PrawfsBlawg

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Free speech: Change or leave?

A fascinating thing about the President's remarks this weekend about four female Democratic reps of color, and of many responses from several congressional Republicans, is the model of free expression they represent. That model amounts to "if you don't like it, leave the country." This is not new. The President and Republicans have said similar things about Colin Kaepernick, Megan Rapinoe, and other athletes who kneel during the national anthem.

In this vision, there is no room for someone to criticize government policies or actions with the goal of prompting change. Nor is there a need to respond to criticisms by explaining why those critics are wrong and that the current action is the proper course. There is no need or room for discussion or debate--critics should shut up or get out.

Of course, the President's critics are seeing something good (i.e., anything he does) and purposely writing or saying bad. That, we learned last week, is not free speech.

Stupid rules, baseball edition

The independent Atlantic League (which used a Doppler radar plate umpire for its All Star game) has, with MLB support, implemented a new rule: Any pitch not "caught in flight" is a live ball, allowing a batter to run to first base or to be put out. People have described it as "stealing first," although that is not quite accurate. It happened in a game on Saturday. Others have described it as an extension of the uncaught third-strike rule, under which a batter becomes a runner if a third strike is not caught. I am not sure what the point is. I guess it adds excitement by offering a new way to reach first base, away from the home runs and walks that are increasing (and, some argue, making the game boring).

This seems stupid for several reasons.

The rule represents a departure from the game's basic structures. There are, famously, 7 (or 8, depending on how you count defensive interference) ways for a batter to reach base (unless you fine-grain it into 23). However you count, all are based on the batter putting the ball in play and the defense having to catch the ball to complete an out, or on the pitcher not being able to throw too many pitches out of the strike zone (there is no magic number, but it is not one). This rule introduces a new idea--reaching base on one pitch, not batted into play, that is not otherwise significant and would not otherwise produce an out.  I agree with the commentators who wonder whether the source of this rule actually likes or understands baseball.

The uncaught third strike analogy does not work. A batter becomes a runner on an uncaught third strike because that third strike is an otherwise significant pitch that would have produced an out had the catcher done his job. Moreover, the batter does not always become a runner on an uncaught third strike--he is out on strikes if first base is occupied with less than two out (for fear of creating Infield Fly-like perverse incentives). So there is a logic to when a batter does or does not become a runner. The new rule does not correspond to that logic and it is facile to label this a simple "extension" of that rule.

The new rule gives batters choices about when to try to reach base, which is otherwise unheard of in the game. A batter who hits the ball in fair play cannot "choose" whether to run--he must run. A batter cannot "decline" a walk to continue batting. The batter's choice begins and ends with whether to swing a bat. A batter cannot even decline to become a runner on an uncaught third strike--he must run. The game does not otherwise recognize the concept of a batter advancing "at his own risk"--at his option rather than forced; the batter is always forced to run when certain things happen. There is no logic to introducing this one optional situation.

The stories I have read do not explain what happens on a ball  that goes to the backstop with force-outs in effect on the bases (e.g., bases loaded or 1st/2d) and less than two out. Under ordinary rules, the runners can advance at their own risk on what would be a wild pitch or passed ball and they would have to be tagged. But if the batter attempts to run to first, that would force the runners to advance. Does this play now become a force on the lead runner at home? And how will anyone--the runners or the umpires--know? What if the runners do not plan to run (thinking the ball did not roll far enough away from the catcher) but the batter does run--now the runners are forced to advance but were not expecting to. There is no other situation in which everyone does not know in advance of the play what is a force-out and what is not, because the batter usually does not have a choice between running or not--this potentially adds some confusion. Or the new rule is limited to non-force-out situations--again, for no good reason.

This rule is part of a package that the Atlantic League and MLB are piloting. Two others are liberalizing what constitutes a check swing and allowing two foul bunts with two strikes before it is a strikeout. Again, all are designed to help batters and create offense, although at the risk of prolonging games that are already (it is said) too long. There is no obvious logic.

