Tuesday, November 19, 2019

I'm old

I taught Hicks v. Miranda in Civil Rights today. A student was explaining Miranda's close connection to and interest in the state in rem civil forfeiture action as a basis for Younger abstention. The following exchange occurred:

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Sunday, November 17, 2019

Pleading yourself out of court and other thoughts on Comcast

Some thoughts after listening to arguments in Comcast, where the question was the causation standard ("but-for" or "motivating factor") for a § 1981 action.

• I did not understand the  argument from respondent (represented by Erwin Chemerinsky) that the standard could be motivating factor at pleading and but-for at trial or summary judgment. A motion under 12(b)(6) is supposed to ask whether, if everything the plaintiff alleges is true, the plaintiff can prevail--under whatever the controlling legal standard will be. It makes no sense--especially given the spin in Twiqbal--to allow a pleading to pass scrutiny when its facts could not meet the applicable standard.

The argument and questions seemed to conflate this with the distinct, and unremarkable, proposition that a plaintiff need not plead all the evidence she will have or use to prove her or claim. Or that a plaintiff should only be expected to plead what she can know or learn pre-discovery (an idea to which Justices Gorsuch and Kavanaugh, as well as Kagan, seemed receptive). Or that a plaintiff can prove her case with different evidence and different rationales than she pleads it.

• There were competing hypotheticals that illustrate the idea of a plaintiff pleading herself out of court, but that do not necessarily grapple with the problem here. The first, proposed by ASG Morgan Ratner, involves a law-firm applicant who receives a rejection letter saying "you're African-American and we're not hiring you because you never went to law school;" Ratner argued there would be no plausible claim of discrimination, because it was not plausible that the law-firm plaintiff could have been hired in any event. The second, proposed by Chemerinsky, is a plaintiff told by a hotel that it will not give him a room because no rooms are available and the hotel does rent to African-Americans; he argues that those allegations should be sufficient to survive a motion to dismiss.

The problem is that the hypos do not reflect how pleading works, because the fundamental nature of pleading and 12(b)(6) motions is that they are one-sided--only the facts alleged by the plaintiff are considered and the plaintiff can limit her pleading to those true facts (or facts she believes supportable on reasonable inquiry) that support her case. There is no obligation to plead adverse facts. And, as several justices and Chemerinsky reiterated during the argument, no need to anticipate and rebut the contrary facts the defendant may present.

So how would a plaintiff plead each of those cases? I imagine the rejected lawyer would plead that he was denied a job and the rejection letter mentioned his being African-American; the hotel guest would plead that they told him they do not rent rooms to African-Americans. A motion to dismiss would be denied, because those facts, if true and without more, could plausibly show that race was a but-for cause.

Both complaints are incomplete, as they withhold facts favorable to the defendant. But the defendant cannot introduce those facts at 12(b)(6). It must wait for summary judgment. Or maybe it could answer, add the additional facts (not a lawyer or no room at the inn), then move under 12(c) for judgment on the pleadings. It could prevail at either stage, because there is a non-discriminatory reason for its action and the result would have been the same--a point Chemerinsky seems to concede.

Had either plaintiff pleaded complete information (or had the law-firm plaintiff attached the rejection letter to the complaint), I think both complaints should be dismissed, because the plaintiff had "pleaded himself out of court." A defendant could move under 12(b)(6) and say "look at the four corners of the complaint, it shows the plaintiff cannot state a claim because it is not plausible that discrimination, as opposed to his not being a lawyer, caused his non-hiring, because the facts in the complaint show he was not hired because he is not a lawyer." Which, again, is as it should be. If the plaintiff offers and does not contest facts of a legitimate non-discriminatory reason for the action, his claim should fail.

Here is a different, interesting procedural question: Suppose the law-firm plaintiff just pleaded that the rejection letter contained racially motivated language. Could the defendant on a 12(b)(6) present the letter to give full context to what the plaintiff was told and still have it be treated as a 12(b)(6) (rather than converted to summary judgment)? The letter is not part of the four corners of the complaint. But the complaint references the letter, so the letter itself provides context. The Twombly Court did this with the magazine feature on Dick Notebaert in which Notebaert said competition was a way to turn a quick buck, but that didn't make it right.

• There was some discussion of Summers v. Tice (the two-hunters case from torts) for the idea that a claim can succeed when two plausible causes are presented showing liability, either of which was a but-for cause. But Summers does not seem the appropriate analogue here. The issue in Summers was that either of two people engaged in unlawful actions that might have caused the plaintiff's death--because either could have unlawfully caused the death, either could be liable, so both could be liable (and we will leave it them to sort out liability between them). The issue in the hypos is that one person engaged in two actions that caused the non-hiring or non-rental--one of those acts was lawful, the other was unlawful. So in Summers, the result (death) was the same and someone must be responsible because it resulted from one of two unlawful acts. In the hypos, the result (not hired/not given a room) was the same, but it resulted from one of two acts, one of which was lawful.

• Breyer and Gorsuch pushed that a plaintiff can satisfy 8(a)(2) by pleading mental state on information and belief. Gorsuch and Kavanaugh also suggested that discrimination cases should not be easily dismissed at the pleading stage. Such comments suggest a potential opinion loosening pleading standards. I wait to see if it is something that might become part of the Civ Pro course.

Posted by Howard Wasserman on November 17, 2019 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Leavenworth, ep. 4: Perspectives

The following is from my FIU colleague Eric Carpenter.

The timing of this episode is perfect. It covers pardons and the far-right’s efforts to get one for Lorance. The director shows how the right-wing media (primarily Sean Hannity) and Lorance’s supporters in Congress (primarily, Duncan Hunter—yes, the one under indictment) got the facts wrong and repeated these misrepresentations over and over and over again. And remember, this is where President Trump gets his information. The director includes a clip where Duncan Hunter says as much.

When Trump first floated the idea of these pardons before last Memorial Day, the response was overwhelmingly negative and he backed off. This time, when he floated it before Veterans Day, the media did not immediately pick up on the story. After a few days, several outlets did report that the Secretary of Defense went in to talk to Trump, advised him not to grant the pardons, and then told the President that he would send up files for the President to review so the President could get his facts straight.

Really. He expected the President to read about the cases. Surprise. That didn’t work.

This episode starts to approach the question that interests me the most: why did the far-right decide that Lorance (and Golsteyn and Gallagher) are heroes? Some of the talking heads in this episode made a good point: the “support the troops” reasoning that the far-right uses is perverse. Hannity was not supporting the troops in that platoon that were doing the right thing before Lorance came along. Many of them suffered long-term negative consequences because of this incident, and seeing the facts continually misrepresented in the media did not help. Hannity was not supporting all of the honorable service members who have deployed, followed the rules of engagement, and helped advance our missions. Instead, he supported a soldier who violated the rules of engagement and single-handedly lost that particular battle space in Afghanistan to the Taliban.

The producers still don’t give us a firm answer to that question. The author of this New York Times article approaches it (he appears in the episode), and we get some sense that the far right is really just at odds with counter-insurgency doctrine. Maybe we will get more in the finale.

The feature of the military justice system that is in focus in this episode is the appellate process. In the military, almost every court-martial gets an automatic appeal to a service-level appellate court. These courts are made up of three-judge panels, where the judges are judge advocates with three-year tenures. Lorance and others make it seem like these courts aren’t independent but that just isn’t the case. (Lorance and his team also skip over the fact that a panel composed of combat-veterans, not left-leaning hippies, heard his case and convicted him. Those members were independent, too.)

Above the service-level courts is the Court of Appeals for the Armed Forces (CAAF). With a couple of minor exceptions, CAAF is a discretionary court. This court has five civilian judges that serve fifteen-year terms. The service level courts and CAAF are Article I courts.

By statute, the Supreme Court can review CAAF decisions except for CAAF’s denials of petitions for review. One of the commentators in this episode thought that was the biggest defect in the military justice system. I’m not so sure that it is. Once CAAF denies a petition for review, the appellant can file a writ in a federal district court. The case can make its way up the Article III channels that way. And, practically speaking, military cases are not high on SCOTUS’s priority list. The Supreme Court rarely grants cert for decided CAAF cases.

Then there is this wrinkle. Remember, CAAF is an Article I court. In 1989, Congress granted the Supreme Court jurisdiction over CAAF decisions (10 USC §867a). The problem is that the Constitution does not grant the Supreme Court original jurisdiction over these cases, just appellate jurisdiction. All of the cases coming out of CAAF should have to go to another lesser Art. III court first (Congress could have sent them to the U.S. Court of Appeals for the District of Columbia Circuit, for example). That is a pretty straightforward argument, but it wasn’t raised until nearly thirty years after the statute was passed, via an amicus brief in Ortiz v. United States. The Supreme Court did some head-scratching, and in some not particularly persuasive reasoning, said there is nothing to see here and affirmed that it had jurisdiction over direct appeals from CAAF.

