Saturday, December 04, 2021

Tushnet on pet peeves in legal scholarship

Co-sign. Some colleagues were having a discussion about the practice in non-law disciplines of reading one's paper.

 

Posted by Howard Wasserman on December 4, 2021 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, December 03, 2021

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 02, 2021

Graded assignments

In Fed Courts and Civil Rights, most grading is based on a written assignment and oral arguments as SCOTUS reviewing lower courts. Each student argues one case, serves as justice for one case, and writes an opinion on one case. From a list of cases, I assign each student the case to argue and the case to judge; they choose their third case from the remainder of the list.

First problem: More than 1/3 of the class--13/30--wrote on the same case (standing to challenge North Carolina's 20-week abortion ban).  Part of the reason for doing it this way (rather than giving an exam) is not having to read multiple versions of the same answer; this undermines that. Is this a problem and is there anything I can or should do about it?

Second problem: Two students reversed the lower court; everyone else affirmed. Even when the political valence of the lower court went against what I imagine would be students' preferences (e.g., finding moot a challenge to a limit on absentee voting). And even when the lower court included a strong dissent. Part of me thinks it is easier to affirm (the starting point for the analysis is there). The alternative is to require the authors to reverse, but that makes the assignment too difficult (and gives an edge to those working with cases that have dissents). Again, is this a problem and is there anything I can or should do about it?

Posted by Howard Wasserman on December 2, 2021 at 02:10 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, November 30, 2021

Random law stuff

Nothing hold these together other than law and personal interest:

• Pennsylvania is seeking cert in the Cosby case. I wrote in July that the case offered some nice independent-and-adequate issues. The state court cited both state and federal cases and it is not entirely clear whether the grounds for decision was the 14th Amendment or its state counterparts. I still do not think the Court will touch it, but I expect some briefing on the I-and-A issues.

• NBA player Enes Kanter Freedom, who has run into problems for his opposition to the current Turkish government, appeared on Tucker Carlson to tell Americans to "keep their mouth shut and stop criticizing the greatest nation in the world and they should focus on their freedoms and their human rights and democracy." So two bits of irony, if not chutzpah. First, is the difficulty of focusing on freedoms and democracy by declining to exercise the most basic freedom and the one most central to democracy. Popehat compared this to the view that freedom is like your grandmother's slip-covered  sofa--not actually to be used. Second, it appears Carlson does not believe all basketball players should shut-up and dribble--some are allowed to speak out on public issues; guess which athletes and which issues.

• Any journalist not named Chris Cuomo would at least be suspended, if not summarily fired. If, as I expect, he screams "cancel culture," we will know that the term has lost whatever minimal meaning it had (and it already had none). Because it will be wielded to defend professional misconduct--breaking the ethical rules and employment agreements that guide the profession.

Posted by Howard Wasserman on November 30, 2021 at 09:06 AM in Howard Wasserman | Permalink | Comments (0)

Monday, November 29, 2021

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 28, 2021

More on the preferred first speaker and the futility of "conversations"

The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.

Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches), there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."

This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.

(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).

Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 19, 2021

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 18, 2021

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.

Posted by Howard Wasserman on November 18, 2021 at 03:49 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

More on UIC (no longer John Marshall)

I wrote last January about Jason Kilborn at UIC (not John Marshall--why they changed it . . .), who was in the middle of a firestorm that began over a reference to a racial slur on an exam and went badly sideways. Andy Koppelman (Northwestern) has a long essay in the CHE updating the story, which includes a seemingly inaccurate committee finding of harassing conduct, continued student protests (with appearances by Jesse Jackson), and settlement of a brewing lawsuit.

It is a mess of administrative overreach and the collision of speech, academic freedom, and DEI. A la Yale. And it again illustrates my repeated point about recent academic-freedom controversies--When it happens at Yale or at UF, it makes The Times and the Post; when it happens at UIC, it makes the Sun-Times and the Chronicle. Not the same level of attention and thus not the same level of public pressure.

One final point of speculation: Would this have played differently if it had happened at the Former JMLS--stand-alone private urban law school--than when happening at UIC--large, majority-minority public university. Does the large administrative apparatus that accompanies a large public university exacerbate these types of incidents? Does it suggest that the public takeover--which I predicted 20+ years ago and regarded as an unalloyed good for the law school--has a substantial downside?

Posted by Howard Wasserman on November 18, 2021 at 03:39 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, November 17, 2021

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Posted by Howard Wasserman on November 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 15, 2021

Resources for new and aspiring ad law profs

Christopher Walker (Ohio State) at Yale J. Reg's Notice and Comment, for the ad law scholar in your life.

Posted by Howard Wasserman on November 15, 2021 at 12:12 PM in Howard Wasserman, Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Sunday, November 14, 2021

RBG and patriotic symbolism

Josh Blackman writes about an attempt by Bryant Johnson, RBG's longtime trainer, to defend the Justice against Katie Couric's report about RBG's comments on Colin Kaepernick. According to Johnson, RBG knew nothing about the Kaepernick controversy at the time of the interview. He subsequently explained to RBG that Kaepernick was protesting racial injustice rather than the country and that he chose this method at the suggestion of a veteran as a more-respectful alternative; RBG responded that she did not know the whole story and should not have answered the question. Josh calls B.S.

I return to my prior question: Does this tell us anything about how Ginsburg would have voted in Eichman and Johnson? Johnson's defense of RBG rests on the premise of her not having the full story and changing her mind once she realized Kaepernick was showing respect. But that leaves RBG's line at patriotic symbolic counter-speech showing unquestioned contempt for government and not allowed in the places their families came from, for which flag-burning qualifies. So what would she have done with flag-burning?

