylactic Miranda. But the whole point of  Allen is that the federal court in the subsequent § 1983 action does not review the state court; it is bound by the state court determination and then applies it to the new claim for damages. There is no concern for conflicting judgments or lack of deference; the federal court is bound by the state court ruling. At least where, as here, the state court finds against the state defendant/federal plaintiff. The conflict arises if the state courts find Miranda was violated and the rights holder sues for damages; preclusion does not apply (because the officer was not a party to the prior suit), so the federal court would have a new bite at finding no violation (Alito's preferred conclusion). What am I missing on this point?

Apocryphal Quote Alert

For the paper that I'm writing, I came across a great quote from Learned Hand, which is that "due process is merely the embodiment of the English sporting idea of fair play." The source for this quote is Felix Frankfurter's 1938 book on Mr. Justice Holmes and the Supreme Court.

There is one small problem. Hand never said this. Frankfurter provided no citation. No opinion or article by Hand contains this line. And I see nothing in Gerald Gunther's biography of Hand on this either. I can't rule out the possibility that Hand made the comment to Frankfurter or wrote it to him in a letter, but I'm skeptical. 

What's especially odd here is that some Michigan state cases (and law review articles) have quoted this phantom line.  This reminds me of the time years ago when I realized that Huey Long just made up a quote from (the late) Chief Justice Taft to the effect that Long was one of the best lawyers to ever argue before the Court. 

 

COD is for government

A 5-4 Court held in Shoop v. Twyford that a district court erred in ordering transportation of a prisoner to the hospital under the All Writs Act where the evidence to be obtained at the hospital would not be admissible under AEDPA. A jurisdictional problem popped up at SCOTUS--the transportation order was not final. The majority stated in a "terse" footnote that it was appealable under the collateral order doctrine because it burdens state sovereignty and creates public-safety risks; Justice Breyer dissented for Sotomayor and Kagan to argue this does not meet COD requirements; and Justice Gorsuch argued cert was improvidently granted because the Court did not take the case to extend the doctrine. At the very least, it required more than a footnote.

And this is an expansion, as the court of appeals held that state sovereignty that is implicated by any federal-court order compelling a state to do something. Breyer, likening the order to a discovery order, argues that having the state as appealing party should not convert an otherwise interlocutory order (such as a discovery order) into one subject to COD review.

Of course, the modern collateral-order doctrine is skewed towards appeals by the government as opposed to by private individuals. While not framed as "appeal is proper because this is the government," the unprotectable public interests justifying the COD arise most commonly where the government loses on a uniquely governmental issue--e.g,, individual-officer immunity, sovereign immunity, foreign sovereign immunity, discovery orders affecting foreign sovereign immunity. I do not expect, as Breyer  worries, a regime in which government can appeal a common order that a similarly situated private party cannot appeal; but it is not surprising to see COD review of a unique discovery order that applies only to government parties but never to private parties. For example, an order compelling transportation of a prisoner for discovery purposes applies only to government parties and is appealable; a common order compelling discovery, equally applicable to all parties, is not.

Sponsored Post: Teaching Tips for New Law Professors Webinar (Reposted and moved to top)

Reposting for tomorrow, Wednesday, June 22

Join West Academic casebook authors for the upcoming Teaching Tips for New Law Professors panel at 2 p.m. CDT Wednesday, June 22nd (tomorrow). The discussion will be centered around pedagogy across subject areas, course creation, promoting student engagement, traps to avoid, and more. The panel of award-winning law faculty will offer advice on building and teaching a law school course. There will be time at the end for participants to ask questions.

Date: Wednesday, June 22, 2022
Time: 2:00 p.m.

Register here: https://us06web.zoom.us/webinar/register/WN_5OouJNeHQF6iNBtnVZ_05Q

Tacky, if not offensive

The Dodgers will unveil a statue of Sandy Koufax at Dodger Stadium--in a game beginning at 4:15 Saturday.