 

Posted by Howard Wasserman on November 17, 2019 at 09:31 AM in Criminal Law, Howard Wasserman | Permalink | Comments (1)

Saturday, November 16, 2019

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

• The Tenth Circuit held that officials of the University of New Mexico School of Medicine enjoyed qualified immunity from First Amendment claims arising from the school sanctioning a med student for "unprofessional" speech, because it was not clearly established that a professional school could not punish speech in the name of instilling professional values.

The court jumped to the second, "clearly established" prong of the qualified-immunity analysis, as it has discretion to do; but the court went beyond that, insisting that merits-first should be the exception, because of constitutional avoidance. But this seems problematic, generally and in this case. Generally, it will produce fewer opportunities for courts to develop constitutional law. In this case, skipping the merits no sense because the plaintiff also sought injunctive and declaratory relief, which is not subject to immunity and requires consideration of the constitutional merits. The court never explains what happened to those claims or why they do not compel the court to reach the constitutional question.

The case also reveals how courts, despite rhetoric to the contrary, demand factual overlap. As the court put it, the plaintiff “failed to identify a case where [a medical school administrator] acting under similar circumstances as [the defendants in this case] was held to have violated the [First] Amendment.” A" patchwork of cases connected by broad legal principles" is insufficient.

Also, note that the court ignored one factor weighing in favor of reaching the merits--the presence of amicus briefs from several First Amendment advocacy organizations, as well as Eugene Volokh. When the Third Circuit reached the merits and recognized a First Amendment right-to-record (while finding the right not clearly established at the time), it pointed to the presence of amici and the quality of the briefing in the case.

• The Fifth Circuit continues to be the only circuit to categorically reject state-created danger as a basis for substantive due process liability. The case involves  the mishandling of a 911 call--including waiting for officers to volunteer to respond and later refusing to help family members enter the victim's house unless they confirmed with local prisons and hospitals that she was not there, as well as the responding officers stopping at 7-Eleven before proceeding to the scene.

More standing/merits overlap (or confusion) in this Sixth Circuit affirmance of denial of a preliminary injunction. Plaintiffs are parents of a child with autism, who placed him in a private therapy program instead of public school; although he improved in private therapy, the state convicted the parents of truancy. They then enrolled him in a state-approved private school. But they are concerned that he may regress, that they may want to pull him out, and that they again will be prosecuted for truancy. So they sued for an injunction. The court of appeals affirmed the denial, agreeing that the parents could not show irreparable harm without the injunction because the hypothetical threat of enforcement was not "certain and immediate," but "speculative or theoretical," dependent on ifs (if the son regresses, if they pull him out of the current school, if they cannot find a new option, if the state decides to prosecute).

Assuming the court is correct about imminence, why is that not a standing problem--the family is not suffering a concrete and particularized injury because they have not shown "an intention to engage in a course of conduct" proscribed by statute for which there is a credible threat of prosecution. The course of conduct (pulling him entirely out of school) may not occur, depending on too many variables. But that seems to be precisely what the injury-in-fact prong of standing asks. The answer should not be different at the standing analysis than at the injunction analysis--if the injury is sufficiently imminent to establish standing, it should be sufficiently imminent to satisfy the irreparable harm requirement. This is why irreparable harm is often assumed in constitutional cases--the violation of rights (or threatened violation, sufficient for standing) qualifies as irreparable harm unless the injunction issues.

As a normative matter, it is interesting to consider whether the plaintiffs might have fared better had they sought a declaratory judgment rather than an injunction. They would not have had to show irreparable injury (although the court almost certainly would have moved this immediacy analysis up to standing and dumped the case on that basis--see above). This illustrates the type of case Sam Bray argues is appropriate for a declaratory judgment--the plaintiffs need an explication of rights but do not need judicial oversight or supervision going forward. The plaintiffs wanted and needed  guidance and certainty--to know where they stood and what they could (and could not) do as they tried to create the best opportunities for their son; they did not need a court order prohibiting government officials from acting at this time.

Posted by Howard Wasserman on November 16, 2019 at 03:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

All that is wrong with Twitter, in one story

In 2017, an undergraduate at a college in South Dakota joined the selection committee for the schools' Common Read program because she did not want a certain YA author's book included, because YA is not what college students should be studying, and preferred one of several books on social justice. Last week, the local paper runs a story about the Common Read program (2019 is its 10-year anniversary), including a quotation from that undergrad (who is now in grad school) about joining the committee.

The following ensues:

• The criticized author took to Twitter to say "I’m having a really hard time right now and this is just mean and cruel. I hope it made you feel good."

• The author's YA-author friends took to Twitter with such incisive comments as "Fuck that fucking bitch" and "fuck that RAGGEDY ASS fucking bitch." Another author friend suggested the student's comment reflected the same idea that allowed Larry Nasser to prey on women athletes.

• The university publicly apologized to the author for its former student having a negative opinion about her work. The school explained that it was afraid of harming its relationship with a different author in the wake of the graduate's pointed comments. That tweet is not being received well; apologies for the apology no doubt in short order.

• The grad student has been harassed off social media and is worried about career backlash.

• Starting sometime Friday, everyone began deleting many of these tweets.

• The original author apologized on Friday afternoon. But her apology used a first-person pronoun 11 times and never explained what she had done or who she had hurt and how. (Judging by the Twitter responses, the apology did not work).

• One of her author-friends apologized, explaining that she "didn't read the article" that had started the controversy (uniquely ironic from authors who consistently fight criticism from people who have not read their works).

• A third author--the one who compared this to MeToo and Larry Nasser and had on Friday insisted she had "zero regrets" about calling the student out--apologized late Friday. She did slightly better, including promising to reach out to the student (whom she had named in various online comments). But she did not acknowledge the problem with her Larry Nasser rhetoric. Nor did she acknowledge doubling down and having "zero regrets" two days earlier.

• A fourth author-friend apologized and explained that she had tweeted what she meant to DM.

Two more followed on Saturday, although only with the generic "to all who have been hurt" for "my part" and with such bad-apology disclaimers as "I didn't know the person involved was a college student" and "it upsets me."

The last set of apologists capture why Twitter sucks. Authors used to gather or correspond privately) and, among themselves, complain about critics and call critics names; over a bottle of wine, they felt better. Twitter allows (nay, encourages and incentivizes) them to complain and call-out critics in public. But they use the same language they had used in private. And that language reaches hundreds of thousands of people, who have no qualms, given the distance and anonymity of Twitter, of going after the original critic in a personal and aggressive manner. The two from Saturday insisted they were trying to support a friend and do not encourage or condone targeting and harassment. But what did they think was going to happen when they said things like "fuck that bitch" and "you are as bad for women as Larry Nasser"? Did they not think people would run with that?

Finally, note that no one apologized until beginning Friday afternoon and continuing to today. What happened? Beginning Friday morning, The Guardian, Washington Post, Slate, and New York Magazine picked up the story, moving it from the Abderdeen News to the national scene. Unlikely to be a coincidence.

Posted by Howard Wasserman on November 16, 2019 at 01:32 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Leavenworth, Breaking News

The following is by my FIU colleague Eric Carpenter, who has been live-blogging the Starz documentary.

Yesterday, President Trump pardoned Clint Lorance, along with Major Matthew Golsteyn (charged with the summary execution of a detainee). He also ordered the promotion of Special Warfare Operator First Class Edward Gallagher to the grade of E-7, the rank he held before he was court-martialed for murdering a detainee (he was acquitted of that charge but convicted of another charge, and the grade reduction was punishment for that other charge).

This was a terrible decision. He basically ignored the advice of his military counselors and followed the advice of Sean Hannity, thereby politicizing a justice system that already has issues with public confidence. The current coverage (and the coverage from when he thought about doing this earlier in the year but backed down) lays out many of the reasons why this was a bad decision. Further, by taking these actions, Trump may have committed a war crime.

All that aside, the press release announcing this decision shows that those giving Trump advice don’t really understand the military justice system. When the test balloon for the pardons was floated last week, the first idea was that Trump would disapprove the findings in Lorance’s and Gallagher’s courts-martial. An odd feature of the courts-martial is that the authority who convenes the court-martial must later approve the findings. This is a vestige from when a court-martial provided non-binding advice to convening authorities. The convening authorities would then approve or disapprove of those findings. Until 1916, commanders could send back acquittals or light sentences for a retrial. All of that has now gone away and the act is largely ceremonial. Here, the convening authorities had already approved these findings. The President could not undo that.

