PrawfsBlawg

Conscription in Constitutional Argument

There are many ways in which conscription makes itself felt in constitutional argument. One is as an argument for expanding voting rights--the 26th Amendment is a good example. The second is as an argument for equality. Concurring in Edwards v. California, Justice Jackson pointed out that discrimination against the indigent was problematic given that the indigent were subject to the draft. Sometimes it's an argument against equality--consider the opposition to the ERA.

A fourth is as an argument against a libertarian reading of the Constitution. Justice Holmes said (infamously) in Buck v. Bell that the compulsory draft supported the policy of compulsory sterilization, for example. I'm trying to figure out when this third type of argument was first made. There is a concurring opinion from 1870 that says something comparable, but I think that the first opinion of the Court to do so was Justice Harlan's opinion in Jacobson. Here is the key passage:

The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ (Allgeyer v.Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.

The Court said this to reject Jacobson's argument that he could not be fined for refusing a compulsory smallpox vaccination. I'm still thinking about other examples. 

Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.

CFP: Continuing Legal Education and the Professional Education of U.S. Lawyers

Announcement here.

The AALS Journal of Legal Education invites abstract submissions for a symposium on “Continuing Legal Education and the Professional Education of U.S. Lawyers.” The Villanova University Charles Widger School of Law and the Pennsylvania Continuing Legal Education Board will host the in-person symposium on Friday, October 6, 2023, at the Inn at Villanova University. Accepted final articles will be published by the Journal of Legal Education in a symposium issue.

The symposium will take a broad and deep look at the continuing legal education (CLE) landscape. The themes of the symposium are the purposes of continuing legal education and how effectively those purposes are achieved, including the measurement of teaching and learning.

Areas of exploration could include, but are not limited to: adult learning and engaging pedagogy — i.e., best practices in delivering legal education outside the law school classroom; innovation and experimentation in the delivery of CLE, including best practices for developing and delivering online education in synchronous versus asynchronous formats; the relationship between CLE provider accreditation, program quality, and learning outcomes; legal ethics education and moving the needle on professional compliance; diversity, equity, and inclusion (DEI) in the context of both mandatory and non-mandatory CLE, including access to quality programming and compulsory substantive content on DEI and anti-harassment content; state-by state experimentation with alternatives to fulfilling mandatory CLE, including “CLE for pro bono“ programs; and, in keeping with the spirit of the comments offered by legal education pioneer John Mulder, the important role of law schools in ensuring quality continuing legal education, Continuing Legal Education, 1 J. Leg. Ed. 378, 385 (1949).

The Journal seeks contributions and perspectives from a wide array of potential authors, including legal educators, CLE regulators and providers, and consumers of continuing legal education.

Submission Guidelines

The deadline for abstracts is March 31, 2023, and authors will be notified of acceptance by May 1, 2023. All submissions must be in English. Your abstract should be under 500 words and should identify the author(s) of your proposed presentation. If you are submitting a proposal for a panel, include the names and contact information for all participants. Submissions will be reviewed on a rolling basis. Late submissions may be considered if space remains available. Publishable quality submissions are due to the Journal of Legal Education by December 6, 2023.

To secure broad and strong participation, the symposium convenors will cover authors’ reasonable travel expenses and offer a $500 honorarium for authors who participate in person at the symposium and submit a manuscript that meets the Journal’s editorial standards.

Please submit abstracts as Word documents or in PDF to: [email protected]

Questions should be directed to:

Professor Steven L. Chanenson
Faculty Director

David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance

Villanova University Charles Widger School of Law

299 N. Spring Mill Rd.

Villanova, PA 19085

[email protected]

The United Nations AI for Good Global Summit Geneva July 2023

I am thrilled to share the press release of the announced program -Participation is free of charge and open to all in Geneva and online:

ITU's "AI for Good" showcases AI with positive, global impact

UN tech agency brings the latest in artificial intelligence and robotics to Geneva​ 

​​​​Artificial intelligence (AI) and robotics innovators—and their high-tech creations—will join humanitarian leaders in Geneva, Switzerland, 6-7 July, for the latest edition of the global summit advancing AI to drive sustainable development. 

The two-day AI for Good Global Summit organized by the International Telecommunication Union (ITU) will demonstrate how new technologies can support the UN Sustainable Development Goals (SDGs) in areas such as combatting the climate crisis and bolstering humanitarian response. 

“It's in our collective interest that we can shape AI faster than it is shaping us," said ITU Secretary-General Doreen Bogdan-Martin. “This summit, as the UN's primary platform for AI, will bring to the table leading voices representing a diversity of interests to ensure that AI can be a powerful catalyst for progress in our race to rescue the SDGs." 

Innovative solutions and world-class speakers 

The AI for Good Global Summit will feature eight humanoid social robots and over 20 specialized robots, being brought together for the first time under the same roof. The robots will showcase capabilities ranging from fighting fires and delivering aid to providing healthcare and farming sustainably. 

The event will also feature talks from thought leaders as well as demos of state-of-the-art AI solutions that could achieve global scale with the support of the international AI for Good community. 

Two high-level roundtables – featuring government officials, industry executives, academics, and UN partners – will explore the policies, regulations, and standards needed for AI to advance sustainable development. ​

​The event will also host the final round of the AI for Good Innovation Factory where start-ups from around the world will pitch their AI solutions to advance the SDGs. 

More than a summit 

The AI for Good Global Summit, established in 2017, returns to Geneva in person for the first time since 2019. In response to the COVID-19 pandemic, AI for Good transformed into a year-round online engagement platform bringing together a diverse range of participants from 183 countries. 

This year's summit combines the best of the physical and virtual worlds, with the potential to welcome over 2,500 participants in Geneva alongside online participation from the over 15,000 members of ITU's fast-growing AI-powered community platform, the AI for Good Neural Network. 