Koufax was not religiously observant and he played on Shabbat. And this is not Jewish-American Heritage Day; the Dodgers are honoring a historically great Dodger who means something to all Dodger fans. That said, Koufax's Jewishness is part of his outsided legacy, much as Jackie Robinson's race is part of his legacy. The Dodgers must know he has unique meaning to a segment of their fans and to a segment who are not Dodger fans but who revere Koufax because of what he meant to American Jewry. To schedule this event in a way that excludes a small portion of those fans and ignores the symbolism of his Jewishness reflects, at the very least, a lack of thought.

CFP: Washburn Law Journal

 

Call for Papers: December 2022 Issue of the Washburn Law Journal

 

Washburn University School of Law, Topeka, Kansas

The Washburn Law Journal is soliciting articles for Issue I, Volume 62 of the Journal. The lead Essay for the issue is written by Professor Daniel Bodansky and discusses the UN climate change regime, the Paris Agreement, and COP 26. Each year, Washburn University School of Law invites a distinguished scholar to present the Foulston Siefkin Lecture. This year, Professor Bodansky—a Regents’ Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University—presented “The UN Climate Change Regime Thirty Years On—A Retrospective and Assessment.” (His presentation can be found at the following link: https://www.youtube.com/watch?v=9DSCV5w2q9E).

Articles chosen for publication will be published in December 2022. Articles must discuss climate change, environmental law, or natural resource law to be accepted for publication. Authors may email articles to [email protected] with the subject line “WLJ Call for Papers.” Authors must include a full draft of their article, cover letter, and a curriculum vitae with their submissions. Articles must be a minimum of 10,000 words and no more than 30,000 words. Submissions will be accepted until August 1, 2022. The Journal will extend offers for publication to selected authors no later than August 22, 2022. A limited number of articles will be chosen for publication.

 

If you have any questions, please reach out to the Editor-in-Chief, Marisa No at [email protected] or the Senior Articles Editor, Elisabeth Wilder at [email protected].

The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life by Ruth Markel

Ruth Markel, the mother of our beloved friend and colleague, founder of Prawfblawg, has written a moving, insightful, and wise book. From the publisher's description:

In The Unveiling, Markel describes her experiences since the day of Dan’s death from several distinct perspectives:

• As a devastated mother with the unique human perspective of becoming a homicide survivor and victim.
• As a woman whose attempts to achieve normalcy and live a healthy life are continually interrupted by painful reminders, a rollercoaster of hearings, frequently changing trial dates, verdicts, and appeals.
• As an engaged citizen using what she has learned to help other victims of homicide and violent crimes recover from trauma and begin an optimistic outlook on life.
• As an insider who shows how our collective network of family, friends, and experts—including a murder coach—have helped her family remain involved, motivated, and hopeful.
• As a grandmother who had not been allowed to see her grandchildren in many years, she used advocacy to inspire the Florida State Legislature to pass a grandparent visitation bill.
• And as an experienced author of nine books using the written word to effectively address the shift from grief to promise.

Charter schools act under color

So says a sharply divided (especially rhetorically) en banc Fourth Circuit in a challenge to a North Carolina charter school policy requiring female students to wear skirts in furtherance of "chivalric" ideals incorporated into its educational philosophy. A majority holds that the school owner (but not private manager) acts under color and the skirts policy violates Equal Protection and that the owner and manager are liable under Title IX. There are two concurring opinions-0ne joined by the author of the majority and one authored by the author of the majority opinion. There are two dissents, including one by Judge Wilkinson heralding chivalry and alternative education in the face of the institutional forces of educational rigidity. Much pissiness all around.

I expect SCOTUS to take this next term. The decision creates a circuit split with three circuits (1st, 3d, and 9th) that held that charter schools do not act under color, including in making school and student policies. There also is a question of consistency with the one SCOTUS decision holding that education (at least for a segment of problem students) is not a traditional public function.

Learned Hand on the Constitution

I'm doing some research on Judge Hand for the paper that I'm now writing, and I came across this gem in a tax case that he wrote in 1930.