MAGA in the classroom (edited)

This complaint from Jeffey Omari (Gonazaga) about a student wearing a MAGA hat in his classroom is absurd, as Jonathan Turley (GW) shows. I will leave aside whether "MAGA is an undeniable symbol of white supremacy and hatred toward certain nonwhite groups" or what this says about anti-conservative discrimination in legal education.*

[*] Although I cannot let this pass: Omari writes "Being a law professor, I understand the complexities of academic freedom and free speech. I respect students’ rights to freely express their political beliefs and values within the framework of the law. Yet, at the same time . . . " You could see that "yet" coming from a mile away.

I want to focus on classroom management, after the jump.

Omari writes:

law schools are inherently institutions of professional training. Just as faculty and staff are required to maintain professional formalities to aid the training and matriculation of their students, it seems only logical that students, too, should maintain similar businesslike etiquette. . . .  But when students fail to live up to such professional expectations, what are the professors’ options? . . . Surely, there must be protocol when African-American professors—whose presence is scarce in most law schools—find their authority defiantly undermined by an insensitive student.

In what way did this student fail to maintain businesslike etiquette or to meet professional expectations? A professor or school could prohibit baseball hats in the classroom (one of my colleagues does this), but neither Omari or Gonzaga has  done this. A professor or school could require students to dress in a professional or business-casual fashion in the classroom (i.e., no baseball hats or t-shirts with writing), but neither Gonzaga nor Omari requires this. I suppose a private school or professor at a private school could ban clothing with political messages or even conservative political messages in the classroom, although that would raise some concerns for academic freedom and basic common sense; but neither Gonzaga nor Omari has done this in any event.  So if, under the rules of the school and the professor, student can wear a baseball hat with any political message in this classroom, in what way did this student fail to meet his "professional expectations"? Other than by wearing a hat with a message the prof does not like.

As Omari describes his behavior, the student does not appear disruptive, disrespectful, unprofessional, or undermining. The student raised his hand to participate in class discussions, so he seems to be an engaged student who adheres to the rules of the classroom. Omari does not say the student's comments were unprofessional, provocative, or poorly thought out or expressed, or that the comments in any way interfered with the conversation or with the professor's authority. Since I expect Omari would have said so to support his case against the student, I infer from silence that the student's contributions were good, relevant, and well-stated remarks that furthered the classroom dynamic. Omari also says he "knew this student’s political leanings from our various class discussions throughout the course of the semester," without saying that this was revealed through prior irrelevant, disrespectful, or disruptive comments; again, his silence suggests an engaged student participating in the learning experience throughout the semester within the rules of the forum and not acting in an inappropriate or unprofessional way. Arguably, in fact, Omari, not the student, disrupted the class when he took the time from the substantive discussion to comment on the student's sartorial choices.*

[*] Turley makes a good point on this: The prof tells the student he likes the hat and the student smiles and says thank you. But the prof --who was untruthful in saying he liked the hat, describes the student as being the one using a mocking tone.

According to Omari, this incident occurred with three weeks left in the semester. He draws a lot from the fact that the student had not worn this hat or anything political to that point. But so what? No one wears the same hat or clothing every day. Moreover, I doubt Omari would be in less high dudgeon had the student done this on the first day rather than 75 % through the course. Which raises a more telling point. This was not the first encounter between professor and student, where this hat provided the professor's first impression of the student. This student had been in this class for most of the semester, participating  frequently enough that Omari knew his political leanings (which he obviously does not share) but without (apparent) incident. But none of that context comes through or affects Omari's telling. Regardless of anything that happened the previous weeks of the class, regardless of the student's overall performance and behavior, donning that hat, without more, rendered this person an "insensitive student" who "defiantly undermined" this professor.

Gonzaga dean Jacob Rooksby issued the following word salad: "The School of Law diligently works to provide a respectful and inclusive environment that welcomes all students, faculty, and staff. We respect the points of view of all members of our community. This situation presents an opportunity for our community to listen to and learn from each other." Frankly, I think the dean, who presumably knows something about law, has a bigger problem: One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President.

JOTWELL: Vladeck on Thomas on O'Connor

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Evan Thomas, First: Sandra Day O'Connor (Penguin Random House 2019) and arguing that the bio reveals O'Connor as likely the last true centrist on the Court.