Someone must have figured that out because Trump looked to other presidential powers so that he could act on these cases. The President can pardon, and what he did with Lorance was within that power.

I am in the camp that the President can only pardon those who have been convicted, and so what he did with Golsteyn was not within that power. (This is one of those exercises in mental gymnastics, as we will never know the answer until a later administration tries to prosecute someone that an earlier administration has granted a pre-emptive pardon.)

He has another legitimate source of authority, though. Golsteyn’s case was still active. The President, as commander-in-chief, can withhold and dismiss any court-martial charges. Unlike what we see with the Department of Justice where the President is supposed to stay hands-off, there is no norm that the President should not get involved in court-martial proceedings. He is the commander-in-chief, and courts-martial are a tool of discipline. He is not allowed to unlawfully influence a court-martial or otherwise violate a service-member right to due process (for example, he is not allowed to tell subordinate commanders to take harsh action in a case or tell panel members to return a verdict of guilt), but anytime he disagrees with how a case is being handled, he withhold the case to himself and take whatever action he feels is appropriate.

He could have done that here. He could have then discharged Golsteyn, thereby ending the military’s jurisdiction over Golsteyn, which would prevent a subsequent president from reinstating the charges.

Turning to Gallagher, the President can grant clemency to Gallagher and reinstate his rank that way. Why he thought he had to order that Gallagher be promoted is beyond me, and Congress may have limited his authority to do that, anyway.

I think that is what happens when you ignore the advice of the experts and instead rely on talking heads to solve these problems.

 

Posted by Howard Wasserman on November 16, 2019 at 11:14 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

The winner of Above the Law's Legally Themed Halloween Costume ContestProf. Tom Baker's Con Law Section at FIU, continuing the since-2012 tradition of dressing like Prof. Baker on or around October 31.

FIU: We pass the bar and we dress well.

Posted by Howard Wasserman on November 13, 2019 at 09:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Shareholders. The timing is perfect, because the Sixth Circuit just agreed to review the class certification decisions in the opioid litigation that followed the McGovern & Rubenstein approach.

Posted by Howard Wasserman on November 13, 2019 at 11:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

On the other hand, I would like to see more criticism of NU President Morton Schapiro, who uttered the following (according to The Daily) in a speech he gave to visitors over parents-weekend (my friend whose kid goes to Northwestern did not attend the speech).

Although Schapiro said he supports Sessions’ right to speak on campus and NUCR’s right to invite him, he questioned whether the former attorney general was “the right speaker” for NU. He said that on a campus as liberal as Northwestern’s, there is little opportunity to share conservative thought in a way that starts dialogue.

Schapiro — who said he is personally “not a fan” of Sessions — said NUCR missed a chance to do so by inviting him rather than a different conservative speaker.

“They had an opportunity and they didn’t use it,” he said. “All it was was polarizing. All it was was making the campus more unhappy. All it did was blow up and make things even worse.”

I await Schapiro's list of conservative speakers who would be "right" for NU, sharing conservative thought in a way that starts a dialogue but that does not make the campus unhappy. Say what you will about Sessions--and he apparently criticized the protesters in his speech, while paying lip service to freedom of speech. But Sessions was Attorney General of the United States and compared with the current occupant of the office, he looks like Nicholas Katzenbach. So what speaker would have been more acceptable to this crowd?

Finally, a thought on civil disobedience. Part of the debate is whether students should be sanctioned for breaking rules or obligations when protesting--skipping class to attend the lecture, sneaking into the closed hall in an attempt to interrupt Sessions' speech, etc. NU does not excuse such violations, taking the position that there are trade-offs and that students must make choices and bear responsibility for their actions. The Associated Student Government called on the university to change those policies, at least for "students with marginalized identities."

It seems to me the dispute here is over what civil disobedience means. NU students (the protesters, the ASG, the Daily editors) appear to believe that there is a free-speech opt-out from the rules--that if you are protesting, then university rules about attendance or closed spaces do not apply. But the idea of civil disobedience is that you peacefully violate a law--and accept the consequences for that violation--to call attention to the injustice of that law or something else. There is no right to interrupt the speech within the reserved hall; if you believe it is important to interrupt anyway, civil disobedience means you will do it anyway--and you accept the consequences.

The fascinating thing is how much has changed in 30 years. I would not have described NU as a particularly liberal place when I was there.

Update: A statement from Medill Dean Charles Whitaker. It is a strong statement that: Defends the Daily's coverage of the protests as consistent with journalistic standards; takes student activists to task for threatening paper staff and insisting that journalists should not have covered disadvantaged communities in a public protest; criticizes the editors for apologizing which, while well-intentioned, sends a chilling message about journalism; and calls on angry alums to give them a break, reminding them that these are students who are learning and dealing with a unique firestorm.

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Argument in Hernandez v. Mesa

Good luck to Steve Vladeck in this morning's argument in Hernandez v. Mesa, on whether a U.S. law enforcement officer can be sued for damages in a Bivens action for killing a non-U.S. person on the other side of the border.

Update: Transcript here.

Posted by Howard Wasserman on November 12, 2019 at 07:07 AM in Howard Wasserman | Permalink | Comments (1)

Monday, November 11, 2019

John Oliver on SLAPP suits

John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.

The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.

[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?

Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.

 

Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Thursday, November 07, 2019

Two thoughts on the Socratic method (or whatever we call Q&A teaching)

1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.

At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I  use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.

2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.

Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, November 06, 2019

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.

The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.

Here is the basic quandary. We want soldiers to follow orders immediately. If they don’t, they can be prosecuted for failing to follow an order. However, if they do follow the order, and it turns out that the underlying action is unlawful, they can be prosecuted for doing that unlawful action. When put in a sketchy circumstance, it looks like they are damned if they do, damned if they don’t. Should they risk being prosecuted for refusing the order, or risk being prosecuted for doing something that might be illegal?

In 1621, Gustavus Adolphus included a section in his Code that dealt with this problem. Article 46 says that no officers may order anyone to do anything unlawful. Article 45 tells soldiers to follow orders, but if an order is unlawful, to disobey the order and report the problem to higher.

Current American military law is not too far off from that. The law is weighted toward having the service member follow the order. Service members should infer that the order is lawful and they assume the risk of not following the order. They should only refuse patently illegal orders. Usually, this issue comes up when soldiers refuse to follow an order to deploy somewhere, arguing that the war is illegal. This issue is litigated before trial, where the military judge decides whether the order was lawful or not. If lawful, then the soldier has a tough case ahead (it is pretty clear that they did not follow an order). If the military judge says that the order was unlawful, then the government has failed to state an offense (it is not against the law to refuse to do something illegal).

If service members do follow the order, and it turns out that the underlying action was illegal, then they can raise the defense of following orders. Under that defense, they are excused unless they know or should have known that the order was illegal (which is the same thing as the order being patently illegal). Once raised, the government must disprove the defense beyond a reasonable doubt.

Returning to the Lorance facts, the soldiers who fired the harassing fire into the village followed an order, it turns out that underlying action was unlawful, and if they had been prosecuted, they could have raised a defense. They would likely lose on that defense, though, because everyone knows you can’t shoot harassing fire. The order was patently illegal.

The soldiers who refused to make false reports could have been prosecuted for that (that would be very unlikely). They would have argued before trial that the order was unlawful, and a military judge would certainly agree with that.

How about the soldiers who shot at the men on the motorcycle? Again, they followed orders. If they were prosecuted, they could raise the defense of following orders. I think they would win on that. They had no idea what Lorance might have known. Lorance could have received intelligence from higher that the men were about to threaten the unit, for example. Further, the soldier in the gun truck was separated from the rest of the unit. He didn’t know what Lorance might have seen that he did not. The government would have to prove beyond a reasonable doubt that they knew or should have known that the order was illegal, and I don’t think the government would be able to meet that burden.

These issues should come up in the next episode, but with more of a focus on the granting of immunity. The soldiers who fired the harassing shots needed immunity and maybe they would have the potential for bias. I don’t think anyone else needed immunity so I can’t see why they would be biased.

Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, November 01, 2019

Fun with diversity (Updated)

Two fun news stories on diversity.

1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.

So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?

2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.

I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.

What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.

Posted by Howard Wasserman on November 1, 2019 at 01:58 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Wednesday, October 30, 2019

JOTWELL: Mullenix on Choi on class-action mega fees

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, which examines "mega fee" awards in class actions.

