PrawfsBlawg

Did Justice Jackson Actually Recuse from Students for Fair Admissions v. Harvard?

The Supreme Court’s decision in Students for Fair Admissions v. Harvard will be remembered as a major decision striking at affirmative action in higher education, but the case’s footnotes tell an additional story—about the hollowness of the justices’ recusal practices. 

Justice Ketanji Brown Jackson recused from the Harvard case because of her past service on that university’s Board of Overseers. Yet the first page of her dissenting opinion is prominently captioned with the Harvard dispute’s full name and case number. Citations to the Harvard case also appear at the top of every subsequent page of Jackson’s opinion.

Chief Justice John Roberts’s opinion for the Court tells a similar story. Like Jackson, Roberts leads off with a caption identifying the Harvard case. And Roberts includes several footnotes and passages that spar with Jackson, reciting her arguments and offering counterpoints. So anyone who read drafts of the Harvard decision had to encounter Jackson’s criticisms.

These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. Again, Jackson read a draft of the majority opinion in that case. She wrote an opinion criticizing the core reasoning of the majority’s draft. And the final version of the opinion for the Court in the case expressly responds to her objections.

But not so fast! The Court resolved two related disputes in a single opinion—one involving Harvard and another involving the University of North Carolina. And the various opinions state, in brief notes, that Jackson "took no part in," or "did not participate in," the "consideration or decision of” the Harvard case. Instead, Jackson dissented only as to the UNC dispute. Jackson’s opinion also avoids talking explicitly about Harvard, instead focusing on UNC. 

Yet the fact that Jackson did not write explicitly about Harvard shows, at most, that she did not participate in every aspect of the Harvard case’s “consideration.” Her dissent addressed only the case’s core legal issues, rather than factual points. But both recusal principles and Jackson’s disclaimer promise something more—namely, withdrawal from the entire case.

Imagine that a justice withdraws from a case but nonetheless asks to read the legal discussion in the draft opinion for the Court, explaining that she has developed some relevant ideas that the other justices should probably consider and respond to. Wouldn’t that justice be asking to “participate in the consideration” of the case? 

Of course! The supposedly recused justice would be asking to consider arguments put forward in the case and to generate new arguments in that case for others to consider. The point is only made more powerful if the justice’s request were granted, leading to new consideration by the majority justices and, ultimately, revisions to their opinion.

Perhaps the imagined justice wouldn’t be participating in the “decision” of the case, since she wouldn’t be casting any votes in the matter. (Even that is questionable, though, since the justice’s objections in the case might affect the votes of others.) But surely a judge who engages interactively on the merits of a case is “participating” in its “consideration.”

The presence of the UNC case doesn’t change that result. Jackson’s ability to participate in one case cannot override a recusal duty to stay out of another one. Yes, Jackson participated in the UNC case’s entire consideration and resolution. But, in doing so, she also participated in a critical part of the Court’s consideration of the Harvard case.

Normally, the Court deals with similar recusal problems by issuing a full opinion only in the case for which there is no recusal. Having settled the key legal questions there, the Court can summarily dispose of the other dispute. This approach results in a pair of opinions, with justices participating where they can. 

Here, for instance, the Court could have made the UNC case the centerpiece. The main opinions would be directed at UNC and equal protection, with all justices participating. A short, separate decision might then have issued in the Harvard case, applying principles from the UNC ruling and explaining their relationship to Title VI. Jackson could then have been walled off from both consideration and decision in the Harvard case.

Why didn’t the majority justices take those steps yesterday? Perhaps they simply wanted to focus on the Harvard case due to its distinctive facts or did not want to issue two duplicative or incomplete opinions. But those explanations worryingly suggest that convenience alone can justify bending recusal obligations or issuing misleading disclaimers.

Issuing two separate opinions may also have seemed to the majority like a needless formalism. But the recusal obligation itself is formal. Is it needless, too? At any rate, the justices should not issue disclaimers that assert one state of affairs while seemingly proving another one. Alas, not only Justice Jackson but also the Court itself (and Justice Sotomayor) did so yesterday.

As I hope I have made clear, the problem here is not just with Justice Jackson but also with the rest of the Court. The majority justices in particular should have arranged their work so as to maximize Justice Jackson’s valuable participation without jeopardizing or undermining her recusal. Their collective failure to do so has turned recusal into a farce. 

The Harvard case could be viewed as the latest example of how the justices circumvent or dilute their ethical obligations. Nobody is supposed to be a judge in her own case, yet the justices are usually left to make their own decisions about recusal. The predictable result is that the justices judge themselves leniently, leading critics to cry foul. 

And so recusal practices at the Supreme Court are almost entirely hollow. The Harvard case is just another illustration of their formality and general ineffectiveness.

Cross-posted from Re's Judicata

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

What's Funny About Compliance(?)

For different reasons than mine, Steve points to a Washington Free Beacon story describing the First Amendment training implemented for students at Stanford as "a campus joke." The training, according to the story, consisted of watching five one-hour videos and then signing a form attesting that the students had watched them. "The videos could be played on mute," the story says, "and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely." 

Steve is concerned, with justification, about students unethically lying and signing the attestation form without watching the videos. My interest lies elsewhere, with what Steve calls the "vapid requirement" itself. Let me be clear that I think the Free Beacon, an openly conservative paper, is valuable, and Aaron Sibarium, who wrote the story and did much of the original reporting on Stanford, performs a useful function, doing real reporting on stories that would have been covered by the legacy papers if they had a different spin and sometimes forcing those papers to cover them. But of course the paper, which is openly and often puerilely political, always has a spin (not uncommon, these days, in fairness; God help us, people seem to want it), and in this case Sibarium's spin of choice is that Stanford's First Amendment requirement, which was much praised when it was announced, is in reality a big joke. 

I would ask, a joke compared to what? The attestation mechanism is certainly badly arranged and subject to easy abuse. But five hours of First Amendment "training" is pretty serious! (I'm not sure the students actually needed that specific training. Five hours of civility training, accompanied by clear instruction in campus disciplinary rules, would have been much more to the point. Naturally, students would be free to challenge the notion of civility; but then, they're free to challenge the value of the First Amendment too.)

In reading the story, surely the mind of every professor, and indeed every employee of a large institution, turns to his or her own "training" in various matters. Every year my university requires me to learn and relearn basic facts about sexual harassment, hazardous materials, Internet safety and security, mandatory reporting requirements, and so on. Some of those videos can probably be muted; who bothers to remember? Many of them can be played at accelerated speeds. Most of them can be at least half-ignored; even the ones that require you to answer questions along the way are, shall we say, undemanding of one's attention. All of them signify and embody the deepest, most strongly held value of universities and other major institutions in our changing world: that such institutions should loudly announce their virtuous compliance with whatever is legally or socially required, and that every member of that institution should do his or her utmost to establish on the record that the institution is blameless for whatever happens next.

It seems to me that Stanford very seriously performed its duty here. If students (or Sibarium) think that training is a "campus joke," they should spend some time watching professors and staff receiving university-mandated "training" in other core topics. Or the law students could get an advance peek at the kinds of things that can count as continuing legal education for purposes of the California bar's gargantuan CLE requirement. (They will have to go further than the nearby faculty offices, since California exempts full-time law professors, for reasons that escape me.) I'm not a member of that bar but, based on what I have seen up close, one can accomplish an enormous amount of paperwork and cook several elaborate meals while receiving further legal education comporting with that state bar's requirements. Of course I would look unkindly on a lawyer literally lying about having watched a training video or other CLE unit. But--as with judicial ethics requirements, I would add, in light of other conversations--there can be a long gap between technical compliance and honorable, attentive compliance. The wonderful thing about most compliance requirements is that you don't have to lie, because you barely have to do anything in the first place.

I'm not quite knocking CLE requirements. I'm not quite knocking other compliance regimes. I'm not quite saying such regimes blur the line between having a value--such as concern with equity, sexual and other forms of harassment, and other things trumpeted by the kinds of institutions many of us belong to--and performing that value for purposes of PR and legal indemnification, in a way that renders those repeated institutional statements about their strongly held values rather hollow. I would say that any humor lies not in Stanford's reasonably serious effort, but in the larger universe of compliance rituals of which it is just a small part. We, in particular, ought not be surprised, given that "compliance studies" and "compliance certificates" have become a major source of law school income. 

Predicting tomorrow

On Sunday, Jonathan Adler predicted the authors and outcomes of the major cases. So far, he has done well on authors--he called Harvard (Roberts), Moore (Roberts), Groff (Alito), and Counterman (Kagan); he missed on Mallory (Gorsuch, not Alito) and Abitron (Alito, not Sotomayor).

Three cases remain to be decided tomorrow--303 Creative and the student loan cases. Adler predicted Gorsuch would write 303 and Roberts the student loan cases. Those predictions look good right now. One more data point on 303 Creative--it is the lone remainder from the nine December cases and Gorsuch is the only Justice not to write from that sitting.

Bad news for public accommodations laws and an appropriate understanding of the First Amendment.

Mootness and jurisdiction in Moore

I am late to the conversation about Moore v. Harper, where the Court found the case alive (over the dissent of Thomas, Alito, and Gorsuch) and (mostly) rejected the independent state legislature doctrine. Three thoughts on the jurisdictional issues. (Long post ahead).

1) I still am not sure where I land on mootness. I do not believe--contra Justice Thomas and Josh Blackman-- that the Chief fell into the writ-of-erasure fallacy. Thomas fills Part I of his dissent with (correct) descriptions of how courts enjoin actors from taking action, do not act against laws themselves, and "do not render 'judgments' that toggle statutes from 'operative' to 'inoperative' and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts."

Here is the procedural history: The state trial court held that partisan gerrymandering is a political question under the state constitution. The North Carolina Supreme Court reversed; it made three legal determinations--1) partisan gerrymandering is justiciable; 2) ISL is nonsense; and 3) the 2021 electoral maps were invalid partisan gerrymanders--and entered a judgment prohibiting use of those maps. The state legislators appealed that decision to SCOTUS. Following SCOTUS' cert grant, NCSCt affirmed the trial court's decision rejecting a remedial map. On rehearing (and following a change of court personnel), NCSCt withdrew its opinion affirming rejection of the remedial maps, "overruled" its original decision (the one sitting before SCOTUS), and dismissed the action with prejudice. But, the majority says, the state court never reinstated the original maps; its decision started everything over, allowing the NC legislature to enact whatever maps it chose. That includes enacting a new law adopting the 2021 maps.

