PrawfsBlawg

Guest Blogger: Chad Oldfather on Judging, Judges, and Judgment

I am pleased to announce that Chad Oldfather (Marquette) will guest-blog on his new book, Judges, Judging, and Judgment (Cambridge University Press, forthcoming this week). His posts will begin tomorrow.

Can Donald Trump block people on Twitter?

I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.

Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.

It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.

Curious to hear what others think. What's that definition of insanity everyone uses?

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

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

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

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

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

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

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

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

JOTWELL: Pfander on West on constitutional torts

The new Courts Law essay comes from James Pfander (Northwestern) reviewing E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. ___ (forthcoming 2025) on how reconceptualizing constitutional rights changes the process of litigating constitutional  rights. I am also thinking about how it affects disputes over offensive and defensive litigation and laws such as S.B. 8.

Roberts to Court critics: Be nice, be truthful, and listen to what we say

Forgive the snark, but that is the best summary of the 2024 Year End Report on the Federal Judiciary. Roberts begins with the usual historical lecture, this one on judicial independence from 1761-Present. He goes from George III interfering with colonial judges through the Declaration complaining about that interference through the Convention and The Federalist establishing life tenure through Marbury and into modern times, framing judicial independence as a necessary concomitant of judicial review. He identifies four threats to judicial review: 1) Violence; 2) Intimidation; 3) Disinformation; and 4) Threats to defy judgments.

One problem is that his framing of "intimidation" is so capacious as to cover most constitutionally protected criticism of judges and judicial decisions. Intimidation includes: disappointed litigants urging online followers to send messages to the judge; disappointed litigants claiming the judge was biased against them for various reasons; doxing of judges leading to people protesting judges at home and in public; and suggesting political bias in rulings "without a credible basis for such allegations." He finishes with this: "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others." He segues into disinformation disconnected from intimidation, such as "distortion" of the factual or legal basis for a decision, which "can undermine confidence in the court system."

Criticism of the courts must be, as my title suggests, nice, polite, and truthful--otherwise it constitutes improper intimidation and a threat to judicial independence. Never mind that public debate may (and should) include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Never mind that all speech directed at all people "may" cause bad people to do bad things--that cannot be the basis for silencing criticism of public officials. Never mind that Roberts does not--and cannot--explain who decides what criticisms are accurate or inaccurate and when there is sufficient basis for a charge of political bias or when a criticism crosses into "distortion." Absent any basis for measure, the answer must be "do not criticize the courts" lest that criticism become illegitimate--and dangerous-- intimidation. As with "I believe in free speech, but . . ." the but in "you can criticize the courts, but . . ." subsumes everything before it. And gives the rhetorical game away.

Roberts also uncorks this: "Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals." This is a long-standing--and patently false--trope. In 2024 alone, Justice Alito, Judge Jones, Judge Duncan, and others showed that they enjoy many outlets and opportunities--including friendly press outlets--through which to issue rebuttals.

To his credit, Roberts frames the disobedience point in the right way. He does not target the Southern Manifesto as defiance of Brown itself. He focuses (properly) on lower courts' decisions post-Brown/based on Brown to integrate other schools, specific instances of governors defying those specific lower-court orders, and Eisenhower and Kennedy enforcing those lower-court orders.

Finally, Roberts pays single-paragraph lip service to the courts' responsibility for maintaining their own legitimacy--stay in their constitutionally assigned lanes, respect standing limits, and respect coordinate branches. He expresses "confiden[ce]" that judges will "faithfully discharge their duties." Put aside the conspicuous absence of any acknowledgement or awareness of the Court's ethical problems. And put aside the conservative realignment to loosen standing and expand the scope of the Court's lane, a realignmentn in which Roberts has played a role. It does not matter whether judges faithfully discharge their duties; for Roberts, any suggestion that any judge did not do so is improper intimidation and disinformation.

Jimmy Carter and the courts

On the death of former President Jimmy Carter, some thoughts on his judicial legacy.