Posted by Howard Wasserman on October 30, 2019 at 11:36 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Capping off a year in a yarmulke

Sunday marked one-year (on the Western calendar) since the shooting at Tree of Life Synagogue in Pittsburgh. Today marks one year since, in reaction, I began wearing a yarmulke.

So what have I learned after a year?

• While I said at the time I did not know how long it would last, I am happy to say I have no plans to change. My daughter's Bat Mitzvah was in January and we have leftovers to keep my head covered for another 25 years. The expression of Jewish community and the sense of humility before Hashem represented by the head covering (and awareness of it--I always feel it there) remain and I do not intend to give them up.

• Strangers become friendly. There is "The Nod" from other Jews, even more-observant Jews in tzitzit; several have struck up conversations in airport security lines. A person approached me on the street once to say "God bless you." And I cannot forget the Lyft driver in Boulder who wished me a "Happy Shabbat Shalom," earning high marks for effort.

• My students enjoy the many times it flies off during class.

• I continue to struggle with the idea that wearing a yarmulke means I must refrain from certain activities or at certain times--driving on Shabbat, eating non-kosher food, etc. My rabbi explained it by the concept of not leading others into sin--by eating at a certain restaurant or driving on Saturday afternoon, I send an erroneous signal to other Jewish people that it is ok to engage in those activities, which may cause them to do so. Others explain it as sending mixed signals to the world--how can this Jewish person do that?

The rabbi's solution is to wear a hat over the yarmulke when he eats in a non-kosher restaurant or drives on Saturday, which I do at times. Even if I do not refrain, I am conscious of engaging in certain conduct while wearing it. I did not order shrimp in a restaurant last week because I thought of how it would read to my (non-Jewish) companions. On the other hand, the principle seems under-inclusive: Why do these obligations attach to this expression of Jewish identity but not others; why does more-observant Jewry define the obligations that attach to different Jewish symbols. As I said, I have been thinking about this for a year and I do not believe I am closer to an answer. I mostly live my life as before, but with my head covered.

• I am conscious of walking into some truly non-Jewish spaces, such as my daughter's Episcopalian school. I am not conscious in "mixed" spaces. As I said, living my life as before, but with my head covered.

• I will be reading Torah at the weekly minyan in a few weeks. The rabbi chose the story of Joseph and his coat, which speaks to a piece of this--the idea of clothing and how we dress instilling humility. Or, in Joseph's case, not, prompting his brothers to throw him in a hole and sell him into slavery.

Posted by Howard Wasserman on October 30, 2019 at 09:31 AM in Howard Wasserman, Religion | Permalink | Comments (0)

Saturday, October 26, 2019

Baseball and politics, again

The Astros win in Game 3 last night means there will be a Game 5 in Washington Sunday night, which means a game attended by President Trump (although not to throw out the first pitch).

Question to watch: Will fans boo trump, chant "impeachment" or "Ukraine," or otherwise criticize the President? And how will MLB and the Nationals respond?

Update: MLB Commissioner Rob Manfred golfed last week with Trump and Lindsey Graham. I think I have my answer to the third question.

Posted by Howard Wasserman on October 26, 2019 at 02:03 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 25, 2019

Aaron Sorkin wrote Donald Trump, Example No. 31

I have argued before that Aaron's Sorkin's The West Wing reflects and lauds the politics practiced in the Trump White House, albeit in service of different substantive policy ends. The latest example is the announcement that the White House would cancel subscriptions to The New York Times and Washington Post and was ordering agencies and departments to cancel their subscriptions.

In one episode of The West Wing, President Bartlet and C.J. Cregg are mad about coverage of the administration by reporter Danny Concannon and his paper (I do not remember if it was the Post or a fictional paper). In a meeting among the three, Bartlet announces that he is canceling "our" subscription to Danny's paper. C.J. applauds the move as a way to damage the paper financially. Bartlet then reveals that he was speaking only of his personal subscription, not the governmental subscription, which disappoints C.J.

The point is that Sorkin liked the sort of politics in which the government punishes critics financially, in a way that would worsen the effectiveness of government (if we believe that staying abreast of the news is important for government officials). C.J. is the POV character in that scene and she is incensed that Bartlet will not do more to sanction and financially injure the paper and his critics.

Nor does this explanation cut it:

The difference is that Bartlet was a good president, who was prone to being occasionally snitty. In contrast, Donald Trump is an awful president who routinely displays the immaturity of an infant.

That cannot be right. Either it is ok for a President to lash at his critics in this way or it isn't. Either it is ok to call political adversaries names or it isn't; either it is ok to strip press credentials from critical reporters or it isn't. Neither the political position nor perceived quality of the President and administration should make a difference.

Posted by Howard Wasserman on October 25, 2019 at 03:27 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, October 23, 2019

Why not standing?

The problem with standing is not only that it is an improperly constitutiuonalized merits inquiry. It also is the inconsistency in the movement between standing and merits. Take this unpublished Third Circuit decision. Plaintiffs are anti-choice advocates who with to engage in sidewalk counseling through one-on-one conversations with entering clinic patients. The court performed a limiting construction on the statute, reading it (as it had done a similar ordinance in another case) as not reaching one-on-one sidewalk counseling.

But then shouldn't the result have been that the plaintiffs lacked standing? The conduct in which they intended to engage was not prohibited or regulated by the statute (as interpreted), so they were not suffering an injury-in-fact fairly traceable to the conduct of enforcing that statute, since that statute could not be enforced against them. At least that is how some courts resolve similar cases. And if not standing (as, normatively, it is not), that should mean that all of this is a question of the scope of the challenged law and the scope of constitutional rights?

Posted by Howard Wasserman on October 23, 2019 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, October 22, 2019

All apologies

A storm is brewing surrounding the Houston Astros and their assistant GM, Brandon Taubman. According to a Sports Illustrated report, during the post-game lockerroom celebration on Saturday night, Taubman yelled (several times) towards three female journalists "Thank God we got Osuna! I'm so fucking glad we got Osuna!" This is in reference to reliever Roberto Osuna, who served a 75-game suspension for domestic violence, before signing with Houston this year (the charges, in Toronto, were dropped when the Mexican-national accuser refused to travel to Canada to testify).

The Astros say the story is misleading, that Taubman was supporting the player during a "difficult time" and responding to the "game situation that just occurred," and that the remarks were not directed at any persons. The second point seems odd, because the game situation was that Osuna had blown a two-run lead in the top of the ninth inning, only to have the Astros win it in the bottom of the ninth; it seems odd to shout about being glad to have signed a player who almost gave a clinching game away. MLB announced an investigation into the incident.

Taubman issued the following through the Astros:

This past Saturday, during our clubhouse celebration, I used inappropriate language for which I am deeply sorry and embarrassed . . .In retrospect, I realize that my comments were unprofessional and inappropriate. My overexuberance in support of a player has been misinterpreted as a demonstration of a regressive attitude about an important social issue. Those that know me know that I am a progressive and charitable member of the community, and a loving and committed husband and father. I hope that those who do not know me understand that the Sports Illustrated article does not reflect who I am or my values. I am sorry if anyone was offended by my actions.

Yom Kippur, at which we think hard about apologies and what it means to apologize, has passed. But let's play with this.

What is Taubman apologizing for and how should we understand that apology? He is "deeply sorry" for his "inappropriate language," comments that were "unprofessional and inappropriate." But that is silly--profanity is quite common in sports and the three women, experienced sports reports, are used to hearing such language; it is not as if he swore at them. He apologized "if anyone was offended," the common non-apology-apology. Finally, he claims his statements have been misinterpreted. If so, how does that affect his apology. Should he have to apologize if he does not believe he did anything wrong? Do/must /should we apologize for someone else's misinterpretation or misunderstanding of our actions, actions that we believe were not wrong or harmful but that someone else has taken as wrong due to their mistake?

Update I: Marjorie Ingall of Tablet Magazine runs SorryWatch, a blog that analyzes apologies. She is not pleased.

Update II: The Astros GM Jeff Luhnow defended Taubman in a way that highlights my original question. Luhnow says we will never know the intent behind Taubman's inappropriate comments. Luhnow noted that Taubman apologized for his "inappropriate behavior" and for doing something that he regrets. But no one will say what that is--what was inappropriate and what does he regret? They are not helping themselves.