Despite some loose language in the Chief's opinion about "presently operative statutes," I do not believe he made the mistakes Thomas accuses him of making. Rather, I think the point of departure is what happens to a preliminary injunction when the action is later dismissed. NCSCt issued an order--do not use the 2021 maps; that order was on review to SCOTUS. The court overruled the basis for that order in concluding that partisan gerrymandering is a political question and allowing the legislature to do what it wants going forward. But it did not authorize use of the 2021 maps authorized by the 2021 law.

Does that matter?

2) While I agree with Thomas' explanations for the role of courts (while remaining unsure of his conclusion), I question this:

[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded . . . must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).

That works for defensive litigation. When the state prosecutes Johnson for burning a flag, the court disregards the law of prosecution and refuses to allow it to govern the case, thereby requiring dismissal of the prosecution. It does not work for offensive pre-enforcement litigation, in which the federal plaintiff seeks to avoid the case in which the challenged law would govern, by enjoining an official from enforcing that law in the future. A federal court in an offensive action does not disregard the challenged law; it prevents future conduct by a government official with that law. And that conduct may occur outside of court--such as administering elections under particular maps.

3) Mootness aside, Moore also presented issues of SCOTUS jurisdiction under § 1257(a), which is limited to "final" judgments or decrees. Although the state court had decided that ISL does not apply (a federal issue), the case remained ongoing in state court as the parties worked to create new maps consistent with the state constitution.  Cox Broadcasting v. Cohn treats as final cases in which the "highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox identified four circumstances in which a state supreme court order is final despite ongoing state-court proceedings. The majority relied on the second category--"the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings."

This is the wrong category. Cox defined this category by citing to Radio Station WOW and Brady v. Maryland. In WOW, the state supreme court ordered the transfer of property from a federal license holder and ordered an accounting; the ongoing accounting did not affect the federal issue (interference with the license), which was tied to the transfer. In Brady, Maryland's highest court* upheld Brady's conviction but ordered a new sentencing hearing; that proceeding did not affect the federal due process rights that Brady argued were violated by a conviction without disclosure of evidence. The key to this category is that the remaining state-law proceedings do not affect the federal issue; nothing that happens eliminates the federal issue, regardless of who wins or how the state courts resolve those future issue. Brady believes his conviction violates due process; that remains alive regardless of the ultimate sentence. The radio station believes the loss of property affects its federal license; that remains alive regardless of the outcome of the accounting.

[*] Then called the Maryland Court of Appeals, changed to Maryland Supreme Court in 2023.

That is not this case. Whether the federal issue remains alive depends on what happens in state court. Imagine (as was the case when SCOTUS granted cert) ongoing state litigation to draw new maps that comply with the state constitution. If the state court approves the legislature's preferred maps, the federal issue (ISL) goes away. The state will not appeal the maps or argue they have unfettered power, because they won and so the scope of their power does not matter; the plaintiffs will appeal the maps on independent-and-adequate state constitutional grounds, but would not argue ISL because it does not help them. if the state court rejects the legislature's preferred maps, the federal issue remains alive--the state will return to NCSCt, NCSCt approves the maps, and the state challenges those maps on ISL grounds. Of course, that takes time and energy, leaving the federal issue unresolved. And that is, in fact, where the case landed: The state won on state-law grounds (partisan gerrymandering is non-justiciable) and any appeal the plaintiffs might have rests on state law, not federal law.

Thus, this case better fits the fourth category, created in Cox:

Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

That is this case. The appealing party (legislators) might prevail on nonfederal grounds (as, in fact, they did), depriving SCOTUS of the opportunity to review the federal issue; immediate reversal on the federal issue precludes further state litigation--had SCOTUS adopted ISL, the state wins without having to do anything more. And the delay or elimination of the ISL issue "seriously erode[s] federal policy" by leaving unresolved whether state legislatures can do whatever the hell they want--sure to be an issue in the coming presidential election.

I am not sure why the Chief went with # 2 rather than # 4.

Justice O'Connor's Jurisprudential Legacy

At this point, is there any? The joint opinion in Casey was overruled. Grutter is no longer the law. Her opinions about the Establishment Clause aren't really good law anymore either. I'm not sure what else matters that survives.

One lesson here is that a swing Justice is very influential in the short-term and very unimportant in the long run. Today's that's Justice Kavanaugh. 

Why "universality" better captures the scope-of-injunction problem

Everyone will be talking about the death(?) of affirmative action, but I do not have much legal to add to that conversation. So I am going to use and a few other posts to catch up on some things.

First up, Judge Hale of the W.D.Ky. declared invalid that state's ban on puberty blockers and cross-sex hormones for minors, joining district courts in Arkansas, Tennessee, and Florida. These cases trigger anew the scope-of-injunction problem-- and not well. Judge Hale issued what he called a "facial injunction" and said the following:

The Commonwealth suggests that any injunction should be limited in scope to cover only those plaintiffs who are already taking the drugs in question. (D.N. 47, PageID.514-15) But the fact “that some minors experiencing gender dysphoria may choose not to pursue the gender transition procedures covered by the Act and therefore would not be harmed by its enforcement” does not mean that a facial injunction would be overbroad. Brandt, 47 F.4th at 672; see id. (“The proper focus of the [facial] constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 418-19 (2015))). The Commonwealth notably “fail[s] to offer a more narrowly tailored injunction that would remedy Plaintiffs’ injuries,” id., and as Plaintiffs point out, it would be virtually impossible to fashion one. (See D.N. 52, PageID.1678-79) A facial injunction is therefore appropriate.

This is nonsense. An obvious narrower injunction remedies plaintiffs' injuries--the state cannot enforce the law to prevent these seven minors from continuing and/0r begin receiving treatments, as they choose. That remedies their injuries, regardless of what the state can or does do as to any other trans person who seeks or intends to seek treatment.  Protecting these plaintiffs need not help non-plaintiffs (compare an order compelling a school to return a book to the library). Nor is this a case in which the court cannot identify plaintiffs from those similarly situated. Because the trans kids sued on their own behalf (rather than through some organization or a doctor or a state asserting third-party or associational standing), we can easily identify who the injunction protects and who falls outside the injunction.

This and other cases illustrate why it has been a mistake to use "nationwide" to describe beyond-the-plaintiff injunctions. The problem never was confined to challenges to federal laws and regulations. States always could enact broad discriminatory laws and regulations simultaneously affecting large numbers of people, triggering the same issue of who an injunction protects after a court declares those laws constitutionally invalid. But no one would label this injunction "nationwide," while "statewide" adds another term and thus more confusion. That is why universality works best--it captures the idea of an injunction (improperly) extending to everyone who might be subject to enforcement of the challenged law, regardless of the breadth of that universe.

Debt Ceiling Post-Mortem

I would be remiss if I did not say something about the resolution of the debt ceiling standoff. My main thought is that we really need a congressional hearing on the exotic options that were discussed but not pursued (the platinum coin, premium bonds, Section Four of the Fourteenth Amendment). Getting more information out about these strategies before the next debt ceiling fight would be useful. I would be especially interested to know the Treasury's view on all of these ideas. 

(Guest Post) The Supreme Court Continues Its Fractured Approach to Personal Jurisdiction

The following post is by Charles "Rocky" Rhodes (South Texas) and Cassandra Robertson (Case Western), who have been blogging about Mallory v. Northfolk Southern Railway.

Studying personal jurisdiction has long been how 1L’s learn the difference between plurality and majority opinions, and, as Justice Brennan used to say, the importance of counting to five votes. With Tuesday’s decision in Mallory v. Norfolk Southern Railway, that tradition will continue!

The Supreme Court ruled in favor of the plaintiff, who relied on Pennsylvania’s corporate registration jurisdiction-by-consent statute to sue the railway company in Pennsylvania. It was the second time in a row for a personal jurisdiction plaintiff to prevail in the Supreme Court after a string of six defense rulings, suggesting that the Court is looking for a more stable equilibrium in its personal jurisdiction jurisprudence. Here a century-old case proved the key. The Court relied on its venerable 1917 holding in Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., which held that a state’s jurisdictional assertion under a similar corporate registration statute for any claim did not violate due process.

But this victory for Mallory may be short lived. Justice Alito—the necessary fifth vote for holding the Due Process Clause was not violated—indicated in his concurrence in the judgment that the Pennsylvania statute likely violated the dormant Commerce Clause. He noted Pennsylvania had no state interest in this particular case because the plaintiff did not reside in Pennsylvania when the suit was filed, the harm did not occur in Pennsylvania, and Norfolk Southern was neither at home nor incorporated in Pennsylvania. Yet these concerns leave open the potential for state legislatures to adopt a sounder jurisdictional approach for corporations, avoiding the uncertainties of the outer limits of the minimum-contacts test.

The Plurality Opinion

Justice Gorsuch authored the part-majority, part-plurality opinion. In a footnote likely to be a life preserver for 1L students (unless edited out by casebook authors!), he quickly summarized the points on which five justices agreed:

“While various separate writings accompany this opinion, it should be apparent a majority of the Court today agrees that: Norfolk Southern consented to suit in Pennsylvania. Supra, at 10–11; post, at 2 (opinion of ALITO, J.). Pennsylvania Fire therefore controls this case. Supra, at 11–12; post, at 2–4 (opinion of ALITO, J.). Pennsylvania Fire’s rule for consent-based jurisdiction has not been overruled. Supra, at 13–14; post, at 4 (opinion of ALITO, J.). International Shoe governs where a defendant has not consented to exercise of jurisdiction. Supra, at 14–15; post, at 4 (opinion of ALITO, J.). Exercising jurisdiction here is hardly unfair. Supra, at 17–20; post, at 4–5 (opinion of ALITO, J.). The federalism concerns in our due process cases have applied only when a defendant has not consented. Supra, at 21; post, at 7–8 (opinion of ALITO, J.). Nor will this Court now overrule Pennsylvania Fire. Supra, at 21–23; post, at 4 (opinion of ALITO, J.).”

But, as this summary indicates, the portion of Justice Gorsuch’s opinion that is a majority is narrow; essentially, Pennsylvania Fire controls the Due Process Clause analysis for a state imposing consent to jurisdiction as a consequence for registration and International Shoe’s minimum-contacts test controls outside that context. The Court vacated the Pennsylvania Supreme Court’s judgment that the statute was unconstitutional under the Due Process Clause and remanded to allow consideration of the railroad’s alternative argument that Pennsylvania’s statutory scheme violated the dormant Commerce Clause.