• Carter famously did not appoint a SCOTUS Justice. He is the only 20th-century President and the only President since Andrew Johnson not to get an appointment (the others with none are William Henry Harrison and Zachary Taylor). I use Carter in Fed Courts to illustrate the randomness of appointments in our system--other Presidents who served one term (or less) appointed at least one Justice and in some cases many more.

Carter was a victim of bad timing with respect to the Court. Nixon/Ford made five appointments in eight years from 1969-77, replacing the old-and-long-serving liberals (Warren, Black, Douglas, as well as Harlan) with younger members who obviously were not ready to resign. In 1980 (the final year Carter could have made an appointment), Thurgood Marshall (72) had been on the Court for 13 years; Byron White (63) for 18 years; and William Brennan (74) for 24 years.* (Potter Stewart was 65 and had served for 22 years, but he was a Republican and not inclined to give a Democrat the seat--he retired in 1981, allowing Reagan to appoint Sandra Day O'Connor). Perhaps if Abe Fortas had not been forced to resign he would have been ready to resign at age 70 after 15 years. Or, for a deeper counter-factual, perhaps if Arthur Goldberg had not resigned in favor of Fortas, he would have been ready to resign at age 72 after 18 years (and perhaps a decade as Chief). The point is that from 1977-81, no Justice happened to die or get sick and no one was of the age, tenure, or inclination to retire, strategically or otherwise. Carter was stuck.

[*] When Josh Barro argued that Justice Sotomayor should resign to give Biden the appointment--an argument I criticized--he compared Marshall's failure to resign in 1980, which lead to to Justice Thomas. Yet Brennan was two years older, had served almost twice as long, and also did not last the 13 years until the next Democratic President.

• Carter appointed an extraordinary number of lower-court judges, thanks in part to a 1978 law that created 152 new judgeships, which he filled during the final half of his term. Carter was the first president to meaningfully diversify the federal bench in terms of gender and race, filling judgeships with leaders of the Civil Rights and women's rights movements. I clerked for one of those judges--James T. Giles, who served for almost 20 years (1979-2008) on the Eastern District of Pennsylvania, including six years as Chief. Although not part of the movement, Giles worked at the EEOC and the NLRB right out of law school prior to private practice and taking the bench at the age of 36.

• My 2021 study of Academic Feeder Judges found that Carter appointees led the way in producing academics. Of the top 102 lower-court judges, 26 were Carter appointees; of the top 51 district judges, 18 were Carter appointees.

Hypocrisy and question-begging on standing

A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.

Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.

Tell me what a heckler's veto looks like, this is what a heckler's veto looks like

Prattville, AL removed Prattville Pride's float from the annual Christmas parade after Prattville Pride notified the city about vague threats (to throw eggs and water at the float) and asked for additional security and police presence. The mayor said the city would "not put the rights of parade participants ahead of the safety of tits (sic) citizens." Judge Huffaker of the Middle District of Alabama was having none of it, enjoining the city from keeping Prattville Pride out of the parade and ordering the city to provide police protection for the float and to enforce criminal laws as appropriate.

The court recognized that "the heckler’s veto is what the Court has before it today." That term has been abused of late, used (including by free-speech proponents) to cover loud-and-obtrusive counter-speech that makes life difficult for one set of speaker-and-willing-listener. The "preferred first speaker problem" (in which the first speaker is deemed a speaker and opposing speakers a form of censorship) reflects this over-expansion of the concept. This is what the concept means--one group threatens unlawful activity because it dislikes a speaker and the government's solution to potential crime is to silence the speaker.

Also, kudos to Judge Huffaker for FN 3: "During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that."

Trans rights and social movements

I had interesting email exchanges with readers regarding my posts on trans issues. I wanted to lay out a few of the additional issues (unresolved) about social movements:

• MLK, Thurgood Marshall, and others went all-in during the '50s/'60s/'70s, which proved the right move. But would it have been wise, or successful, in the '30s/'40s. Where is the trans-rights movement now? I would have thought it was closer to the '50s after Obergefell; now it feels like March 1877.