Posted by Howard Wasserman on October 22, 2019 at 06:43 PM in Howard Wasserman, Sports | Permalink | Comments (4)

Universal injunctions and mootness

A divided Ninth Circuit affirmed the preliminary injunction prohibiting enforcement of the new regulations regarding the ACA contraception mandate. One issue in the case, which the court ordered briefed, is whether a universal injunction issued by a different district court (and affirmed by the Third Circuit) moots this case. Because the plaintiffs are protected by the other injunction, a Ninth Circuit ruling will not change their situation. (H/T: Brian Cardile of the Daily Journal).

The majority held the case not moot, although some of its analysis does not capture the issue. The court began by discussing the risk of conflicting injunctions, which is not the issue here--the denial of the injunction in the Ninth Circuit would not conflict in the sense of creating competing obligations--the Third Circuit injunction obligates (or restrains) the government from acting as to anyone in the universe, so nothing the Ninth Circuit does changes that. The court also spoke about the territorial limits about its injunction, ignoring that the issue is not geographic where but party who. It said that the injunctions "complement each other and do not conflict." In fact, however, it is not that they complement--it is that they repeat one another, because the Third Circuit universal injunction, which protects the California plaintiffs, renders a second injunction unnecessary.

The majority avoided mootness by applying capable-of-repetition-yet-evading-review. The Third Circuit injunction is preliminary (thus of limited duration) and before SCOTUS on a cert petition, both of which could result in the vacatur of its injunction or at least of its universality. The injury would not be capable of repetition only if the Third Circuit turned this into a universal permanent injunction, which is speculative and far off.

Judge Kleinfeld dissented on mootness, standing, and the merits. As to the different injunctions, he gets it:

That nationwide injunction means that the preliminary injunction before us is entirely without effect. If we affirm, as the majority does, nothing is stopped that the Pennsylvania injunction has not already stopped. Were we to reverse, and direct that the district court injunction be vacated, the rule would still not go into effect, because of the Pennsylvania injunction. Nothing the district court in our case did, or that we do, matters. We are talking to the air, without practical consequence. Whatever differences there may be in the reasoning for our decision and the Third Circuit’s have no material significance, because they do not change the outcome at all; the new regulation cannot come into effect.

This is correct and a proper recognition of what happens when courts take universality seriously.

I am not sure if the proper conclusion is that the appeal becomes constitutionally moot (I am not a fan of justiciability doctrines). Or, as Sam Bray argues, this is a good reason the Ninth Circuit should have stayed its hand.

Update: I took a quick look at the Third Circuit decision affirming the injunction. It misses the point, talking about people who work in different states than they live and the problem of geographic limitations. Again, however, the problem is not where. A protected plaintiff (including a state) is protected everywhere.

Posted by Howard Wasserman on October 22, 2019 at 04:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, October 21, 2019

Why Yom Kippur

Writing on the lack of success enjoyed by Jewish players and their teams on the recent Yom Kippur, Tablet's Armin Rosen hints at an interesting question: Why the focus among American Jewry for players playing or not playing on Yom Kippur (and, to a lesser extent, Rosh Hashanah). Rosen points out that we do not care or expect players not to play on Shabbat, which is arguably more important within the faith.

One answer is the impracticality of a player not playing every Shabbat. The MLB regular season is built around series of 3-4 games, including series every weekend, Friday through Sunday. Except for the Cubs, virtually every Friday game is at night and some (although a smaller percentage) Saturday games are played during the day. Figuring four Fridays and Saturday per month in a six-month season, a Jewish player who would not play on Shabbat would miss 24--48 games. No player could do that and no team could afford to employ that player. Especially not the Cubs, who play most of their Friday and Saturday games during the day.

A second answer is this matches the Jewish calendar for many American Jews. Most do not observe Shabbat. Many who attend Shabbat services otherwise treat it as an ordinary weekend day--I attend morning services, but the rest of the day I might hold a make-up class, coach my daughter's basketball team (in a temple-sponsored league, no less), or spend the day writing. Shabbat is not, for most, a break in the calendar. Rosh Hashanah and Yom Kippur are--schools are closed, many Jews do not work, and those are the two days on which a substantial portion of Jews go to synagogue. The logical leap--if I take this day off, so would a Jewish baseball player. Then it comes to the supposed Halachic difference between the joyous Rosh Hashanah and the somber Yom Kippur.

So fear not, Alex Bregman. Simcha Torah will be over before Game 1 begins tomorrow night.

Posted by Howard Wasserman on October 21, 2019 at 11:41 AM in Howard Wasserman, Sports | Permalink | Comments (3)

Friday, October 18, 2019

"Leavenworth" on Starz

This Sunday, Starz airs the first episode of the 5-hour documentary series Leavenworth, directed by Steven Soderburgh and telling the story of Lt. Clint Lorance. Episodes 3 and 5 feature FIU and my colleague Eric Carpenter (a former JAG officer); Eric is interviewed and the program includes footage of students mooting the case in his Military Justice class.

Posted by Howard Wasserman on October 18, 2019 at 12:31 PM in Criminal Law, Howard Wasserman, Television | Permalink | Comments (0)

More post-season infield flies

Twice in one night.

I missed this USA Today piece by Andrew Joseph arguing that the Nationals were lucky in their clinching Game 4 of the NLCS that infield fly was not declared on a run-scoring uncaught bases-loaded blooper to right field that scored the first of four first-inning runs. Joseph compares this with the infamous call in the 2012 NL Wild Card, arguing that the umpire was right not to invoke here, which shows why the 2012 call was wrong (he calls it a "fiasco"). (He provides video links to both plays, so watch for yourself).

I do not understand why the Nationals should be "thankful" the rule was not invoked. They scored one run on the play; that run scores anyway, since baserunners can run at their own risk when infield fly is declared. They scored three more runs in the inning subsequent to the fly ball. Two came on consecutive hits by the two batters following the fly ball, runs which would have scored anyway. The second out of the inning came on a sacrifice bunt by the pitcher, after which the fourth run scored on a hit. The Nats would not have had the pitcher bunt with two outs (as would have been the case had the rule been invoked, making the batter out for the second out of the inning). But who knows what would have happened in that at-bat were the circumstances different--maybe the pitcher is put out and the fourth run does not score, maybe the pitcher manages to get a hit. For that matter, the entire inning could have gone in any direction. The point is that it is not so obvious that an infield fly call would have killed the Nats' rally.

The comparison to the 2012 call is inapt, because the plays are different in significant respects. This year's ball was hit to right field while the 2012 ball was hit to left. Umpires are less likely to invoke on a ball to right field, especially near the foul line, because the first throw to start a double play would be so long that no double play is possible (thus the rule's purpose of preventing a double play by disincentivizing the intentional non-catch is not implicated); this was the area with the fewest infield-fly calls in every season I watched. The Cards' second-baseman also tried to catch the ball sideways, facing the foul line, body language that does not indicate that he was "settled comfortably" under the ball, which is what umpires look for. In 2012, the Cards' shortstop was facing the infield with his hands up, body language indicating he was settled and waiting for the ball to come down and calling his teammates off. The 2012 play owed, in part, to the foul-line ump's perspective--because of his position and perspective, the ump believed the ball was closer to the infield than it was, such that a double play might have been possible (thus the rule's purpose implicated). Or perhaps the ump on the 2012 call was a textualist (thus the call was indisputably correct), while the ump in 2019 was a purposivist (so the unlikelihood of the double play rendered the rule inapplicable).

Anyway, I thought we were past the point that this 2012 call was regarded as the Citizens United of baseball calls.

Posted by Howard Wasserman on October 18, 2019 at 01:20 AM in Howard Wasserman, Sports | Permalink | Comments (0)

The unknown nuances of the Infield Fly Rule

A play in the top of the 8th inning of ALCS Game 4 may have illustrated a finer point of the Infield Fly Rule. It also might have made the announcers' heads explode, had they been paying attention.

The Astros had bases-loaded/1-out when the batter hit a pop-up to the right of second base, about ten beyond the infield dirt. The Yankees shortstop, playing behind second, drifted back and to his left. He turned so he was facing the infield while backpedaling and waving his arms. At the last instance, he was called off by the charging right-fielder, who caught the ball about 15-20 onto the grass.

I do not know whether the umpires declared infield fly. The video does not show the second-base (and nearest) umpire and the announcers did not say anything (such as "infield fly rule is in effect", as they did on an obvious ball near the mound in the top of the 9th). It appears it should have been called: The second baseman was in position to catch the ball and while backpedaling a bit, he was moving less and less far than the infielders on dozens of plays I watched over seven seasons on which the rule was invoked. He was trying to wave-off his teammates. And the ball was close enough to the infield and to second base that a double play might have been in the offing without the rule.