In the sections for a plurality, Justice Gorsuch hinted at a broader reconfiguration of personal jurisdiction that continued the dialogue he started in his concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court. He opened with a hypothetical based on the East Palestine, Ohio train derailment, with imagined suits filed in Pennsylvania against a Virginia train conductor served while in the state and against Norfolk Southern based on its consent to jurisdiction through registration in the state. Because the Due Process Clause would not bar a suit against the conductor, the railroad, according to Justice Gorsuch, should be treated the same.

At the founding and through the time of the Fourteenth Amendment’s adoption, “a tribunal’s competence was generally constrained only by the ‘territorial limits’ of the sovereign that created it.” This meant that, in transitory actions against an individual defendant, suit could be maintained on any claim at any place the defendant could be found. Today, this jurisdictional basis is often known as “tag” jurisdiction; the Court unanimously affirmed (although in fractured opinions) its continued propriety in 1990 in Burnham v. Superior Court of California.

But, the plurality’s jurisdictional historical tale continued, the difficulty was adapting the traditional rule about transitory actions against individuals to corporate artificial persons created by law. States did so, both before and after the Fourteenth Amendment’s ratification, by adopting “statutes requiring out-of-state corporations to consent to in-state suits in exchange for the rights to exploit the local market and to receive the full range of benefits enjoyed by in-state corporations.” Although these statutes took various forms, some authorized the state to assert jurisdiction over any claim—irrespective of any relationship to the forum—against a corporation appointing an agent for service of process under a state corporate registration scheme. When a constitutional challenge to one of these statutes came before the Court in 1917, Justice Holmes’ unanimous Pennsylvania Fire opinion succinctly dismissed any due process concerns.

The plurality then explained its refusal to overrule Pennsylvania Fire. International Shoe and its progeny did not undermine Pennsylvania Fire; those cases “stake[d] out an additional road to jurisdiction” over nonconsenting out-of-state corporations but did not impact the permissibility of jurisdiction through consent. The Pennsylvania statutory scheme fell within the “variety of actions” by a defendant that may amount to a legal submission to a court’s jurisdiction. And there was no unfairness here, especially as Norfolk Southern undertook extensive and substantial in-state activities and managed more miles of track in Pennsylvania than in any other state.

Counting Votes

The four separate writings showed many of the same divisions that arose during the oral argument. 

Justice Jackson fully joined the plurality opinion and added an additional concurrence, focusing on the ways in which personal jurisdiction can be waived: “by explicitly or implicitly consenting to litigate future disputes in a particular State’s courts,” by “fail[ing] to follow specific procedural rules” and thus “waiving the right to object to personal jurisdiction as a consequence,” and by “voluntarily invok[ing] certain benefits from a State that are conditioned on submitting to the State’s jurisdiction.”

Justice Alito, by contrast, joined only part of Justice Gorsuch’s opinion. He did not join Part II, which largely set out the history of personal jurisdiction and registration statutes at the time of Pennsylvania Fire. He also did not join Part III-A, which set out the procedural history of Pennsylvania Fire and the Court’s decision in that case. And he did not join Part IV, which concluded that Norfolk Southern’s extensive Pennsylvania contacts supported the “fair play and substantial justice” analysis in personal jurisdiction.

Justice Alito differed most from the plurality regarding whether the state could exercise jurisdiction over a case in which the state has no “legitimate local interest.” Our amicus brief made largely the same point, as we discussed in an earlier post. However, Justice Alito’s view is that the potential lack of a state interest isn’t a personal jurisdiction/due process problem; instead, it’s a dormant Commerce Clause problem. Because the state-interest point wasn’t well developed in the record, and the Pennsylvania Supreme Court had not reached the dormant Commerce Clause issue, Justice Alito supported remanding the case for determination of that question. He expressed serious doubt that the state could hear the case, writing that he was “hard-pressed to identify any legitimate local interest that is advanced by requiring an out-of-state company to defend a suit brought by an out-of-state plaintiff on claims wholly unconnected to the forum State,” and that “even if some legitimate local interest could be identified, I am skeptical that any local benefits of the State’s assertion of jurisdiction in these circumstances could overcome the serious burdens on interstate commerce that it imposes.” The question of state interest will likely be a focal point of the proceedings on remand under the dormant Commerce Clause.

Finally, Justice Barrett dissented, joined by the unusual line-up of Roberts, Kagan, and Kavanaugh. These justices would have completely jettisoned jurisdictional consent by registration, relying predominantly on the Roberts Court’s recent decisions. Interestingly, two of the dissenting justices—Barrett and Kagan—both taught Civil Procedure before taking the bench.

The Future of Personal Jurisdiction

What does the future hold for personal jurisdiction?

First and foremost, the opinion leaves room for the states—and especially state legislatures—to adopt jurisdictional rules that reflect state policy. After Mallory, both the business-interest and plaintiffs’ constituencies have an incentive to negotiate those policies. The broad sweep of the plurality opinion creates an opening for states to return to open-ended jurisdiction based on state registration. At the same time, Justice Alito’s warning about potential Commerce Clause violations suggest that a state’s attempt to exercise jurisdiction in a case wholly unconnected with the state might be vulnerable on other grounds. Several years ago, we drafted a model consent-by-registration statute that offered a middle ground, giving rise to jurisdiction only in cases where there was a significant state interest. After the decision in Mallory, we think that the case is even stronger for the states to adopt a narrowly focused statute that explicitly sets out the consequences of registration. Such a statute would offer predictability, would avoid a significant amount of jurisdictional litigation, and would avoid the worst excesses of either too-broad or too-narrow state jurisdiction.

The case also highlights the impact of methodological divides on jurisdictional doctrine. Justice Gorsuch’s plurality opinion is predominantly originalist. Because the states had similar statutory schemes before and at the time of the ratification of the Fourteenth Amendment, and those schemes were upheld some fifty years later in Pennsylvania Fire, the Due Process Clause was not violated. The plurality largely ignores the new jurisdictional constraints announced by the Roberts Court over the last dozen years, viewing those as irrelevant when the asserted jurisdictional basis is a type of consent, a traditional form outside the minimum-contacts test. But while clothing its opinion in originalist garb, the plurality indicates a functional disagreement with the premises underlying the Roberts Court’s restrictive turn in personal jurisdiction.

In contrast, the dissent relies primarily on doctrinal arguments, reasoning from the contours of its past decisions. The dissent fears that the recent constraints on a corporation’s amenability to suit would be for naught if states could circumvent those limits by requiring corporations to consent to all-purpose jurisdiction to do business in the state. As a result, the dissent seeks to eliminate corporate registration schemes as a jurisdictional alternative.

Such interpretive divides typically lead to highly fractured decisions, which has been a problem in the past in personal jurisdiction and appears likely to be a continuing difficulty. While the Roberts Court issued a majority opinion in six of its seven prior jurisdictional rulings, those days may be coming to an end. Justice Breyer’s replacement by Justice Jackson, and Justice Gorsuch and Thomas championing an originalist approach, provide three additional voices to Justice Sotomayor’s fight against the restrictive turn in personal jurisdiction. It appears that, at least for the foreseeable future, the study of personal jurisdiction will remain the 1L subject demonstrating the importance of plurality opinions and counting votes.

Justice Barrett Gets It Right; Justice Alito Gets Angry

My new essay at The American Prospect compares the reactions of Justice Amy Coney Barrett (reasonable) to Samuel Alito (over the top) regarding revelations about their financial disclosures.

Here is the gist:

It is sometimes possible to gauge the legitimacy of an exposé by the nature of the response. Consider, for example, recent revelations concerning Supreme Court justices Amy Coney Barrett and Samuel Alito.

Following Barrett’s confirmation, which required moving from South Bend, Indiana, to Washington, D.C., she and her husband sold their home to Brendan Wilson, an incoming Notre Dame law professor, for $905,000.

Barrett’s response was complete silence, declining to answer CNN’s inquiry. That was reasonable because there was nothing to the story.

Barrett trusted the public to recognize a non-event, and indeed the story had no legs.

Compare that with Justice Samuel Alito’s frantic reaction when he learned that ProPublica had obtained information about his 2008 Alaska vacation with a group of Republican donors and activists, with private jet travel courtesy of hedge fund CEO Paul Singer, also a mega-donor to conservative causes.

Alito’s panicky attempt to preempt the ProPublica story stands in sharp contrast to Barrett’s calm silence, revealing, at the very least, his unspoken recognition that the reporters have unearthed some very inconvenient truths.

I once defended Alito’s handling of ethics issues, but not this time.

You can read the entire essay at The American Prospect.

Birthright Citizenship and Original Public Meaning

Governor DeSantis released an immigration plan today that calls for the end of birthright citizenship. The Governor's plan says that birthright citizenship as applied to children of illegal immigrants is "inconsistent with the original understanding" of the Fourteenth Amendment. That's false, as Judge Ho (before he became a judge) well explained. Scholars are virtually unanimous is reaching the same conclusion.

Ah, but there must be at least one exception, you might be thinking. There is. John Eastman. He wrote a 2006 article in Georgetown that you can read if you want. It's not convincing.

"Morass: a confusing or troublesome situation."

Rick objects to my reference to an “ethical morass” at the U.S. Supreme Court, but what other definition better fits a court that has uniquely declined to adopt a code of conduct and refuses to acknowledge any obligation to follow federal ethics legislation? Official statements – including the Chief’s 2011 report and the recent letter to the Senate Judiciary – have all been equivocal.

Far from participating in a recently devised tarnishing campaign, I first raised these issues in 1991 in the Federalist Society’s own journal, and I have been pursuing them regularly since 2006. I have defended Justices Alito and Gorsuch on ethics issues, and I have criticized Justices Ginsburg and Sotomayor. I called out Nina Totenberg’s soft-ball treatment of RBG. My forthcoming column speaks well of Justice Barrett.

Perhaps Rick did not intend to include me among the “bad, low, and . . . gross” disseminators, but it sure felt that way.

In any case, I stand by the objectivity and non-partisanship of my analyses. Justices Thomas and Alito have been cavalier at best about their disclosure obligations; their excuses have been tortured and contrived.

In any case, I do find it troubling – and surely newsworthy – that Supreme Court justices have been repeatedly feted by wealthy and well-connected political activists. If I learn of similar largesse toward or influences on liberal justices, you can be sure that I will write about it.

Comments are open closed.

Fraud at Harvard Business School?

The Chronicle of Higher Education has published a long article on the case of Harvard Business School Professor Francesca Gino, who has been suspended following an investigation for faking the data for numerous studies, many of which were used in coauthored articles. The great irony, of course, is that Prof. Gino is famous for her research on dishonesty. (Sorry about the line spacing in the rest of this post. I cannot figure out how to fix it.)