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

French defamation (Corrected)

Three groups of Michael Jackson fans (sorry, writing in a train station) have sued the men featured in Leaving Neverland accusing Jackson of sexual assault. The lawsuit was filed in France, which, the article repeats, recognizes defamation of a dead person.

But the story does not discuss what to me should be the real issue about French law: How have fan groups suffered a compensable injury, or using unfortunate U.S. terminology, how do fan groups have standing? Even if a dead person can be defamed under French law, how is a group of people who like his music (perhaps too much) injured by that?

Anyone familiar with French tort law?

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Independence Day is not military

The President has added military elements (including tanks that may damage the bridges into the district) to the Independence Day celebration on the National Mall. Many argue that this reflects the ostentatious military parades staged in the former Soviet Union, North Korea, and other authoritarian regimes trying to convince their people and the world of their power and greatness (which they usually lack in reality).* Unfortunately, these are the governments and leaders the President likes and respects and wishes to emulate.

 [*] As Tom Nichols puts it in The Atlantic, Trump "has blown through the romance of Bastille Day and past the stodgy opera of the Soviet May Day reviewing stand, and is now squarely in the North Korean 'Because I feel like it' mode." 

I want to offer a different criticism: A  military display does not reflect what we commemorate and celebrate on Independence in the U.S. The signing of the Declaration was an expressive and political act. And it was nominally grounded in theoretical and philosophical terms of consent of the governed, the law of nations, the purposes of government, and human rights--all decidedly non-militaristic ideas. This holiday should not be celebrated in militaristic terms because it does not mark an historic military action.** I reacted the same way several years ago when the m.c. at the small-town celebration I attended announced that the day was about the men and women in the military.  The evolution of the world from 2011 to 2019 can be seen in the evolution of this militaristic conception from the uninformed remarks of the speaker at a celebration at the Delaware beach to the President commandeering the Capitol concert and fireworks for his own display of military force, while threatening to ignore court orders.

[**] France's historic act of independence was a military event, so it makes some sense to celebrate with a parade. The equivalent for the U.S. might be commemorating Yorktown, the culmination of the military force that was necessary to secure what we mark on the 4th of July. But we do not do that. Or it might be Lexington and Concord, somewhat analogous to the storming of the Bastille. But Boston celebrates that by running a long race and playing a baseball game.

Rather than tanks and planes, the best move would be to return to Mark Twain's suggestion that public celebrations include a reading of the Declaration.

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Balls, strikes, and ground-rule doubles

In his opinion concurring in the judgment in Kisor v. Wilkie and arguing for overruling Auer deference, Justice Kavanaugh gave us this:

Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules. So too here.

I know analogies are only analogies and never exact. But they should be close enough to be helpful and this one is not. The problem is that the role of the Cubs and the role of an administrative agency, such as the VA, are not the same in one critical respect--an agency is charged with enforcing the regulations that it enacts, the Cubs are not.

An agency is charged with enforcing a statute, including making regulations to assist with that enforcement. Auer deference thus makes sense for the same reason that Chevron deference makes sense--give the enforcing agency some room to carry out its enforcement obligations, so long as its interpretations are reasonable. The Cubs' responsibility is to enact ground rules unique to their park--e.g., a ball that sticks in the outfield-wall ivy is a dead ball, the batter awarded second base, and runners awarded two bases--but not to enforce those ground rules, a power that rests with the umpires in the first instance.

It seems to me that this makes a difference, rendering the analogy pointless. There may be good reasons not to defer to an agency's interpretation of the regs it is charged with enforcing. One of those reasons is not that we do not defer to a different "agency's" interpretation of the regs it enacts but is not charged with enforcing.

Mueller Report: The Movie

Ask and ye shall receive.

Questioning "Yesterday" (non-law)

The movie Yesterday is about a world in which a power-outage causes everyone but one person to forget that Coca-Cola and the Beatles existed, so that person (an otherwise-unsuccessful singer-songwriter) becomes a world-famous star by "writing" the Beatles songs.

