Monday, June 11, 2018

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Monday, June 04, 2018

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 24, 2018

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, May 21, 2018

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 14, 2018

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, May 10, 2018

Because it's International *Shoe*

For the third straight year, most of my Civ Pro students completed extra-credit "creative projects," including video skits, parody songs, board games, poems, and crossword puzzles. I stole this idea from former GuestPrawf Josh Douglas and I love how it has caught on. Students know about it from year to year and they seem to have a good time with it.

Among my favorites this year was a series of buttons that one student made. One button read "Certain Minimum Contacts," then the rest contained a drawing of a different type of shoe bearing the name of one of the tests for purposeful availment ("stream of commerce," "Effects," "Seek to Serve," etc.). Pretty cool-I can wear the appropriate one to class when we cover each of the tests.

But until someone pointed it out to me today, I did not understand why the student drew shoes.

I need a vacation.

Posted by Howard Wasserman on May 10, 2018 at 05:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (1)

To Dismiss or Transfer a Mockingbird

My recently-administered-but-still-to-be-graded  Civ Pro exam was built around the lawsuit over the Aaron Sorkin-penned stage adaptation of To Kill a Mockingbird, including questions on personal jurisdiction. On Monday, as my students were taking the exam, the district court denied Rudin's motion to dismiss for lack of personal jurisdiction. The court concluded that there was purposeful availment given the contract with Lee (an Alabaman) and her ongoing influence over the script, along with the fact (downplayed in Rudin's brief) that Rudin pursued Lee in Alabama (through emails to Lee and her Alabama attorney) for some time to get her to enter into negotiations. But the court transferred the action to the Southern District of New York under § 1404, finding that the private interest factors (mainly the location of witnesses) favored New York and that Lee's choice of forum received less deference because of her inequitable action in suing rather than meeting with Rudin to discuss concerns with the script.

All of which became moot today, when the Estate and Rudin "amicably settled" the litigation.

Posted by Howard Wasserman on May 10, 2018 at 05:28 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 08, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, April 24, 2018

I only want to see you working on your Civ Pro test

Zimmer as Trustee for the Kin of Prince Rogers Nelson v. Trinity Medical Center, a wrongful death action in Illinois state court by Prince's Estate against the hospital and doctors in Moline, Illinois that treated him, and failed to recognize a possible overdose, about a week prior to his death, and Walgreen's, two Walgreen's stores, and several Walgreen's pharmacists for prescribing him medications improperly.

Consider:

• All the defendants are from Illinois, except for the two Walgreen's stores, which are located in Minnesota (where Prince was a citizen prior to his death). Those defendants destroy complete diversity, keeping the case in state court. And that likely is the reason they were sued. Of course, even without the non-diverse defendants, the case is not removable because of the forum-defendant rule.

• It is not clear how there could be personal jurisdiction over the stores. I presume they filled prescriptions for drugs for Prince in Minnesota and had no obvious connection or direction to Illinois in their prescription activities. There are allegations in the Complaint that sound in obtaining jurisdiction over the stores through their connections to Walgreen, which is an Illinois corporation with its PPB in Illinois and subject to general jurisdiction. So it is the converse of Daimler--attempting to use a parent to get jurisdiction over the underling.  I suppose there is purposeful availment through owning a Walgreen's franchise (which presumably requires some contractual or other relationship with Walgreen's), but those contacts don't give rise to this claim. (The analogy would be if someone who choked on a Burger King fry sued Rudzewicz in Florida, based on his franchise agreement with BK). Expect the stores to move to dismiss for lack of personal jurisdiction (although, because of the F/D/R, dismissing them has no removal effects).

• There is an interesting state venue question. The lawsuit was brought in the Circuit Court of Cook County. But Prince was treated at a hospital in Moline, Illinois, in Rock Island County. Illinois law makes venue proper in the county of residence of any defendant, with corporate defendants residing in any county in which it has a registered or other office or is doing business. Walgreen's headquarters is in Deerfield, in Cook County.

• The case offers a simple illustration of the fact that conduct in one state injuring someone who is from another state does not, without more, create personal jurisdiction in the injured person's home state. Hence the Estate going to Illinois rather than making the defendants come to Minnesota.

Posted by Howard Wasserman on April 24, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, April 22, 2018

Universal injunctions in Trump v. Hawaii and Chicago v. Sessions

SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.

Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.

A few thoughts after the jump.