The CHE article is paywalled, but here is the gist:

To Maurice E. Schweitzer, a University of Pennsylvania business professor, it seemed logical to team up with Francesca Gino, a rising star at Harvard Business School. They were both fascinated by the unseemly side of human behavior — misleading, cheating, lying in order to profit — and together, they published eight studies over nearly a decade.

Now, Schweitzer wonders if he was the one being deceived.

Gino is on administrative leave from Harvard amid allegations that research she co-authored contains fabricated data, as The Chronicle reported last Friday. The next day, a trio of academics wrote on their blog that they’d found “evidence of fraud” in four of her papers, which they said Harvard was seeking to have retracted. But “we believe that many more Gino-authored papers contain fake data,” they added, without specifying. “Perhaps dozens.”

Instances of academic fraud are always troubling, and it is good to see that the claims against Gino are being taken seriously. Investigations and attempts at replication are underway by multiple journals and departments. But her is something else I found troubling in the CHE article:

[Schweitzer] says he did with Gino what most academics do: trust each other. “I don’t tell my Ph.D. students, ‘Never plagiarize work, never make up data,’” he said. “I assume that’s obvious.” But in hindsight, he acknowledged that it would have been better to supervise the data collection more closely. “Clearly we need to be more vigilant and less trusting than we’ve been,” he said.

Seriously? Ph.D. students at the Wharton School aren't cautioned about plagiarism and fraud? Where exactly does Schweitzer think they already learned about those concepts? And why did he ever think they don't need refreshing?

My exploration of ethnography revealed a stunning laxity in sociology departments about the reliability of publications (and the dependability of sources) -- not to mention a reluctance to teach students to refrain from assisting potential drive-by shootings -- but it is even more dispiriting to see a similar attitude in a professional school.

First year law students at Northwestern attend a mandatory session on our honor code, covering plagiarism and other forms of academic misconduct. Like all law schools, we also have a required course on legal ethics. Perhaps Penn has similar sessions for its MBA students. Fortunately, it looks like more attention will be paid to PhD students going forward.

Comments are open and will be monitored.

No, There Is No "Ethical Morass" at the Supreme Court

Steve linked, the other day, to his piece at The Hill, and referred to an "ethical morass" at the Supreme Court. But, there is no such thing. There is, to be sure, a well funded and well executed campaign -- Neil Postman, call your office -- to create/manufacture the impression of such a "morass" in order to -- now that the Court is less likely than it was in previous decades to deliver outcomes congenial to most law professors and legal commentators -- tarnish the Court's (well, for some reason, only some Court members') -- reputation.

It is depressing, but hard to avoid concluding, that those participating in the construction and dissemination of these stories know well that they are political operations, aimed at stirring up political feeling and activism with respect to abortion, racial preferences, etc.  (I do not think they are not about the Confrontation Clause, but I could be wrong!) The latest episode in this campaign might be the most ludicrous, i.e., the suggestions that there is something nefarious or "scrutiny"-worthy about the fact that Justice Barrett . . . sold her house when she moved from South Bend to the Washington, D.C. area.  Oh, and even here, it is thought to be relevant that Barrett is Catholic. I suppose we'll soon enjoy Slate scoops about the "dogma" involved in moving Michiana housing stock.  

In every (supposed) "morass" story -- about Justice Alito's op-ed, about Chief Justice Roberts's spouse's job, about Justice Thomas's travels, about the house-hunting help that Justice Gorsuch got (for some reason, the stories are never about the friends and activities of justices appointed by Democrats) -- one eventually encounters (if only out of shame) the concession that the events being reported as somehow concerning are/were not, in fact, ethical or legal violations. And, maybe, one encounters a grudging concession that those justices who have not -- for some reason! -- been the subject of pro publica's (no doubt earnest and non-partisan) attentions have also been involved in similar events. 

This stuff is bad, and low, and -- to be candid -- gross. Claims to care about "our democracy," when pressed by people who are participating in, or cheering on, a transparent and (I fear) damaging campaign against the Court, ring hollow, in my view. Now, if anyone's interested in more wide-ranging conversations about the merits of a more Thayerian (and so less Brennan- or Kennedy-esque) federal judiciary generally, I'm here for it!

Florida Supreme Court displeased with federal judicial overreach

Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.

The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.

In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.

As to the district court, the state court said:

Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.

I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.

Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.

Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.

Saturday Music Post - Muskrat Ramble

Muskrat Ramble was written by Edward "Kid" Ory in the early 1920s and first recorded by Louis Armstrong and his Hot Five (including Ory on trombone and Lil Hardin Armstrong on piano) in 1926. It became one of Armstrong's most popular numbers with all of his successive ensembles, and a standard for jazz groups ever since. In 1950, the Disney lyricist Ray Gilbert -- most famous for Zip-a-Dee Do Dah -- added lyrics to the instrumental without Ory's consent. ASCAP later ruled that Gilbert was therefore entitled to one-third of the royalties, even for instrumental performances. That seems incredibly unfair to Ory, but I have not found any record of a subsequent challenge. Perhaps that was because the lyrics allowed numerous recordings by vocalists, thus increasing the royalties for everyone (but that's just a guess).

Ory's daughter did bring a copyright claim in 2001, almost three decades after his death, but not against Gilbert. That story is at the bottom of the post, which is well worth reading.

The clips are at The Faculty Lounge.

The Limitation of Liability Act and the Titanic Submarine

Admiralty lawyers will be busy in the wake of the Titanic submarine tragedy. One issue that may arise if there are wrongful death actions filed against the submarine owners is limitation of liability. Most maritime nations provide that shipowners cannot be held liable for more than the value of the ship and cargo. There are different ways of calculating that total ($0 for the current value, for example) and there are some limited exceptions. The Act of 1851 was invoked by the owners of the Titanic in our courts and the submarine owners will probably do the same now, though how that would play out in foreign jurisdictions is less clear.

A complicating factor here is that at least one of the deceased passengers were very wealthy. An ordinary wrongful death suit involving a billionaire victim typically lead to massive liability for the tortfeasor. Here (assuming there was negligence by the submarine owner) the Limitation of Liability Act would cap liability at something way lower than the normal level of damages. (Plus, no jury trial). If there was a defect in the submarine itself, then it's a different story. There are no admiralty limits on product liability. 

Is There a Culture of Concealment at the Supreme Court?

My new column at The Hill explains why Justice Samuel Alito’s defensive oped in the Wall Street Journal just digs him in deeper to the ethical morass at SCOTUS. Here is the gist:

Alito, Thomas and the Supreme Court’s culture of concealment

Supreme Court Justice Samuel Alito’s recent Wall Street Journal op-ed was revelatory, although not in the way he intended. Instead of defusing an impending Pro Publica article about his associations with a billionaire hedge fund manager, Alito provided a virtual outline of problems with the Supreme Court’s ethics practices.

The basic facts are not in dispute. In 2008, Alito spent three days at a luxury fishing camp in Alaska as a guest of the owner, Robin Arkley II, a wealthy Republican donor. Other guests included Federalist Society leader Leonard Leo, who organized the trip, and Paul Singer, another major Republican donor. Alito flew to Alaska on Singer’s private jet.

As reported by Pro Publica, Alito did not include either the lodging or jet travel on his annual financial disclosure statement.

Full disclosure of extravagant gifts should be a justice’s default position, rather than a grudging concession made only when there is no alternative. Alito, however, asserts that he followed the “standard practice” of the Supreme Court. If so, Alito has unwittingly revealed a culture of concealment that can only damage the Court’s declining reputation.

Alito can argue the finer points of disclosure and recusal, but there is a greater issue involving the justices’ ready acceptance of lavish gifts from wealthy and politically active benefactors. Alito and Thomas, and perhaps others yet unknown, have not hesitated to vacation on the tab of the super-rich, rationalizing that they avoid talking law with their hosts, who, they assure themselves, do not have cases before the Court.

But influence does not arise only from outright favor-trading. Even when they are not parties to litigation, successful investors and industrialists have economic interests that are powerfully affected by many Supreme Court rulings. Justices who have enjoyed the trappings of wealth may identify, consciously or otherwise, with the welfare of their moneyed companions.

The Federalist Society’s Leonard Leo insists that Justice Alito is so “strong-willed and independent” that he could never be influenced by a “free plane seat or fishing trip.” Well, he would say that, wouldn’t he?

You can read the entire piece at The Hill.

Junketeering Justices

A perceptive comment by my daughter:

“One day it’s ‘my superyacht trips funded by a GOP megadonor were ethical because we’re such close friends,’ and the next it’s ‘my luxury fishing vacation funded by a GOP megadonor was ethical because I barely knew the guy,” Sarah Lipton-Lubet, president of Take Back the Court Action Fund, said in a statement.

The article is in The Hill.

I will post more on the underlying events later today.

TV Rec: Primo

I don't usually do this, but here is a TV recommendation (and one final non-SCOTUS post before what I expect will be a wave of bad decisions beginning at 10):

Primo, on Amazon's Freevee. It tells of a Mexican-American teen in San Antonio living with his single working-class mother and his five quirky uncles. It is a genuinely nice story about a decent kid that is laugh-out-loud funny. It is based on the life of writer Shea Serrano, who co-created it with Mike Schur. Worth watching this summer.

And now, back to SCOTUS doing horrible things to the law.

Getting particularity right, legally and practically

Chris Geidner reports on a Northern District of Florida decision declaring invalid Florida's prohibition on Medicaid coverage for puberty blockers and cross-sex hormones. Reading the order page (declaring the regs invalid; enjoining the named defendant, Jason Weida; and extending the injunction to other officers per FRCP 65(d)(2)), Chris argues that the decision is not only about the plaintiffs, because the first point applies to the law and regulations. This is wrong as a legal matter, although not as a practical matter. It also illustrates where everyone gets the universality/particularity analysis wrong.

As a legal matter, the court's order affects four named plaintiffs--two adults, two minors. That's it. Yes, the court declared Florida's Medicaid laws and regs invalid. But courts do not make legal declarations in the abstract; they declare the rights and other legal relations of any interested party. SCOTUS reaffirmed last week (as to defendants) in Haaland v. Brackeen that a DJ "conclusively resolves '‘the legal rights of the parties.’'" That is, they declare the law and regs invalid as to the plaintiffs. Declaratory judgments are no more universal than injunctions, absent certification of a 23(b)(2) civil rights class , which plaintiffs did not seek or obtain. The court's order binds the named defendant (the secretary of the state health-care agency) and everyone else who might enforce those Florida laws against them--any attempt to enforce against these four people violates the order.