This review questions the musical premise, arguing that what makes the Beatles music special was their evolution. "She Loves You" was a sensation because the world had not yet heard "Hey Jude" or "Let It Be"--or better still, "A Day in the Life," which everyone seems to rank as their greatest song (not sure if it appears in the film). And it is musically impossible for those songs to be released simultaneously--and for the earlier song to catch on against the later song.

I question the premise from a different point: The movie assumes the Beatles songs sang themselves. The songs made the Beatles great, not how well the band played them. So any schmuck could perform a Beatles song (if no one had ever heard the Beatles sing it) and become as big as the Beatles were.

For more, here is a conversation at the Ringer on the broader implications of the film's idea.

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Basketball trumps football for UConn

News that UConn is leaving the AAC to return to the Big East (now as the lone non-private-Catholic school and one of two non-Catholic schools, with Butler (ed.)) reminds me of this post about whether to preference basketball or football. The original Big East dissolved because the schools with football history and ambition wanted more, causing three early members (Pitt, Syracuse, and BC) to eventually leave for the ACC and the Catholic schools that did not want to have big-time football to break away (rebranding as the new Big East). UConn was the one original/early Big East school without a good home when the music stopped--still wanting big-time football but not good enough at it (or in a big-enough market) to attract the ACC or Big 12.

This move shows UConn prioritizing its non-football teams, especially men's and women's basketball. No team in the AAC could compete with UConn in women's basketball--the women never lost a conference game. And the AAC was a lower-profile conference from which it was harder for the men to build a national-championship-level team (although it is impossible to know if the problem was the conference or being unable to replace Jim Calhoun as coach). UConn plans to maintain FBS football, so it is considering options for that team--staying in the AAC as a football-only school (Navy holds the same status), becoming a football independent, or joining another conference as football-only, perhaps C-USA (which is where FIU plays).

But this is the rare example of a school doing something to benefit its basketball teams at the expense of its football team.

Pozen on video review and soccer

A nice takedown by David Pozen of how VAR alters the "rules" of soccer, for the worse. Pozen's argument echoes this piece on how body cameras affect policing.

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

On professional decline (Update)

This Atlantic essay from Arthur C. Brooks, until this week the president of the AEI, is fascinating. I am the age (51) that Brooks was when he overheard the conversation that launched him on this project four years ago.

I was especially interested in the mid-essay discussion of fluid v. crystallized intelligence and its connection to scholarship as opposed to teaching for academics (Brooks spent about seven years as a professor of public policy). Creative and scholarly highs (which rely on fluid intelligence) top-out about 20 years into our careers, because fluid intelligence diminishes in our 30s and 40s. Teaching effectiveness relies on the knowledge gained in the past and our ability to share that knowledge and can last much longer into a career and a life (Brooks uses the example of J.S. Bach, who moved from composing to teaching late in life). This lends a new angle on the discussion over how schools should treat faculty who are effective teachers but not productive scholars--it may be a product of age and time in the academy that, Brooks suggests, schools could use to their advantage.

Brooks offers one point that, given my age and career choice, I take as a source of optimism from the piece: "No matter what mix of intelligence your field requires, you can always endeavor to weight your career away from innovation and toward the strengths that persist, or even increase, later in life."

Update: One academic-specific thought that occurred to me after I hit "publish": One must care about teaching, enjoy teaching, and want to be a good teacher early in a career, during that creative heyday. Because I imagine the transition is easier when teaching is something a prof enjoys and can be proud of--the loss of "prestige" will be felt less.

No state action in administering public-access cable channels (Updated)

In Manhattan Community Access Corp. v. Halleck, SCOTUS held that the private non-profit corporation designated by New York City to manage state-required public-access cable channels was not a state actor, so not subject to First Amendment limitations in banning a speaker from the channels. Justice Kavanaugh wrote for the Chief, Thomas, Alito, and Gorsuch; Justice Sotomayor dissented for four.

The opinions seemed to look at different facts triggering different analyses.