Had the rule been obviously invoked, it would have illustrated an important principle under the rule: It can be invoked when an outfielder handles the ball, if the ball could as easily have been handled by an infielder. Which was the case here--the second baseman looked ready to catch the ball, until the right-fielder called him off and made the catch. And it would have sparked a fascinating (and likely ill-informed) discussion among the announcers about the rule, as they struggled to figure out and explain how IFR was invoked on a ball caught by an outfielder. Too bad; it would have been a fun discussion.

Posted by Howard Wasserman on October 18, 2019 at 12:05 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Wednesday, October 16, 2019

JOTWELL: Bookman on new approaches to dispute resolution

The new Courts Law essay comes from Pamela Bookman (Fordham), reviewing Matthew Erie, The Emergent Landscape of International Commercial Dispute Resolution, ( Va. J. Int'l. L., forthcoming 2020) and Will Moon, Delaware's New Competition (Nw. U. L. Rev., forthcoming 2020), exploring new procedural mechanisms for handling business disputes in other countries.

Posted by Howard Wasserman on October 16, 2019 at 11:45 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 15, 2019

A progressive SCOTUS short list

The progressive group Demand Justice has issued a Supreme Court Shortlist, offering 32 names for SCOTUS appointments by a new Democratic President. It is an interesting list.

It contains only two federal court of appeals judges--Jane Kelly (8th Circuit, a short-lister for the Garland nomination), and Cornelia Pillar (D.C. Circuit). And not Patricia Millett of the D.C. Circuit, who had become the left's darling with her opinions in the undocumented-immigrant-abortion cases.

The list consists of 17 women and 13 men. Besides the two court of appeals judges, thirteen do some sort of public-interest representation, seven are in the academy,* four are on a state court (three on the Supreme Court of California, including Goodwin Liu, who Obama tried to put on the Ninth Circuit), four serve in elected or appointed office, and two serve on a federal district court. The organization expressly sought to move away from the former prosecutors and law-firm partners who have dominated among Trump appointees.

[*] Sharon Bloch (Harvard), James Forman, Jr. (Yale), Pam Karlan (Stanford), M. Elizabeth Magill (Provost at UVa, former dean at Stanford), Melissa Murray (NYU), Zephyr Teachout (Fordham), and Tim Wu (Columbia). Plus, Sherrilyn Ifill of the NAACP LDEF was on the faculty at Maryland and Rep. Katie Porter (Cal) was on the faculty at Iowa and Irvine.

The list is short on federal judicial experience, making it a throwback to a time when judicial experience was not regarded as essential to a SCOTUS seat and when service on a state court was respected judicial experience for that position. I wonder if this is a SCOTUS shortlist or a good place for a Democratic President to begin filling lower-court seats.

I am surprised our own Steve Vladeck did not make the cut. The combination of his scholarship, public advocacy, and recent litigation experience places him within the legal milieu reflected on the list.

Posted by Howard Wasserman on October 15, 2019 at 05:42 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

LeBron James: Shut up and make trades

You would think that LeBron James--who has used his expressive platform more than most mega-stars and has been told on more than one occasion to "shut up and dribble"--would support an NBA colleague attacked for doing the same. You would be wrong.

Everything LeBron said could have been (and has been) applied to his statements on subjects such as Black Lives Matter, police violence, the killing of Eric Garner, etc.: 1) Morey was not educated on the subject (Taiwan Hong Kong) about which he spoke (while admitting it was just his "belief" that Morey was not informed); 2) people could be harmed as a result of his speech; 3) bad things can happen from the exercise of free speech and you cannot think only of yourself when deciding what to say, on or off Twitter. Ironically,the Morey tweet was supported people protesting in favor of democracy and who were subject to police violence--the very ideas James purport and support in his speech.

Posted by Howard Wasserman on October 15, 2019 at 07:10 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, October 13, 2019

When is it ok to miss an important ballgame?

On the heels of three Jewish players playing in late or elimination games on or after Yom Kippur comes a new controversy: Nationals reliever Daniel Hudson missed Game 1 of the NLCS (where he was not needed, as starter Anibal Sanchez took a no-hitter into the 8th inning) to be in the hospital for the birth of his daughter. Critics came out in force, not only from the Twitter cesspool, but from mainstream-media types and from former Marlins exec David Samson. Teammate Sean Doolittle defended Hudson with what should be the final word on the subject: "If your reaction to someone having a baby is anything other than, ‘Congratulations, I hope everybody’s healthy,’ you’re an asshole."

The criticism of players missing games in baseball and other sports to be there for childbirth (which my colleague Kerri Stone wrote about a few years ago) is fairly constant, at least if the game is important enough. So what would happen if a Jewish player did miss an important post-season game because of Yom Kippur? We assume that the player would be honored as Sandy Koufax and Hank Greenberg were (not only by Jews, but by all fans), but perhaps not. It is easy to reframe ESPN's Jay Greeson's tweet as "But if you're making $5.5 mil a year and your team needs you to close in the NLCS, well, I'd say go get 'em mom Rabbi."

This could go either of two ways.

Sports people are both religious and misogynist. So the trolls might forgive a player for missing for religious reasons (even a non-Christian religion) but not a player for doing the "woman's work" of being present for childbirth. Both Samson and Greeson qualified their stupidity by saying that if there were health problems with either Hudson's wife or the baby, it would be ok to miss; otherwise, this was a woman's job (never mind that childbirth, by induction, is a major medical procedure) and no reason for Hudson to be present.* Baseball also is steeped (some say stuck) in history. Koufax sat for Yom Kippur in 1965 and Greenberg sat in 1934 (and other years), so it would be consistent with that history for Bregman or Fried or Pederson to sit in 2019. But no one in 1965 or 1934 missed games to be with their wives during childbirth, so it is unique and new and unprecedented and scary and immasculating for anyone to do it in 2019.

[*] No one offered even a nod to a different need--taking care of his two extant children while their mother is in the hospital.

On the other hand, Greeson's touchstone was that Hudson's $ 5.5 million annual salary imposed an obligation to team uber alles. There is no reason to believe that obligation supersedes a player's commitment to his wife and children but not his commitment to his religious values. Or I would love to see Greeson and others twiste themselves into knots distinguishing the two. That we are living in a time of increased anti-Semitism does not help, especially on Twitter.

None of the current Jewish Major Leaguers appears especially observant (neither were Greenberg or Koufax) and none has shown an inclination to sit on the holy days. That is, of course, their choice. But if one did, I increasingly wonder what the public reaction would be.

Posted by Howard Wasserman on October 13, 2019 at 12:15 PM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, October 11, 2019

Talking Infield Fly Rule in Pittsburgh

For those of you in the Pittsburgh area: I will be at White Whale Bookstore in Pittsburgh on Saturday evening, discussing my book on the infield fly rule  The event was organized in cooperation with the Sports & Entertainment Law Societies at Pitt and Duquesne. It runs 7-9 p.m. Earlier Saturday afternoon, I will speak at the fall meeting of the Forbes Field Chapter of the Society for American Baseball Research.

If you are in the area, please join us.

Posted by Howard Wasserman on October 11, 2019 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Sports and Speech

I am watching the NBA/China controversy play out, as it has evolved from a simple tweet into a full-blown illustration of the role of speech within sports. From a free-speech (not to be confused with First Amendment, because I doubt there is state action to be found here, except by China) standpoint, the NBA and its teams have done everything wrong. From Commissioner Adam Silver trying to have it both ways ("we respect free speech, but what Morey did was wrong"), to teams removing fans from arenas, to a team PR person cutting off media questioning of players. The NBA apologized for the last one and said the team should not do that. But if the league is going through these contortions to cut-off speech, it should be no surprise that teams would follow suit in their own clumsy ways.

The interesting question is how far into the regular season this bleeds. China may form a unique chapter in the book on the subject of sport-and-speech I someday hope to write.

Posted by Howard Wasserman on October 11, 2019 at 07:51 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 10, 2019

Playing on Yom Kippur

Journalist Yair Rosenberg beat me to this, but: Three teams in MLB's post-season have a Jewish player, each Jewish player played either Tuesday night or Wednesday, and each team lost. Alex Bregman of the Astros played on Tuesday night and the Astros lost Game to even the series. Max Fried of the Braves pitched on Wednesday and gave up four runs in an inning-and-change as the Braves lost Game 5 and the series. Joc Pederson of the Dodgers played Wednesday evening in the Dodgers loss of Game 5 and the series.