Marty's argument that a Supreme Court decision has the same effect as a universal injunction is right as a formal matter, because the President tends to proceed on an assumption of judicial supremacy--the Court's constitutional word is the last constitutional word. Much of the public shares that assumption, so the President may be politically bound to do the same. But a committed judicial-departmentalist executive could make these questions interesting.

Marty touches on the plaintiffs' Establishment Clause argument in favor of universality--that a limited injunction "fail[s] to 'remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.'”  Although I do not discuss it in my article, this argument has never made sense to me. The traditional conception is that the simple enactment of a law, regulation, or policy does not violate constitutional rights; only the (actual, attempted, or threatened) enforcement of the law, regulation, or policy violates constitutional rights. And I do not believe there is anything unique about the Establishment Clause in this regard. The E/C cases involving stigmatic harm have involved executive actions sending a message of exclusion--religious displays, football prayer, legislative prayer, etc. Stigmatic harm has not been a basis (to my recollection--I have not looked at this recently) for challenging the enactment and existence of the law itself. If it were, the injunction would have to compel repeal of the law or regulation, rather than prohibiting its enforcement. This logic, if it prevails, could not be limited to the Establishment Clause. It also should apply to speech cases, because the "simple enactment" of the law would have a chilling effect even on those not threatened with enforcement, justifying an injunction to protect them along with the threatened (so as to have standing) plaintiffs.

Hawaii also argues that it cannot identify in advance who might seek to study there so as to be protected by the injunction, so everyone must be protected. But the difficulty of identifying those with a sufficient connection with the plaintiff can be left for future enforcement of the injunction protecting Hawaii; it need not be decided at the point of issuance.

As for Chicago and sanctuary cities, the court deserves credit for offering a detailed and non-conclusory defense of universality, only the second court to do so (the other being the district court it was affirming). Sam captured the defects in the opinion. The problem remains the same. The attempt to allow this universal injunction while limiting universal injunctions to "rare circumstances" fails, because the limiting principles are not limiting principles and appear to justify a universal injunction in every case.

Posted by Howard Wasserman on April 22, 2018 at 05:59 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Saturday, April 21, 2018

More on PowerPoint

As one of the "Oh, I never use PowerPoint" people Derek mentions, I wanted to add on to a couple pieces of his post. Derek says he uses PP for three things: 1) The text of a rule or statute; 2) Visualizing a concept such as a flowchart; and 3) Photos and other AV material. And he and I teach some of the same classes.

First, not using PowerPoint is not the same as "simply sp[eaking], lectur[ing], engag[ing] in Socratic dialogue." While I (proudly) never use PP, I fill the dry-erase board with flow charts, key terms or phrases, hypothetical problems, and occasionally statutory text, especially if I want to break the pieces of the statute down. I recall a SEALS panel on using AV in class and one of the speakers presented his slide for the Erie flowchart. It was the same flowchart I use, just with more color and boxes and permanency. But the dry-erase board allows me to interact with the visuals, circling and underling things as we go, something that is impossible on the sterile slide (even with a laser pointer).

Second, the drawback to putting text on a slide is that students stare at the slide instead of the text in their books. I want them to learn to read and highlight or underline or mark-up the text as they go, by having the text right in front of them and being able to work with it. I have been aware this semester of how much students jot down what they hear about a statute in their notes and use the remembered language from their notes, rather than going back to the precise text and textual language. This is important when we are jumping around to multiple rules and they have to figure out how to read the rules together and fit them as parts of a whole. I prefer to read the rule together, with everyone looking in her own book, rather than presenting it in one spot for all.

Third, Derek says he does not churn through and read slide after slide. But the temptation to do so is overwhelming and commonplace, thus becoming expected by students and audience members.

Fourth (and this is going to be a matter of personal style), the question must be whether a visual adds something to the presentation and to the students' learning. When teaching Lujan, does it really add to the students' understanding of the case to flash a picture of the Nile Crocodile? It's nice as trivia or cocktail-party conversation--which certainly is important--but does it help the students understand the material? If my answer is no, it is something I leave out of the classroom, but perhaps present on the course-adjacent blog or web site.

Finally, while I believe I shared this story here years ago, it is worth repeating. It involves an academic talk rather rather than class, but it gets at the same thing. I was presenting my empirical study of the infield-fly rule , which had charts with numbers and pictures of fields showing location of batted balls, and the AV system was not working. The moderator told me to "do the best I can," which would have been "not at all," since the talk would have been incoherent without the audience being able to see what I was talking about. (They fixed the system by the time I got up there, so it worked out). That the moderator could believe the talk could work without the visuals tells me that many people are giving many talks using PP that adds nothing of consequence, probably with visuals that contain the text of what the speaker is saying and that are going to be read, but nothing more. If someone can do the same talk and be as understood without the visuals, the visuals add nothing essential and can be discarded.