• The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."

    The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.

• There is an interesting order-of-operations problem--does government enact restrictions when groups begin advocating or do groups advocate against existing laws. The former seems more targeted and more cruel. It seems the former is at work for trans people--new laws enacted explicitly and expressly to prevent them from doing what they sought to do or hoped to achieve under existing laws and systems. By contrast, MLK moved against existing Jim Crow laws; Southern states doubled down on defending those laws but did not enact new laws. And no one attempted to enact new express prohibitions on disabled people. On the other hand, states enacted Jim Crow in response to Reconstruction. It probably depends on the moment in history in which one looks.

• Movement strategy is historically determined. It is harder to tell Group M to bide its time (especially within our modern understanding of the harms its members suffer) when Groups A through L have already established their rights. So MLK had to bide his time in the 1940s because he had nothing to build on; trans activists have 80 years.

• Size matters. Trans people represent less than 1 % of the population, compared with women representing 1/2 the population and Black people 10-15 %. It is easier for the state to target such a small group (obviously), more difficult to create a critical mass to support it, and easier for voters and others to say "why do you care so much" about issues that do not affect them. It thus is rhetorically and politically important to turn the numbers issue, to place the shame on those who would bully such a tiny group.

Major trans rights, minor trans rights, and political expediency

Jonathan Chait argues that Democrats must distinguish "major" from "minor" trans-rights questions and take a stand on the major questions while leaving minor (and, coincidentally, unpopular) issues alone. According to Chait (for whom this is bound up with sensitivity to accusations of being anti-trans):

The major questions about trans rights are: Do some people have the chance to live a happier and more fulfilling life in a different gender identity than the one to which they were born? Do some of these people need access to medical services to facilitate their transition? Do they deserve to be treated with respect and addressed by their chosen names and pronouns? Do they deserve equal protections from discrimination in employment, housing, and military service? Must society afford them access to public accommodations so as not to assault their dignity?

* * *

Democrats mainly ran into trouble because they either supported or refused to condemn a few highly unpopular positions: allowing athletes who transitioned from male to female to participate in high-level female sports, where they often enjoy clear physical advantages; allowing adolescent and preadolescent children to medically transition without adequate diagnosis; and providing state-funded sex-change surgery for prisoners and detainees.

Some thoughts about why it is not as simple as he makes it sound:

• Republicans and MAGA do not draw these distinctions. They use the unpopularity and demagoguery of the "minor" issues to attack the major issues. And since most people do not draw Chait's distinctions, no one will notice when the policymakers sweep away the major issues in a broad attack on trans rights which they justify by the minor issues. Stated differently, the minor issues represent the camel's nose to get the major issues. Democratic surrender on the minor issues will empower, not assuage. Chait insists the evidence shows that efforts to target major issues would be unpopular. Recent state legislative efforts (likely to be copied in the Trump Administration) suggest he is wrong.

• The minor issues are straw people, grounded in false narratives, or at least debatable.

    • I discussed sports. But Chait sweeps away issues, such as defining "high-level." Professional and Olympic, obviously. What about college--is there a difference between Division I and Division III? Or between Power 5 women's basketball and Mountain West volleyball? What about high school, where a cis-girl's loss to a trans-girl in a track meet deprived the former of opportunity to run in college?

    • Doctors do not commonly prescribe or provide medical transitions without adequate diagnoses (as they do not commonly perform any procedure without adequate diagnosis); restricting this would be redundant and performative. And using the rare ambiguous story as a cudgel to suggest a broader problem demanding action (as Chait and others did) is intellectually dishonest.