The event will emphasize networking to build new projects, calls to action, and partnerships. AI for Good's dynamic show floor will also include AI-inspired performances and artwork.   

ITU connects the world 

AI for Good is organized by ITU, the UN specialized agency for information and communication technologies, together with 40 partner UN agencies. The summit is co-convened by the government of Switzerland. 

ITU's global membership includes 193 Member States and – uniquely in the UN system – over 900 companies, universities, and international and regional organizations. 

Member States at ITU's governing Plenipotentiary Conference in 2022 adopted a resolution supporting the tech agency's work across the UN system to realize the benefits of AI for sustainable development.   

The two-day AI for Good Global Summit at The International Conference Centre Geneva is preceded by machine learning workshops on 5 July led by experts from the AI of Good Discovery series. 

Participation in the AI for Good Global Summit is free of charge and open to everyone. 

Where human and robot minds meet 

Confirmed summit participants include: ​​

• Lila Ibrahim – Chief Operating Officer, DeepMind​
• Yuval Noah Harari – Historian, philosopher, and bestselling author of "Sapiens" and "Homo Deus" (participating remotely)
• Orly Lobel – Warren Distinguished Professor of Law, University of San Diego, and author of "The Equality Machine" (among The Economist's best books of​ 2022)
• Stuart Russell - Professor of Computer Science at University of California, Berkeley, and author of "Human Compatible: Artificial Intelligence and the Problem of Control"
• Alessandra Sala – Senior Director of AI & Data Science, Shutterstock, and President, Women in AI
• Babak Hodjat – Chief Technology Officer for AI, Cognizant
• Sophia Kianni – Iranian-American climate activist, Executive Director of Climate Cardinals and, at 20 years of age, the youngest member of the UN Secretary-General's Youth Advisory Group on Climate Change
• Andrew Zolli – Chief Impact Officer, Planet
• Ebtesam Almazrouei – Director of the AI-Cross Center Unit at Abu Dhabi's Technology Innovation Institute
• Iker Casillas – Former football goalkeeper, Real Madrid, FC-Porto, and Spanish National team
• Ali Agha – Group Leader at the Autonomous and Robotics Systems Division of NASA's Jet Propulsion Laboratory, Caltech Center for Autonomous Systems and Technologies 

​The summit will also feature: ​

• Beonmi – the world's first fully functional general-purpose humanoid robot (Beyond Imagination) 
• Nadine - one of the world's most realistic humanoid social robots (University of Geneva)
• Sophia - first robot Innovation Ambassador for the United Nations Development Program (Hanson Robotics)
• Geminoid – ultra-realistic humanoid robot from Japan (Hiroshi Ishiguro)
• 4NE-1 – one of the world's most advanced cognitive humanoid robots designed to collaborate with humans (Neura Robotics)
• Ai-Da Robot – first ultra-realistic robot artist (Aidan Meller)
• Grace – the world's most advanced humanoid healthcare robot (SingularityNET)
• Desdemona – the rockstar robot of the Jam Galaxy Band 

The AI for Good Global Summit 2023, co-convened by Switzerland, is supported by Immersion4 (Diamond sponsor), Technology Innovation Institute (Diamond sponsor), Monash Data Futures Institute at Monash University ​(Gold sponsor), ZTE (Gold sponsor), and Rohde & Schwarz (Networking sponsor).

Media wishing to cover the AI for Good Global Summit, register here: https://aiforgood.itu.int/summit23/

Resources and background information:​

• Digital media kit: https://trello.com/b/Z9W21ZIA/ai-for-good-digital-media-toolkit
• For more information on the summit, please visit: https://aiforgood.itu.int/summit23/
• Link to AI for Good Neural Network: https://aiforgood.itu.int/neural-network/
• Join the conversation on social media using the hashtag #AIforGood

About AI for Good

The goal of AI for Good is to identify practical applications of AI to accelerate progress towards the SDGs and connect AI innovators with public and private-sector decision-makers to help scale up AI solutions globally. The landmark 2017 AI for Good Global Summit marked the beginning of a global dialogue on the potential of AI to act as a force for good. The action-oriented 2018 and 2019 summits gave rise to numerous AI for Good projects including several ITU "pre-standardization" initiatives investigating the standardization requirements for high-potential AI use cases. The upcoming AI for Good Global Summit 2023 (6-7 July, Geneva) combines 2,500+ participants and online participation from the over 15,000 members of the AI-powered community platform, the AI for Good Neural Network, making it the world's largest and most inclusive AI solutions and matchmaking event. For more information,​​ ​visit: https://aiforgood.itu.int/.

​About ITU

The International Telecommunication Union (ITU) is the United Nations specialized agency for information and communication technologies (ICTs), driving innovation in ICTs together with 193 Member States and a membership of over 900 companies, universities, and international and regional organizations. Established over 150 years ago, ITU is the intergovernmental body responsible for coordinating the shared global use of the radio spectrum, promoting international cooperation in assigning satellite orbits, improving communication infrastructure in the developing world, and establishing the worldwide standards that foster seamless interconnection of a vast range of communications systems. From broadband networks to cutting-edge wireless technologies, aeronautical and maritime navigation, radio astronomy, oceanographic and satellite-based earth monitoring as well as converging fixed-mobile phone, Internet and broadcasting technologies, ITU is committed to connecting the world. For more information, visit: www.itu.int.​​​​​​

 

Whittington on the new Florida higher-ed bill

The filed version of HB 999 matches the principles DeSantis announced several weeks ago. Keith Whittington (Princeton and chair of the Academic Freedom Alliance) analyzes the constitutional and academic-freedom problems. His analysis is spot-on. I will highlight two things.

First is his closing line: "In the name of prohibiting political litmus tests for faculty, the reform will wind up imposing political litmus tests for faculty." That is the point--DeSantis and his minions do not intend or desire to prohibit political litmus tests or stop indoctrination; they want to impose their preferred indoctrination and litmus tests.

