PrawfsBlawg

Call for Nominations: AALS Section on Federal Courts

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2023 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2022 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2022), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Diego Zambrano at Stanford Law School ([email protected]).

Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2022. Nominations will be reviewed by a prize committee comprised of Professors Merritt McAlister (University of Florida Levin College of Law), Richard Re (University of Virginia), Mila Sohoni (University of San Diego School of Law), Steve Vladeck (University of Texas), and Diego Zambrano (Stanford) with the result announced at the Federal Courts section program at the 2023 AALS Annual Meeting.

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

Audiobook of "American Founding Son"

One reason that I am blogging less often this summer is that I'm recording an audio version of my John Bingham book. I'm working with Audily, a company founded by one of my former students. Recording an old book is a revealing exercise, in that you are forced to read closely your own work from long ago. This means you find the occasional error or typo and reflect on how you would say some things differently now. But I also get to write a new "Foreword" for the audio edition, which will be a treat as we near the 10th anniversary of the book.

I hope this will be done and available by the end of year. To hear me read the endnotes will cost you extra.

You need 5 to do anything

An interesting discussion on the Con Law Prof listserv this week about Justice Brennan's famous "rule" for his clerks that you need five to do anything. There are several ways to interpret that statement, suggesting different things about the Court and its actions.

The first is "if we have 5, we can do whatever we want." This suggests judicial lawlessness, power politics to impose policy preferences without regard to text, precedent, or law. It also reflects the accusation some have leveled against the current majority--they are doing what they want as policy because they can. And defenders of the Court respond that they are following Brennan's rule. And as Eric Segall would say, there is no law to be found anywhere.

The second, urged by several former Brennan clerks on the listserv, is "it takes 5 to do anything." Stated differently, you only can do anything with 5. This suggests humility in working within a multi-member Court--you need to get 5 on board, which might mean compromising and settling for less than you would like. But Brennan remained committed to lawyerly tools and did not advocate pure policy goals.

The third, from another clerk, was a statement of resignation in a case he lost--"well, they have 5, they can do what they want." Again, thsi does not suggest judicial lawlessness or accusing the other side of ignoring law in favor of personal goals. It reflects reality--"they have a different view than I do, but they have 5 and I do not."

Draft Paper on the Constitution Day Address

My new draft entitled "'Not A Lawyer's Contract': Reflections on FDR's Constitution Day Address," is now available.

More on preferred first speakers and the minimization of counter-speech

Two recent examples of the "Preferred First Speaker" problem and how it is warping discussions of speech and counter-speech, even among First Amendment advocates.

The first is the cancellation of a show by Dave Chappelle at a comedy club in Minneapolis, when club staff refused to work the show. Greg Lukianoff and Conor Friedersdorf regard this as another example of cancel culture and deplatforming of a world-famous comedian; while the club is a private venue, its actions are "bad for free speech." Ken White (Popehat) shows why this line of argument stacks the deck in favor of the first speaker and and against counter-speakers--no one asks whether the initial speaker's (Chappelle) speech is "good for free speech," only the responsive speech. At the same time, Friedersdorf and Lukianoff presumably would have been find had the club owner fired the employees who refused to work the show, without recognizing that their refusal to work is imbued with some free-speech interests. The point is that it is not enough to say "bad for free speech," without evaluating the competing free-speech interests. A lot was made about the show having been booked and canceled. But I expect if the story was "we refused to book Chappelle in the first place because our employees made clear they would not work the show," the reaction would have been the same.

The second is this National Review piece complaining about some University of Michigan med students walking out of the White Coat ceremony during a keynote speech by a UM professor who is a prominent anti-choice activist. The conservative reaction to this incident combines with the reactions to various "disruption" incidents to reveal how preferred the first speaker is. Opponents cannot protest loudly in the room, cannot protest loudly outside the room, cannot silently protest in the room, and cannot absent themselves from the room. Free speech requires that they sit silently and listen and say and do nothing, no matter how much they disagree. On this view, all protest and all counter-speech violates the free-speech rights of the powerful person given a formal platform. That cannot be right.

The piece also worries that this incident shows these students are not fit to be doctors:

One of those duties is to care for patients who may have different political views. If a patient says or believes something with which doctors disagree, they still must care for that person. One cannot be confident that they will properly serve this patent if they have cannot tolerate beliefs that contradict their own.