"[C]onstitutional limitations are not indifferent to the occasions of the statutes they affect. They represent a mood rather than a command, that sense of moderation, of fair play, of mutual forbearance, without which states become the prey of faction. They are not the rules of a game; their meaning is lost when they are treated as though they were." Daniel Reeves, Inc. v. Anderson, 43 F.2d 679, 682 (2d Cir. 1930).

I think this line was something of a precursor to his language in the famous "Spirit of Liberty" speech of 1944. Or at least that's what I may say in the paper.

A Section Three Puzzle

I first got interested in Section Three of the Fourteenth Amendment because of the intricate legal problems that the text presented. This was back in 2020, when I had no idea that any of this would be the subject of modern litigation. Here is one such problem for your consideration and amusement:

Let's start with two questionable premises. First, Section 3 is not self-executing. Second, only an Act of Congress can execute Section 3. (These two premises constitute the holding of the 1869 circuit opinion in Griffin's Case.)

The problem is that some states enforced Section 3 before Congress enacted general enforcement legislation in 1870. How can that be? The most straightforward answer is that the 1868 Act of Congress readmitting certain ex-Confederate states to the Union provided the necessary authority. This statute readmitted those states under several conditions; one of which was that they enforce Section 3 against state and local officials.

The Section 3 cases from Louisiana support this view. They held that the 1868 Act (which readmitted that state)  provided the necessary enforcement authority, without deciding whether Section 3 was also self-executing. The Section 3 cases from North Carolina cut the other way. Those state cases referred only to the state enforcement statute as the relevant authority, even though North Carolina was also readmitted by the 1868 Act.

Here is where the fun starts. Our two questionable premises and the state enforcement practice just cited only hang together if the 1868 readmission statute authorized state enforcement by some states. This means that--even now--some states can enforce Section Three under that theory and some cannot. But how can that be consistent with the Tenth Amendment as read by the Supreme Court in Shelby County? Holding that some states may enforce a federal constitutional guarantee while others may not is very odd, especially when the reason for that distinction in 1868 has long since become obsolete.

If you say, though, that the 1868 Act is invalid, that gets complicated. Can an Act that readmitted states be unconstitutional? If so, wouldn't that mean those states are no longer entitled to representation in Congress? Maybe there's an argument that the Section 3 enforcement portion of the 1868 Act is severable. But that seems wrong, as it was a condition for readmission. (How can a precondition be severable?)

I point that out in part because it is just one of the many ways to expose the flaws in the premises of Griffin's Case, which I discuss in my original law review article.

Journalistic malpractice, HPV-in-a-car edition

The underlying details of this case and story are too salacious for the media to resist. But that makes more obvious the wrongness of the coverage.

M.O. and M.B. had sex in M.B.'s car and M.B. infected M.O. with HPV. GEICO, which provided M.B.'s auto insurance, denied coverage and brought a federal declaratory judgment action. An arbitrator awarded M.O. $5.2 million from M.B., and M.O. filed a state-court action to confirm the award; the trial court allowed GEICO to intervene pursuant to statute and confirmed the arbitration award on the same day. GEICO appealed, arguing that the trial court did not allow it to meaningfully participate in the trial court, either to challenge the judgment or to contest its coverage obligation. The court of appeals affirmed, holding that the insurer's statutory intervention right did not entitle it any minimal participation. It could have done that by defending the claim (rather than by denying coverage) or it can challenge its obligation to defend  through a DJ action (which is pending in federal court).

The court did not consider, address, or decide that GEICO must pay this award or that (and this is where everyone wants to make jokes) auto insurance covers injuries arising from sexual activity in a car because sex in a car is "normal" use of the vehicle.