Second, he says in the closing ¶: "Hard to imagine that this kind of micromanagement of how universities operate will be very workable in practice, even if it were a good idea." Much depends on the university presidents. If they decline to exercise this new power and allow faculty governance to proceed as it has, this may do less practical than rhetorical damage.

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

JOTWELL: Thomas on Adams, et al. on open justice

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Zoe Adams, Abi Adams-Prassl & Jeremias Adams-Prassl, Online Tribunal Judgments and the Limits of Open Justice, 42 Legal Stud. 42 (2022).

Relational Contract Theory Redux

I was honored to be asked to contribute to a symposium on the work of Mel Eisenberg.  My entry -- "My Relationship with Mel Eisenberg About Relational Contracts" -- is available here.

Is a National Military Draft Constitutional Under Original Public Meaning?

We know that national conscription is constitutional. Why? Because it was done during the Civil War, World War I, World War II, Korea, and Vietnam. But would the Founding generation have thought a national draft was within Congress's enumerated powers? That's a much harder question. It seems pretty clear that in 1787-1788 people thought that states could draft men into the militia. Whether that extended to the national government is not clear at all. (Here I am drawing on some work that Akhil Amar did more than thirty years ago.)

This issue was discussed in Congress during the War of 1812, when a national draft was considered but not adopted. It was also addressed during the Civil War when a draft (or a high tax for not being drafted) was adopted. I'll go through all of that in some other posts.

The most relevant textual provision is that Congress has the power "[t]o raise and support Armies." The question is whether "armies" meant something different from "militias" in 1787-1788. One thought is that militias were the only entities that involved conscription; a reading that finds some support from the Second Amendment. Armies, on this view, refer instead to only volunteers and/or mercenaries.  Thus, Congress lacked the power to conscript. President Lincoln (in a private letter) rejected this distinction and said that conscription was a valid means to raise an army. He also had a necessity argument on his side--no small thing. Anyway, more on this another time.  

Judge cannot certify appeal of prior order by prior judge in same case

From In re Sensipar Anitrust Litigation:

District Judge Leonard Stark issued an interlocutory decision. He was elevated to the Federal Circuit five days later and the case transferred to a different district judge, Colm Connelly. The defendant moved, unopposed, for a § 1292(b) certification for immediate appeal. Connelly holds he lacks authority to certify. Section 1292 speaks of a "judge" issuing a decision and certifying the § 1292(b) elements, which means the same judge must issue the order and certify; a different judge cannot certify, including in the same case. The key is that § 1292 does not use judge and court interchangeably; thus while both judges are the "court" hearing the case, they remain different judges for one order.

The textual point is well-taken, I suppose. At the same time, this cannot be the right answer. I know of no other statute or rule that gives a judge less-than-full control and power over a transferred case than had she been assigned the case from the outset. The answer may lie in a different textual point.

Section 1292(b) says that when the judge is of the opinion that an interlocutory order satisfies the elements of (b) and warrants immediate review, " he shall so state in writing in such order." In other words, the statute contemplates that the parties and court work out certification in advance and one order will resolve the underlying issue and certify for appeal. On that framing, this problem--Judge₂ certifying Judge₁'s order--never should arise because Judge₁ adjudicates and certifies in one order. Thus, Judge Connelly's interpretation, if correct, has no adverse consequences because it never arises.

In practice, however, parties argue appealability and the court certifies after the the target order. That happened here--Judge Stark issued the underlying order on March 11, 2022, Judge Stark was elevated on March 16, the case was reassigned to Judge Connelly, the parties briefed the certification motion, and Connelly decided the motion 11 months later. This practice is inconsistent with § 1292(b), to the extent the judge certifies in a subsequent order rather than "in such order" to be appealed. The court's interpretation, if right, now has absurd consequences--certification becomes impossible if something unexpected, even tragic, requires the case be transferred between the underlying order and the certification decision. And certification becomes impossible not only in a case such as this  (eleven months lapsed between original order and ruling on certification), but in a case in which things move quickly (Order on Monday, Judge₁ dies on Tuesday, case transferred to Judge₂ on Wednesday, certification decision on Thursday).

But we can apply textualism to a different piece of text. Taking (b) seriously and reconciling text and practice, a judge can certify subsequent to the underlying order--but must do so not through a new-and-separate order but by amending the original order to add the (b) findings. The power to alter or amend an order rests with the court, meaning any judge assigned the case can alter or amend any order, including the prior judge's order. Connelly thus could have issued an amended version of the March 11, 2022 order, fully repeating and adopting Stark's conclusion while adding the (b) certification. This makes the amended order of February 2023--containing the content of the March 11 decision--an order that Judge Connelly made and therefore can certify for interlocutory appeal.

I am curious what happens next. The denial of certification is obviously not final and appealable. But a determined defendant might seek mandamus on the issue, asking the Third Circuit to order Judge Connelly to grant--or at least consider, which he has not done--certification, because his failure to do so is clearly erroneous

Is Editorial Content "Workplace Conditions?"

I am not a labor and employment law expert. But as someone who writes frequently about journalism and press law issues, I am interested in a dispute that arose last week between the New York Times and a group of its contributors, and the intervention of the paper's News Guild chapter into that dispute. I have some views, but welcome input.  

Followers of culture-war issues will be aware that last week, a group of Times staffers and (sometimes nominal) contributors issued a public letter expressing "serious concerns about editorial bias in the newspaper’s reporting on transgender, non⁠-⁠binary, and gender nonconforming people." The letter focused primarily on two news stories to which it objected, and in passing on one other news story and one opinion column. It made no specific recommendations, other, perhaps, than suggesting that these stories departed from editorial guidelines in their treatment of sources. The Times responded with an internal statement that, inter alia, asserted that staffers "participating in such a campaign is against the letter and spirit of our ethics policy," which "prohibits our journalists from aligning themselves with advocacy groups and joining protest actions on matters of public policy" and from "attacking one another's journalism publicly or signaling their support for such attacks." (The reference to aligning with advocacy groups refers to a letter issued on the same day by GLAAD, which more directly attacked specific stories and authors and demanded that the Times "stop printing biased anti-trans stories." The Times letter writers stated subsequently, in an addendum to their initial letter, that the Times contributors' letter and the GLAAD statement are "very different documents," although it did note that the two statements' timing had been coordinated, and added some specificity to the earlier letter by adding that its complaint was one of "editorial bias" by the paper.)