Posted by Howard Wasserman on April 21, 2018 at 05:47 PM in Civil Procedure, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (9)

Thursday, April 19, 2018

Speeding cases

Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."

I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).

Posted by Howard Wasserman on April 19, 2018 at 07:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, April 15, 2018

Naruto lives

Naruto v. Slater, the so-called "Monkey Selfie" case, lives. The Ninth Circuit denied the Joint Motion to Dismiss the Appeal and Vacate the Judgment, filed after the parties settled. In denying the motion, the court relied on cases in which courts have declined to dismiss appeals following briefing and argument, particularly where the judges suspect a party settled to avoid adverse precedent. Oh, and Naruto was not party to the settlement. (H/T: A Civ Pro student who is interested in the case, since the Complaint is one of the models we use in class).

So now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading).

Posted by Howard Wasserman on April 15, 2018 at 10:28 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Thursday, April 05, 2018

Erie and litigation financing

Wisconsin enacted a law amending its discovery rules to require that a party's initial disclosures include "any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise." (§ 12 of the legislation). The political valence is that this is a victory for business defendants over the plaintiff's bar (which is how it was fought in the state), although there is some broader support for disclosure of third-party funders in the wake of Peter Thiel's funding of Hulk Hogan's suit against Gawker.

There also is an interesting Erie/Hanna question of whether a plaintiff must disclose this information in state-law actions in federal court. Since I am afraid I am not going to reach Erie (at least not in-depth) this semester, it may have to wait until next year. After the jump, I take a stab at what I think should be the analysis.

The quick answer would seem to be no, it is not required. The disclosure requirement is in the state discovery rules. The Federal Rules contain a provision that covers mandatory disclosures and does not include funding arrangements. Rule 26 is a rule of practice and procedure because it at least arguably regulates the manner and means by which rights are enforced or the fairness and efficiency of the truth-finding process. And since no procedural rule has ever been held to abridge, enlarge, or modify a substantive right, it is unlikely this one does (especially since incidental A/E/M is permissible). Were Scalia on the Court, this would be his approach.

But the disclosure requirement is part of a broader state effort (pushed by the Chamber of Commerce) at tort reform (or "civil-justice reform," which now seems to be the lingo), in furtherance of substantive policies of protecting and encouraging businesses to relocate, expand, and remain in the state. This might raise an A/E/M concern, that applying FRCP 26(a) to not require this undermines the substantive rights created by state law. And to avoid that problem, a court might narrow 26(a) to be not controlling, as providing a list of materials that must be disclosed that does not exhaust other disclosure obligations from other sources. And that pushes us to the "relatively unguided Erie analysis." And while disclosure will not materially alter outcomes, it may affect plaintiff's choice of state or federal court. And the recognized state substantive policy at work means the analysis requires application of state law (as it almost always does). I could see Ginsburg doing something like this (this is basically how she resolved Gasperini).

On the other hand, maybe none of this matters. The real question may be whether funding arrangements are discoverable. So even if not subject to automatic disclosure, defense counsel know enough to ask for the information.

Thoughts?

 

 

 

Posted by Howard Wasserman on April 5, 2018 at 11:24 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Class certification and universal injunctions

Judge Chutkan of the District of the District of Columbia last week issued a preliminary injunction barring HHS and the Office of Refugee Resettlement from enforcing policies preventing pregnant unaccompanied undocumented minors in federal detention from obtaining services to terminate pregnancies. Wanting a broad injunction that would reach beyond the four named plaintiffs (all of whom had terminated their pregnancies) to all women who might be subject to the challenged regulations, the court did it the proper way. It certified a class and issued a class-wide 23(b)(2) injunction prohibiting enforcement of the policies as to all members of a class defined as "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government."

Unlike courts in many recent cases, Judge Chutkan  followed the middle step of certifying a broad class, then issuing an injunction protecting the entire class that is the plaintiff in the action. But the case illustrates an important point. If universal injunctions are readily available, no plaintiff would bother jumping through the class-certification hurdles, but will proceed directly to asking the court for the same broad injunction while keeping the action as an individual one.