Note that "tolerance" now means not only allowing someone to speak, but having to stay and listen to what she has to say. Taken to its logical end, a doctor or medical student cannot protest or object to anyone's speech, because they may have to treat that person and doing anything other than sitting and listening to what someone has to say equals lack of tolerance and implies that they therefore would not properly treat that person. Third, it is iconic for this to come from the National Review--the only time I heard of doctors refusing to treat patients over political disagreements was in 2010-11, when several doctors announced that anyone who voted for Obama should seek care elsewhere.

Justice Is Not Blind

I just returned from a trip to Portugal. In Porto I toured the Bolsa, which was the historic mercantile exchange and commercial hub of that trading city. The courtroom where contract disputes (primarily) were heard was a feast for the eyes, and included this depiction of Justice on the ceiling.

Justice is holding a sword and staring straight ahead. (Above her is an angel with scales, representing Divine Justice.) She is not blind, but is impartial in the sense that she is not looking at any of the parties who are before her making arguments.

I think that this imagery is superior to the traditional "blind justice" depiction. I've never liked that symbolism, as justice cannot be done without paying close attention to facts and to the real world. But Justice should not be smiling on any particular litigant or interest all the time.

Undermining judicial review

In my post on California's SB 1327, I noted Ilya Somin's post . He quoted the ACLU's May letter objecting to the proposal, in which it said the bill "creates an end run around the essential function of the courts to ensure that constitutional rights are protected."

This criticism--and it is a common one--misunderstands the procedural point. These laws do not eliminate judicial review; they shift its posture. Pre-enforcement offensive review is unavailable, pushing rights-holders into a defensive posture. A rights-holder must violate the law, get sued, and raise her constitutional right as a defense to liability. This action will begin and remain in state court, with (discretionary) SCOTUS review at the end of the process. This is recognizable as judicial review--a court passing on the constitutional validity of a law and determining whether it can be enforced--and allows courts "to ensure that constitutional rights are protected." It is wrong to say otherwise.

The problem with these laws--if there is one--is not that they bar judicial review, but that they require a less-preferable or less-ideal form of judicial review. Those who reject parity between state and federal courts do not like that litigation will begin in state court and that SCOTUS's discretionary jurisdiction may mean no federal forum. Rights-holders must "act at their peril" by violating the law and getting sued to obtain review, something they may choose not to do out of fear of liability. That creates a substantive problem--the loss of constitutionally protected activity. And it creates a procedural problem--the absence of statutory violations means "any person" will not sue, which mean the rights-holder has no opportunity for judicial review. The rights-holder also may be unable to obtain necessary binding precedent when litigating defensively. If the trial court dismisses on constitutional grounds, "any person" may choose not to appeal, taking his loss and going home until the next lawsuit, while leaving the rights-holder free from liability now but fearing the next lawsuit. Doug Laycock argued that offensive litigation provides three unique benefits--preliminary relief, prospective relief (beyond precedent), and class-wide relief--not available in defending a single suit.

These are valid criticisms of SB8/SB1327-type laws. But critics and advocates do not capture them through the simplistic "this prevents judicial review." Critics must explain why the model of judicial review the law allows is inferior and insufficient to offensive pre-enforcement litigation. Further, they must explain not why offensive pre-enforcement litigation is better, but why it is constitutionally necessary. And they must explain not why defensive litigation is worse, but why it is constitutionally insufficient. Screaming about "end runs" around judicial review does not make that case.

California goes full SB8 on firearms, sort of

SB 1327, signed by Gov. Newsom on Friday, prohibits distribution and sale of assault weapons, .50 BMG rifles, or unserialized firearms, as well as selling to people under 21. The bill prohibits public enforcement of these provisions and creates a private right of action that copies the elements of SB8--$10,000 statutory damages per firearm, injunctive relief, and attorneys fees; no fees for defendants; limited affirmative defenses.

California got the procedure right (much to my surprise), in making private enforcement exclusive and prohibiting public enforcement. The conversation around SB8 and copycats has focused on private enforcement as this powerful weapon ("bounty hunters" makes a great headline and political talking point, as someone pointed out on a listserv), as if private enforcement alone creates the bind for rights-holder that SB8 did. Private enforcement must be exclusive, otherwise rights-holders can pursue offensive pre-enforcement litigation against the responsible executive.