Enter the News Guild, whose president posted a letter expressing its concerns about the Times's statement. It asserted that the initial letter "is, in part, critical of recent employment decisions and historic workplace conditions affecting LGBTQIA employees," asserted that "[e]mployees have a federally-protected right to engage in concerted activity to address workplace conditions," and reminded staffers of the Guild's willingness to represent them in such matters. Responding to views expressed by some staffers (as noted in the Semaphor story linked to at the beginning of this paragraph) that the Guild leadership should not have inserted itself into a "public protest that implicitly pitted it against some of the Times’ own union members," the Guild statement asserted that its actions here were appropriate reminders of employees' rights to "take collective action in response to their experience of a hostile and biased work environment" and to speak in concert about "workplace issues." "This is no different," the statement said, "than our advice to members regarding any concerted activity they may engage in regarding reproductive healthcare and access to abortions, for example." (Because writers write and capital-L "Letters" generate endless response Letters, while I was drafting this post a number of staffers responded to the Guild with a letter critical of its action, ie. "[W]e don’t accept [ ] what the Guild appears to be endorsing: A workplace in which any opinion or disagreement about Times coverage can be recast as a matter of “workplace conditions.”)

Leaving aside legal or professional questions about the extent to which staffers ought to be entitled to publicly criticize other staffers publicly for their work, I ask: Did the "New York Times Letter" constitute "concerted activity to address workplace conditions?" Even the Guild's message is somewhat squirrelly on this point, saying that it came "in response to [the staffer/contributors'] experience of a hostile and biased work environment" and that it involved "workplace issues," as opposed to workplace conditions. Reading the Times contributors' letter with reasonable generosity, one can say two things: 1) the letter addresses and alleges historical bias in the treatment of gay employees in the 1980s as well as bias in its coverage of AIDS issues during that era; and 2) seven words in passing at the end of the letter state that staffers at the Times "endur[e] a workplace made hostile by bias." (The letter also notes that a trans columnist for the paper did not have her contract renewed, but does not suggest the reasons for that were improper.)

Reading it fairly and in context, it is clear that the subject of the letter is specific editorial content to which the Times contributors object. The letter does not make any demands that that content cease, as the GLAAD letter does. (The argument that the Times letter was not coordinated with the GLAAD letter because they're "different documents," despite the concerted timing, strikes me as very weak, but that's neither here nor there for purposes of this post.) Nor does it suggest that the Times is deliberately staking out a discriminatory editorial position on trans issues; it notes that "[p]lenty of reporters at the Times cover trans issues fairly," leaving us with a complaint involving a three or four story numerator over an unspecified but large denominator. A natural reading of the letter is that it is a complaint over editorial content and not over workplace conditions. I decline to make the logical leap, which others have made, of arguing that the contributors' letter is asserting that stories to which one objects in the paper constitute a "workplace conditions" issue, on the logic that they are inherently harmful not only in their effect outside the newsroom but inside it as well. I decline to make a similar leap concerning the Guild's letter or its defense of its letter. Using debaters' logic, or any logic, to make a definitive statement about the actual communicative intent or motives of a speaker is a common but rather silly move given myriad problems with human communication and human nature. But if the Guild's letter does not suggest that editorial content in a newspaper constitutes a "workplace condition," then it either misdescribes the contributors' letter or means very little of anything at all.

Proper respect for the actual content of the contributors' letter demands that it be evaluated on its own merits and addressed for what it does say, I would think. What does not seem true or respectful to me is that it can fairly be read as expressing concern over workplace conditions. Nor does it seem to me that the NLRA can reasonably be read as suggesting that a complaint over particular stories in a newspaper can be read as a protected complaint about workplace conditions. I take those seven words at the end of the letter seriously; but I don't think they alter the fundamental content of the letter. 

As I said, I welcome input from those who are more schooled in labor and employment law. I will say that a brief search of federal court and National Labor Relations Board decisions did not yield any evidence that the Act is or should be read in this fashion. But a brief search is hardly a strong basis for a firm conclusion. I will say that in the context of a journalistic enterprise, it would be bad policy to suggest that complaints about particular stories constitute a statement about workplace conditions subject to protection under the NLRA. It would likewise be a stretch to suggest that a complaint by employees that a food company sells three products (out of an uncertain but large number of products) with unduly high sugar content is a complaint about workplace conditions; but in the context of journalism, allowing such a reading would have graver and more consequential effects. The Guild's attempt to analogize its action here to a statement about reproductive healthcare is a non-starter, unless it meant to suggest that complaints about coverage of reproductive healthcare can constitute a complaint about workplace conditions, which I do not think was what it meant. I prefer to think of most of these communications as consisting of null content outside of the core complaint about three stories and one column. But if the suggestion is indeed the more tendentious one that these stories were inherently harmful in a way that might be likened to the improper presence of toxic materials on a factory floor, it would be a bad and dangerous reading of labor and employment law in the context of a newspaper. But I don't know the field and would be interested to hear contrary arguments, or confirmation, on this point. 

It should not need to be said that my concerns here are about journalism and the effects of labor and employment law on the function of journalism as an institution, and are not a statement about trans issues, trans rights, or the specific stories objected to by the Times contributors who signed the letter. 