This order does not prohibit anyone bound by the injunction--Weida or other officers--from enforcing these regulations against anyone other than those four plaintiffs. They could deny to John Smith Medicaid coverage of his prescription for puberty blockers or cross-sex hormones, without violating the current court order or risking contempt. But suppose they did that. Smith would join as a plaintiff in the current action and ask the court to extend the DJ and injunction to him; because he is identically situated to the original plaintiffs, the court would quickly grant the request. Or Smith would file his own lawsuit and quickly obtain a preliminary injunction on the strength of the prior decision. Either approach produces a court order that protects Smth as a named plaintiff, such that enforcement of the regs against him violates the order and risks contempt. But it requires that additional step of making Smith a party to the litigation and bringing him under the court's protection.

As a practical matter, on the other hand, Chris is correct--Florida officials will not enforce these regs against anyone; Florida Medicaid will cover these procedures for all recipients, barring a stay or appellate reversal. But the court order, as framed, does not compel that result as a matter of law. Rather, Florida officials will cover the procedures for non-parties because declining to do so wastes everyone's time and money* by triggering the further litigation--certain to succeed--described in the prior paragraph.

[*] Plaintiffs brought this action under § 1983, so § 1988(b) authorizes attorney's fees for prevailing plaintiffs. And each time a plaintiff obtains a new or extended injunction, the state will pay the fees for that process.

Does this matter, if we end up in the same place? In my view yes, because process matters.

The inanity of "Debate Me"

Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."

As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:

One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.

This is nonsense.

First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.

Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.

Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.

Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.

Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*

[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?

CFP: Article III Standing to Sue

The University of Chicago Law School's Constitutional Law Institute will host a conference on Article III Standing to Sue on September 22.

 

The Constitutional Law Institute invites draft papers on any aspect of the doctrine of standing. Article III of the Constitution confines the federal judicial power to "cases" and "controversies." Under modern doctrine, courts enforce that requirement by demanding that plaintiffs in every case demonstrate "standing" to sue. In recent years, the doctrine has transformed and raised many new questions -- legal, historical, and practical. Future decisions may well transform it still further.

 

Papers will be presented and discussed at the conference. Please submit any interested papers by August 1 to [email protected]. Chosen papers will be notified by August 15.

Tip of an Iceberg?

The following is by my FIU colleague Kerri Stone, who teaches and write on employment discrimination, including the atmospherics within law firms and other white-collar professions. Her book is Panes of the Glass Ceiling (Cambridge 2022).

In the weeks since the law firm of Barber Ranen was somewhat blown up after its two named partners were forced to resign, I have been sent numerous emails with articles about the scandal by friends. “Isn’t this what you write about,” they asked. “Doesn’t this scandal illustrate the unspoken beliefs that pervade the workplace?” Of course, the sexist, racist, homophobic, and antisemitic emails unearthed by the partners’ former law firm, Lewis Brisbois Bisgaard & Smith after they left that firm brought to light the private communications between Barber Ranen’s managing partner and the firm’s chief financial officer.

Predictably, the two publicly apologized as they made their exodus from their eponymous firm, disavowing their words and noting that, of course, they were not reflective of their character or of their values. “This is how they speak when no one’s around,” a friend noted to me. “They said the quiet part out loud. What are your thoughts?” My first thought was, honestly, that this, as a news story, was low-hanging fruit. The phenomenon of lawyers and other professionals who purport to be civil-rights minded or enlightened and then proceed to speak in private spaces in a manner that degrades, demeans, and devalues whole groups and individuals is as abhorrent as it is time-worn. There is no novel lesson to be gleaned here,

However, maybe the food for thought here is some consideration of just how frequently this kind of banter goes on behind the scenes. While some may lament the fact that private communications between colleagues working in the trenches on a case—never intended to see the light of day—could be exposed and published as these were, this incident, rare though it may be, offers an interesting window or insight into what goes on every day. While the monikers, language, and tone used in these communications may confirm some people’s worst fears about what self-professed enlightened professionals really think of or call their clients, colleagues, or opponents, we have to pause and ask just how prevalent these kinds of communications are.

And maybe that is where the real story—and the real discussion is. Ought we presume that where members of a given group do not occupy a secluded space, be it on a case team or a workplace friend group, if no one is willing to police the space, there is a fair chance that the space is rife with jokes, epithets, and crass, discriminatory put-downs? How fair of a chance? If we are only seeing what’s on the surface, how much would it aid us to form an understanding of how much pejorative, discriminatory speech goes unchecked, shielded by a shroud of silence, complicity, and a false sense of security?

According to Lewis Brisbois, the discovery of the offensive emails was spurred by an anonymous complaint that it received about these attorneys. Hopefully, attorneys and other employees are pausing to think about how they have communicated on not only organizational emails, but on group texts, at lunch tables, and at late-night meetings. While the presence of a member of a group that would be targeted in some way in a private professional space might deter hateful workplace speech, the very lack of such a presence is what likely helps to instill a sense of safety and security in the speakers.

This story ought not fade from memory too quickly; it contains many lessons. I plan to reference it when I teach about employee privacy and teach about company emails and compliance reviews (using AI or other programs to screen them). There is a role for this story in many Employment Law, Employment Discrimination, and Professional Responsibility classes. And, of course, hopefully outside the classroom, this story ill come to mind when those privileged to occupy (at least semi-) private workplace spaces—virtual or actual—will think about it and be better bystanders/upstanders when they bear witness to behavior or to speech that would not reflect well upon them or upon their values if it saw the light of day. 

The Thirteenth Amendment and the Bill of Rights

To mark Juneteenth, I thought I'd revisit a question posed in my book on the Bill of Rights. Why isn't the Thirteenth Amendment considered part of the national bill of rights?

The Thirteenth Amendment is part of many state bills of rights, which either repeat that text's language or something very similar. Likewise, the Philippines Bill of Rights enacted by Congress after the Spanish-American War included the language of the Thirteenth. Kepner v. United States confirmed this point, while adding that the Bill of Rights was "the first nine amendments to the Constitution of the United States," which is the only Supreme Court case that so defines them. The Universal Declaration of Human Rights also includes a prohibition on slavery.

Of course, when I wrote the book five years ago there was no Juneteenth holiday. Commemorative events like that tend to elevate what they are celebrating. There was no national "Bill of Rights" day until 1941, and that holiday elevated the status of the first eight or ten amendments, as there still disagreement at that point about what the Bill of Rights was. There is an argument for expanding our idea of the national Bill of Rights, and the Thirteenth Amendment (along with the right to vote) should be high on that list. 

Juneteenth

In recognition of Juneteenth, I am reposting this essay from 2017.

Why Neo-Confederate Claims about Black Slaveholders Are So Misleading

Neo-Confederates insist that the many statues of Robert E. Lee commemorate only southern “heritage,” and that the revered “Lost Cause” had nothing to do with slavery. Among their favorite proofs of the latter proposition is the claim that southern Blacks were also slaveholders, which is somehow thought to make the Confederacy’s “peculiar institution” appear more even-handed or benign.

The most recent iteration of this dubious storyline comes in the form of a widely-circulated internet image asserting that “What your history books [don’t] tell you is that 3000 Blacks owned a total of 20,000 slaves” in 1860.  Signed by “A Proud Southern Deplorable – Southern Rebel,” the point of the meme is evidently that blacks and whites were both responsible for slavery.  Although the 20,000 figure is probably fairly accurate, as determined by the website Politifact, it represents only one half percent of the 4 million enslaved African Americans on the eve of the Civil War.

There were certainly Black plantation owners in the South, some of whom had substantial human “property,” but many of the Black-held slaves were actually family members, whose nominal enslavement was a consequence of the harsh restrictions placed on free African Americans in the southern states. 

Under the prevailing law in many of the slave states, newly-emancipated Blacks were required to leave the state within a short period of time, ranging from 30 to 90 days.  Thus, husbands and wives were sometimes compelled to “own” their spouses and children in order to keep their families intact and evade the harsh demands of the racist law.

That is what happened to Allen and Temperance Jones who, as I explain in my book The “Colored Hero” of Harper’s Ferry, had been the “property” of a North Carolina slaveholder named Jeffreys in the early nineteenth century. An accomplished blacksmith, Allen had been allowed, as was common, to take on extra work in the evenings and on Sundays, from which he eventually accumulated the $685 necessary to purchase his own freedom.  Jeffreys, however, turned out to be a swindler, who took the money while denying that Allen had rightfully earned his wages.  Undeterred, Allen continued to labor and, this time with the help of some Quakers, successfully bought his freedom.

Now able to work full time, Allen managed to accumulate the $3000 necessary to free Temperance and their three sons. But there was a catch.  Allen could hardly trust the perfidious Jeffreys to fulfill his part of the bargain and, in any case, North Carolina law would have required Temperance and the boys to leave the state following their manumission. He therefore had no choice but to buy them himself, thus becoming the “owner” of four slaves.

Intra-family ownership could be perilous in the antebellum era, as slaves, even when held by spouses or parents, were always subject to seizure in satisfaction of debts.  Allen therefore took the extraordinary step of retaining counsel to petition a court for an order of emancipation for his wife and children. 

Filed in late 1829, the court papers recited his ownership of “several negro slaves to wit: Tempe, Munro, Betheny, and Burnham,” explaining that they were his wife and children, and vouching for Tempe’s “upright character.”  Temperance’s earlier service to Jeffreys was described as “dutiful, faithful, and highly meritorious,” and the petition ended with a prayer “for the liberation of his said slaves.”

There was no question that the petition would be granted, as it had been drafted and submitted by Thomas Ruffin, a large-scale slaveholder who was perhaps the most well-connected lawyer in the state.  Only a few months later, Ruffin would be appointed Chief Justice of North Carolina, and he soon established a reputation as one of the most ardently pro-slavery jurists in the South. Before the end of the year, Ruffin would author the opinion in State v. Mann, holding that a master could not be prosecuted for shooting a recalcitrant slave.  In Ruffin’s words, “the power of the master must be absolute, to render the submission of the slave perfect.”

In law practice, however, Ruffin evidently took scrupulous care of his clients without regard to race. Thus, the Jones petition pointedly included that language about Temperance’s “dutiful, faithful, and highly meritorious service,” which provided one of the few exceptions to the law requiring her to depart North Carolina following her emancipation. (It appears that Allen had obtained a “meritorious service” clause in his own emancipation papers from Jeffreys, but he obviously had not trusted the slaveholder to provide the necessary provision for Temperance.)

Allen and Temperance were not content to remain living in a slave state.  By 1843 they had decided to remove themselves to Ohio.  In one of the many cruel ironies of slavery, they were again required to seek authorization from the white authorities, this time to leave the state where they had first needed permission to stay.