I am not sure how much effect this will have, beyond symbolism ("the left can play the same games as the right"). The law may not be constitutionally invalid--do the recent cases mean that states cannot prohibit any firearms, regardless of nature? The law certainly is not blatantly unconstitutional (if there is such a concept); no binding SCOTUS precedent establishes that the sale and manufacture of assault weapons or unserialized handguns is protected by the Second Amendment. The law does not target possession of assault weapons or subject owners to private suits for possessing absent an intent to give the weapon to someone else. The prohibited weapons are less pervasive and less at the core of "Second Amendment activity" than post-six-week abortions; the latter represented 90 % of Texas abortions, whereeas assault weapons are already prohibited by California law. Suits under this law are less likely to substantially disrupt ongoing seller or buyer activity.

To the extent sellers believe the First Amendment protects unregulated purchases (and thus sales) of assault weapons, this law may not hamstring them in challenging it. A seller could challenge the criminal prohibition in a pre-enforcement action against the government, obtain (it hopes) favorable precedent, then use that precedent to defend civil suits under the new law (an invalid ban would be as violative of the Second Amendment regardless of enforcement system). Ultimately, this looks less like SB8 and more like California's consumer-protection scheme pre-2004, in which laws prohibiting misleading statements could be enforced by the government or by "any person" civil litigation, leaving possible pre-enforcement offensive litigation in place.

I think the real "lefty" answer to SB8 is the one Rocky and I hypothesized--a prohibition on racist speech, exclusively privately enforced. That would reach a wide swath of likely protected activity in the way SB8 did, without allowing for pre-enforcement judicial review.

Immediate Update: Ilya Somin has thoughts. He argues the scope of potential defendants is quite broad and thus the law could have more effect than I suggest.  And he continues to urge that offensive litigation should be available against the sheriff who would enforce any judgment (we argued this fails for the same reason as the clerks-and-judges theory). Although to the extent one of the conservative justices would abandon procedural principle when the threatened substantive right is one they like, Ilya provides them the path.*

[*] To be clear, I am not accusing Ilya of inconsistency--he made the same argument about SB8 as about SB 1327. I am suggesting one of the WWH majority could use this to put a fig leaf over inconsistency

The Portia Project

Need a little inspiration? You and your students may enjoy The Portia Project podcast, which has inspiring interviews with extraordinary women lawyers. The women lawyers interviewed include a number of notable "firsts," and some of them are personal heroes of mine. The podcast was founded by M.C. Sungaila, an extraordinary appellate attorney who has briefed and argued appeals raising cutting-edge and fundamental business issues for over two decades. I've known her since we clerked together on the US Court of Appeals for the Ninth Circuit, and I've cheered as she's been recognized for over a decade by the Daily Journal as one of California’s 100 Leading Women Lawyers. Borrowing from her own inspiring bio, "she is also frequently recognized for her sustained commitment to community service and pro bono work, particularly on behalf of women and girls. She was awarded the Ellis Island Medal of Honor, an honor she shares with seven U.S. Presidents, Nobel Prize winners, athletes, leaders of industry, artists, and others whose work has had a lasting impact on humanity, for her combined professional achievements and humanitarian and pro bono work."

Although I felt underqualified to be included in this august group of women, I was thrilled to get to talk with M.C. in Episode 25, and I am eagerly awaiting an upcoming episode in which M.C. interviews my hero Ann Covington, the first woman appointed to the Supreme Court of Missouri. Getting to know Ann was a true highlight of my time as dean of the University of Missouri Law School, and I have learned so much from her stellar example. 

 

 

 

JOTWELL: Wasserman on Clopton on catch-and-kill jurisdiction

I have the new Courts Law essay, reviewing Zachary D. Clopton, Catch and Kill Jurisidiction (Mich. L. Rev., forthcoming), which describes a category of cases in which federal courts pull cases out of state court through expansive federal jurisdiction, then dismiss on uniquely federal non-merits bases. For further reading, see the response forthcoming in Mich. L. Rev. Online.