Posted by Howard Wasserman on November 14, 2021 at 04:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, November 12, 2021

Four-Jew World Series after all

I am ashamed to say I missed this when it happened--it turns out we had our four-Jew World Series. Garrett Stubbs of the Astros, the team's third-string catcher, was placed on the active roster for Games 4, 5, and 6 when the back-up went into COVID protocols. That made this the first World Series with four Jewish players on active rosters. And Game 6 was the first Series game to feature four Jewish players when Stubbs caught the ninth inning. Unfortunately, Joc Pederson had been lifted for defense in the eighth and Max Fried had been taken out in the seventh, so the four were not in the game at the same time.

My apologies for not being on top of these historic events.

Posted by Howard Wasserman on November 12, 2021 at 05:44 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, November 09, 2021

Buchanan on events at UF

Neil Buchanan, who teaches at UF and blogs at Dorf, has two great posts on events at UF, from a unique insider perspective--a new faculty member (he joined UF from GW in 2019), recruited to a chair and directorship, and lured by the university's stated goals of becoming another "public Ivy." He can focus on how this hurts the school's reputation and how it hurts faculty recruiting. Worth a read.

Posted by Howard Wasserman on November 9, 2021 at 03:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sartorial choices, on the sideline and in the classroom

Since the COVID bubble in spring/summer 2020, NBA coaches have moved from wearing suits during games to warm-up pants and 1/4-zip pullovers with team logos. Last week, Candace Buckner decries "pandemic chic. The haute couture of polyester and wrinkle-free pants" that makes her "long for the days when the NBA sidelines showed a touch of class." Buckner discussed the article on the Hang Up and Listen podcast (around the 48:00 mark).

I have been teaching this semester, masked, in shorts and a pullover (my favorite clothes matching my favorite weather), as a sop to what I perceived as the oddness of wearing a tie and a mask, combined with the habits of wearing comfortable clothes at all times. In explaining the change to my students on the first days of class, I used NBA coaches as my analogue--if they went all-casual, so would I. I assured them it did not mean I took their education or the class any less seriously. But others would say they long for the days when the front of the classroom showed a touch of class.

Incidentally, I recognize that dressing like this reflects male privilege. I can do this without, it appears, losing status or respect from students; an untenured colleague and (likely) a non-cis-male colleague may not have that luxury.

Posted by Howard Wasserman on November 9, 2021 at 08:54 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, November 07, 2021

What the hell is this supposed to be?

Spray-painted on a the cinderblock wall around a commercial trash bin. (Since someone asked--it looks to me like a Klan hood. I did mention that in the initial post because I did not want to prejudice commenters and did not want to appear to jump to conclusions if this image was somehow a thing).

IMG_0510

 

Posted by Howard Wasserman on November 7, 2021 at 08:56 AM in Howard Wasserman | Permalink | Comments (5)

Academic freedom in Florida and the quiet parts out loud

Perhaps trying to prove my point that attacks on academic freedom are likely to spread throughout the Florida SUS, Florida Atlantic University (public university in Boca Raton) is considering a proposal to give the full Board of Trustees, not the Board president alone, final authority on tenure decisions.

One trustee, recently appointed by DeSantis, wants a complete file beyond the short bio. She also wants to be able to plumb that file for a lot of additional information to use in a nakedly content- or viewpoint-based decision. Money quote from the article:

One paragraph doesn’t tell us a lot about a professor, his viewpoints, his research, his political affiliations or potential donations,” among other factors, she said. “I’m concerned about tenure moving forward. I speak not just for myself but for the governor. I can’t think of any other position out there where people have a job for life."

This will be used as evidence by the first person denied tenure under this new system. It also demands to see and rely on information that goes beyond the tenure file reviewed in any department, college, or provost's office. My tenure file contained nothing about my affiliations or donations (I suppose people could guess, although they would be wrong based on some of my recent work). I would wonder how DeSantis feels about this person speaking for him, but he probably shares her views.

Also evincing my point about what this happening outside the national media eye when it happens at a place other than the flagship university, the story is from the South Florida Sun-Sentinal, not the Washington Post or even the Miami Herald.

Posted by Howard Wasserman on November 7, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, November 05, 2021

More on academic freedom at UF (Updated)

Updated: The university backed down, at least for the moment. The president convened a task force (including Clay Calvert, an excellent First Amendment scholar who teaches in the journalism school, and law dean Laura Rosenbury) to develop policies for "how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." That framing is problematic, still conflating the university with the state of Florida, but we have to see. The president also ordered the university conflict's office to reverse recent decisions and allow faculty to testify, for compensation, in cases to which Florida is an adverse party.

The University of Florida Chapter of United Faculty of Florida issued a list of demands. After the jump, I summarize and comment.

1) Allow the three faculty members to provide paid expert testimony in the voting-rights litigation, as well as allowing other faculty to do the same in other cases. They also want the university to issue a formal apology. Makes sense. This is what started this whole thing, which has brought to light other academic-freedom concerns at the university, such as state laws requiring schools to conduct "intellectual environment" surveys and limiting what faculty can speak to students about.

2) Affirm the right of faculty to "conscience, academic freedom, free speech rights, and expertise in an expert witness context, regardless of whether they receive payment for their expertise." Obviously.

3) Affirm its support for voting rights and commit to opposing ongoing efforts to suppress voting rights in the state of Florida. This is stupid, over-grasping, and unnecessary. There are good arguments (from scholars across the political spectrum) that academic institutions should not take institutional positions on public issues, no matter how obvious the issues. This demand says "it is not enough that we be able to express our preferred position, you also must tell us that we are right in our position." It also plays into the narrative of liberal academics controlling the university and silencing those who oppose their messages by insisting that their views be the institution's views.

4) Formally declare that the University's mission to serve the public good is independent of the transitory political interests of state officeholders. Instead, UF should uphold its mission statement as the prime directive for all University activities. Good.

5) Donors should withhold donations unless UF complies with the four main demands, including explaining why they are withholding. Interesting, but unlikely to do much. One of the faculty members at the press conference announcing these demands said he had donated to the school in the past and would stop doing so. But I doubt that the donors the university cares about--those who build buildings and endow centers and chairs--would follow suit.