The majority applied the public-function cases, which hold that a private actor only performs a public function if it is traditionally and exclusively performed by government; "operation of public access channels on a cable system" has not been exclusively performed by government. The majority rejected a more general description of the function as managing a public forum; merely hosting speech does not create state action. And the city's designation of the corporation to operate the channels was equivalent to granting a license or to regulating the private entity, neither of which is sufficient.

The dissent argued that this was not a case of public regulation of a private entity, but of government delegation of a constitutional obligation to an entity created (with government assistance) for purposes of assuming that obligation. The city retained an interest in transmitting certain content (whatever goes on the public-access channels) over the privately owned cable or in regulating the transmission of content over that cable; Sotomayor analogized the cable to a privately owned billboard where the government contracted to access to space on the billboard in exchange for allowing the private company to place it. Given this property interest and the nature of the space as a forum for speech, the case was controlled not by the regulated-entity cases, but by the cases in which government delegated a constitutional obligation to a private entity. Managing a designated public forum is akin to providing medical care for prisoners--government is not required to designate public forums or imprison people; having done so, it incurs constitutional obligations in how it does so; and private persons assume those responsibilities when government delegates its constitutional responsibilities. The distinction is between a private entity entering the marketplace to do a job and the government hiring a private agent to perform its tasks; in the latter situation,the question is not whether the task is traditional and exclusive, but whether the government had an obligation to perform that function.

The majority attempted to narrow its decision, emphasizing that this was not a case of a delegated constitutional obligation, of the city maintaining a property interest in the channels, or of the city managing the channels itself. But the majority did not address or hint at the case the dissent believed this case to be--the government opening a public forum, then delegating management to a private entity (created for that purpose). It also is worth watching whether some municipalities in New York cease managing the P/A channels and delegate to private entities.

In an event, this decision should, for the moment, take care of people complaining about being banned from Twitter and YouTube. Update: Ken White of Popehat has a Twitter thread on why the arguments in favor of regulating platforms have no support on the Court--all nine Justices accept the starting proposition that a private actor who opens private space for speech does not become a state actor.

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

A dramatic reading of the Mueller Report

In 2012, PBS aired a documentary called The Central Park Five, produced by Ken Burns, his daughter Sarah, and David McMahon. It was excellent and thorough (although produced while the civil rights suit was pending and before the $ 41 million settlement). And it produced no public reaction--Linda Fairstein kept publishing books, Elizabeth Lederer kept adjuncting at Columbia, and Donald Trump was on a path to being elected President. But mere weeks after Netflix dropped DuVarney's docudrama When They See Us, Fairstein no longer has a publisher and no longer is on several boards and Lederer no longer teaches at Columbia.

The difference, it seems to me, is the drama of the docudrama compared with the reality sought in the documentary. When They See US depicts Fairstein as the big bad,* determined to get these rapists and stubborn to the point of arrogance when confronted with evidence of their innocence.** Lederer is depicted as plagued by doubts about the case, but charging ahead and being tough in her cross examination, including bringing out negative or embarrassing information about the defendants.*** The drama, the pathos, creating heroes and villains--you get that in a docudrama but not in a documentary.

[*] Along with the cops, who we expect to behave badly.

[**] It probably does not help Fairstein at this moment to have been played by Felicity Huffman.

[***] As, of course, she should as a good lawyer representing a client.

Which brings me to the Mueller Report. A press conference will not do it (obviously). Neither will congressional testimony, even if the point is just to have Mueller read the report live on camera.

Instead, we need a dramatic reading. Get James Earl Jones, Morgan Freeman, Meryl Streep, Dame Maggie Smith, Nancy Cartwright (the long-time voice of Bart Simpson), and any other great-sounding actors and actresses. Put them on TV and have them read or perform the report in the most dramatic fashion possible.

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Amar on exam-writing

Vik Amar at Above the Law offers some thoughts about writing good exam/assessment questions. He hits on four ideas: Offering more and different assessment opportunities; having a balance of open- and closed-book assessments (the latter to account for the need to prep for the Bar); using real cases or events (good idea, but be careful how you write it); and proper notice of the rules. Interestingly, on the third point, Amar does not warn about students being upset, offended, or traumatized by the real-world situations.

