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Monday, January 13, 2025

Pleading as press release, performative litigation, and good guys v. bad guys

I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.

I want to drill down on this because a range of ideas are floating here.

Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.

We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").

David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.

These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.

[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.

Posted by Howard Wasserman on January 13, 2025 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink

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