So is the lesson do not play on Yom Kippur? It may not help. The Dodgers famously lost Game 1 of the 1965 World Series as Koufax sat, with Don Drysdale getting shelled and someone (stories vary as to who) joking that Dodgers manager Walter Alston wished Drysdale were Jewish.

One interesting question: In the era in which all post-season games are at night, what does it mean to play "on Yom Kippur"? Bregman played on Kol Nidre. But many (most) non-Jewish fans probably are not aware that the holy day begins at sundown; so had Bregman not played on Tuesday evening "because it is Yom Kipper," many people might have been confused. On the other hand, the Dodgers game began at 6:45 PDT, past the time that many Jews had broken their fasts (my Reform temple's break fast was at 6:30), so he was not playing on Yom Kippur, which also might have confused people.

Meanwhile, the Astros and Rays play Game 5 tonight. If the Astros lose, it will be our first all-Goyishe LCS and World Series in several years. The new is not all bad; win or lose, Bregman might win American League MVP, making him the fourth Jewish player to win an MVP (joining Greenberg, Koufax, and Al Rosen).

Update: The Phillies fired manager Gabe Kapler. Well, we ask who shall perish by fire.

[Further Update: The Astros won, with Bregman breaking the game open with a 2-run double in the first.]

Posted by Howard Wasserman on October 10, 2019 at 05:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 07, 2019

Virginia has jurisdiction over Twitter in Nunes suit

It must be awful procedure day. In addition to whatever the Second Circuit did, a Virginia trial court denied Twitter's motion to dismiss for lack of personal jurisdiction Cong. Nunes' suit against Twitter, a Twitter user, and Devin Nunes' Cow.

The court found "general personal jurisdiction" over Twitter, based on its being registered to do business in Virginia, having a registered agent in Virginia, deriving a large amount of revenue from there, and having many users in Virginia, "sufficient minimum contacts to confer jurisdiction." Perhaps in 2005, but not since Good Year, Daimler, and BNSF did away with general jurisdiction based on a company doing a lot of business in a state and seemed to limit general jurisdiction to state of incorporation and principal place of business. The court discussed BNSF to distinguish it based on the injury occurring in the forum state, but ignored the other two cases. It also emphasized that Nunes suffered an injury in Virginia (because that is where the tweets were sent from and read), while not mentioning that locus of injury is not sufficient and Twitter did not direct any activities (not deleting the tweets) at Virginia in relation to this case. Even if knowledge of the plaintiff's location were sufficient (it is not, after Walden), Twitter's assumption would have been that Nunes was in California or Washington, D.C., not Virginia.

The court also rejected a forum non conveniens argument, because it was not clear there was an alternative forum. It was not clear there would be jurisdiction in California, even though both Nunes and Twitter are from there and the individual defendant consented to jurisdiction there. (Nunes does not want to be in California, where he must deal with its SLAPP statute).

Someone said the judge has a reputation as being pretty good. This is not his best work.

Posted by Howard Wasserman on October 7, 2019 at 06:22 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Posted by Howard Wasserman on October 7, 2019 at 11:18 AM in Carissa Byrne Hessick, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Sunday, October 06, 2019

So glad sports are not political

Houston Rockets GM last week tweeted "Fight for Freedom. Stand with Hong Kong." This pissed off Rockets owner Tilman Fertitta, who insisted that Morey does not speak for the Rockets, which is a "non-political organization," although Fertitta regularly publicizes his support for the Bushes and President Trump. Morey's tweet caused the Chinese Basketball Association, headed by former Rocket star Yao Ming, to suspend cooperation with the Rockets following Morey's "'improper remarks regarding Hong Kong' to which it expressed its 'strong opposition.'" The NBA, trying to save its business interests, responded with the following word salad:

We recognize that the views expressed by Houston Rockets general manager Daryl Morey have deeply offended many of our friends and fans in China, which is regrettable. While Daryl has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' educating themselves and sharing their views on matters important to them. We have great respect for the history and culture of China, and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together.

The ESPN story highlighted the league trumpeting the "open flow of ideas," although those words appear nowhere in the NBA statement and the reaction by the Rockets owner, the CBA, and the NBA all seem to reflect a desire to staunch the flow of ideas, since the premise of every reaction is that Morey was out of line to tweet a political opinion. Plus, in what universe is a statement in support of people protesting freedom "regrettable"? And who was "deeply offended," besides the leaders of an authoritarian state that is the target of pro-western protests?

Posted by Howard Wasserman on October 6, 2019 at 10:03 PM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Friday, October 04, 2019

Tea leaves on the abortion case

SCOTUS granted cert in two related cases challenging Louisiana's admitting-privilege law. The Fifth Circuit had declared the law valid despite Whole Woman's Health, in which the Court declared invalid a similar Texas law, drawing some arguably specious distinctions. The Court (with the Chief joining Ginsburg, Breyer, Sotomayor, and Kagan) stayed the Fifth Circuit order and reinstated the injunction in February.

I have to think this is a reversal, because there is no meaningful way to distinguish this law from the Texas law in Whole Woman's. If Roberts wanted to take the air out of WWH and let the law take effect, he would have denied the stay and voted to deny cert. Now perhaps he is setting the Court to overrule Whole Woman's and this is a power move--"only we can ignore or overrule our precedent." But I would expect that Roberts values "institutionalism" enough that he would not want to overrule a three-year-old decision.

The Court did grant a cross-petition in the case to consider whether medical providers can so easily assert third-party standing on behalf of all current and potential patients. This was a point in Thomas's WWH dissent.

Posted by Howard Wasserman on October 4, 2019 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, September 30, 2019

Bleg: Great Recession and the Legal Academy

Can anyone point me to studies or articles on the slowdown in legal academic hiring during and just after the Great Recession?

Posted by Howard Wasserman on September 30, 2019 at 07:24 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, September 23, 2019

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

Posted by Howard Wasserman on September 23, 2019 at 10:50 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, September 22, 2019

Minding the abstention gaps

I am trying to make heads or tales of this Third Circuit decision, which reveals some problems and holes in abstention.

A family court awarded custody of Malhan's children to Myronova, his ex-wife, ordered him to pay child and spousal support, and to give his ex rental income from their jointly owned properties. Malhan eventually received joint custody (and more than half of residential time) and the court ordered Myronova to return some money. But the court postponed a request to reduce child-support obligations until final judgment (which has not issued), although the children spend more time with Malhan and he earns less money than is ex. At one point Malhan stopped paying child support (in erroneous reliance on a comment by the judge), causing the court to garnish his wages. Malhan sued in federal court, challenging (among other things) the disclosure and administrative levy of his bank accounts, the garnishing of his wages (which order was vacated), and the refusal to allow the plaintiff to claim certain offsets and counterclaims in the state proceedings.

This type of case has been identified as the paradigm Rooker-Feldman case: A party claiming constitutional injury by the custody and similar orders of a state family court. And the district court dismissed the action on that ground. But the Third Circuit reversed, holding that the plaintiff was not a state-court loser because there was no "judgment" from the state court, no order that was final as a formal or practical matter over which SCOTUS might have jurisduction under § 1257. The state proceedings are ongoing--motions are pending, discovery has not closed, no trial is scheduled, and the court has declined to give Malhan relief until that final judgment.

There is a circuit split was to whether Rooker-Feldman applies to interlocutory state-court orders. The Third Circuit adopted the textual argument to say no. RF is based on § 1257 giving SCOTUS exclusive jurisdiction to review state-court judgments; a district court thus lacks jurisdiction to review a challenge to a state-court judgment, which should instead be appealed through the state system and then to SCOTUS. On that view, RF does not apply to state-court orders that could not be appealed to SCOTUS, such as non-final orders.

The argument for RF barring challenges to interlocutory orders relies on the policies underlying RF that federal district courts should not interfere with state-court proceedings or be a forum for obtaining review and relief from state-court decisions. That policy is as offended by an attempt to circumvent state appellate procedure on an interlocutory order as on a final order. One could identify a textual component, tying it to § 1331 granting district court "original" jurisdiction, leaving them without power to, in practice, exercise appellate jurisdiction over a state-court order, even an interlocutory order.

The court rejected an alternate argument that the three claims were barred by Younger. None of the three claims fit the third Younger category of involving "certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions." Count 2 challenged the administrative rules for collecting non-final money judgments; Count 5 challenged orders that are more like final monetary judgments and less like orders (such as contempt or appeal bonds) in furtherance of other judicial orders and thus enabling judicial functions. And the garnishment orders in Count 6 are threatened but not pending, thus federal jurisdiction would not interfere with state-court adjudication of those issues. The Younger analysis probably is correct, although the analysis as to Count 2 seems strained and the analysis and the analysis as to Count 6 suggests the challenge is moot, although the court strains to explain why it is not.