6) Officials at other schools should tank UF in their US News and other assessments, because of this, as well as its response to COVID, its "poor commitment to environmental sustainability," and broader attacks on employees' speech, academic freedom, and labor rights. This is trying to hit UF where it hurts. The university made a big deal about becoming the #5 public university in the 2021 US News (trailing UCLA, Berkeley, Michigan, and Virginia and tied with UNC and UC-Santa Barbara)--there is a photo circulating of DeSantis with university officials, holding a # 5 Gators jersey. Again, though, why drag an unrelated political issue such as the environment into this?

7) Professional associations should call out UF.

8) Accrediting agencies should investigate, since failing to protect academic freedom undermines its ability to provide a world-class education.

9) Artists, scholars, and intellectuals who are invited to perform at the University of Florida should decline these invitations until the University complies with our academic freedom demands. When declining an invitation to appear at the University, invitees should clearly specify why they are declining the invitation and, if they are active on social media, should use the hashtag #NotAtUF.

I asked Steve Lubet (Northwestern) for his thoughts, as he criticizes calls for academic boycotts. He writes:

Academic boycotts are bad in principle because they undermine the free exchange of ideas. I understand the impulse here, which is to exert maximum pressure on the administration, but it would be performative and counter-productive. Desantis and his acolytes don’t care much about artists or visiting scholars appearing at UF, so only the students and faculty will be hurt. They should try demanding that other universities drop UF from their sports schedules, which might actually have an impact.

I would add that it would create a political imbalance in the exchange of idea, because conservative speakers will be happy to speak at UF, not only for the opportunity to speak but also to own the libs.

10) Call for a UF Faculty Senate resolution affirming these demands.

11) Employees should refuse to disclose outside activities and conflicts of interest via the UFOLIO system. Until the University can be trusted to use this information responsibly, it should not be trusted with this information at all. Nothing like some civil disobedience as a topper. But they might consider Tracy v. Florida Atlantic University, a different conflict between an SUS entity and faculty speech. Tracy, a professor of communications and media studies, ran a blog that questioned Sandy Hook; the university asked him to disclose the blog as an outside activity, Tracy refused, and the university fired him for insubordination. The Eleventh Circuit affirmed summary judgment in favor of the university, concluding that the disclosure policy was not constitutionally invalid and thus firing him was not inappropriate. That one does not trust the university to use information responsibility, divorced from any apparent constitutional violation in the disclosure rules, does not excuse the obligation to comply with the disclosure obligations. I suppose if enough people stop complying the university cannot fire everyone for non-compliance, so maybe it works in the short term.

I presume the university will back down on this; it does not want this to remain a national story. I remain focused on how this trickles down to my school.

Posted by Howard Wasserman on November 5, 2021 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Thursday, November 04, 2021

JOTWELL: Pfander on Bray & Miller on equity

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022), including a shout-out to the SB8 litigation on everyone's mind.

Posted by Howard Wasserman on November 4, 2021 at 02:20 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 03, 2021

Academic freedom in the Florida State University System

I have been watching the situation at University of Florida closely, especially now that it appears this has implicated three law professors who sought to put their names on amicus briefs. This could spread to other schools in the State University System. It is front page of the Washington Post because it is UF, a flagship public university in a large state that purports to be a top public research institution; I would worry about stuff like this sliding under the radar at a smaller institution in a smaller state. Keith Whittington has been covering this at Volokh in his role with the Academic Freedom Alliance.

Meanwhile, the FIU Faculty Senate entered the fray. Interesting to see how FIU and the state respond.

Posted by Howard Wasserman on November 3, 2021 at 02:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 02, 2021

Courthouse Steps on SB8 arguments

As mentioned, I will be on the Fed Soc's Courthouse Steps to discuss the SB8 arguments with Stephen Sachs. Noon EST today, register here.

Posted by Howard Wasserman on November 2, 2021 at 09:22 AM in Howard Wasserman | Permalink | Comments (0)

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.

 

Posted by Howard Wasserman on November 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 01, 2021

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

Posted by Howard Wasserman on November 1, 2021 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A solution in WWH (Updated)

That did not go as I expected. If I had to read tea leaves, the Justices seemed inclined to let WWH go forward while allowing US to die on the vine, whether by rejecting the US's theory of the suit or counting on the US to voluntarily go away in deference to the private action. Some thoughts after the jump. I had predicted the opposite, thinking that the "this is a unique law" would justify a unique case by the US, whereas allowing WWH to go forward opens up a new realm of federal constitutional litigation that the Justices are not anticipating.

My theory has been that WWH cannot work because there is no one to sue--no executive enforces and Mark Dickson has not shown an intent to sue. WWH's theory--sue the judges and clerks--does not work because they are not responsible executive officers and they are not adverse to WWH and other providers. But Justice Sotomayor, with Kagan and Breyer weighing, offered something that works (which I had not thought of) without the slippery-slope concerns.

Part of the EPY fiction is that enjoining the attorney general (or whomever the responsible executive officer is) reaches everyone below the AG who enforces the law; an injunction barring the AG from enforcing a criminal law would prohibit a DA from initiating an individual prosecution.* So apply that idea to the deputized private SB8 plaintiffs who act as the equivalent to DAs--enjoin the AG based on his residual enforcement authority and the injunction applies to every individual private enforcer beneath him. The theory requires the additional step (which never came up during argument) of whether and why SB8 plaintiffs act under color of state law, which would have cut through Stone's resistance to the idea that private individuals were agents or deputized. They are not agents or deputies, but they are performing a traditional-and-exclusive public function in enforcing law for the public benefit. Under SB8, private individuals serve the role of individual DAs or other enforcing officers captured in an injunction against the highest responsible state officer.