Posted by Howard Wasserman on April 5, 2018 at 12:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

SCOTUS on Monday summarily reversed the Ninth Circuit's denial of qualified immunity in Kisela v. Hughes, which resulted from an officer shooting a woman in the mistaken belief that she was threatening her roommate with a knife. Such summary reversals of denial of qualified immunity have become commonplace, as you recall. This one brought a dissent from Justice Sotomayor joined by Justice Ginsburg, who argued that, even if the lower court was wrong, it was not "so manifestly incorrect as to warrant 'the extraordinary remedy of a summary reversal.'"

I have not had a chance to read or digest the opinion. But Will Baude offers some comments, especially about the one-side nature of qualified immunity and its evolution into an absolute bar to recovery. So does Orin Kerr, who offers an explanation for why the Court has gone down this road with immunity grounded in the distincion between conduct rules and decision rules.

Posted by Howard Wasserman on April 3, 2018 at 04:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, April 01, 2018

The danger of universal injunctions

If you want to see the consequences of inappropriate universal injunctions, look no further than the contempt order imposed by Judge Mazzant of the Eastern District of Texas on the associates of a large firm.

Mazzant issued a universal injunction in 2016 against Obama-era minimum-wage regulations, in an action brought by several states against the Department of Labor. Lawyers representing an individual filed an action in the District of New Jersey against Chipotle seeking to enforce the regulations. Judge Mazzant ordered the attorneys to dismiss the New Jersey action and held the attorneys in contempt. Mazzant held that DOL represented the interests of the individual workers, such as the New Jersey plaintiff, who would be affected by the rule.

The problem here is  the court expanding the scope of the injunction rather than waiting for preclusion to do its work. The injunction should have been limited to DOL (and nationwide, by applying anywhere DOL attempted to enforce the regulations). But there was no reason for the injunction to extend beyond DOL or for this to be resolved as a question of contempt. To the extent DOL represented the interests of individuals (a questionable proposition), that should have been addressed as a matter of preclusion in the D.N.J. case, with the New Jersey court determining whether the second action was precluded.

This case also shows that allowing universal injunctions may harm individual non-parties rather than benefiting them. Proponents of universal injunctions argue that a district court ruling declaring a law or regulation invalid should protect other persons against whom the rule may be applied, without making them file their own lawsuits and obtain their own injunctions. This case presents the flip side--a universal injunction depriving potential rights-holders of any opportunity to litigate these issues themselves.

Posted by Howard Wasserman on April 1, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, March 31, 2018

12(b)(6) denied in Beckman v. Chicago Bears

I wrote last year about Beckman v. Chicago Bears, a First Amendment lawsuit by a Green Bay Packers fan who holds season tickets and a Personal Seat License ("PSL") at Soldier Field and was prohibited from participating in an on-field event for season-ticket holders because he was wearing a Packers jersey. The district court denied the Bears' 12(b)(6); Beckman plausibly pleaded a connection between the event and the Chicago Parks District to make the Bears a state actor and viewpoint discrimination. (The court granted the NFL's motion to dismiss on standing grounds).

The state-action analysis relies on a combination of the CPD retaining power to approve certain on-field events for PSL-holders and receiving revenues from certain PSL sales. Beckman filed the complaint pro se, so the court's Iqbal analysis bent-over backwards to draw inferences in the plaintiff's favor. The court identified several inferences as plausible despite no express allegations to fill the gap. For example, there was no allegation that CPD approved the event at issue or that Beckman held one of the PSLs from which CPD gained revenues, both facts necessary to the state-action analysis. But the court insisted that both inferences were plausible, which was sufficient.

Posted by Howard Wasserman on March 31, 2018 at 10:30 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 27, 2018

SCOTUS: Hall v. Hall and the limits of all-purpose consolidation

SCOTUS decided Hall v. Hall, unanimously (in a most-Robertsian opinion) holding that consolidated cases, even those consolidated for "all purposes," retain their independent identities for finality purposes, so judgment on one set of claims is final and appealable, even if other sets of claims remain in the district court. I called this one wrong, before and after argument. My SCOTUSBlog recap is here.

What I did not expect was the Court's seeming rejection of any distinction between limited and all-purpose consolidation, at least for appealability purposes. (The Court never discussed the scope of consolidation in the case, because it did not matter). Consolidation for all purposes should create a single action--as if separate sets of claims and parties had been joined in a single action in the first instance under FRCP 18 and 20.* In a single action, even complete resolution of some claims or some parties does not produce a final-and-appealable order (absent FRCP 54(b) certification). The Hall Court disclaimed any suggestion that all-purpose consolidation was not allowed. But it pulled finality and appealability out as issues affected by all-purpose consolidation; in other words, all-purpose consolidation does not create a single action for purposes of finality and appealability, although it may create a single action for other purposes. But that takes much of the force from all-purpose consolidation, which no longer produces the same procedural effect (in at least one respect) as if joined in the first instance. And without the finality benefit, it is not clear why else parties or courts would consolidate for all purposes, as all other benefits are available with limited-purpose consolidation.