FTC and NLRB Partnership

Labor market competition and talent mobility have long been a neglected stepchild of antitrust policy. But things have been changing fast in recent years. Delighted about this press release today:

Today, National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo and Federal Trade Commission (FTC) Chair Lina M. Khan executed a Memorandum of Understanding (MOU) forming a partnership between the agencies that will promote fair competition and advance workers’ rights.

The agreement enables the NLRB and FTC to closely collaborate by sharing information, conducting cross-training for staff at each agency, and partnering on investigative efforts within each agency’s authority.

The MOU identifies areas of mutual interest for the two agencies, including: labor market developments relating to the “gig economy” such as misclassification of workers and algorithmic decision-making; the imposition of one-sided and restrictive contract provisions, such as noncompete and nondisclosure provisions; the extent and impact of labor market concentration; and the ability of workers to act collectively.

“Workers in this country have the right under federal law to act collectively to improve their working conditions. When businesses interfere with those rights, either through unfair labor practices, or anti-competitive conduct, it hurts our entire nation,” said NLRB General Counsel Jennifer A. Abruzzo. “This MOU is critical to advancing a whole of government approach to combating unlawful conduct that harms workers.” 

“I’m committed to using all the tools at our disposal to ensure that workers are protected from unfair methods of competition and unfair or deceptive practices,” said FTC Chair Lina M. Khan. “This agreement will help deepen our partnership with NLRB and advance our shared mission to ensure that unlawful business practices aren’t depriving workers of the pay, benefits, conditions, and dignity that they deserve.”

The NLRB also recently joined the FTC’s Consumer Sentinel Network (CSN) . CSN is an investigative online tool and complaint database for law enforcement agencies. It contains millions of consumer complaints about scams, identity theft, Do Not Call Registry violations, and more.

In February, General Counsel Abruzzo issued a memorandum to all field offices, committing to working closely with other federal agencies to fully effectuate the mission of the National Labor Relations Act (NLRA) and take action on interagency collaborations outlined in the White House Task Force on Worker Organizing and Empowerment report.

 

ICYMI: Teaching Tips for New Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned by violating it.  What the advice boils down to, I think, is that students desperately need you to be predictable. It is comforting to them when they know roughly what to expect each day. I thought of this advice a lot as dean, too. The Dean's "mood" affects the whole institution, and it is important to remain predictably but not Pollyanna-ishly optimistic no matter what comes along. As an aside, I think this is important as a parent, too. My motto: We'll deal!

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 28 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than two decades ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean." Also, you don't know what's really going on with the student. Often, it's not about you or your class at all, and seemingly rude behaviors can be a sign of a student who is in serious distress, especially if the behaviors begin suddenly.

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong, and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another. 

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. Videos can be sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) 30 years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture. It can also be used as a background with the main points (no more than 3-4) you're going to cover.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. This is probably the most important piece of advice on this list. You're not trying to convince the students you're smart; you're trying to convince the students they're smart. This happens to be good advice for leaders, too!

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit when you're new. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students.  I don't wear a suit every single day, but I believe in signaling I take the endeavor seriously by dressing professionally.

20. If you are teaching 1Ls, talk to students about how to learn. You might think they know, but not all of them do. Talk about what hard work looks like. One of my favorite books about learning is "Make It Stick," which is recommended reading for all teachers and learners.

21.    Talk to students about mental health at the beginning of class and throughout and especially right before exams. Make it okay for them to seek help if they need it.

22.   One of my greatest joys as an experienced teacher is seeing my former students reach the pinnacles of their careers. Think about the fact that the students in front of you will someday be extraordinary lawyers, judges, and leaders. You may think you will change the world as a scholar, and maybe you will. But you can definitely change the world by helping one student at a time find what they were meant to do with their one short and precious life and giving them the knowledge, skills, and courage to pursue it. 

23.  Try to learn names. I've been bad at doing this while teaching as a dean. Now that I'm a full-time prof again, I'm looking forward to redoubling my efforts on this front. 

24. Tell students why they should come to office hours. Tell them that they can seek general advice from you if they need it. About two years ago, a student taught me how important this is for first-generation students. I wish I'd known it sooner. 

Finally, if you're new and you'd like to talk about any of the subjects I teach (mostly Torts, Media Law, Advanced Torts, First Amendment Law, Constitutional Law), I'd be happy to share any materials I have.