    [*] Texas SG Judd Stone pushed back on Texas DA's independent authority. Kagan attempted to get at this by asking what would happen if a state enacted a heartbeat ban with ordinary criminal punishment. She never got a good answer. But she (and I) cannot believe that if Texas enacted a law criminalizing all abortions that an injunction prohibiting Greg Abbott from enforcing that law would not be read to prohibit every DA from enforcing the law).

WWH narrowed its theory in its Reply and in the argument, focusing clerks as the real target of the suit and remedy. My guess is they ran from language in EPY saying federal courts cannot enjoin judges from adjudicating, as well as the argument that judges do not enforce and are not adverse to the litigants. Docketing a case is "administrative" in a sense, so it fits better with the idea of stopping enforcement. The problem remains that clerks are no more adverse to the litigants than the judge is. The clerk is a neutral recipient and processor of the lawsuit enabling the (neutral, non-adverse) judge to adjudicate. [Update: Stephen Sachs explains why suing clerks makes no sense, including why the shift from enjoining enforcement of the law to enjoining "commencement" of the suit does not work, because the enforcer and commerncer remains the party bringing suit, not the clerk who puts it in the system).

Sotomayor's new theory works because it does not eviscerate private civil litigation or the state power to decide what laws to enact and how to enforce them. It applies to unique circumstance in which the delegation of exclusive enforcement authority for the benefit of the public renders private state-law plaintiffs state actors/persons acting under color of state law It would not apply to ordinary civil litigation to remedy a personal injury that will be met with a federal constitutional defense. This theory works because the expansion of the injunctive power under  fits the elements of the law being challenged. "Sue the AG to reach the deputized enforcers" can be limited to the extraordinary law that deputizes private plaintiffs to enforce state law--absent deputized enforcers, the theory does not work and so does not affect other lawsuits.

On the other hand, thereis no logical way to limit "sue-the-clerks" to the extraordinary case than by fiat--declaring SB8 (and presumably its imitators) as unique (based on several elements the Court and WWH identified) and creating a Bush v. Gore-good-for-this-trip-only process. Otherwise, the option of suing clerks to avoid the chilling effect of having to litigate defensively in state court logically must be available to any state-court defendant with a constitutional defense. Suing clerks also has serious administrability problems. Clerks ordinarily do not (and cannot) review or analyze lawsuits before docketing them, so an injunction would require them to do something they typically do not do. Moreover, Alito offered the hypothetical of a plaintiff who brings an SB8 claim along with a malpractice or IIED claim; lawyers for WWH said that the clerk could not accept that suit, although it would be under ordinary tort law, with none of the special problems of SB8. This suggests that "sue the clerks" cannot be limited to SB8 claims.

Update: Consider a real-life example, courtesy of Eugene Volokh: There is ongoing debate about whether the right of publicity can exist in light of the First Amendment and the constitutional limits on the scope of that tort. The First Amendment battle is fought defensively--plaintiffs suing for violations of the right of publicity and speakers defending on First Amendment grounds. If the Court allows suits against clerks, any speaker fearing a right-of-publicity claim would take that option rather than waiting for a suit and a defensive posture. The only way to avoid that is for a court to say "SB8 is different," although those differences have nothing to do with the choice between offensive and defensive litigation.

Now we wait, I expect for a few weeks--I believe the Court will decide this before argument in Dobbs on December 1. The question whether the Court takes the smart way to resolve this without blowing up the ordinary rules of constitutional litigation. Sototmayor's question offers a way that is less destructive than allowing EPY actions against clerks and judges.

Posted by Howard Wasserman on November 1, 2021 at 03:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The most-Jewish World Series has not been good for the Jews (at least so far) (Update)

As we head back to Houston with the Braves leading 3-2, it has not been a good series for The Tribe.

• Alex Bregman has two hits in 18 at-bats and has struck out five times. He was moved from third to seventh in the line-up for Game 5. He drove in the Astros first run in Game 5 with a second-inning double, although he failed to come through with the bases loaded and with a runner on second later in the game.

• Joc Pederson has one hit in 11 at-bats and has struck out three times. He did not start two of three games in Atlanta (played without a DH). He pinch-hit as they tying run in the bottom of the sixth, but popped out in foul territory to third. The defense was shifted, so the play required a long running catch--by Bregman.

• Max Fried took the loss for the Braves in Game 2, giving up six runs on seven hits in five innings. Reports on the game say he did not get hit hard, but everything the Astros hit found a hole. He has a chance to redeem the Series for Am Yisrael when he starts a potentially clinching Game 6 on Tuesday. Here's hoping.

Update, Nov. 3: The Brave won the Series in six games. Fried was the star of Game 6. He pitched six shutout innings, giving up four hits (none particularly hard hit) and striking out six on 74 pitches. He got Bregman (again batting seventh) twice--a strikeout in the fifth (a bad call-the pitch was low) and a foul fly to right in the first that was caught by Pederson on a nice play. Pederson was 0-for-4 and Bregman 0-for-3, making them a combined 3-for-36 for the Series. Pederson did become the ninth player--and first Jewish player, obviously--to win consecutive World Series with different teams.

Two more historic points. First, Fried became the fourth Jewish pitcher to win a Series-clincing game, after Larry Sherry ('59 Dodgers), Koufax ('63 and '65 Dodgers), and Holtzman ('73). Second, people are calling Bregman's flyout the most Jewish play in World Series history--Jewish pitcher, Jewish hitter, Jewish fielder credited with the putout.

Posted by Howard Wasserman on November 1, 2021 at 09:09 AM in Howard Wasserman, Sports | Permalink | Comments (0)

The solution cannot be worse than the problem

In advance of this morning's arguments in the SB8 cases ( US v. Texas and WWH v. Jackson), Ilya Somin endorses the amicus brief of the Firearms Policy Coalition against the validity of SB8 (it is concerned that a Blue state will enact a similar law targeting firearms owners). The gist is that the enactment and existence of a constitutionally violative law that chills the exercise of constitutional rights violates those rights and the courts can enjoin whoever "adopts and implements" the law, including judges and private individuals who have not revealed themselves.