Yet here is the result of a Google search for "Geico HPV." Several headlines and stories say the court ordered GEICO to pay or that GEICO must pay, which is not close to correct. Some stories describe the woman winning the award against GEICO (as opposed to her former paramour) and the court of appeals siding with her on her claims against GEICO, also not close. A few headlines hedge by saying GEICO "could" or "may" have to pay, which is more accurate, but the underlying stories get the details of the case wrong. And even those accurate headlines miss the point of this decision.The court did not say the trial court was correct in confirming the award or that M.O. should receive $ 5.2 million because her partner negligently transmitted an STI; neither issue was before it. The court held that GEICO was not entitled to challenge its obligation to pay by intervening in this proceeding and must challenge the duty to indemnify through its federal DJ action. But this decision--the one prompting this media coverage--brings us no closer to resolving the question of GEICO's obligation to pay.

I have read speculation that GEICO is pushing this "can you believe we must pay this absurd award" narrative as a tort-reform maneuver--a car-sex analogue to McDonald's coffee. If so, the media should be doubly ashamed for this journalistic malpractice--not only are they incapable of reading and understanding law and what a case means, they are allowing themselves to be manipulated.

A fine institutionalist book review

I commend to your attention this review, which will be in this Sunday's New York Times book review. The book, published by Yale University Press, is on naval warfare during World War II, and the reviewer, Ian Toll, scores the author for multiple basic errors (for instance, multiple instances of confusing "ship" and "boat"--truly a basic for anyone writing in this area and something that anyone editing a book in this area ought to be aware of), a failure to really examine the recent literature in the area, and lazy citation practices. An illustrative and also important passage:

In a quick look at [author Paul] Kennedy’s earlier works, no references to boats for ships are found. In “Victory at Sea,” the instances fall into a 70-page section of the book, in Chapters 8 and 9. The question arises: After decades of having used the terms correctly, did Kennedy write the mistaken phrases in this book? Or did he lose control of the editing process? In his acknowledgments, he names eight research assistants, seven at Yale and one at King’s College London. He claims sole responsibility for the final product, “warts and all,” and in a strict sense, he is right to. But with enough research assistants to organize a basketball team, one wonders whether better coaching was needed. At the very least, some part of the collective effort could have been diverted to identifying and correcting errors, for example, by searching Wikipedia.

In a mark of his confidence as a scholar, Kennedy does not gloss over his reliance on that online encyclopedia. He quotes from Wikipedia liberally in the main text, cites it more often than any other single source and regrets that he cannot acknowledge so many “fine though anonymous” authors by name. And indeed, Wikipedia does not deserve much of the disparagement often aimed against it. As a “first look” reference, it is a handy tool; this reviewer even consulted it while writing this review. Wikipedia’s articles on military history have improved in recent years, and many contain information not easily found elsewhere on the web. But, by Wikipedia’s own account, studies measuring its accuracy and reliability have been mixed, and its crowdsourced model means that any page can be edited by anyone, at any time, anonymously. For that reason, Wikipedia “does not consider itself to be a reliable source and discourages readers from using it in academic or research settings.” Many university professors would mark down a student paper that included uncorroborated Wikipedia citations. For a major university press to include more than 80 in one volume may be unprecedented. What on earth is going on in New Haven?

Like Toll, I like Wikipedia and think it does not deserve the amount of lazy sneering it receives from academics. But it goes without saying that 80 citations to it in one volume is odd--and, from a major university press, hard to fathom, if you will pardon the pun.

Toll's review is brutal--tougher than I have seen in the Times for some time, except where the criticism is a matter of uninteresting political or culture-war disagreement. It is as tough as, but less self-regarding and catty than, the tough reviews one sees in the NYRB. I read this review, as I think one can and should, as a sign of respect on Toll's part. Kennedy is a serious scholar and Yale is a serious scholarly press. They both have earned the right to be taken seriously. And that means not simply throwing a book, or author, or press aside as unworthy of interest in the first place, but giving their work a careful look, and condemning error and failure past a certain forgivable level.