Better Call Saul--when Jimmy becomes Saul

Better Call Saul hit a significant story milestone last night. I want to consider a question (with spoilers) after jump: How bad a guy is Saul Goodman and is he qualitatively worse than Jimmy McGill?

Better Call Saul tells the story of how Jimmy "becomes" Saul, the "criminal lawyer" of Breaking Bad. Two strands make the story. The first is that Kim Wexler, the love of Jimmy's life, grounds him and keeps him from losing himself in his alter-ego. In mathematical terms, Jimmy-Kim=Saul. The second is that Saul Goodman represents a difference in kind, not degree, from Jimmy McGill. Jimmy is a fundamentally decent person and lawyer, committed to his clients and to doing justice; while he crosses ethical and legal lines, it is in service of a higher ideal and he always comes back around. Saul Goodman, by contrast, is an immoral, unethical criminal, engaging in all manner of wrongful conduct and out only for himself.

The story reached its point of no-return last night. Kim leaves Jimmy, wracked with guilt over the human costs of their scheme. The last seven minutes time-jumps some period for a montage of a Day-in-the-Life of Saul Goodman--he wakes up in a garish mansion next to a sex worker; has a horrible comb-over; wears loud suits; offers his companion a cereal bar on her way out the door; drives his Cadillac with LWYRUP plate; decorates the office with columns and the Constitution and an inflatable Statue of Liberty on the roof; and is fast-talking on the phone at all times. The idea--in reviews and interviews with show-runners--is that Kim bailed because she lacked Jimmy's complete moral flexibility, while Jimmy could compartmentalize and embrace his immorality, as Saul.

This story requires that Saul Goodman is truly worse than Jimmy McGill--that Saul exceeds the typical low-rung, fast-talking, as-seen-on-TV lawyer into outright criminality. Saul did illegal stuff on BB--arranging meth sales, money laundering. But we have watched Jimmy do illegal stuff on BCS. The story tells us that Saul is worse than Jimmy; the seven-minute montage is supposed to show us he is. But to my ear, they have not done it. Style aside, Saul in these seven minutes does not lawyer any differently than Jimmy.

Here is the substance of the phone snippets we hear from Saul:

    • Hard-ball negotiation in some type of PI case, emphasizing that soft-tissue damage gets his client paid regardless of X-rays and that it is better for the defendant to pay now or "bleed to death" in court.

    • Extended conversation with his secretary who updates him on new stuff. Here is Saul's side:

        • Something about telling his "my Zanex guy" "yes and today." It could be that he is representing someone charged with selling Zanex or it could be about getting drugs illegally; hard to say.

        • A new client charged with public masturbation; the joke is that Saul has multiple clients charged with that.

        • Ambulance-chasing to represent victims in a bus accident, obtaining victim names by leaning on a hospital employee he had represented on a DUI and planning a dramatic photo-op and media statement to try the case in public.

        • Scheduling matters for court for his convenience.

        • Listening to, and complaining about the sound quality of, a "Better Call Saul" radio spot. The ad is purely PI--insurance companies that will not pay for accident repairs, defrauded by brother-in-law, surgery gone wrong. He wants to stop the check for the spot and threaten the station with a lawsuit, preparing to stand for freedom of speech.

The montage and episode ends with Saul walking through a packed waiting room and into his office, then calling his secretary to send in the next client with "let justice be done, though the heavens fall."

This did not show us the so-called criminal lawyer. It showed an (exaggerated) version of the fast-talking smarmy, mostly-PI lawyer we have watched for six seasons.

My point, I think, is that, reviews and interviews are insisting on a premature conclusion. We have not reached the story's endpoint--fundamentally decent Jimmy has not become irredeemable Saul. The show has four more episodes, at least one featuring Walter White and Jesse Pinkman and likely showing further interactions between Saul and Gus' meth operations. My guess is some of these final episodes will show genuine Saul wrongdoing, something Jimmy did not and would not do. We are not (yet) there.

Symposium on William Novak’s New Democracy: The Creation of the Modern American State

Today started, over at Notice and Comment, the Yale Journal of Regulation online blog, a symposium on William Novak’s New Democracy: The Creation of the Modern American State. I really enjoyed and learned from his book and am drafting my contribution to the symposium as we speak. Hop over to Notice and Comment for a great lineup of contributors.