    • Prisoners have an 8th Amendment right (and detainees a 5th Amendment right) to constitutionally adequate care; in a humane penal system (yes, I know), the state should surpass the constitutional floor. Beyond general opposition to trans rights, no one has offered a good reason for denying that form of medical care while providing (as constitutionally required) other medical care. Especially because the number of prisoners/detainees who would seek (and thus the public cost of) this care would be so small--contrary to MAGA demagoguery and compared with what states spend on common treatments for a larger number of prisoners.

In other words, Chait's minor issues are not so different than his major issues, other than some sense of popularity and his personal preferences.

• Chait ignores several issues (or is not explicit about them) that sit on the leading edge of the anti-trans movements. He never mentions bathrooms. And he never mentions government documents (which might fall under names and pronouns, but it is not clear).

60 Minutes swallows nonsense campus-speech narratives

In an absurdly fawning piece on University of Austin as the answer to cancel culture and student self-censorship (uncited, but obviously based on FIRE's statistic nonsense) and thus the only place committed to open-minded and all-sides debate (as opposed to a politically one-sided grift).

The piece reveals the stickiness of the conservative narrative of censorious liberal students attacking conservative speakers and making them "feel" unwelcome while the right commits the free-and-open exchange of ideas. t never distinguishes between government censorship and one person's First Amendment desire to disassociate from another person because the latter spews hateful ideas. And it never mentions: 1) Florida's actual laws restricting what faculty and students can say, teach, and learn on campus and seeking to eliminate tenure or 2) four university presidents (whom the piece mentions at the outset as an example of left censorship) lost their jobs because Republican legislators and wealthy donor Bill Ackman (mentioned as a UATX supporter) believed they had failed to sufficiently restrict or sanction pro-Palestinian campus speech. It thus continues the narrative that the real threat to free speech is an offended sophomore at Oberlin and not the laws of a state.

Trans rights, the 2024 Election, and Trump II (Updated)

I have been tossing around ideas for this post since the election. My thoughts are not fully formed, but I wanted to get them down on paper.

• Trans and non-binary people form a vanishingly small percentage of the U.S. population. The question is what to do with that information. One narrative criticizes Republicans for obsessing and seeking to suppress a tiny group whose existence does not affect their lives--"why do you rally around hurting such a small group." A second criticizes Harris and Democrats for caring so much--"why do you care so much about (and feel the need to express support for) such a small group." Unfortunately, the latter has taken hold among Harris voters, particularly in light of evidence suggesting that Trump's anti-trans rants (the "She's for They/Them, Trump is for you" ad and Trump's stump bullshit about boys coming home from school as girls) moved meaningful numbers of votes. On the second narrative, it is not enough for Democrats to downplay support for this group--Harris should have responded by joining Trump and Republicans in piling on this group and agreeing to push them out of the polity. And the required move becomes not just declining to "promote" trans issues (whatever that means), but refraining from protecting trans people when the other side attacks. The idea seems to be that a small vulnerable group does not need protection.

• For example, see this word salad from Massachusetts Democrat Seth Moulton: 1) "There are just a number of issues where we’re out of touch;" 2) “I think that Republicans have a hateful position on trans issues;”3) Democrats still lose voters because of the party’s “attitude;” 4) “Rather than talk down to you and tell you what to believe, Democrats should “listen to hard-working Americans.”

    Let's put aside Moulton's apparent dichotomy between trans people and hard-working Americans. Moulton serves as a policymaker (or at least pretends to), so make policy of those four statements: The Republican position on trans issues is hateful. But hard-working Americans agree with (or at least are not repulsed by with that position, so Democrats are out of touch if they fail to listen to those hard-working Americans. And that leaves us where in terms of policy, Rep. Moulton?