I think Toll is quite right to see this as raising institutional questions about the press that published the book and not just the author, although certainly Kennedy gets his full share of criticism. My sense--and I must say that I have a long-dormant and perhaps pulseless book contract with a fine university press, and haven't published with one recently, so it's just a general sense, based on a variety of tangible sources and more intangible evidence--is that in a tough market, and facing financial pressure from multiple sources, including universities that are unwilling to subsidize them as much as they used to if at all, many university presses have sought to adapt and streamline in a variety of ways. And they have become more and more interested in competing at some level with trade presses, or filling a market that trade presses have abandoned to some degree, by increasing their focus on and promotion of so-called "academic trade books," general-interest books by academics or for general but somewhat more rarified audiences. (You can get a sense of this, and some quotes showing a nice mix of enthusiasm and rationalization, in this story.) Kennedy's book has certainly been marketed in that fashion, and it is hardly alone in receiving that kind of marketing effort. May I write something that gets similar marketing attention! But this kind of focus and competitive approach, even if it is survival-oriented, raises serious institutional questions about what university presses should be doing, and what we should expect from them. Not 80 citations to Wikipedia, in any event. It is not clear that a university press that survives by emulating trade presses is a university press that ought to survive, just as a university that survived by shuttering all of its less popular departments and focusing only on departments with a high pecentage of alumni donations would be a university whose demise we ought not mourn. The B-school cliche "Adapt or die" is useful, but it does not tell us which of the two options is appropriate and under what circumstances. 

I'm not qualified to arbitrate the particulars of the review, although I know and admire Toll's recent work. But I can assume it caused some agita here and there. And I very much hope that it occasions some tough meetings and conversations in the offices of major university presses, and perhaps a greater number of critical conversations among academics about the state of those presses.    

(It goes without saying, perhaps, that I imagine that similar conversations could be held by and about law reviews, among other publications--and that this necessarily means that such discussions would be held by law faculty, since the state of those publications is the responsibility of the institutions that support them. If they lose or fail in their purpose, their editors should be only second or third in line for blame.) 

Ministerial exemption and the Collateral Order Doctrine

A divided Tenth Circuit holds that denial of summary judgment on ministerial exemption grounds is not subject to immediate review under the Collateral Order Doctrine. The point of departure went to whether the ministerial exemption is a defense against liability or an immunity from suit analogous to qualified immunity. The majority said it is a defense against liability turning on a fact question--whether the plaintiff is a minister; it therefore was not effectively unreviewable on appeal. The dissent argued the exemption is an immunity from all litigation, lost if the defendant must wait to appeal.

Some quick thoughts.

The court divided is over what to do with language in Hosanna-Tabor describing the exemption as  a "bar" to a Title VII suit or claim. But that takes Hosanna's language out of context. The Court distinguished between a limit on the court's jurisdiction and a defense to the merits, defining the exemption (properly) as the latter. The Court did not consider or decide whether this defense was an immunity from suit or a defense against ultimate liability.

The defense-to-suit v. defense-to-liability debate makes no sense and it is too bad the majority and dissent spent so much time on it. As the Court recognized, "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial,'" and every right could be characterized as one or the other. Thus, it is not mere avoidance of trial that matters, but "avoidance of a trial that would imperil a substantial public interest." The question then becomes whether the religious defendant's First Amendment interests are sufficiently substantial and public to merit immediate review.

The other point of departure is whether the ministerial exemption is a question of fact or law. The majority said it is a question of fact--is this employee a minister, as defined. That precludes COD review, which is not available on fact questions, even fact questions going to defenses, notably qualified immunity, that are immediately reviewable.

Review of "Washington's Heir"

My thanks to Jon McGinnis for his thoughtful review of the book.

Maybe there isn't a big difference between mostly dead and all dead

Like Westley in The Princess Bride, Bivens is mostly dead following today's decision in Egbert v. Boule. Unlike with Westley, I deny any big difference between being mostly dead and all dead. Here is my SCOTUSBlog recap. [Update: And a short interview on All Things Considered] I did not expect this from the argument. While not friendly to the plaintiff's claim, the quesioning did not reflect  a desire from six justices to winnow Bivens to nothing--especially after declining to grant cert on whether to overrule Bivens.