First Annual Michael Olivas Writing Institute, July 21-22

The First Annual Michael A. Olivas Writing Institute will take place via Zoom this Thursday and Friday, July 21-22, sponsored by the Olivas Faculty Recruitment Initiative, FIU College of Law, and University of Houston Law Center. Registration here.

Hiring Plans and Hiring Committees 2022-2023

I am collecting information about (1) whether a particular school plans to hire in 2022-2023, and (2) if so, information about the school's hiring committee and hiring interests.

Please share in the comments the following information related to the 2022-2023 law school faculty hiring season. (A spreadsheet is below. You cannot edit the spreadsheet directly.)

First:

 

(a) your school;

 

(b) whether your school is pursuing entry-level hiring in 2022-2023 (this could be yes, no, maybe, or something else);

 

(c) whether your school is pursuing lateral hiring in 2022-2023 (this could be yes, no, maybe, or something else).

 

If your school does plan on pursuing hiring in 2022-2023:

 

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);

 

(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

 

(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 

 

(h) your committee's preferred way to be contacted (email, snail-mail, or phone); 

 

(i) the website, if any, that candidates should use to obtain information about the position or to apply; and

 

(j) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

Edited 7/19/22 to remove question (k), "whether you are interested in hiring entry-level candidates, lateral candidates, or both," because the question was already asked above in (b) and (c). If someone can figure out why this question is not a duplicate, please let me know and I will put it back.

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here. 

 

 

Snap Relocation

Monet v. Tesla, from ND Cal. This is a products-liability claim alleging defects in Tesla's "autopilot" system. The plaintiffs are Arizona citizens. When the lawsuit was filed on November 16, 2021, Tesla was incorporated in DE and headquartered in Palo Alto, CA. On December 1, 2021, Tesla famously moved its headquarters to Texas. On January 4, 2022, plaintiffs served Texas. Tesla removed on February 2, 2022.

Plaintiffs moved to remand, citing the forum-defendant rule. The court denied remand, relying on § 1441(b)(2)'s "properly joined and served" language. According to the court, the forum-defendant rule bars removal when the defendant is local at the time of service and removal. It further said that the rule that citizenship is determined at the time of filing applies to determining whether there is diversity jurisdiction (which is undoubtedly the case here, regardless of where Tesla has its headquarters), but not to the non-jurisdictional limit of § 1441(b)(2).

This makes no sense.

Diversity jurisdiction locks citizenship at the time of filing; diversity removal should follow that. A case is removable if it could have been filed in federal court in the first instance, which is determined by citizenship at the time of filing. Post-filing citizenship changes cannot create or destroy federal jurisdiction or make a case removable that had been non-removable for lack of jurisdiction. It should follow that post-filing citizenship changes should not make removable a case that was not removable for non-jurisdictional reasons, such as presence of a forum defendant. The time-of-filing rules eliminate the incentive to play citizenship games to create or eliminate jurisdiction, as well as simplifying the jurisdictional inquiry by focusing on one point in time. Tesla obviously did not move to Texas to make this case removable. But post-filing changes should remain irrelevant, both to avoid the temptation and to simplify the analysis.

The court errs in reading "properly joined and served" language of § 1441(b)(2) to override the time-of-filing rule. The forum-defendant rule prohibits removal when there is a forum defendant; whether a defendant is a forum citizen should be measured at the time of filing, along with all other citizenship determinations. The "properly joined and served" language in § 1441(b)(2) checks a particular type of plaintiff gamesmanship--naming but not proceeding against a straw forum defendant and denying removal to the non-forum real litigation targets. But it does so by allowing the parties to ignore the unserved forum defendant in removing, not by allowing the forum defendant to change citizenship in a way forbidden in all other contexts. Stated differently, the "and served" language punishes the plaintiff for gamesmanship or bad litigation strategy in failing to serve the local defendant, by allowing service despite the local;s presence; it does not give one otherwise-disfavored defendant a unique opportunity, available to no other party, to change its citizenship post-filing to allow otherwise-prohibited removal. And, of course, no gamesmanship could have been at work here, since Tesla is the sole defendant, thus not a strawman, and plaintiffs obviously intended to proceed against it.