This position has broad implications. It rejects a number of established principles, especially with respect to suing judges and with the question of what constitutes a constitutional violation. It would be least appealing to Justice Thomas, the staunchest advocate of gun rights. It also places a centrality on offensive/preemptive federal-court adjudication, resting on the belief that defensive state-court litigation is per se insufficient to protect constitutional rights. That undermines among other things, Younger and perhaps the well-pleaded complaint rule as applied to constitutional defenses (which is the best solution to this). It shifts massive amount of litigation into federal court--any tort defendant with a First amendment defense would be entitled to a federal forum and adjudication of the federal issues in federal district court.

The beauty of resolving this case through United States rather than through WWH is that it does the least damage to the ordinary flow of constitutional litigation. The federal government will sue only in the extraordinary case, so a broad take on its powers to seek anticipatory relief will be be more limited than one that says any rights-holder facing enforcement of state law in a way that might violate their rights is gauaranteed a federal forum by suing the state-court judge.

Posted by Howard Wasserman on November 1, 2021 at 08:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, October 30, 2021

The Myths of SB8

Rocky and I have a post at Balkinization previewing Monday's arguments in the SB8 cases. Short answer: United States v. Texas should proceed on either standing theory with an equitable cause of action, while WWH should fail for lack of a proper defendant to sue or enjoin at this time (whether they call it standing, sovereign immunity, or no violation on the merits).

I will write something about the argument on Monday. And I am doing an argument post-mortem for the Federalist Society (with Stephen Sachs of Harvard) on Tuesday. Yes, my views on this align with Fed Soc rather than ACS--we live in strange times.

Posted by Howard Wasserman on October 30, 2021 at 11:12 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Conversion and Jews in sports

Those of us who care about Jews in sports wield a broad definition of Jewish--basically anyone with a Jewish parent, maybe even a Jewish grandparent, and anyone who converted before or during his playing career (e.g., 1970s outfielder Elliot Maddox). But what about players who convert in retirement? Should we regard them as retroactively Jewish, so that their sports achievements and records become part of the record for "Jews in Sports?" Can we count a player's statistics and records accrued when he was not Jewish when accruing them? Can a player who was not when playing be named to the All-Time Jewish team after the fact?

I wrote recently that this is the second three-Jew World Series and that Max Fried pitching to Alex Bregman in the first inning of Game 2 was the first time a Jewish pitcher faced a Jewish hitter in the Series. Readers have challenged both points. On the first, a reader pointed out that the A's had three Jewish players in the 1972 Series--Ken Holtzman, Mike Epstein, and pitcher Joe Horlen. On the second, a reader said (which I had known) that Holtzman faced Dodgers catcher Steve Yeager in the 1974 Series, Yeager going 1-for-3 with a double and a strikeout.

Horlen and Yeager converted in retirement when each married a Jewish woman. So neither qualified as a Jewish player at the time. Anyone looking at A's roster during the '72 Series would have identified two Jewish players--who went by the nicknames of "Ordinary Jew" and "Super Jew," respectively. Holtzman pitching to Steve Yeager in 1974 was no different from a Jewish standpoint than Holtzman pitching to Steve Garvey.*

[*] I have danced around the question with Yeager in wondering whether to count his four home runs and Series MVP in 1981 and in not including him in my Yom Kippur study because he would have had no reason or impulse not to play on those days.

But should it be? Judaism speaks of conversion as the person "coming home." The person did not change, in that her soul or spirit has always been Jewish and one of the Jewish people who received Torah at Sinai. He is the same person, returning to the fold. The Talmud also discusses retroactivity in designation or impurity of items. How should that apply in who we recognize as Jewish and how we honor and recognize individual achievements? Maybe I will come back to this next Shavuot.

Posted by Howard Wasserman on October 30, 2021 at 11:09 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, October 29, 2021

Nikolai Yezhov, the Chicago Blackhawks, and the historical record (Updated)

Update, Nov. 3: The Hall removed Aldrich's name. An utterly cheap move that makes the Blackhawks feel good about themselves while doing absolutely nothing for anyone.

I have not written about the ongoing fallout in the NHL from the Chicago Blackhawks' failure to punish an assistant coach, Brad Aldrich, who sexually assaulted and harassed one player (who has identified himself as former prospect Kyle Beach) and harassed another during the team's 2010 Stanley Cup run. This offers a great summary. I am not  a hockey fan and have not had anything to add, other than that Reid Schar, the Jenner & Block partner who led the investigation, is a law school classmate.

But I had to respond to this morally bankrupt attempt to "make amends:" Blackhawks owner Rocky Wirtz wants the Hockey Hall of Fame to remove Aldrich's name from the Stanley Cup (the names of every player and other person from a champion is engraved on the Cup). Here are the major points of Wirtz's argument:

    • "[I]t was a mistake to submit his name. We are sorry we allowed it to happen."

    • "While nothing can undo what he did, leaving his name on the most prestigious trophy in sports seems profoundly wrong."

    • Citing precedent: The Hall removing from the 1983-84 champion Edmonton Oilers the name Basil Pocklington, father of team owner Pete Pocklington, because Basil played no role on the team (other than, I suppose, siring Pete decades earlier).

    • "Principle and our moral belief that a convicted sex offender does not belong on the Stanley Cup."

I will be outraged if the Hall grants Wirtz's request. Frankly, Wirtz should be ashamed for making the request (although he will not be, just as I question how ashamed he is of this entire mess, beyond how it affects his hockey team).