But it may as well have. If the new single question in the Bivens analysis is whether there is any reason to believe that Congress is able to decide whether to recognize a cause of action outside of identical facts to Bivens, no new Bivens action is possible, because the answer is always yes. Credit to Gorsuch for being honest about where the analysis and conclusion leads. Meanwhile, without saying so, the Court has essentially granted virtually all federal officers at all levels in virtually all agencies more-or-less absolute immunity from suits for damages for constitutional violations. Maybe something identical to Bivens survives going forward--Fourth Amendment violation, pure law enforcement, no connection to immigration and national security. But not for long. And perhaps not if the agency has (as all agencies do) some internal disciplinary system.

So it is up to Congress to enact something like § 1983 for action under color of federal law, that also keeps in place the many statutory schemes (e.g., CSRA) that operate adjacent to Bivens. Could the changing nature and increased ideological diversity of constitutional claims--e.g., an increasing number of religious-liberty claims--create sufficient bipartisan support for enacting something? Probably not. But that will be the new focus.

I am working on the third edition to my civil rights treatise. The second edition was written in 2017 and published in 2018. I am stunned (and a bit frozen) by how much has changed in that short a period and how much the Bivens and immunity chapters must be rewritten.

"I Can Say Without Hyperbole That This is a Million Times Worse Than All of Them Put Together"

The headline to the NPR story, delivered this morning, so I gather, by Nina Totenberg, is "After leak, Supreme Court seethes with resentment and fear behind the scenes." Maybe so. That is, after all, a fair description of the average workplace. 

But I must say the evidence for it in the story itself is remarkably weak. What does it consist of? Totenberg notes a speech by Justice Thomas a few weeks ago, and describes it as "seem[ing] to say he no longer trusts his colleagues." Thomas's speech praised the sense of trust that prevailed when the Court, under Chief Justice Rehnquist, had 11 years without personnel changes. Thomas did say, "This is not the Court of that era," but Totenberg does not quote this line. She does, however, first say that Thomas "[s]pecifically...implied that he doesn't trust Chief Justice John Roberts," and then write, "The root of the current antipathy is not definitely known," a sentence that feints at epistemic humility along one front while drawing from her inferences, so far as I can tell, and then asserting as settled fact that there is antipathy between the two. 

She goes on to talk in general terms about government leak investigations and directly hypothetical terms about how they might go at the Court, adding the unsourced comment that "indications are that some law clerks are lawyering up," following later with a more relevant, albeit unsourced and Brockmanesque, statement that "the terrified law clerks have been calling law firms, wondering whether they need legal representation." 

That quote is one of three things that come the closest to direct evidence, although I have no idea what her source is for the experience of terror as opposed to the concrete action of calling law firms (also unsourced). The second is this sentence toward the beginning of the piece: "The atmosphere behind the scenes is so ugly that, as one source put it, 'the place sounds like it's imploding.'" And the piece's kicker involves this: "'I don't know how on earth the court is going to finish up its work this term,' said a source close to the justices." That amounts to two quotes, neither of them especially direct and the second one not especially conclusive. Note that "a source close to the justices" and "one source" may be the same person. And since the second quote is followed by Totenberg writing in her own words but attributing the point to the same source about the clerks being "terrified," there may be as few as two sources, and possibly one, for the whole shebang, other than those portions of the article that draw on perceived implications and inferences. My trust in the accuracy of conclusions about highly specific facts in the world drawn from implications and inferences is somewhat diminished by, inter alia, 30 years of argument on the Internet.  

All of it may be true. All of it and worse may be true. It may be time, to quote another fine Kent Brockman line, for Court-watchers to crack each other's heads open and feast on the goo inside. But the headline hardly matches the evidence. Of course journalists don't write their own headlines. But the piece itself is paper-thin. Not only did the reporting not justify the headline; the reporting did not justify running the report. Perhaps Totenberg knows all this and more from many places. But that's quite irrelevant. "Trust me; I'm so-and-so" is not authority, although people in our line of work do seem ready to be overawed by famous people. Not is it journalism. Getting the goods, and reporting only what you can nail down and only so far as you can do so and without hyperbole, is journalism.  