The court purports to rely on binding 9th Circuit authority for the proposition that removal is proper where the defendant was not a forum citizen at the time of removal. But in Spencer, the sole non-local defendant removed; once in federal court, the plaintiff sought to add a local defendant, then argued that the case must be remanded because it now included a local defendant. The 9th Circuit held, properly, that post-removal changes to the parties that do not destroy complete diversity do not require remand. But the changes in Spencer involved the addition of a new party, not changes to the citizenship of existing parties that are ignored in other contexts.

Finally, note that the court's approach could affect personal jurisdiction. Because Tesla had its PPB in California, it was subject to general jurisdiction there (being sued where it is essentially at home). But would this post-filing citizenship change also eliminate general jurisdiction, because Tesla no longer is essentially at home in California? It should not matter in this case, since there should be specific jurisdiction because the car was likely designed and/or manufactured in California. But on different facts, the court's approach to post-filing citizenship changes can complicate jurisdictional issues.

The limits of swearing cheerleaders and an obviouly hollow victory

Free speech folks were watching this Tenth Circuit case, arising from the expulsion of a high school student for a private, out-of-school Snapchat post saying "Me and the boys bout to exterminate the Jews" with a photo of them wearing WW-II-era foreign military hats. In other words, it raised the open question from Mahanoy--out-of-school online speech not about school but raising concerns for in-school bullying, harassment, threats, and discrimination. The court reversed the grant of a 12(b)(6), holding that Mahanoy applies, the school did not have an interest in regulating this speech (despite its content), and there was no showing of substantial disruption. Good all around-and perhaps a hint that lower courts will follow Mahanoy to a sharper in-school/out-of-school line.

But the court remanded for consideration of qualified immunity, which will almost certainly be granted. The events underlying this case occurred in 2019, two years prior to Mahanoy and during a period in which courts allowed schools greater power to reach out-of-school speech that found its way into school and that could be perceived as threatening or discriminatory. Certainly there is no SCOTUS or Tenth Circuit precedent establishing that similar speech cannot be punished. So this is a small victory for the plaintiff that will not last long.

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

Faculty Hiring: University of Alabama

The University of Alabama School of Law seeks to fill up to two tenured/tenure-track positions for the 2023-24 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Environmental Law (including Regulatory Compliance) and Civil Procedure (with the possibility of also teaching Evidence); however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Candidates interested in the Assistant/Associate Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50441

Candidates interested in the Associate/Full Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50535

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Heather Elliott, Chair of the Faculty Appointments Committee ([email protected]).

UA EEO Statement: The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

What is the right time and place?

A group of protesters congregated outside of a Morton's Steakhouse in D.C. where Justice Kavanaugh was eating dinner, causing him to leave through the rear of the restaurant. Morton's issue the following:

Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant. Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.

First, I just checked the Constitution and the right to peaceably assemble is followed by "petition their government for redress of grievances," not to "eat dinner." Maybe dinner is well-grounded in tradition and history as an unenumerated right, although the move of "dinner" to early evening was more of an early-19th-century development.

Second, other than chanting and making, the statement does not say how the protesters were "unruly" or "unduly harass[ing]."* The Politico story says protesters called the restaurant and urged the manager to kick Kavanaugh out. But that would have bothered the restaurant manager, not Kavanaugh or another diner. It does not appear the protesters entered the restaurant or went anywhere they were not legally entitled to be.

[*] And would it be ok if the protesters had "duly harassed" Kavanaugh and customers? Does Morton's believe there is some appropriate and permissible level of harassment? Good to know.

Third, what is the "time and place for" protesting public officials? (Or to paraphrase Hillel--if not now, when; if not here, where?). The home is off-limits; non-official public outings are off-limits; the front of the Court was declared (by the Court) not to be a public forum; and there is fencing around the Court's grounds, denying anyone close access to where he works. So where is the appropriate time and place to assemble and protest a powerful government official?

Mass Resignations As A Check on Executive Authority

The implosion of Boris Johnson's Government in the past day is quite extraordinary. (If you missed the debate in the House of Commons or the parliamentary committee hearing today, spend some time to watch.) At one level you could view this situation as an example of the superiority of the unwritten British Constitution. There you can easily get rid of a bad Prime Minister without an election. The United States is almost always stuck with a bad President until his term expires.