Conscription and the Constitution

I'm working on my book on Justice Jackson's Youngstown concurrence, but I'm also thinking about my next book. It's going to be on the military draft and the Constitution. There is a treasure trove of topics that fall under that heading. I'll do some posts in the coming weeks.

Here's one. The first national draft was enacted by Congress during the Civil War. (Unless you count the Confederate draft, which occurred  at around the same time.). The 1863 Act said that all men subject to the draft could get out of service if they could find a substitute or pay $300. (Perhaps the substitute would do it for less than $300). One way of putting this is that the draft was a tax--the kind of tax that was upheld by Chief Justice Roberts in NFIB v. Sebelius. Of course, one difference was that $300 was a lot of money in 1863 (much more than the short-lived individual mandate penalty under the Affordable Care Act). Still, you could understand the Civil War draft as a tax and not true conscription. Only during World War I was there conscription in the modern sense.

Next time I'll talk about how at least some of the Framers probably thought that a national draft was unconstitutional.

Leiter Poll: Best Judges of 20th Century

Poll here.

Journal of American Constitutional History

The first issue of this new peer-reviewed journal is out, with articles from Mary Sarah Bilder, Robert Tsai, and yours truly.

Painting Constitutional Law: Thursday, February 16

For readers in the Miami area:

FIU College of Law will post Painting Constitutional Law: A Celebration of Xavier Cortada's "May It Please the Court" at 5:30 tomorrow (Thursday, February 16) at FIU College of Law. May It Please the Court is a painting series by Miami artist Xavier Cortada, representing ten major SCOTUS cases originating in Florida. My colleague Matthew Mirow and I edited a 2021 book, Painting Constitutional Law, featuring essays analyzing the paintings and underlying cases. This program brings both together. Speakers include Mirow, Cortada, and Jenny Carroll (Alabama), who wrote the essay on Williams v. Florida (jury size).

Please attend if you are in town and able. The event will be recorded and livestreamed.

A Head of State in a Crisis

I've posted before about the constitutional role that ceremonial heads of state perform in other democracies. At some point (hopefully) I'll write that up. The current situation in Israel is a good example. The President there gave a televised address the other day appealing for more dialogue on the controversial "judicial reform" bill introduced by the Government. The bill is now the subject of intense protests in Israel. Will this speech be effective? I have no idea. But I think it's useful if someone who stands outside of the party divide can speak with some moral authority on fundamental constitutional issues.

Chief Justice Roberts tried to do something like this during the Trump presidency. He criticized Trump's comments about "Obama judges" and Senator's Schumer's comments that could be taken as a threat to some of the Justices. But judges are not well-suited to this role due to the need to maintain public silence on issues that might come before them. There is also a self-interest problem when a judge criticizes any legislation that seeks to curb the power of the courts. Charles Evans Hughes got away with this in 1937 in part because he was a respected former elected official, Secretary of State, and presidential nominee. A normal Chief Justice nowadays cannot.

A Proofreading Error in Justice Jackson's Youngstown Concurrence?

After sharing in a prior post that some material in Justice Jackson's opinion was taken without attribution from a Justice Department memo, I now want to explain that there is an error in Footnote Three of his concurring opinion in Youngstown.

In Footnote Three, Jackson described situations that might fall within the "zone of twilight." He included a "compare" cite to Myers and Humphrey's Executor. But then in Footnote Four, which describes Category Three cases, Jackson again cited Myers and Humphrey's Executor. This is strange. How can they be both Category Two and Category Three examples?

Worse still, Humphrey's Executor cannot be a "zone of twilight" case. There was a specific Act of Congress at issue there about the FTC and whether an FTC Board member could be fired at will by the President. It's definitely a Category Three case. 

What was going on here? My tentative conclusion is that this was just an error. Myers and Humphrey's Executor are fully discussed in Footnote Four and were left in Footnote Three by accident. Someone being cute might blame this on William Rehnquist, who was one of Justice Jackson's law clerks that Term. If I find anything else in the drafts to explain this, I'll do another post.

An Excellent Passage on Seminars

This much-shared piece by Vincent Lloyd has mostly been passed around for its account of generational and culture-war conflicts, and treated with praise or skepticism accordingly.* That should not overshadow the fact that in the middle of the article, Lloyd offers a superb brief description of the nature and purpose of seminars, one that's worth quoting at length:

By its nature, a seminar requires patience. Day by day, one intervention builds on another, as one student notices what another student overlooked, and as the professor guides the discussion toward the most important questions. All of this is grounded in a text: Specific words, phrases, arguments, and images from a text offer essential friction for conversation, holding seminar participants accountable to something concrete. The instructor gently—ideally, almost invisibly—guides discussion toward what matters.

The seminar assumes that each student has innate intelligence, even as we come from different backgrounds, have different amounts and sorts of knowledge, and different skills. We can each be formed best if we take advantage of our differing insights to push each other, over time, again and again. When this practice is occasioned by carefully curated texts—not exclusively “great books,” but texts that challenge each other and us as they probe issues of essential importance—a seminar succeeds.

A seminar takes time. The first day, you will be frustrated. The second and the third day, you will be frustrated. Even on the last day, you will be frustrated, though ideally now in a different way. Each intervention in a seminar is incomplete, and gets things wrong. Each subsequent intervention is also incomplete, and also gets things wrong. But there are plenty of insights and surprises, for each participant looks at a text with different eyes.

Lovely. And difficult! And a useful reminder that there is a difference between a seminar, properly taught, and a mere small-enrollment class. (Incidentally, the Journal of Legal Education and other law reviews regularly run articles about how to teach well. Some of them are useful, but in bulk they are repetitive. It would be more useful if they ran a few confessional pieces about teaching badly. Surely that happens too!)  

* On the generational and culture-war aspects of the piece, two observations.