[*] I teach that consolidation for all purposes is permissible only if the claims and parties could have been joined in the first place--not only because of a common question of law or fact (required in both Rule 20 and Rule 42(a)), but also where the claims arising out of the same transaction or occurrence.

Posted by Howard Wasserman on March 27, 2018 at 02:48 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

"Bound and gagged in body armor, hung upside down"

My analysis of Monday's argument in United States v. Sanchez-Gomez is on SCOTUSBlog. It was a good argument--both attorneys were very good, the Justices asked probing-but-not-obnoxious questions, and the bench left room for both attorneys to answer. I believe the Respondents will win--Kennedy seemed inclined towards them. The title of the post (and of my SCOTUSBlog post) comes from a hypothetical from Breyer.

On a different note, what is going on with the male Justices and Justice Sotomayor. Justice Kennedy interrupted her three or four times yesterday. And in NIFLA v. Becerra (the clinic compelled-speech case) last week, the Chief cut Sotomayor off when she interrupted an answer to a question from Justice Breyer, snapping " Maybe could welet him finish the answer, please?", something the Chief virtually never does--and certainly not as sharply.

Posted by Howard Wasserman on March 27, 2018 at 10:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

JOTWELL: Pfander on Nourse on statutory interpretation and democracy

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Victoria Nourse, Misreading Law, Misreading Democracy (Harvard Univ. Press 2016), arguing for a "legislative decision" approach to statutory interpretation that recognizes how the legislative process functions.

Posted by Howard Wasserman on March 27, 2018 at 01:13 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 19, 2018

Argument preview: U.S. v. Sanchez-Gomez

I have a SCOTUSBlog preview on next Monday's argument in United States v. Sanchez-Gomez, which considers issues of appealability, mandamus, and mootness in a case arising from a district policy of placing all defendants in five-point restraints for non-jury proceedings. (The Court denied cert. on the constitutional merits).

Posted by Howard Wasserman on March 19, 2018 at 12:07 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 13, 2018

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (27)

Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.

Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].

An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.

So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.

Posted by Howard Wasserman on February 27, 2018 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, February 21, 2018

Judging Access to the Court System

A very curious lawsuit is currently playing out in Chicago, involving four different state and federal courts. It should be of interest to anyone who teaches or follows developments in First Amendment law, federal court abstention, or court administration. It’s also a fascinating example of judges being asked to decide what obligations the courts themselves owe to the public.

The case involves a First Amendment challenge to records access in the Cook County court system. Last November, the Courthouse News Service (CNS) filed a lawsuit in federal court against the Cook County clerk’s office and clerk Dorothy Brown, alleging that the clerk’s office was not immediately disclosing certain electronically filed complaints that were a matter of public record. The gist of the allegations is that lawsuits filed in hard copy are immediately accessible to journalists or any member of the public, but e-filed lawsuits must first be administratively processed, which can delay public access for days. CNS sought injunctive and declaratory relief.

The lawsuit came as Cook County was already struggling to bring its civil case filing system into alignment with the rest of the state. The Illinois Supreme Court set a date of January 1, 2018 for the county to make its system fully compatible, but granted a six-month extension at the end of December when it became apparent that the county and its vendor were nowhere close to meeting that deadline. (The county asked for a one-year extension, which was rejected.)  In granting the extension, the state supreme court announced that its own administrative staff would attend future implementation meetings to assure that the project was completed in a timely manner.

Meanwhile, Brown’s office responded to the CNS lawsuit by arguing that it has no First Amendment obligation to make any document public until it is “accepted for filing,” citing a standing order requiring the clerk’s office to remove certain categories of documents from the public domain. That argument was evidently unpersuasive. In early January, the federal district court granted a preliminary injunction to CNS, and gave Brown 30 days to create a system to allow the press to obtain immediate access to e-filed complaints. The district court held that “In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints."

From that point, it started to get really interesting.