The Joneses resettled in Oberlin, Ohio, which was then the most integrated and anti-slavery community in the U.S.  The entire family became active in the abolitionist movement, often providing shelter to fugitive slaves.  Allen opened a smithy, and he could often be heard at his forge, singing songs of liberation in time to his pounding hammer.  All four of their sons – including the aptly named Elias Toussaint, who had been born free in 1834 – graduated from Oberlin College, thus making the Joneses one of the most educated African American families in the entire antebellum era.

Not every Black slaveholder was wholly altruistic, and many profited handsomely – although often with mixed emotions – from enslaved labor.  One example was Matthew Leary, a free North Carolina “mulatto” who claimed descent from a Revolutionary War soldier named Jeremiah O’Leary.  A contemporary and acquaintance of the Joneses, Leary was a prosperous saddle-maker who lived in a fine house and provided private tutors for his children.  He was known to purchase slaves at auction, sometimes owning two or three at a time. Leary was known to treat his slaves imperiously, but he also assigned them wages that they could use to “work out their purchase money” toward manumission. Three of Leary’s children also ended up in Oberlin, where they participated in abolitionist activities alongside the Joneses. The youngest of them, Lewis Sheridan Leary, joined John Brown at Harpers Ferry, where he was killed in the fighting.

I discovered the Jones petition accidentally during research on a different family in the North Carolina archives, and as far as I can tell, no one since 1829 had ever been told the embarrassing details of Temperance’s complicated route to freedom. There is no mention of it in the many remembrances, memoirs, and articles by the Jones children and their descendants – all of which discuss the family’s origins in slavery – nor was it included in the long profile of Allen in an 1856 issue of the National Anti-Slavery Standard.  Perhaps, as an ardent abolitionist, Allen was discomfited by his experience as a slaveholder; perhaps Temperance never wanted to reveal the indignity of once having been enslaved to her husband.

The “Proud Southern Deplorable” seems to think that there is some exoneration of the Confederacy in the small number of slaves owned by black people, but in fact that was just one of the many traumas imposed by the slave system. The Jones family story actually illustrates precisely the opposite: African Americans would do virtually anything necessary to free their loved ones from enslavement.

 

Originally published here.

Marbury and the First Congress

When I teach Marbury, I sometimes start by walking the students through the idea that statutes enacted by the First Congress carry a strong presumption of constitutionality. We talk about why that might be. Then I ask how the First Congress screwed up and enacted an unconstitutional provision in the Judiciary Act of 1789. The next step, of course, is to show them that the First Congress did no such thing, as the "problem" came from the Court's deliberate misreading of the Act.

Nevertheless, the point that the First Congress does not have an unblemished official record is correct. And Justice Thomas said so in his dissent the other day in United States ex rel Polansky v. Executive Health Resources Inc. He said there that federal qui tam actions are not constitutional just because the First Congress enacted some. Why? Because the First Congress was not perfect. See Marbury. I don't think that this argument with carry the day if the Court ever does address the constitutionality of qui tam action, but who knows.

 

Saturday Music Post - When a Man Loves a Woman

Percy Sledge's 1966 release of "When a Man Loves a Woman" reached number one on both the Hot 100 and the Billboard R & B list. Michael Bolton's 1991 release likewise topped the Hot 100, and also -- somewhat embarrassingly, I think -- the "adult contemporary" list. There have been many other covers, most, but not all, with similar arrangements.

The clips are at The Faculty Lounge.

Now *That* is a Utility Vehicle

Lawyers may be excited to learn, from a story in my home state's Al.com, that Mercedes is enabling drivers of more than 900,000 of its vehicles to access ChatGPT through the cars' voice control system. Now we will be able to enjoy the efficiency and convenience of writing briefs while we commute.  

Eugene Debs and Self-Pardons

The claim is sometimes made that Eugene Debs promised to pardon himself if elected President in 1920. (Debs ran for President from prison and was pardoned by Warren Harding in 1921). I cannot, though, find a primary source to support this claim. If anyone knows of one, I would much obliged if you would send it my way. I think it might be an urban myth.

UPDATE: The story so far is that Debs' running mate did suggest that Debs could self-pardon, but there is no indication that Debs said so. Thanks to John Martin for referring me to the comments by Seymour Stedman.

Trump is not a legislator engaged in legislative speech or debate

Republican Rep. Thomas Massie decided that the best way to support Donald Trump was to tweet that "under the Constitution, no member of Congress can be prosecuted for reading aloud on the floor any of the documents Trump allegedly has copies of." Naturally, people jumped on this. So let's be clear:

First, he is correct. The leading Speech or Debate precedent arises from a Senator and his aide reading portions of the Pentagon Papers at a subcommittee meeting and entering 47 volumes into the public record. The Court said "[w]e have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting." That principle applies, even more so, to events on the House floor.

Second, what is Massie's point? The Speech or Debate Clause speaks of Senators and Gravel extends protection to senatorial aides; Trump is neither. And Gravel held that immunity did not protect possession publication of the papers outside of the legislative process--such as in bathrooms at Mar-a-Lago or conversations with reporters in New Jersey. So whatever Massie can do on the House floor is irrelevant to whether Donald Trump mishandled classified documents.

Maybe Massie knows that. He definitely knows that Trump supports do not know that. And that is the point.

Haaland: Standing, or why didn't the entire case have to come through state court

Haaland v. Brackeen rejected (7-2) a constitutional challenge to the Indian Child Welfare Act. The relevant plaintiffs were the State of Texas and three sets of adoptive, foster, or birth parents; the defendants were the Secretary of the Interior and various federal officials; the lawsuit was filed in federal district court. The Court rejected the challenge to the placement-preference provision for lack of standing, finding that an injunction or DJ as to the validity of that provision would not redress the plaintiffs' injuries; any injuries arose from the action of state judges applying ICWA and state officials enforce state-court orders, none of whom were parties to the case and none of whom were bound by any judgment. That the state officials likely would follow the federal court's opinion does not establish standing; in  music to my ears, Justice Barrett wrote "[i]t is a federal court’s judgment, not its opinion, that remedies an injury."

But the Court reached, and rejected, the merits of challenges to the entire statute under the Indian Commerce Clause and under Tenth Amendment anticommandeering to the requirements in involuntary proceedings; to placement preferences; and to certain record-keeping requirements. At least as to the latter two, the Court relied on anticommandeering's unique non-application to state courts, which must apply federal law in all cases before it as the supreme law of the land.

What I do not understand is how these plaintiffs had standing to bring a federal suit in federal district court to challenge any of these provisions on any grounds. All claims suffer the same redressability problems--the plaintiffs suffer an injury when non-party state judges apply ICWA to decide cases and non-party state officials enforce those judgments. So it seems to me this entire case should have had to come through state court--a state family court decides an adoption/placement case applying ICWA; the parents (and the State, if so inclined) argue that ICWA is constitutionally invalid and cannot be applied; the loser(s) appeal through the state system and ultimately to SCOTUS, which decides these constitutional issues in the course of reviewing a state judgment applying that law.

Pharaoh's Dreams

One of the most famous lines in Justice Jackson's Youngstown concurrence is: 'Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." The Supreme Court quoted this line only once (in Clinton v. Jones), but Jackson's vivid description lives on in academic literature as a curt dismissal of originalism. But there is something odd about this line that gets at a common criticism of Jackson, which is that he was sometimes long on rhetoric and short on analysis.

There are other references to the "forefathers" in the concurring opinion. For instance:

"The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image." 

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

In both instances, Jackson evidently thought that he was Joseph. Or that what the forefathers envisioned was not so enigmatic. 

 

 

US v. Trump: Multiplicity and Mistake of Law

A team of lawyers at Just Security posted a remarkable Model Prosecution Memo addressing the possible charges against Donald Trump; it predicted with great accuracy the charges which wound up in the indictment and analyzes the facts and law expertly and in detail. A couple of issues which arising from the indictment itself do not seem to have been addressed in the memo or elsewhere: Multiplicity and mistake of law.

Multiplicity

The indictment charges Trump with 37 counts of various offenses. The theoretical sentence would be 400 years if Trump received a maximum, consecutive term on each count, a highly improbable outcome, especially given the Guidelines. Counts 1-31—310 years of the 400-- charge unlawful retention of national defense information in violation of 18 U.S.C. § 793(e).  Based on the indictment and other information, all of the documents were allegedly in groups of boxes kept at the same places at the same time. The unlawful retention of all documents is alleged to have begun on January 20, 2021. 

There is an argument that Counts 1-31 should be one or two counts instead of 31. The issue is the “unit of prosecution,” which addresses whether and when conduct can result in more than one charge of violating a criminal statute. The sin is “multiplicity,” charging a single crime in more than one count. Courts treat this as a matter of legislative intent, which is often unclear. A leading case is Bell v. United States where the Supreme Court evaluated whether a Mann Act violation—transporting women across state lines for immoral purposes—was punishable based on the number of women transported or the number of trips. Relying on the rule of lenity, the Court held that it punished the act of transportation no matter how many women were involved. 349 U.S. 81, 82 (1955). The issue frequently arises in firearms prosecutions; many courts hold that a prohibited possessor (such as a person with a felony conviction or an unlawful user of drugs) can be convicted only of one count, no matter how many firearms they possess, or how many reasons they are banned from possessing weapons. United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir. 2014).

On the other hand, for some offenses, every day the conduct continues authorizes a new count. United States v. Cooper, 966 F.2d 936, 944 (5th Cir. 1992) (“We conclude that the maintenance of a crack house constitutes a separate offense each day it is continued.”). Unlike the Mann Act, with respect to unlawfully bringing in noncitizens to the United States, the statute makes clear that each noncitizen transported gives rise to a separate count.

In the context of § 793(e), the question is whether the “unit of prosecution” is the number of documents retained, or the number of acts of retention. The only case I could find involved DOJ lawyer Jay Bratt, who is also prosecuting in the Trump case. The district court faced the defense argument that “retention of information contained in separate documents on the same date in relatively the same location cannot give rise to multiple violations of Section 793(e).” United States v. Hitselberger, 991 F. Supp. 2d 86, 89 (D.D.C. 2013). The Court rejected the argument on the facts, because the DOJ contended that the defendant “is charged with retaining classified documents in violation of 18 U.S.C. § 793(e), which contained distinct information, were acquired at separate times, and were stored in separate locations.” However, Count 1 of the indictment joined in a single count the defendant’s retention of two separate documents which were found in his backpack at the same time in the same place. I expect Trump will argue that, just as in Count 1 of Hitselberger, all retained documents held at the same time and the same place amount to, at most, one count. On that theory, the 31 counts should be merged into one.