1) Although the generational and culture-war framing is tempting, I think the real story here is one of institutional failure. If one accepts the basic account offered--and one is of course free to defer judgment pending further information--then the main problem here was with the Telluride Association, which a) massively retooled its program in a very short time period, b) despite strong talk about the importance and urgency of this retooling, relegated some of the most important, sensitive, and "emotionally draining" aspects of that program to "college-age students" rather than take on full responsibility for those aspects itself, c) imported (or fell back on as an excuse) a model of "democratic self-governance" that is ill-fitted to this particular institution or at least this aspect of this institution and left the success or failure of what it treated as a crucial enterprise in the hands of high school students, and d) used that model to divest itself of responsibility for acting and asserting authority, when it was clear that action and authority were required. It was not unique in this: many universities, among other institutions, seem to have lost the ability to give a firm "no" or to take responsibility for policing their own operations in ways that preserve their proper purpose and functioning as institutions. As much as I enjoy and find some merit in the generational framing, it seems to me that much of the fault lies with the older generation in such situations and that more of the attention and responsibility ought to be placed there. 

2) Although, for moral and mental health reasons, I avoid That Popular Social Media Site, I was curious enough about the reaction to this piece to visit it long enough to check. The positive reactions to the piece were mostly what one would expect. The critical reactions clumped around two points: a) The piece was published in the wrong place and is therefore suspect. b) The author abused his power by criticizing a young person, anonymously but with the possibility that someone could identify them. What these criticisms share is that neither of them is substantive or factual. The first criticism is also mostly if not entirely silly. (Doubly so because the kinds of venues that would surely have been deemed acceptable, the Atlantics or Slates, are neither particularly good nor run by people who show a particular abundance of professionalism or integrity.) I have some vague sympathy for the second criticism, particularly because the nature of social media culture and the fact of our large population means some people will always be happy to heap abuse on anyone who comes within their sights. But it's still not substantive or factual, and it depends in this case on a decidedly shallow, class-distorted account of power and its abuse. Nor does it seem genuinely respectful of that young person or her agency and capacity for decision-making and responsibility. 

Of course, neither of these points affect the passage about seminars, which is excellent in its own right. 

JOTWELL: Kalajdzic on Tang on copyright class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Xiyin Tang, The Class Action as Licensing and Reform Device, 122 Colum. L. Rev. 1627 (2022).

DeSantis exposes how much First Amendment doctrine he hates

Ron DeSantis on Tuesday hosted a roundtable on "legacy defamation practices" which illustrates the breadth of his campaign against free speech (that he does not like) and how most observers and press reports misunderstand that.

• Someone attacked "actual malice" as an "invention of the Supreme Court inconsistent with the way the Founders thought about libel and freedom of speech." The program included Nick Sandmann as an example of a victim of defamation. But Sandmann did not lose because of NYT or actual malice; he was a private figure who had to prove negligence. He lost because of other aspects of the defamation regime--the statements were not provably false assertions of fact as opposed to opinion. That does not change because NYT goes away. Another panelist lost a case because the judge found the (supposedly deceptively edited) report neither false nor misleading, another piece of defamation law with a long history and having nothing to do with actual malice.

• An important response to the attack on NYT should emphasize the case's facts and historical context: A coordinated campaign of defamation suits by government officials to silence and suppress the civil rights movement by using defamation law to prohibit criticism of government, analogous to seditious libel. Similar campaigns become possible if the Court eliminates NYT--government officials or powerful privte individuals to sue critics into silence. Make DeSantis own this point; he likely will do so, happily. But it should be part of the conversation.

• DeSantis purported to be fighting for the "little guy" because he has a platform to defend himself. But he then took off on the "Russia collusion hoax" for its reliance on anonymous sources. If anyone had a platform to defend himself against the media, it is the target of the Russia collusion hoax (whose name, of course, went unmentioned). He also complained about the coverage of Brett Kavanaugh--again, a fairly powerful individual with a national platform through which to respond to critics.

• Moreover, the First Amendment protects the right to speak anonymously, which should include the right of others to report or repeat that anonymous speech. DeSantis seems obsessed with anonymous speech as a unique evil. It is of a piece with a drafted-but-never-introduced bill that would have presumed statements from anonymous sources to be false, among other likely constitutionally invalid changes to defamation law.

Between this, pulling books from the library, targeting drag shows as obscenity, dictating what speech private companies must carry, and limiting the topics that can be taught or discussed in the classroom (in the name of protecting ideas), DeSantis genuinely seems to be running for a president on a campaign of othering and censoring speech and speakers.

Upcoming Conference on Dobbs

I am passing along this announcement. The conference schedule is available after the jump.

“Deeply Rooted”: Discussing the Aftermath of Dobbs

March 9, 2023

University of Tennessee College of Law

The majority in Dobbs v. Jackson Women's Health overturned Roe v. Wade and Planned Parenthood v. Casey, holding that the right to abortion was not "deeply rooted in our nation's history or traditions." The dissent disagreed, stating that the right to abortion is essential to the guarantees of liberty and equality.  For the past 50 years, the right to abortion has deeply shaped the lives and choices of individuals and families.  This symposium will explore the aftermath of Dobbs, a decision that has uprooted the nation’s understanding of privacy and autonomy.  The symposium is sponsored by the Tennessee Journal of Race, Gender, and Social Justice at the University of Tennessee College of Law.  

Each panel will discuss a specific impact of the Dobbs opinion and the people affected.  We will examine the legal analysis in Dobbs and its impact on constitutional law, including rights previously recognized by the Supreme Court under the Due Process and Equal Protection Clauses.  We will discuss the impact of Dobbs on access to health care and on the medical profession, as well as the impact on marginalized communities.  Finally, we will analyze the consequences for citizens of Tennessee in the  post-Dobbs world, where abortion is now illegal.

Speakers include legal scholars, legal and medical professionals, and advocates in Tennessee.  Professor Mary Ziegler, a leading expert in the legal history of abortion, will give the keynote address, “Canary in a Coal Mine: What Does it Mean to Lose a Constitutional Right?”