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Florida supports free speech in universities . . . sometimes

I wrote last month about the free-expression statement adopted by the Florida State University System. I described it as a good statement, emphasizing  the importance of not stifling ideas because some find them offensive or abhorrent and of not allowing stated concerns for civility or respect be a cover for stifling expression.

Yesterday, the state took a giant step backward when the governor, at a cabinet meeting in Israel (which may be unlawful under state sunshine laws) signed into law a broad prohibition on anti-Semitism at public educational institutions. It defines as anti-Semitism a broad range of protected (if heinous) speech about Jewish people and about Israel. The law does include a clause that it shall not be construed to "diminish or infringe" upon protected constitutional rights. But the point of the April statement was to emphasize the special role of free expression on college campuses. It said not that the First Amendment applies there (because, duh), but that free speech plays a special role there and members of those communities must be especially tolerant of even repugnant ideas. Unless those ideas are anti-Semitic. FIRE is not happy.

This law does tie back to the discussion over that New York Times cartoon from April. The law defines as anti-Semitism certain criticism of Israel, while allowing "criticism of Israel that is similar to criticism toward any other country." But comments to my post and Steve Lubet's separate Faculty Lounge post argue that criticism of Israel may be anti-Semitic even if it is similar as that leveled at other countries, if the criticism plays on historic anti-Semitic stereotypes.

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:

Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.

“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”

First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily  deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.

Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.

Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate  her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.

[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?

Read more here: https://www.fresnobee.com/news/local/article230903884.html#storylink=cpy//www.fresnobee.com/news/local/article230903884.html#storylink=cpy

Mitch McConnell and neutral principles

Over the weekend, Senate Majority Leader Mitch McConnell told a Chamber of Commerce luncheon that the Senate would fill a Supreme Court vacancy that should arise in 2020, contra his arguments in 2016 that the Senate should not fill Justice Scalia's seat in an election year but should let the people decide who should fill the vacancy. Asked to explain the seeming inconsistency, McConnell spokesman David Popp said the difference is that in 2016, the President was a Democrat and the Senate was controlled by Republicans, while now the Republicans control both.

Obviously that is nowhere close to what McConnell argued three years ago. But what would McConnell say about the converse of 2016--would not filling the seat be similarly proper when the President was a Republican and the Senate controlled by Democrats? That is, was Popp's point about split partisan control (a nonsense argument, but at least neutral) or was it specifically Democratic President and Republican Senate that made it ok, while the converse would not be?

I would have expected a different disingenuous argument, one that would sound slightly more neutral: The difference is that in 2020 the incumbent is seeking reelection and so is in the prime of his executive power, whereas the Democrat presented to the voters was not the current President. Again, a stupid argument. But it at least pretends to rest on some principle besides "now my party has the White House."

We have Nieves (finally)--now what?

After six months, the Court finally decided Nieves v. Bartlett. My SCOTUSBlog analysis is here.

I am guessing the long delay owed to five opinions flying around with different combinations of ideas. Eight Justices agreed that the plaintiffs should lose here on summary; only Sotomayor would affirm, because the defendants did not challenge the way the Ninth Circuit applied the standard. Eight Justices agreed that that the presence of probable cause does not automatically defeat all retaliatory-arrest claims; only Justice Thomas made that argument. Two Justices (Ginsburg and Sotomayor) argued that the Mt. Healthy burden-shifting framework should apply; two Justices (Sotomayor and Gorsuch) argued that any direct evidence of improper motive, not only comparison of similarly situated persons, should be sufficient to show improper motive. A five-Justice majority (the Chief for Breyer, Alito, Kagan, and Kavanaugh) said probable cause is required unless the plaintiff can show objective evidence that he was arrested when similarly situated persons who did not engage in his speech were not. Both Sotomayor and Gorsuch feared this standard was insufficiently protective of First Amendment interests--Sotomayor's solution was to challenge the standard as wrong, while Gorsuch's was to work the lower-court refs and convince them that the majority's approach is broader than its language would suggest.