As a starting point, I do not like ex post punishments that excise the historical record. I do not like it when the NCAA strips wins, records, and championships from programs, coaches, and players. Regardless of whether they broke some rules (e.g., Michigan's Fab Five or Pete Rose), ignored predatory off-field behavior (e.g., Joe Paterno), or were generally bad people during or after their careers (e.g., Curt Schilling but probably many others), they built a real-life historical record and retaining that record matters. Sanctions for misconduct should not entail falsifying what happened in real-life events. I oppose putting Pete Rose in the Hall of Fame and am mostly agnostic about putting Barry Bonds, Roger Clemens, etc. in the Hall; I would object to MLB removing Rose's name from atop the list for career hits or Bonds's name from atop the list of home runs in a season. Each accomplished something in the real world that we record; we cannot eliminate a previously acknowledged role in documented real-world events, like erasing Nikolai Yezhov from a photograph.

But context makes Wirtz's request worse than the usual effort to purge history. The Blackhawks' misdeed was that team leadership failed to take action against Aldrich for more than three week after receiving what they deemed a credible and confirmed report of the assault and harassment; they did nothing against Aldrich for almost four weeks, until after they won the championship (during the celebration of which Aldrich reportedly made a sexual advance on a team intern). The reason team officials did nothing was because they did not want the dreaded "distraction" and harm to "team chemistry" in the midst of a Cup run. Michael Baumann at The Ringer exposes the idiocy of believing the team would have descended into chaos had it suspended its video coordinator. That aside, the Blackhawks' official position, borne by the actions of its top officials, was that Aldrich was essential to their championship and the team could not succeed without him. It therefore cannot rewrite history by erasing contributions that the team believed at the time were so essential to its success that leaders no choice but to overlook credible allegations of sexual assault for a month.

The team's position at the time makes the lone cited instance of erasing a name worthless as support. The Oilers should not have included Basil Pocklington in the first instance, because he played no role in the team or its championship. That is not the case with Aldrich, or so the team's actions in 2010 would have us believe. The argument that removing his name remedies an original mistake also fails. The Blackhawks won the Cup on June 10 and notified H.R. about the accusation on June 14; on June 16, H.R. gave Aldrich a choice of resigning or submitting to an investigation and he chose the latter. From the Blackhawks' standpoint, the situation was resolved--the wrongdoer was no longer with the team. I do not know when the team provided the list of names to the Cup engravers, but either undermines the "it was a mistake to submit his name" narrative. If they sent the list prior to Aldrich resigning on June 16, it was not a mistake, because Aldrich was still a team employee and still part of the championship. If they sent the list after Aldrich resigned on June 16, the immediate inference is that it was not a mistake, but was intended not to continue to avoid calling attention to Aldrich's (and the team's) misconduct by including his name on the cup but being rid of him going forward.

Wirtz's argument is immoral on its own terms. He cites his moral belief that a "convicted sex offender" does not belong on the Cup. But the Blackhawks' wrongdoing--for which this move is supposed to be penance--has nothing to do with the criminal conviction. Aldrich was convicted three years later of sexual assault involving a minor in a subsequent coaching job, having nothing to do with the Blackhawks or the assault of Beach in 2010. (The attenuated connection is that the Blackhawks' failure to sanction Aldrich and to attempt to stop him from getting other coaching jobs allowed him to get the high-school coaching job that gave him access to that later victim). But then Wirtz is not making this request because of Kyle Beach. Imagine everything unfolded as it did except Aldrich was never convicted on that later, unrelated offense. There would be no "convicted sex offender" with his name on the Stanley Cup; Wirtz's principle and moral belief would not apply to this situation or require Aldrich's name be removed solely for the assault on Kyle Beach for which he was not convicted. Maybe that is not what Wirtz intended to say. But that is the logical conclusion from his words.

Finally, Wirtz's request is, at bottom, selfish. Removing the name does not sanction Aldrich in any meaningful sense--he has larger concerns than whether his name is one of thousands on a metal cup in a museum. It does not benefit Beach. Accepting that Beach is injured by Aldrich reaping the rewards of being associate with a championship team, he watched Aldrich reap those immediate rewards in 2010--celebrating with the team in the moment, spending a day with the trophy (the greatest tradition in sports), and receiving a playoff bonus as part of his severance.

This move benefits the Blackhawks, but no one else. It allows them to erase from the historical record any connection between Aldrich and that championship team. Future generations who look at the piece of the Stanley Cup dedicated to the 2010 Blackhawks will not see the name "Brad Aldrich," so no one will ask who Brad Aldrich is and no one from the Blackhawks will have to explain that he was an assistant coach who was allowed to continue coaching after the team learned and believed he had sexually assaulted a player. The opposite should occur--the historical record should capture Brad Aldrich's connection to the Blackhawks and it should remain a written stain on the team and that season.

Posted by Howard Wasserman on October 29, 2021 at 05:33 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 28, 2021

Jewish showdown in the World Series

I was unable to watch Game 2 on Wednesday (ironically enough because of a Temple meeting). The Astros rocked Max Fried for five runs in the first two innings and six overall (Fried's second straight poor outing after being unhittable since August) in a 7-2 win to even the Series.

As predicted, the first Jewish pitcher v. Jewish hitter showdown in a World Series came when Alex Bregman came to bat with one out and a runner on third in the bottom of the first. He hit a sacrifice fly, which is kind of Solomonic in terms of which Jewish player prevailed in the showdown--Fried got Bregman out, but Bregman drove in a run to give the Astros an early lead. Fried retired Bregman two more times, including a fifth-inning strikeout.

Overall for the Series, Bregman is 0-for-7 with three strikeouts, while Joc Pederson is 1-for-8 and struck out three times in Game 2. With Fried's Game 2 loss, this is not going well so far. But, hey, it took 40 years to reach the Promised Land.