"Religion and the American Constitutional Experiment" - Order Now and Save Big!

Kevin Spacey is no Elizabeth Taylor

So holds the district court in the federal suit against Kevin Spacey in denying plaintiff's motion to remand. Spacey removed, arguing that he became a Maryland citizen when he began working on House of Cards. Plaintiff moved to remand, arguing that Spacey's homes in Maryland were tied to HoC, were temporary, and owned by shell companies, such that his real domicile was London (where he has been living for the past several years). The opinion illustrates how courts analyze and determine the evidentiary issues around citizenship.

The court also denied Spacey's motion for summary judgment, finding a genuine dispute as to whether Spacey's conduct (grazing Rapp's but while lifting him up, throwing him on the bed, and laying on top of him) qualifies as touching of "intimate parts" for purpose of abuse or sexual desire to bring the claims within the statute-of-limitations revival statute. I am still not convinced that whether something constitutes  an intimate part is a legal question for the court to decide based on the undisputed facts. But the rest of the analysis seems right.

I gave this case as my Civ Pro final last month. I am pleased with how many students got the SJ analysis spot-on.

Bivensing the 13th Amendment

From Logsdon-Smith v. Kentucky. Plaintiffs were sexually abused by a probation/parole officer. They sued the governor and the state for a 13th Amendment violation under § 1983; in response to a motion to dismiss arguing the § 1983 claim was time-barred, they refiled as a direct action under the 13th Amendment. The Sixth Circuit affirmed dismissal.

The 13th Amendment is not directly enforceable because § 1983 exists as the exclusive mechanism for enforcing that provision against state actors; Congress has enacted laws (including § 1983) to enforce the 13th Amendment; and the 13th Amendment provides for congressional enforcement and precludes an implied right of action, unlike those rights enforceable under Bivens . This makes sense, especially because the plaintiffs downshifted away from § 1983 because they blew the statute of limitations--it makes no sense to have § 1983 as the cause of action unless you have deprived yourself of the opportunity to file a § 1983 action, in which case you can rely on the Constitution. Plus, it seems like a futile move from the outset--Bivens actions are subject to the personal-injury period for the state in which the action is brought (one year in Kentucky), as are § 1983 actions. If a 13th-Amendment-Bivens claim were possible, it would be as time-barred as the § 1983 action.

The alternative basis for dismissal makes less sense--that the state has 11th Amendment immunity because there is no clear congressional statement abrogating immunity. But that begs the question. The unequivocal congressional statement appears in the statutory cause of action. Congress should have the same power to abrogate under § 2 of the 13th Amendment as under § 5 of the 14th--both were enacted subsequent to Article III and the 11th Amendment and both limited state power and enhanced federal power.But congressional power or congressional statement is irrelevant in this case, because the absence of a congressionally created cause of action precludes any congressional statement. The question should be whether the amendment itself abrogates, which has nothing to do with a clear congressional statement. The answer cannot depend on the text; no constitutional provision--including those through which Congress can abrogate--expressly abrogates sovereign immunity because sovereign immunity appears nowhere in the Constitution. The absence of abrogation here derives from the absence of a congressional cause of action, which was the first reason for rejecting the plaintiffs' claims; it is not an independent basis for dismissal.

The court pointed out the "broader policy questions" about whether a one-year limitations period is too short for constitutional claims under § 1983. Courts apply the state limitations period so far as it is "not inconsistent with the Constitution and laws of the United States." A six-month period is too short and inconsistent with the purposes of § 1983 and the Constitution. Perhaps one year is too short, as well.

The Platinum Jubilee

Queen Elizabeth II was celebrated in Britain over the past few days for serving 70 years on the throne. This anniversary leads to two constitutional thoughts.

The first is that Churchill once defended the monarchy on the ground that "It is wise in human affairs, and in the government of men, to separate pomp from power." The United States Constitution does not do this, in the sense that the President is both the head of state and the head of government. Most democracies in the world reject this model, and in a paper that I'm now researching I will examine that issue.