But today's events prompt another thought. In recent years we see more instances in which resignations or the threat of mass resignations operates as a more effective check on executive power than the formal mechanisms. The recent testimony before the January 6th committee explained that the threat of such resignations blocked President Trump's idea of replacing the Acting Attorney General right before the insurrection. Back during Bush 43's Administration, the threat of mass resignations from the DOJ convinced the President to change course on aspects of his counter-terrorism policy. And there's the Saturday Night Massacre.

Scholars need to pay more attention to this new unwritten constitutional mechanism.   

Overruling by Ignoring

There’s been a lot of talk lately about SCOTUS’s practice of overruling precedents by first ignoring them and then declaring them bad law. The discussion was sparked by the Court’s recent declaration that it had “abandoned” the Lemon test, with other actual or anticipated examples including Chevron, Casey on stare decisis, and Korematsu. Tendencies to ignore or evade case law might be likened to patterns of gradual precedential erosion, involving cases like Bivens, Flast, and Miranda.

Most of the commentary on overruling-by-ignoring has been critical, but I’m not sure that that negativity is warranted. Like one-last-chance decisions and other forms of judicial gradualism, overruling-by-ignoring has a lot to be said for it. In an essay focused on Teague’s watershed exception, I defended these “fait accompli overrulings”:

[D]oes the Court illegitimately evade stare decisis by declaring that an overruling has already occurred, even though no prior decision had so declared? [T]he stare decisis analysis can be regarded as “disciplining.” Yet that discipline is avoided through overruling as a fait accompli. Surely, one might think, a stare decisis analysis is called for at some point in a precedent’s demise. The “retaining no vitality” line [in Edwards v. Vannoy] could even be viewed as a bad-faith strategy for undermining precedent.

But . . . the situation is more complicated. The problem with fait accompli overrulings is especially severe if we imagine that the earlier ruling was undertaken with the follow-through in mind. But it’s possible, even likely, that the earlier ruling wanted to create a period of precedential tension, rather than knowing precisely how things would be resolved. If experience turned out to favor the later ruling over the earlier one, then the case for overruling would have been made. And if not, then not. The case for good faith grows still stronger if many years—and judicial appointments—lie between the practical and formal overrulings.

We can better see both the appeal and the distinctiveness of fait accompli overrulings by placing them in historical perspective. To a great extent, these rulings harken back to an earlier era, when precedential principles were not made but found. Today, lawyers often assume that a case loses precedential value only if and when a court-as-legislature formally declares it to be repealed or “overruled.” But, at common law, a judicial decision could be set aside for already being odds with the custom or practice of the courts in general. Experience, one might say, can gradually reveal a once venerable precedent’s error. Similar logic may explain the Court’s recourse to “the court of history” in disavowing Korematsu, even though that precedent had never been formally overruled.

All this to say that overruling by fait accompli . . . is at least plausible and possibly even preferable to legislative overruling pursuant to the stare decisis factors. In general, showing that a case has gone by the wayside is harder, calling for greater judicial patience and humility, than simply running through a four-part, one-and-done rubric. So a pattern of erosion or evasion would seem to qualify as a basis for overcoming stare decisis. To harmonize this conclusion with extant doctrine, such a pattern might be treated as a “special factor” within the stare decisis analysis.

Let me add two comments.

First, the propriety of a fait accompli overruling may depend on just what the Court has done to erode or evade. In general, these overrulings are most justifiable when the Court has suggested that the original precedent can be fully discarded—and least justifiable when the Court has insisted that the core of the beleaguered precedent abides. The logic here is simple. Intimations of a precedent’s impending demise provide heightened notice of what is to come, whereas reassurances that the precedent survives could invite new or ongoing reliance.

Second, lower courts do and should play a dynamic role during periods of “precedential tension.” Like other observers, savvy lower-court judges are well aware of cases that seem never to gain traction with the justices. That sort of pattern can even be viewed as a “signal” inviting the precedent’s “narrowing from below.” So, when precedents remain in force but are clouded by doubt, lower courts often make appropriate adjustments. And those experiments can helpfully inform SCOTUS’s ultimate decision to overrule.

The bottom line: if the Court is being too cavalier with precedent, then fait accompli overrulings likely have more to do with the solution than the problem.

Cross-posted from Re's Judicata.