Posted by Howard Wasserman on October 28, 2021 at 12:23 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 25, 2021

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

Posted by Howard Wasserman on October 25, 2021 at 01:08 PM in Article Spotlight, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Friday, October 22, 2021

SCOTUS grants review in SB8

SCOTUS granted cert before judgment in United States v. Texas and WWH v. Jackson, with argument on November 1. The grant in Texas is limited to whether Texas can sue. The Court declined to lift the Fifth Circuit's stay of the injunction in United States, so the law remains enforceable; Justice Sotomayor was the lone dissent on that point.

Our papers are about to change dramatically.

Posted by Howard Wasserman on October 22, 2021 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, October 20, 2021

JOTWELL: Mullenix on Norris on neoliberal procedure

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Luke Norris, Neoliberal Civil Procedure, 12 UC Irvine L. Rev. (forthcoming 2022).

Posted by Howard Wasserman on October 20, 2021 at 11:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 19, 2021

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Posted by Howard Wasserman on October 19, 2021 at 08:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 18, 2021

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Posted by Howard Wasserman on October 18, 2021 at 07:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Posted by Howard Wasserman on October 18, 2021 at 03:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

I agree with most of Ruth Marcus' takedown of Yale Law School's attempt to extort an apology from a student over an obnoxious email.*

[*] The student surreptitiously recorded his conversations with two deans--is Connecticut a one-party state?--and it is really hard to listen to those recordings in which the deans remind him of applying to the Bar and not laugh when the school says "No student is investigated or sanctioned for protected speech." No sanction, but a not-subtle "nice Bar Exam you have to take, shame if you get dinged by not apologizing."

I take issue with this:

Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation.

The eggshell plaintiff is a go-to move in discussions (critical or supportive) of attempts to restrict offensive speech. Feminist anti-porn arguments rested on this theory--the eggshelliest person might decide to emulate porn and commit crimes against women, so this rule justifies banning porn. Marcus tries to argue that everyone is acting like an eggshell plaintiff as to offensive speech and that law-school administrators are allowing.

Both arguments rest on a misapplication of the eggshell-plaintiff concept. Marcus defines it correctly--a wrongdoer takes the injured person as he finds her and must pay a uniquely great compensation for a uniquely great injury. But this is a compensation rule, not a liability rule. A person is not liable for conduct that would not injure an ordinary person, and thus is not wrongful, even if it injures the eggshell plaintiff. The rule kicks in when the defendant has engaged in wrongful conduct and we have to determine how much he pays--compensation is tailored to the injured plaintiff, even if her injuries, and thus the compensation, are unusually great. We do not establish our liability rules according to the weakest, most sensitive, most easily persuaded, or the most easily offended. The eggshell rule cannot be used to justify greater restrictions on speech or conduct and should not be used to explain them.

Posted by Howard Wasserman on October 15, 2021 at 02:35 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

The final version of the story, which meant to promote a compilation of Ginsburg’s writings called, My Own Words, included her criticism of ‘stupid’ and ‘arrogant’ protesters.
But what was left out was arguably more inflammatory.
Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'
She said: ‘Which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly. And that’s why education is important.’
Couric claims that she ‘lost a lot of sleep over this one’ and still wrestles with the decision she made.
I will leave criticism of Couric's journalistic practices and the cult of RBG to others.
 
I want to pose a different question: Given these views of disrespect for the flag, how would RBG have voted in the flag-burning cases? Burning a flag shows greater "contempt for government" and is more a thing someone could not do "in the place they came from" compared with kneeling during a flag-centered ceremony. Ginsburg generally followed the left-liberal view of free speech. But perhaps, like Justice Stevens, she believed the flag and its surroundings demand a unique First Amendment carve-out.

Posted by Howard Wasserman on October 15, 2021 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

Posted by Howard Wasserman on October 14, 2021 at 10:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

JUSTICE KAVANAUGH: Does the same kind
of rule apply in private litigation? So suppose
a private plaintiff sues a private defendant
under state tort law. The state -- the private
defendant argues that the state tort law is
unconstitutional, and the court on appeal rules
that the tort law is unconstitutional, okay?
And the state -- the private plaintiff, sorry,
chooses not to seek en banc or cert.

Can a state AG intervene in that
circumstance even though the private plaintiff
has chosen not to seek en banc or cert to argue
that the state tort law is, in fact,
constitutional?

MR. KUHN: I think this Court told us
in Hollingsworth that a private party defending
state law is just a different matter than a
state official who has sworn an oath to defend
Kentucky's constitution who is popularly
elected.

So I think the state in that
circumstance would -
-

JUSTICE KAVANAUGH: The state tort law
in that circumstance will be declared
unconstitutional. And I think, by saying it's
different, you're saying the state AG in that
case could not seek en banc or cert even though
the state tort law had been declared
unconstitutional?

MR. KUHN: Our position is not that he
could not do so but that it would not be as easy
of an argument in that circumstance. I think it
matters that we have a handoff from one state
official to another, both of whom are sworn to
defend Kentucky law.

I think a lot of the things I'm saying
today would be consistent with the -- with the
hypothetical that you're talking about. But I
think we're perhaps a half step beyond that and
this is a much easier case than the one you've
hypothesized.

I do not know if Kavanaugh asked the question with SB8 (or its many tort analogues) in mind, but it is relevant. When the state delegates enforcement power to private parties for the purpose of eliminating offensive (preemptive/anticipatory) litigation by rights-holders, it would be the height of chutzpah to claim the power to intervene as the law's primary defender if it does not like the private -party delegee's litigation decisions. Kentucky's SG seemed to recognize the crux of the issue as the difference between the state acting when it is defending a law challenged in offensive constitutional litigation and the issue is which executive officer can lead that defense and the state acting when a private person has enforced the law by initiating judicial proceedings and the question is how the law is being litigated.