I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument. Second, no one emphasized proposed limitations as between serious and petty crimes or as between probable cause for the immediate charge at the time of arrest or probable cause based on a months-long scouring of the statute book.

Also, note the way Sotomayor's dissent engages with recent scholarship exposing the reality of police/public interactions and the litigation that results. This includes noting that any defendant police officers likely were indemnified and that most encounters are recorded by both police and members of the public, producing more evidence to prove (or disprove) improper motive.

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)

I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.

I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.

Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).

Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.

Waiting for Nieves v. Bartlett

SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five six months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28). It was obvious from the argument that the Court was divided and searching for a middle ground that would leave officers free to handle disorderly conduct situations while not leaving police free to arrest government critics for minor violations, while also not having lots of cases going to trial. The long drafting time suggests a divided court and multiple opinions.

The Court heard ten cases in this sitting; seven have been decided and three remain--Gamble (Fifth Amendment separate sovereign), Carpenter (how much of eastern Oklahoma remains Indian reservation), and Nieves. Roberts and Alito have not written anything from this sitting. Both seemed inclined towards the officer in Nieves.

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

I also wonder about the constitutional validity of Warren's proposals under current doctrine and given the current Court (putting aside that it would not pass).

In her Medium piece, Warren calls for federal legislation that would: 1) Prohibit states from interfering in the ability of a health care provider to provide medical care or from interfering in the ability of a patient to access medical care from a provider; 2) Preempt TRAP laws; 3) Guarantee reproductive-health coverage in health plans, including repealing the Hyde Amendment; and 4) general protections for women, in seeking care and elsewhere (such as at work).

Is this valid federal legislation and under what power? Not § 5. Without Roe, Due Process does not protect reproductive freedom, so a law designed to protect that freedom by prohibiting state-level bans would not be congruent and proportional as to constitute legislation "enforcing" the 14th Amendment. Perhaps it could be framed as a gender-equality provision, enforcing the equal protection rights of women. But is halting abortion discrimination against women or is it halting a particular medical procedure that happens to have a disparate effect on women? And if the latter, is a disparate-impact provision congruent-and-proportional to a constitutional right that only prohibits disparate treatment?

So the power source would have to be the Commerce Clause. But a law doing what Warren proposes would interfere with the traditional state function of regulating the medical profession, the doctor-patient relationship, the insurance industry, and local zoning. Might the same five Justices conclude that there is not a sufficient nexus to interstate commerce to allow federal law to supersede state law in this area of historic state power?

I welcome thoughts on these questions--not being a Commerce Clause scholar, I do not know the answer. But pinning this on Roe, or suggesting that the anti-choice craze that has taken hold in these states is simply a reaction to Roe, seems wrong.

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Ballparks as public spaces and free speech

Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.

Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

This presents two fun what-ifs. First, Fortas was 58 when he resigned and lived another 13 years. How different might the jurisprudence of the 1970s have been had he remained on the Court with Douglas (replaced by Stevens in 1975), Brennan, and Marshall  as a starting point. And maybe Fortas retires prior to 1980 and gives Jimmy Carter the appointment he never had. Second, how might Nixon's Court appointments have differed? If Fortas does not resign, Blackmun remains on the Eighth Circuit in 1971 when Black and Harlan retire within days of one another. Does Nixon nominate Blackmun for one of those spots, since he appears to have been Nixon's "next" nominee, or had his time passed? Does Powell or Rehnquist, who were commissioned simultaneously, get the other? And if Powell, how does Rehnquist get on the Court and, more importantly, still become Chief?

Update: SCOTUSBlog has an interview with author Michael Bobelian about his new book Battle for the Marble Palace, which examines Fortas' failed nomination as Chief, marking it as the starting point for the "modern" Supreme Court and "modern" appointments process.

Fun with evidence

The problem set I use in class has this as a problem in the hearsay section. Supposedly Charles Manson's lawyer would make this objection.

The answer to the hearsay problem is that the name is not an assertion, because it labels someone without saying anything about the state of the world. But I have seen the point made that the real issue is not hearsay so much as lack of personal knowledge of the fact.

Anyway, something to share next semester.

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.