The second is that the Queen's death may usher in significant constitutional change around the world. Many nations of the Commonwealth have her as their head of state. One wonders whether these nations will want her son as their head of state.  

Two interesting § 1983 ideas (corrected)

1) Steve Vladeck has an essay at MSNBC on the Court's shrinking docket and slow pace. He makes a point I had not considered: The Court's shrinking docket means fewer opportunities for rights to be clearly established and therefore less ability for plaintiffs to overcome qualified immunity. This takes on a larger scope if the Court follows through on hints that lower-court precedent cannot clearly establish.

2) Angeli Gomez is the Ulvane Uvalde parent who urged police to enter the school, was handcuffed, released, and ran into the school to rescue her children. CBS reports that Ulvane Uvalde police told Gomez not to speak publicly about the events on threat of prosecution for obstruction of justice and violation of her parole. Popehat wants to represent her in what he thinks could be a viable § 1983 action. The two questions are whether a nonsense arrest threat, without follow-through, constitutes a sufficient deprivation of the First Amendment and whether there either is case law establishing that (nothing from SCOTUS, doubt there is a "robust consensus" from lower courts) or whether this is an obvious violation.

Edits: My apologies for getting the town's name wrong.

For Shavuot, exploring the baseball records of post-retirement Jews-by-Choice

Shavuot begins at sundown Saturday. We commemorate receipt of Torah at Sinai--the point at which we all "became" Jewish--and we celebrate Jews-by-Choice by reading the Book of Ruth.

To mark the festival, I published an essay in The Forward considering the records and achievements of Joe Horlen and Steve Yeager, who converted to Judaism in retirement. The question is whether they should "count" as "Jewish" players and whether their records and achievements should count as "Jewish" in telling the history of Jews in baseball.

I had this idea in the fall. Some readers responded to my piece on the most-Jewish World Series by arguing that the '72 Series--in which Horlen, Ken Holtzman, and Mike Epstein played for the A's--was the first Series in which more than two Jews appeared. And if Horlen counts, so must Steve Yeager and his four World Series homers. I held the piece until now, timed to Shavuot and the celebration of conversion.

Call for Abstracts: Complex Litigation Ethics Conference at UC Hastings

The Center for Litigation and Courts and Huntington National Bank are excited to announce a call for abstracts for the upcoming Complex Litigation Ethics Conference to be held on the UC Hastings Law campus on Saturday, Oct. 22, 2022.

A substantial percentage of all cases filed in federal court are MDL cases, many of them involving proposed class actions. Meanwhile, district courts struggle with case management, settlement, and post-settlement administration of these complex cases. Yet scant scholarly attention has been paid to how courts adapt ethical rules and norms to complex litigation. This full-day conference will explore such issues as: 

1. Adapting Ethics to Complex Litigation in General;
2. Ethics in Funding Complex Litigation;
3. Diversity, Equity, and Inclusivity in Complex Litigation; and
4. Ethics in Communicating with Absent Class Members. 

Symposium papers will be published in a 2023 issue of the Hastings Law Journal. Confirmed speakers include federal judges, professors, and practicing attorneys, including Eric L. Cramer (Chair, Berger Montague PC), Maya Steinitz (Professor, University of Iowa) and W. Bradley Wendel (Professor, Cornell Law School). Additional speakers will be selected in part through this call for abstracts. For presenters not at for-profit legal practices, reasonable travel expenses and up to two nights’ lodging will be provided, in addition to meals. Presenters will be expected to circulate a polished draft paper by October 12. Final papers of around 8,000 words must be submitted to the Hastings Law Journal by December 31.

Abstracts of no more than 500 words should be submitted by email to Professor Joshua P. Davis at [email protected], with the subject heading “Abstract Submission – Complex Litigation Ethics Conference,” by June 30 (or contact Joshua P. Davis to discuss timing). Selections will be made in the first week of July and then on an ongoing basis. 

Any questions should be submitted to Professor Davis at the email above.