Competing incentives and obligations create a unique twist on this exchange as to SB8. An anti-choice SB8 plaintiffs who loses in the trial court has less incentive to appeal the constitutional issue if they lose in the trial court. Given the obvious (for-the-moment) invalidity of SB8, anti-choice activists are better off with the threat of litigation and liability chilling providers than they are appealing an adverse judgment and establishing likely adverse binding precedent. But what about the state? Would it attempt to step-in if a private plaintiff gives up on litigation? Or does it have the same incentive to let sleeping dogs lie and leave the constitutional issue unresolved as binding precedent and allow the chilling effect to continue.

This reflects another difference between offensive and defensive litigation. Offensive litigation produces a  remedy for the rights-holder, such as injunction, that, depending on the plaintiff and the right at issue, protects against future enforcement. The state thus has an incentive to appeal to avoid those those prospective limitations. Defensive litigation does not grant a rights-holder a prospective remedy, only a favorable judgment in one attempted enforcement. Like the private SB8 plaintiff, the state may be willing to take the loss in that case but to leave the legal issues unresolved to allow future enforcement and future litigation.

Posted by Howard Wasserman on October 14, 2021 at 06:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Posted by Howard Wasserman on October 13, 2021 at 06:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, October 12, 2021

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Posted by Howard Wasserman on October 12, 2021 at 11:14 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, October 10, 2021

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.

 

Posted by Howard Wasserman on October 10, 2021 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 06, 2021

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

Posted by Howard Wasserman on October 6, 2021 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Court enjoins enforcement of SB8 (Updated and moved to top)

Order here. I am beginning to go through it. I have already found some loose language about the US stopping states from enacting invalid laws, as opposed to enforcing. But it adopted the broad views of standing I expected.

OK, I am back. Nothing in here is too surprising. A few comments, mostly as it affects my interests in the procedure of the case. My overall conclusion is that the result is defensible in the unique context of a suit by the United States. But it is wrong in a number of points along the way, reflecting the common mistakes in the overall discussion of SB8.

• The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.

• The court ignores the distinction between enforcement of a law and the creation and existence of a law, treating both as a source of a constitutional violation and something to be enjoined. This is wrong, as stated in Massachusetts v. Mellon, a case the court relies on in according the U.S. parens patriae  standing. The court compares this case to Cooper v. Aaron. But Cooper was about enforcement--the local officials sued were members of the executive branch who were executing the laws surrounding school admissions and thus were proper subjects for an injunction. The legislators who enact a law do not enforce it and the executive officers do not do anything here. The court ignores that distinction.

• Both of the above are unfortunate, because there is another way. The court points out that the state delegated enforcement authority to private individuals--that is, the act of delegation is state action. Delegation makes the private actor part of the state, so the "state" should include those private actors exercising delegated state power, separate from judges and clerks. An injunction against the state reaches everyone acting for the state, including all authorized private individuals. I think that is justifiable and consistent with the idea that courts enjoin executives from enforcing laws, no one else.

Update: I should clarify the above. A  court enjoins actors from doing certain things. It enjoins the executive from executing, but cannot enjoin the legislature from legislating and cannot enjoin judges from judging. If one enjoined party does all three things, then the order must be limited to enjoining that executive function, but not the other functions. The rough analogy is Supreme Court of Virginia v. Consumers Union, an action against the state supreme court and its chief justice over bar disciplinary rules. The court performed three functions--it legislated in enacting the rules, executed in initiating disciplinary proceedings, and adjudicated in ruling on those proceedings. The Court allowed the injunction, but only as initiating disciplinary proceedings. Similarly, the court could enjoin Texas from enforcing, capturing everything and everyone under Texas law authorized to enforce, including deputized private individuals.

• The court buys the United States argument that meaningful judicial review means federal judicial review that begins in a federal district court. Anything else--including SCOTUS review of state-court judgments in which constitutional rights are raised defensively--is constitutionally deficient, precludes individuals from vindicating their rights, and warrants federal judicial intervention before anything can happen in state court.. The court emphasizes how state procedure limits providers' ability to defend SB8 actions in state court through (the court implies) invalid restrictions, without considering that the validity of those restrictions can be challenged in state court and can form the basis for SCOTUS review. Everyone on the left is lauding this is "indisputable," as calling Texas out on a cynical and invalid ploy to avoid judicial review.

But this position means that state tort law is invalid, to the extent a tort is defined in an unconstitutional manner. To use the example we include in our papers: Imagine a state anticipates the overruling of New York Times and redefines its defamation law to not require actual malice. Since tort law can only be enforced in private litigation, would that procedure also be improper, justifying an injunction against state judges? And if not, what is the difference between this case and my hypothetical new tort law? The implicit answer is SB8 is not tort law, because the authorized plaintiffs have not been injured. But that begs the question of what "tort law" is and whether a state can adopt a broader understanding of what injuries are or should be sufficient for suit. The court never addresses this.  This case is different from ordinary tort law, but those differences go to why SB8 plaintiffs act under color when ordinary tort plaintiffs do not. But it should not change anything about the routine and proper nature of private civil litigation and of raising constitutional rights in a defensive posture.

• The court addresses Texas' concern that this opens the door to the United States suing states, insisting the U.S. will limit itself to the exceptional case. I have described this as the U.S. suing when it can get "more bang for the buck" through a single big case. The court identifies some features that make this a big case.

• I agree with the broad take on U.S. injury and an equitable cause of action even absent congressional authorization. And I agree that there is causation and redressability, but not for the reasons the court identifies.

• Texas filed a Notice of Appeal to the Fifth Circuit (PIs are immediately reviewable) and stated it as related to the pending appeal in the WWH case. The question is whether the Fifth Circuit or SCOTUS stays the injunction pending review. They should not stay it. This is a blatantly invalid law. Once a court finds the correct procedure to enjoin enforcement, the irreparable harm from actual or threatened enforcement means the injunction should be in effect until resolution of the litigation.

More to come, almost certainly.

Posted by Howard Wasserman on October 6, 2021 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)