The documents at issue in Counts 22-31 were returned on June 3, 2022, perhaps the documents retained after that would constitute a separate count under this approach. Counts 1-21 involve the documents seized in the August 8, 2022 search. But Trump would have an argument, at least, that as to Counts 1-21, “the offence was complete and further retention was not a repetition of it.” United States v. Lewis, 161 F.2d 683, 684 (2d Cir. 1947).

Mistake of Law

I have a friendly amendment to the Just Security memo in the area of mistake of law, a defense not specifically addressed. The memo recognizes that the mens rea for the offense is willful: “Willfulness requires the Government to prove that the defendant’s actions were intentional and voluntary, and that she acted with the specific intent to do something which she knew the law prohibited.” Just Security Memo at 31.

This is a very strong form of mens rea: “the standard for the statutory willfulness requirement is the 'voluntary, intentional violation of a known legal duty.'” Cheek v. United States, 498 U.S. 192, 201 (1991). Although the Supreme Court seems not to have ruled on this question, a number of lower courts apply the Cheek standard to § 793(e). United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988); United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992).

If Cheek applies, then defendants will be allowed to assert a personal mistake of law defense (which the United States will have to disprove beyond a reasonable doubt).  As then-Judge Kavanaugh explained:

To be sure, “ignorance of law is no defense” is a hoary maxim. But it does not automatically apply to today's phalanx of federal regulatory crimes. See Wayne R. LaFave, Criminal Law § 5.6, at 298-311 (5th ed. 2010). For some regulatory offenses-particularly statutes like § 1001 that proscribe only “willful” conduct-the Supreme Court has recognized an ignorance-of-law or mistake-of-law defense, or has required affirmative proof of the defendant's knowledge that his or her conduct was unlawful.

United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010).  The question in that case would not be whether Trump was entitled to retain the documents.  He has claimed that he is so entitled; the Just Security memo explains why he is wrong, if Trump were to prevail on that claim, the case would simply go away as to that issue. But even assuming that Trump had no legal right to retain the documents, he could still be acquitted if the government cannot prove that Trump is lying when he says he thought he was doing what the law allows. There is, by the way, no reasonableness requirement: “the Supreme Court rejected the idea a defendant's good-faith belief must be objectively reasonable in order to constitute an affirmative defense to a willful violation of a legal duty.” United States v. Knight, 181 F. App'x 862, 864 (11th Cir. 2006).

Cheek did distinguish between different types of mistakes. It was one thing to erroneously believe that a law did not apply; it was another to understand that it applied but to erroneously believe that the law was unconstitutional. The Court held that in the latter case a defendant should seek redress in court, and otherwise took the risk that their belief was mistaken.

Only Justice Scalia rejected this view, arguing in a concurrence that a defendant’s belief that a law was unconstitutional negated willfulness:

As the Court acknowledges, our opinions from the 1930's to the 1970's have interpreted the word “willfully” in the criminal tax statutes as requiring the “bad purpose” or “evil motive” of “intentional[ly] violat[ing] a known legal duty.” See, e.g., United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Murdock, 290 U.S. 389, 394-395 (1933). It seems to me that today's opinion squarely reverses that long-established statutory construction when it says that a good-faith erroneous belief in the unconstitutionality of a tax law is no defense. It is quite impossible to say that a statute which one believes unconstitutional represents a “known legal duty.”

498 U.S. at 207–08 (Scalia J., concurring in the judgment). No other justice joined this opinion, but in the 30 years since Cheek, there has been a lot of turnover on the bench, so it is not out of the question that Trump’s attorneys will run this up the flagpole for appeal. Of course, making any argument based on Cheek opens the door to all kinds of evidence probative of intent and bad faith. United States v. Lankford, 955 F.2d 1545, 1551 (11th Cir. 1992).

A Rule of Three

By custom, the votes of four Justices are required to grant certiorari. Nowadays the Court is often criticized for taking too few cases. This Term the Court will decide fewer than sixty cases with signed opinions, which is the lowest level since the 1860s. 

Suppose you think that the Court is taking too few cases. One option would be to urge the Justices to take more cases. Another would be for Congress to expand the Court's mandatory jurisdiction. But there is a third possibility. The Court's custom could be changed to allow a certiorari grant by only three Justices. This reform would require no action by Congress and could be done tomorrow.

What's so special about the Rule of Four? I don't know how the Justices settled on this standard back in the 1920s. If there is a good article on that, feel free to email and tell me. Maybe four Justices was the correct custom back then but is not a hundred years later.

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law will host the 3d Annual "Law v. Antisemitism Conference, Sunday-Monday, February 25-26, 2024. I am co-organizer with Rob Katz (Indiana-Inianapolis) and Diane Kemker (visiting at DePaul). The CFP and details after the jump.

CALL FOR PAPERS/PRESENTATIONS

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law, Miami, Florida

You are invited to submit a paper or presentation for the 3rd Annual Law vs. Antisemitism Conference. The Conference aims to provide a platform for researchers and practitioners to present research and developments on the intersection of law and antisemitism -- how law has manifested and perpetuated antisemitism, and how law has been and can be used to combat it.

Areas of interest for the conference include, but are not limited to, the following themes and topics.

• The Working Definition of Antisemitism developed by the International Holocaust Remembrance Alliance (IHRA), its legal implications, critics and competing definitions (e.g., Nexus, JDA)
• Legal efforts in the U.S. and abroad to curtail expressions of antisemitism, e.g., by regulating hate speech, hate speech online, Holocaust denialism, and hate crimes
• Laws that authorize religious expression in public spaces, laws that target Jews and other religious minorities, and generally applicable laws that burden Jewish observance, including abortion bans (in the context of Dobbs)
• Legal responses to the Boycott-Divest-Sanctions (BDS) movement and other efforts to counter boycotts of Israel
• Comparisons between antisemitism and bias and discrimination based on race (including African Americans and Asian Americans) gender, sexual orientation and gender identity, or other categories
• Jews and whiteness, including white privilege, white nationalism, and white supremacy
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• Official discrimination against Jews, both historic and contemporary, including bars to holding office, immigration restrictions, housing and zoning restrictions
• Jews and antisemitism in the legal profession
• Jews as a protected class under federal and state civil rights statutes
• Jews and employment law, including employment discrimination, religious accommodations, and the ministerial exception
• Jews and antisemitism in higher education, including anti-Jewish quotas, Jewish perspectives on affirmative action, Title VI and hostile environments, faculty and student expression and actions concerning Israel and Zionism
• Law and the Holocaust, punishing the perpetrators, restitution for the victims
• The legal construction of Jewish identity (e.g., defining who is a Jew for purposes of the Law of Return, the Nuremberg laws)
• Case studies in antisemitism, e.g., the Dreyfus Affair, the Leo Frank trial
• Translating research on law and antisemitism into practical strategies for countering antisemitism through law
• Pedagogical approaches to teaching about the relationship between law and antisemitism

We invite scholars to reflect on the relationship between antisemitism, Jews, and the law, historically and in the contemporary environment, especially but not exclusively in the United States. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects. Please submit an Abstract of 300-500 words to [email protected]. Selected papers from the Conference will have an opportunity to be published in an upcoming issue of the FIU Law Review dedicated to the Symposium. (Questions may also be directed to [email protected].)

Proposals due September 1, 2023             

Presenters will be notified by October 1, 2023

Dr. Glaucomflecken on Journal Editors

 

JOTWELL: Bookman on Weinstein-Tull on traffic courts

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Justin Weinstein-Tull, Traffic Courts, 112 Cal. L. Rev. ___ (forthcoming 2023), the latest article (and Courts Law review essay) to consider life in lower-level state and local courts (and outside the federal courts on which many scholars and scholarship focus).

John Bingham's Home Town

On Friday, I was back in Cadiz, Ohio for a ceremony honoring John Bingham. The local Post Office was renamed for him. Here is one photo that I took while I was visiting.

Brown or Briggs?

The descendants of the plaintiffs in Briggs v. Elliott, the companion to Brown out of South Carolina, have petitioned SCOTUS to redesignate it as the lead case for that opinion. I was not aware of the story behind how the five cases reached the Court and formed that case, or of the historical debate over whether Brown became lead case because of bureaucratic choice or various political calculations.

What is a slippery slope argument?

The Freakonomics podcast did an episode on slippery slope arguments. It featured Eugene Volokh, Dahlia Lithwick, and a philosophy professor. Eugene wrote a great article on this; his post links to two versions of the article and blog posts serializing it.

I agree with Eugene that episode was interesting. But it went off the rails for me by spending a lot of time on distinct argument that I do not believe qualify as slippery slope. It features the president of the Campaign for Tobacco-Free Kids discussing opposition to early smoking bans, which featured arguments that prohibiting indoor smoking would destroy the restaurant industry or that prohibitions on smoking on planes would lead to plane crashes and violence by tobacco-addicted pilots and passengers.* Lithwick talks about CRT bans and book bans as descending into "feelingsball"--people support the bans because learning CRT will make white children feel bad about themselves or reading books about queer kids will lead to bad behaviors. She blames yellow journalism for the monetization of scaring people, even affecting how we discuss weather ("bomb cyclones" and "thunder snow").

[*] The initial ban applied to short (90-minutes-or-less) flights, on industry arguments that tobacco addicts could not last any longer without a smoke.

These are arguments about bad consequences--Policy/Law/Practice A will produce bad results or results I do not like. We can argue they are "catastrophizing"--warning of extreme (and unlikely) and scary consequences ("reading these books will turn your kids queer," "banning smoking will cause pilots to crash planes"). We can even argue they are examples of moral panics, which goes a step beyond catastrophizing bad consequences. Historic yellow journalism and modern-day "clickbait" journalism trade in these arguments--look at all the bad things that will happen from this practice or this law. And the weather example has nothing to do with anything--making weather sound dramatic does not really cause any conduct.

None is a slippery slope argument, at least as I understand the phrase and as Volokh uses it in his article. Slippery slopes argue that allowing Policy/Law/Practice A leads to Policy/Law/Practice B--if we allow gun registration, then government will confiscate guns; if we allow prohibitions on swastikas, then government will prohibit the Confederate flag or BLM flag. That is different from arguing that prohibiting swastikas will anger Nazis and cause them to riot or that gun registration will create a dangerous black market in illegal guns. Slippery slopes are about "slippage" from one set of rules or conduct to new rules or conduct, not from one rule or conduct to the consequence of that rule or conduct.