But the case produces a large abstention gap. An ordinary state-court interlocutory order in private civil litigation, one that is not akin to a contempt or appeals-bond order (orders that SCOTUS identified as enabling the state court to operate, as opposed to resolving the particular case), can be challenged in a § 1983 action. But Younger and RF together should mean that state courts must be allowed to decide the cases before them, without interference from federal district courts, subject to eventual review through the state system and to SCOTUS under § 1257. This case may allow substantial number of such cases into federal court.

Posted by Howard Wasserman on September 22, 2019 at 07:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Monday, September 16, 2019

FIU Bar Passage

I do not know if I have ever done this before, but I wanted to highlight that FIU Law grads had a 95.7 % pass rate (111/116) for the July 2019 administration of the Florida Bar. A ton of credit to Louis Schulze, assistant dean for academic support, who does an amazing job working with students on how to learn and study, and Raul Ruiz, who runs our bar-prep program.

Posted by Howard Wasserman on September 16, 2019 at 10:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, September 12, 2019

Dorf on the irrepressible myth of the great scholar/bad teacher

My experience, as a student and faculty member, lines up with Mike's: I have had, as teachers and colleagues, many excellent scholars who also were also excellent teachers. And I would add another category: Great scholars who are not great teachers, but want to be  and, even well into their careers, think a lot about teaching and how to improve. The archetype of the "prof who can't be bothered with teaching" is not a thing--or no more of a thing than the insurance salesman who can't be bothered. There are always people who are not good at their jobs.

Posted by Howard Wasserman on September 12, 2019 at 04:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (13)

Asylum injunction stayed, everyone confused

Sam Bray and I agree on the impropriety of universal injunctions--I am the NAIA version of Sam as opponent of universality. But I disagree with Sam's suggestion that Thursday's SCOTUS order staying the asylum regulations portends the end of universal/nationwide/whatever injunctions. This case is too confused and too much of a procedural and analytical mess to be that vehicle or even the canary in the coal mine.

First, the unstayed injunction that reached SCOTUS had been narrowed in the court of appeals to be circuit-wide rather than nationwide. So nationwideness should not have been an issue in this case. The court was staying a narrow injunction against a federal regulation.

Second, both lower courts had entirely conflated the issues and analysis, I believe because they continue to use the wrong nomenclature. The result was a mess. The modified-but-unstayed injunction that reached SCOTUS protected the named plaintiffs (immigration-rights advocacy organizations) within the Ninth Circuit, making it over- and under-broad. It was overbroad  because it purported to continue to protect non-plaintiffs; it was under-broad in focusing on geography, thus failing to provide sufficient protection to these plaintiffs by not barring enforcement against them everywhere they might operate and be affected by the challenged regs. In fact, Tuesday's order from the trial court reimposing the "nationwide" injunction (by supplementing the record that the Ninth Circuit found failed to support nationwideness) applied the appropriate analysis: It focused on the extra-circuit activities of the four named plaintiffs, that they operated and were injured outside the Ninth Circuit, and thus needed protection in other states; no mention made of protection for non-parties, which is the real problem. And the Ninth Circuit one day later limited that new injunction to the Ninth Circuit--inappropriately, as there were findings that the organizations work outside the Ninth Circuit and thus needed the protections of the injunction outside the circuit.*

[*] The result of this circuit-only approach is that one plaintiff who operates in multiple states must bring multiple actions to obtain complete relief. What should happen is that one plaintiff should have to obtain one injunction for itself, protecting everywhere. The further litigation should be by other plaintiffs, obligated to obtain their own judgment and remedy.

Instead, this seems an example of what Steve wrote about in his forthcoming Harvard piece (which Sotomayor cites in her dissental): The government increasingly seeking, and gaining, extraordinary relief from the Court in constitutional-injunction cases, rather than allowing litigation to proceed in the lower courts. It reflects the Court's general opposition to injunctions against federal regulations (a concern that seems to have begun on January 20, 2017 and likely will end on January 20, 2021). Scope had nothing to do with it.

Process aside, I am not sure the result--stay of the injunction--is not appropriate. I like to apply the chaos theory to the stay question--would allowing the injunction to take effect create irrevocable chaos if the lower court is reversed. On that theory, for example, stays of injunctions were appropriate in the marriage cases, lest the state have to either rescind marriages or have some same-sex couples married by the fortuity of the time that litigation takes. On the other hand, the stay of the injunction was inappropriate in The Wall case, since the harm is irreparable if government funds are unlawfully spent and an environmentally harmful wall is even partially built. As for this case, while the asylum-regs are enjoined, the government must allow this class of people to seek asylum. But there will be chaos in handling this group of people if the injunction is reversed on appeal because the regs are found to be lawful, yet some asylum-seekers are present when they should not have been and would not have been but for the erroneous injunction. I have to think more about that.

Posted by Howard Wasserman on September 12, 2019 at 07:44 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, September 10, 2019

Root, root, root for the new citizens

Thoughts about nationalization ceremonies being held at baseball games? Too informal and non-serious? Does the "frivolity of hotdogs, peanuts and Cracker Jack" detract from the solemnity of the citizenship ceremony? Or is it a subtle recognition that baseball was, at least a century ago, the vehicle through which immigrants and new citizens became American (unfortunately, neither baseball nor welcoming new people to the American policy are as popular as they once were). And what if some jerks at the game decided to jeer or hold "go back where you came from" signs?

Posted by Howard Wasserman on September 10, 2019 at 02:36 PM in Howard Wasserman | Permalink | Comments (4)

I am not alone

Here.

I would add that, based on Ferguson's description of the examples Gladwell uses in the book, he is again trying to squeeze widely disparate examples into a single category. The issue with Chamberlain/Hitler, Madoff, Sandusky, and Cuban spies is that they successfully lied to people about their actions or intentions. The problem with Bland was--at best--a racially charged, power-imbalanced confrontation between a police officer and a person of color--the kind that happens too frequently.

Posted by Howard Wasserman on September 10, 2019 at 10:06 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Thursday, September 05, 2019

"We the People" on universal injunctions

The new episode of the National Constitution Center's "We the People" podcast featured Amanda Frost and I discussing and debating universal injunctions. It was a great conversation.

Posted by Howard Wasserman on September 5, 2019 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Posted by Howard Wasserman on September 5, 2019 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, September 04, 2019

JOTWELL: Levy on Fisher and Larsen on virtual briefing

The new Courts Law essay comes from Marin Levy (Duke), reviewing Jeffrey L Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court (Cornell L. Rev., forthcoming), exploring how online speech and writing affects SCOTUS decisionmaking.

Posted by Howard Wasserman on September 4, 2019 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, August 30, 2019

Declaratory judgments and injunctions

The Fifth Circuit held that due process was violated by a system in which some portion of cash bail was used to fund court expenses and the magistrate deciding bail sits on the committee deciding how money should be spent. The remedies portion states as follows:

After recognizing this due process violation, the district court issued the following declaration: "Judge Cantrell's institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class's] ability to pay bail and sets the amount of [*8] that bail."

That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 ("[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .").7

That statutory requirement reflects that declaratory relief is "a less harsh and abrasive remedy than the injunction." Steffel v. Thompson, 415 U.S. 452 , 463 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440 , 450 (5th Cir. 2019); Restatement (Second) of Judgments § 33 cmt. c ("A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief . . . ."). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution. Steffel, 415 U.S. at 470 .

One response to the declaratory judgment would be eliminating Judge Cantrell's dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, LA. R.S. 13:1381.5(B)(2)(a) , the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today's ruling and last week's in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.

I am unsure about the final paragraph. The challengers cannot "enjoin that statute" because courts do not enjoin statutes; they enjoin enforcement of statutes. The district court could have declared that the state-law mandate created the unconstitutional conflict of interest; to comply with that judgment, the defendants would have had to stop enforcing that statute, much as if they had been enjoined from enforcing.  The court issued a seemingly narrower declaratory judgment. Perhaps the point of the final sentence is that eliminating the defendant magistrate's dual role would not eliminate the constitutional violation, opening the door to an injunction because the defendants violated the declaratory judgment.

Two other cute procedural pieces in the case: It was certified as a class action, thus avoiding mootness when the named plaintiffs' criminal cases ended. The court also noted that it is not clear that the exceptions provision of § 1983 applies here, because it is not certain that the defendant judge was acting in a judicial rather than administrative capacity.

Posted by Howard Wasserman on August 30, 2019 at 06:08 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)