Over the past several weeks, Dorothy Brown’s work life must have felt positively Shakespearean. In late January, she petitioned the Illinois Supreme Court again, asking for leniency with respect to the deadline for e-filing integration, and explicitly seeking permission to comply with the federal court order by making e-filed documents (including documents filed under seal) immediately available to the public. When the Supreme Court did not respond right away, Brown twice asked the federal district court to stay the injunction. Twice the court rejected her request, the second rejection coming on February 13.

Brown again took the offensive. Moments after the district court’s denial of her second motion, she filed a motion with the Seventh Circuit Court of Appeals, arguing that the district court should have declined to hear the case under the abstention doctrine in Younger v. Harris (1971), and instead should have referred the matter to an Illinois state judge. Brown also argued that her office had been wrongly sued, and that the proper defendants were the Administrative Office of the Illinois Courts and the Office of the Cook County Chief Judge.

The Seventh Circuit has yet to rule on the Brown's motion. But the Illinois Supreme Court weighed in again on February 14, curtly denying Brown’s January petition without further comment.

What to make of this?

In some ways I feel bad for Dorothy Brown, who has portrayed herself (with some success) as a mere bureaucrat who is trying to follow conflicting sets of orders. There seems to be no question that her office is simply incapable of complying with the federal court’s e-filing order at this juncture. And the irony of Cook County’s paper filing system (which is by any account remarkably byzantine and chaotic) being more accessible than its e-filing system should not be lost on the observer.

But we should not pity Ms. Brown and her colleagues too much. While the causes of her office's dysfunction on this matter are not entirely clear, it would come as no surprise if they boiled down to some combination of inadequate resources, poor management, ordinary negligence, and politics. At the same time, if her office had shown expended half the time, energy, money and creativity in implementing a competent e-filing system as it has in defending this lawsuit in multiple courts, the issue probably would have been resolved long ago.

Posted by Jordan Singer on February 21, 2018 at 04:10 PM in Civil Procedure, First Amendment, Information and Technology, Judicial Process | Permalink | Comments (1)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 29, 2018

CFP: 4th Annual Civil Procedure Workshop (Nov. 9-10, 2018)

The following announcement comes from Brooke Coleman (Seattle), David Marcus (Arizona), and Liz Porter (Washington), now joined by Norman Spaulding and the Civ Pro people at Stanford.

We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience.

Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years.

We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.


Norman Spaulding (Stanford), [email protected]
Dave Marcus (Arizona), [email protected]
Liz Porter (UW), [email protected]
Brooke Coleman (Seattle U), [email protected]

Posted by Howard Wasserman on January 29, 2018 at 01:41 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

The Story of Goodyear v. Haeger

This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.

Posted by Howard Wasserman on January 29, 2018 at 01:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 22, 2018

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

Tuesday, January 16, 2018

Argument recap in Hall v. Hall (Updated)

My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.

Update: Two additional thoughts.

Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.

This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.

Posted by Howard Wasserman on January 16, 2018 at 09:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

The article (like so many of these discussions) ignores the real issue of universality v. nationwide scope.  It is not the injunction applying everywhere, but applying to everyone—prohibiting enforcement of the challenged laws not only as to the named plaintiffs, but as to every person against whom the law might be enforced. In the sanctuary cities case in the Northern District of Illinois, the injunction barred enforcement not only against the named city (Chicago), but every other sanctuary city. In the travel ban cases, it barred enforcement not only against the named plaintiffs, but all persons from the named countries. That is the real problem, because the general rule is that an injunction should not extend beyond the plaintiffs, absent certification of a plaintiff class or the rare situations in which rights and relief are indivisible as between the plaintiffs and others.
 
The Supreme Court’s power to issue these beyond-the-plaintiff injunctions is no greater than that of a single district judge (the article includes what I am sure is an out-of-context rhetorical question from Sam about how can a single judge decide a question for the whole country) . If the injunction that the district court can enter should be limited to the plaintiffs, then the Supreme Court’s affirmance of that injunction must be similarly limited. SCOTUS’s decision has nationwide/universal presidential value—so any new enforcement efforts by the government against non-plaintiffs would fail. But that is the effect of precedent (and a degree of non-departmentalism), not the effect of a judgment/injunction.
 
The article makes this sound new. But we had this conversation during the marriage-equality litigation and its aftermath. There were questions of what SCOTUS’s decision about the Kentucky ban meant for the South Dakota ban, what SCOTUS’s decision about the Kentucky ban meant for the antics of Kim Davis as to new marriage applications, or what the decision of one district court in Alabama meant for the antics of Roy Moore. Again, the answers depended on whether one talked about precedent or judgments/injunctions.
 

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)