We hope that this symposium will spur a critical conversation about the role of this landmark case in shifting the legal landscape surrounding civil rights. We invite you to attend either in person or virtually via Zoom.  To register, visit: https://forms.gle/C8JSjMUjTMqeZeFo6

Schedule

Introductory Remarks:

University of Tennessee College of Law Dean Lonnie Brown will deliver brief introductory remarks at 9:00 A.M. A light breakfast of coffee and pastries will be provided.

Dobbs and the Constitution:

Roe and Casey safeguarded the right to abortion for over half a decade. This panel will discuss the constitutional foundation of these cases and the decision in Dobbs to overrule this established precedent.  Panelists will examine the impact of Dobbs on constitutional law and compare other countries' approaches to reproductive rights.

When: 9:30 A.M. – 10:30 A.M.

Who: James Hart (Visiting Professor, Stetson University School of Law), Serena Mayeri (Professor of Law and History, University of Pennsylvania Carey Law School), Valorie Vojdik (Walller Lansden Distinguished Professor of Law, University of Tennessee College of Law)

Access to Health Care Post-Dobbs

The Dobbs decision impacts more than the constitutional right to an abortion.  It impacts access to health care, including in vitro fertilization, birth control, and lifesaving health care as well. As states confront what the Dobbs decision will mean for their state laws, shield bills have been enacted to protect against the threat of extra territorial prosecution. This panel will discuss key these bills along with other issues concerning reproductive care that have emerged in the forefront of public discourse following Dobbs.

When: 10:45 A.M. – 11:45 A.M.

Who: Meghan Boone (Associate Professor of Law, Wake Forest University School of Law), David Cohen (Professor of Law, Drexel University Thomas R. Klein School of Law), Dr. Leilah Zahedi-Spung, M.D. , FACOG (Denver, Colorado)

“Canary in the Coal Mine”: What Does it Mean to Lose a Constitutional Right

Professor Mary Ziegler, one of the leading authorities on the legal history of the American abortion debate, will present the keynote address. She is the Martin Luther King, Jr. Professor of Law at the University of California Davis School of Law. Lunch will be provided. 

When: 12:00 P.M. – 1:15 P.M.

The Impact of Dobbs on Marginalized Communities

The Dobbs decision has a resounding effect on all people with the capacity of pregnancy. Justice Thomas's concurrence, for example, explicitly advises the Supreme Court to “reconsider all of this Court’s substantive due process precedent, including Griswold, Lawrence, and Obergefell.” This panel seeks to highlight the intersectionality of reproductive freedom and the impact of  access to reproductive care on marginalized communities.

When: 1:30 P.M. – 2:30 P.M.

Who: Teri Baxter (Williford Gregg Distinguished Professor of Law, University of Tennessee College of Law), Seema Mohapatra (M.D. Anderson Foundation SMU School of Law), Robin Maril (Assistant Professor of Law, Williamette University College of Law)

Dobbs in Tennessee

Tennessee has a trigger ban that went into effect immediately after the Dobbs decision was announced.  The abortion ban  does not include exceptions, only affirmative defenses. This panel will discuss the devastating impact of this law.  It also will highlight the organizations that have formed to advocate for people with the capacity for pregnancy and their physicians in navigating this unprecedented situation.

When: 2:45 P.M. – 3:45 P.M.

Who: Stella Yarbrough (Legal Director of ACLU-TN), Chloe Akers (Founder of Standing Together Tennessee), Tennessee State Representative Gloria Johnson, Tyler Yarbro (Board Member of Tennessee Freedom Circle)

Concluding Remarks and Reception

After the conclusion of the final panel, Professor Valorie Vojdik, the faculty advisor for the Tennessee Journal of Race, Gender, and Social Justice will present some closing remarks and invite speakers, faculty and staff, and journal members to a reception to follow the symposium.

Visitors sue Air and Space Museum, encounter Fed Courts doctrine?

Visitors to the Air and Space Museum sued the museum, agency, and several Doe officers, alleging that the officers forced them to remove hats with the logo "Rosary Pro Life" while visiting the museum; they allege free speech, equal protection, and RFRA violations and seek damages and injunctive relief. Eugene Volokh reports that the Museum admits this happened and that it should not have. He also argues that the free speech analysis is obvious here--the museum is a non-public forum in which officials can make reasonable content-based distinctions but not viewpoint-based distinctions (such as not promoting "equality").

But I am not sure we reach those merits:

    • Plaintiffs should lack standing for an injunction. The plaintiffs cannot show this will happen again in the immediate future. Not only is it unlikely they can show concrete plans to return to the museum. And they cannot show they will suffer this injury if they do return, given the museum's response and the seeming randomness of the officers' conduct.

    • This is an extension of Bivens--the Court has never allowed a free-speech claim. And the usual special factors arise--Congress should create causes of action and has not done so and, post-Egbert, agency disciplinary-complaint procedures offer sufficient mechanism for deterring misconduct. This is not a national-security case so that over-arching factor is absent. But lower courts emphasize the new single question of "Isn't Congress is better suited to balancing the costs and benefits of causes of action?" (to which the answer is always "yes") to reject actions outside national security.

    • RFRA provides a cause of action for suits against government officials, so plaintiffs do not need Bivens for their religion claims. But plaintiffs must show this was religious rather than speech discrimination--does the word Rosary on the hats mean the officers knew the message was religious and forced them to remove the hats because of that religious (as opposed to political or ideological) message?

    • If this is religious discrimination and/or they convince the Court that no special factors counsel hesitation, they must overcome qualified immunity. There is almost certainly no case law about making someone remove a hat because of its religious or political message in a museum. The court must fall back on general First Amendment principles, the sort of high-generality analysis courts usually reject. It might be interesting to see how the court uses the museum's mea culpa--does that show that it was clearly established that officers could not make visitors remove hats and other clothing because of the message?