Saturday Music Post - Swing Low, Sweet Chariot

"Swing Low, Sweet Chariot" is an African American spiritual of uncertain origin. According to one story, it was composed by Wallace Willis -- either an enslaved or freed person in the Choctaw Nation -- in the mid-nineteenth century. It was distributed on sheet music by 1876, and first recorded by the Fisk Jubilee Singers in 1909. It has since become a staple in both Black and white gospel music in many genres and arrangements.

The clips are at The Faculty Lounge.

Some Weaknesses in Criminal Accountability for Trump

I'll have more to say about the latest indictment of Donald Trump, but for now I want to point out some problems with using criminal law to hold Trump accountable at this point.

First, the pending criminal cases may increase the probability that Trump will be elected in 2024. His election would halt any criminal sanctions against him during his term in office and (perhaps) permanently. A conviction in 2024 followed by Trump's election would be a quintessential Pyrrhic victory.

Second, criminal cases are subject to delaying tactics. Will any trial of Trump happen next year? I'm not sure. Will any criminal conviction be final by November 2024? Unlikely.

Third, criminal cases are subject to pardons. The likelihood that Trump will get at least one pardon is pretty high. Any future Republican President will be under enormous pressure to pardon Trump. This is less likely in New York (if he is convicted there), but more likely in Georgia (if he is prosecuted there). Granted, you can say that a conviction followed by a pardon does vindicate the rule of law, but this is probably not what the prosecutors pursuing Trump have in mind.

Note that these objections do not apply to Section Three of the Fourteenth Amendment. No executive pardon can be given for a Section Three disqualification. The proceedings cannot be delayed because a decision must be held before elections are held. And Trump would either be found eligible or not by the Supreme Court. Just saying.

 

§ 1983 enforcement survives, for the moment

The Court decided HHC v. Talevski Thursday, seven months to the day after argument. Here is my SCOTUSBlog analysis. The Court held 7-2 (by Jackson) that Spending Clause enactments are enforceable through § 1983 and that Federal Nursing Home Reform Act ("FNHRA") can be enforced through § 1983. I suppose I understand the delay. Thomas wrote a 36-page dissent tracing the history and evolution of the Spending Clause to argue that spending enactments do not "secure" legal statutory rights, only contractual rights, otherwise such rights violate anti-commandeering. Alito (joined by Thomas) dissented to argue that FNHRA is not enforceable because Congress intended to preclude § 1983 enforcement. Gorsuch and Barrett (with the Chief) joined the majority but added short concurrences.

The title of the posts suggests the reprieve to private enforcement may be temporary. Five justices wrote various things suggesting a narrow approach to private enforcement of Spending Clause laws, if not an intent to eliminate it. Thomas made his position clear. Gorsuch's one-paragraph concurrence spoke of "issues lurking" that petitioners failed to develop--namely, the anti-commandeering concerns Thomas discussed. In other words, Gorsuch might agree with Thomas in a different-and-better-litigated case. Barrett and Roberts went out of their way to remind courts to "tread carefully before concluding that Spending Clause statutes may be enforced through §1983." And Alito believes that a combination of state law proceedings and internal grievances sufficient to preclude federal litigation.

Award for Candor by the Lawyer for a Political Operative

Regarding Mark Meadows's testimony before a Florida grand jury:

"Mr. Meadows has maintained a commitment to tell the truth where he has a legal obligation to do so," George Terwilliger, Meadows' attorney previously told NPR in a statement.

Policy and Identity

In an article on cancel culture in the Journal of Free Speech Law, Thomas Kelly illustrates cancel culture by arguing that a

"relevant test for today’s college students would be the extent to which they are willing to tolerate speakers who earnestly argue for propositions such as the following:

1. (1)  That people who are currently in the United States illegally should be deported to their country of origin.

2. (2)  That affirmative action should be abolished because it unjustly discriminates against whites and Asians.

3. (3)  That for any adult person, having been born biologically female is both a necessary and sufficient condition for being a woman.

4. (4)  That the fact that different racial groups are incarcerated at different rates does not primarily reflect racial injustice in the criminal justice system but rather that the groups commit serious crimes at different rates, something that is not itself due to racial injustice.

According to Kelly, these reflect four contestable questions. And college students' intolerance for their expression reflects cancel culture--disrespect for free speech and intolerance for competing ideas. Except one of these things is not like the other. Numbers 1, 2, and 4 involve questions of public policy--how government and government institutions should address particular problems (unlawful entry to the country, crime, opportunities to participate in institutions), the best policy choices, and what those choices tell us about those institutions. Number 3 involves a pure question of identity--it denies that trans people exist. A person's existence should not be debatable and should not be a question of policy.

I do not suggest that # 3 enjoys less constitutional protection or that a speaker should be barred from campus for expressing # 3. I do suggest that debating identity cannot be conflated with debating immigration policy or even debating the policy consequences of identity, such as athletic participation. The constant failure to distinguish these--especially as to LGBTQ+ people--is telling.

Harlan Crow and Clarence Thomas May Compel SCOTUS to Accept Federal Ethics Legislation

My new essay at The Hill explains how Harlan Crow’s latest move – declining a production request from the Senate Judiciary Committee – may end up forcing the Supreme Court justices to finally admit that they are governed by federal ethics legislation. In brief, Crow’s attorney claims that Congress has no constitutional authority to legislate ethics requirements for SCOTUS, an issue that the Supreme Court has dodged for over thirty years. If Crow makes the same claim in litigation, the courts will have no choice but to make a definitive ruling.

Here is the gist:

Harlan Crow’s Senate Rejection Could Force the Supreme Court to Address Ethics

If Crow attempts to quash an eventual subpoena, raising the claims he asserted in his letter to the Judiciary Committee, the courts will have no choice but to adjudicate the Senate’s authority to legislate regarding the Supreme Court’s “ethics rules and standards.” Barring capitulation by Crow, such a case could ultimately reach the Supreme Court, presenting the justices with the exquisite predicament of having to rule definitively on their own acceptance of federal ethics legislation. 

Finally called upon, as Roberts put it, to address “whether Congress may impose [ethics] requirements on the Supreme Court,” the justices would have two choices. They could enforce the subpoena, requiring Crow to produce his documents, while implicitly recognizing the validity of “legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.” 

Or they could accept Crow’s argument that Congress lacks “the constitutional power to impose ethics rules and standards on the Supreme Court,” quashing the subpoena and diminishing their own waning legitimacy right along with it.

You can read the entire essay at The Hill.

Preferred first speaker, again

Reading (PA) police arrested a man for disorderly conduct for reading Bible verses (it sounds as if through a bullhorn or other amplifider) on the sidewalk alongside the Pride rally. Police insist the charges arose from the volume of his speech and not from reading the Bible. Several videos here.

This is the preferred first speaker in action, but in the traditional public forum of streets and sidewalks rather than a reserved lecture hall. The video shows the arresting officer asking the man to respect the ralliers and to "let them have their day." Adam Steinbaugh, an attorney for FIRE, makes two correct points: 1) "[S]peaking loud enough to be heard by a noisy crowd isn’t unreasonable. The police weren’t arresting people cheering at the event. That’s a stark display of viewpoint discrimination" and 2) "Speech people find offensive isn’t 'inconvenience.' It’s a manifestation of the 'verbal cacophony' that shows that the First Amendment means police can’t answer “inconvenient” or offensive speech with handcuffs."

Note the difference between Steinbaugh's (again, correct) analysis of this case and most discussions of Stanford, Yale, Hastings, and other cancellations-but-shout-down. No one has suggested that the Stanford students acted reasonably in jeering, snapping, and booing Judge Duncan, at a volume to be heard over Duncan's speech. No one has suggested that the First Amendment accepts "verbal cacophony"--quite the opposite, with everyone insisting the First Amendment demands civil discourse and the Stanford studewnts quietly and respectfully listening to what their better has to say, then perhaps asking polite-if-pointed questions.

So why the argument for different treatment? "Firstness" (again, the basis for the arrest) does not explain it; the ralliers were first speakers in that space by virtue of their permit; the Bible-quoting arrestee was an audience member responding and objecting to the first speaker, by Bible verses rather than snaps and jeers. "Shouting down" does not explain it; the arrestee engaged in counterspeech, at a volume and in a form that might make it difficult for the first speakers (the rallygoers) to speak as they wished or to be heard by willing audience members. He did not attempt to engage in civil discourse and he certainly did not intend to allow the ralliers to have their say in the manner they wished.

The remaining distinction involves the type of forum involved--designated-and-limited as opposed to traditional and open. Or we must sharply define what space constitutes the forum. Perhaps the lecturer's forum is the entire lecture hall (stage and audience area), while the rallygoer's forum is the sidewalk and parade route but not the adjacent sidewalk. (This supports the argument that loud protesters can stand outside the campus building--a distinct forum--and heckle to their hearts' content).

The point is the officer was wrong to arrest this guy (although he likely enjoys qualified immunity). And these cases are more complicated than everyone suggests.

Smith on "Christians and/as Liberals?"

My fellow "neo-medievalist" (!) Prof. Steve Smith (San Diego) has posted the article-version of a talk he gave at a Notre Dame conference last fall on "Liberalism, Christianity, and Constitutionalism." (Here is an op-ed version of the remarks I delivered at the same event.)  Here is Steve's abstract:

Recently, as part of a more general examination and criticism of liberalism, the relation between Christianity and liberalism has been much discussed. Some critics, sometimes associated with the label “integralism,” argue that Christianity and liberalism are fundamentally incompatible. Examining both consistencies and inconsistencies, this article argues to the contrary that liberalism may be, for now, for us, in our historical circumstances, the alternative that prudent Christians should prefer.

In the paper, Smith engages, inter alia, the versions of liberalism-criticism offered in recent years by Adrian Vermeule, Patrick Deneen, etc.  Here's something from the concluding pages (which, FWIW, seems right to me):

From this point of view, a properly governed and genuinely liberal regime might indeed be the best that a Christian should hope for, short of the end time when (Christians believe) the true King and Prince of Peace will rule. Liberalism might be, to borrow from Winston Churchill, the worst form of government except for all the others. In a genuinely liberal regime, people would be governed by ideals that at least derive from basic Christian beliefs, and by a regime that adopts as its central purpose protecting and promoting the ability of people (including Christians) to live and even to proselytize in accordance with their beliefs. At the same time, such a regime would not adopt the un-Christian and self-defeating tactics of using force and violence to enforce Christian beliefs that are efficacious only if sincerely and voluntarily embraced. The novelist Walker Percy, when asked why he was a Catholic, used to answer “What else is there?” Asked why he or she is a liberal, a Christian today might respond with the same question.

Dr. Glaucomflecken on Medication Pricing