Hastie Fellowship Call for Applications - 2023

From the University of Wisconsin Law School:

The University of Wisconsin Law School invites applications for the William H. Hastie Fellowship.

For over 40 years, the Hastie Fellowship has provided a path to law teaching for candidates poised to contribute to diversity and inclusion in the legal academy. Hastie Fellows have succeeded at securing tenure-track positions at law schools throughout the country, including Columbia, UCLA, Indiana, Colorado, ASU, Texas A&M, Ohio State, UNC, Washington & Lee, UC Irvine, and USC. The Fellowship reflects a commitment to diversity and inclusion in the legal profession and especially encourages applications from candidates of color and other underrepresented communities in the legal academy.

For additional information on the program and its history, see https://www.law.wisc.edu/hastie/.

Program Overview

The term and internal sequence of the Hastie Fellowship Program are designed to accommodate the needs for intensive research and writing, participation in the hiring process of law schools, and gaining teaching experience.

Hastie Fellows will be appointed for a term of two years. During the term of the appointment, Fellows are required to be in residence in Madison with a commitment to participating fully in the life of the Law School.

The first year of the program is devoted primarily to scholarship. By the fall of the second year, Fellows should be sufficiently advanced in their research to apply to the legal teaching market. In addition to supporting Fellows on the teaching market, the second year of the program focuses on teaching experience and publication of the Fellow’s research.

Compensation and Support

The Hastie Fellowship provides compensation of $75,000 per year along with a research support fund of $4000 per year; Fellows receive mentoring and support to devote the majority of their time to their research and writing. The Fellowship also provides mentoring and practice opportunities for interviewing on the law teaching market.

Application

To ensure full consideration, applications for Fall 2023 should be completed by March 1, 2023. Applicants should send the following items as PDF attachments to [email protected]: (1) personal statement; (2) resume or curriculum vitae; (3) research proposal; (4) two or three letters of references (emailed by referrers); and (5) official electronic PDF transcripts sent directly from all higher education institutions attended. For additional details, see https://www.law.wisc.edu/hastie/apply/.

Please reach out with any questions to the Graduate Programs Office at [email protected] or to BJ Ard, the current chair of the Hastie Fellowship Committee, at [email protected].

Younger strikes again

Florida (naturally) leads the pack of red states trying to stop (likely First Amendment protected) drag shows. It is pursuing the Orlando Philharmonic Foundation in an administrative action for producing "A Drag Queen Christmas" in December; it seeks to revoke its business and alcohol licenses, premised on a drag show involving lewd, lascivious, and sexual activity. The state is threatening a similar action against the Broward County Performing Arts Center for a similar program. The Foundation should win, because drag show should be constitutionally protected, including for children. The pleading includes photos of the event, but it is hard to take the pleading's descriptions of the event seriously when comparing it to the photos.

But the case offers yet another example of the commonality of defensive litigation, including where the constitutional invalidity of the state's enforcement efforts is obvious. An administrative proceeding, subject to state judicial review, triggers Younger abstention; this case squarely fits the second Sprint category of a quasi-criminal civil action. And while politically motivated and designed to score cheap populist points (towards a presidential run), I doubt this qualifies for Younger's bad-faith exception.

Augustus Hand and W.E.B. Dubois

For years I've been kicking around the idea of writing something about Judge Augustus N. Hand, Learned Hand's cousin and fellow Second Circuit judge. Maybe that will just focus on his opinions, but there is more than that.

Hand and W.E.B. Dubois were classmates at Harvard. Here is a lovely letter than Hand wrote to DuBois on his 50th wedding anniversary.

Law-Abiding People

Last week the Fifth Circuit issued United States v. Rahimi and held that a man subject to a domestic violence restraining order retained his Second Amendment rights. In so holding, the Court said that the references in Heller and other Second Amendment cases to "law-abiding citizens" should not be taken literally as a restriction. Instead, the phrase was just shorthand for describing traditional restrictions on gun ownership in line with the Court's discussion in Bruen.

One implication of this reasoning is that non-citizens have a Second Amendment right. I'm not aware of any tradition of denying aliens the right to have guns, except perhaps in wartime. And I've said before that limiting the Second Amendment to citizens makes no sense under the Court's doctrine on incorporation and given the fact that aliens possess every other freedom in the Bill of Rights. Nevertheless, there are a couple of circuits that have held that people here illegally do not have a Second Amendment right. It seems to me that these cases are erroneous under the Fifth Circuit's reasoning, though the Supreme Court may weigh in on Rahimi.

Plagiarism in the Supreme Court

In a prior post I said that Justice Jackson's concurrence in Youngstown drew on a memo written by Assstant Solicitor General Golden Bell in 1937. For example, Bell used the phrase "zone of twilight" to describe presidential power, and Jackson probably got the idea from there.

I can now say that there many other similarities between Bell's memo and Jackson's opinion. Jackson borrowed cites and quotes from Bell and even copied his analysis at one point. Here is Bell's description of United States v. Curtiss-Wright Export Corp.

It must be remembered, however, that the Curtiss-Wright case involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an act of Congress. In that case the constitutionality of the act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the decision is dicta, and the ratio decidendi is contained in the following language.

 "When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

It is apparent, therefore, that the case leaves much of the controverted question still unsettled. It places internal and external affairs in separate categories, and holds that the strict rule applied by the court to congressional delegations of power to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the President’s power in this field.

Here is Jackson's version (in Footnote Two of the concurrence)

United States v. Curtiss-Wright Corp., 299 U.S. 304, involved, not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language:

"When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.

Today we would call this plagiarism. Jackson did not cite Bell's memo. Would this have been considered plagiarism in 1952? I don't know.

Life and the Court marches on

I have mentioned that I end each Civ Pro class by telling students to Remember someone associated with that class. We did Twiqbal today, so it was "Remember David Souter." Students had to google him.