• This is about pushing this group out of the polity, taking steps to keep them from living their lives as they see fit. Anti-trans activists and officials advertise sports and bathrooms as the key issues and the servile media transcribes it. I will come back to sports in a second. But note that the anti-trans policies on offing extend beyond those issues. Several days after the election, Trump had a social-media post enumerating anti-trans proposals he plans to pursue--stripping federal funds from hospitals that provide gender-affirming care, denying Medicaid funds for gender-affirming care, banning trans people from the military, suppressing classroom discussions of trans issues, etc. And Trump nominated as surgeon general the person who pushed and enforced many of Florida's anti-trans efforts. This is not about sports-and-bathrooms.

    Also nonsensical is the feint towards "reasonable" compromises (most recently by now-former Texas Democratic chairman Gilberto Hinojosa) by making this a pocketbook issue--let people do what they want but don't make taxpayers fund it. The amount of any taxpayer money that goes to any expenditure is infinitesimal--that is why we do not allow federal taxpayer standing. And we do not allow individual taxpayers to opt-out of particular expenditures--we do not prohibit Medicaid funds for Sickle Cell Anemia treatments to appease those who do not like Black people. Again, such efforts single out trans people for differential treatment for no reason other than some segment do not like them.

• I confess to being wrong about how central these issues will be to the new administration. I thought this was a cynical political move but that once in office Trump would focus on the things he cares about: immigrants, tax breaks for billionaires, personal enrichment, and revenge on his political enemies. The House GOP freakout over Sarah McBride and some of Trump's nominees suggests this is going to be a central feature in the coming years.

• On sports--this is a real issue but also a straw man that does not justify the broader policy proposals. The science is out on how much advantage male puberty provides once a trans woman undergoes hormone therapy; while the "fairness-and-safety" argument is important, it cannot end the conversation. Even if the science is there,  anti-trans policy (barring all participation in all sports at all levels) is (stop me if you heard this one before), over-inclusive: It applies to sports (e.g., swimming) without safety issues; it applies to sports (archery, bowling, shooting) without sex-based advantage and thus no fairness issues; it applies to trans men playing men's sports (where biological advantage runs the other way); it applies to all ages and levels of competition (drawing no distinction between grade-school, high school j.v. and the Olympics). Policies target people who never went through male puberty so never received the supposed advantages.* And some of the cases that have drawn legal responses have targeted individual players who are not very good at their sports or certainly not so superior in their sports as to create an unfair playing field.**

[*] Or worse, work in tandem with bans on gender-affirming care for minors. So trans girls cannot play girls sports because they have  an advantage from male puberty, but we are going to force them to go through male puberty.

[**] Bey0nd the inherent genetic unfairness that defines sports. Michael Phelps is a genetic anomaly--no one complained that he had unfair biological advantages.

The longer I have worked on this, the angrier I have become. I apologize if this is more of a jeremiad than I expected when I started.

[Update]: I may owe Rep. Moulton some sort of apology. According to this interview with Rolling Stone, the Times quoted him out of context and slapped a headline on the story that made him sound more opposed to trans rights than he intended to suggest. Post hoc CYA or genuine? You decide.

Norberg on the InfoWars/Onion Bankruptcy Controversy

I asked my colleague Scott Norberg, a bankruptcy expert and a member of the BK Rules Advisory Committee, for his thoughts on the InfoWars/Onion Bankruptcy controversy. (TL:DR -- The Onion bought InfoWars in the bankruptcy auction in a bid supported by the Newtown-parent creditors; InfoWars, the State of Texas, and a bunch of right-wing people are objecting in typically performative terms). Scott's comments after the jump.

The Onion’s bid is the best one for the estate, superior to First Union’s.  The trustee’s job is to maximize the proceeds from the sale of assets for the benefit of the unsecured creditors and he’s the expert in doing that.  (Indeed, his payment in the case is based on a percentage of the monies generated by the sale of assets.)  Further, the fact that the major creditors support the Onion bid validates the trustee’s assessment of the competing bids.  After all, he is liquidating the estate on their behalf.  I see the bankruptcy judge’s expressed concern about transparency, but the potential for some creativity in the bid packages was probably inherent in the secret written bid procedures and the fact that the sale of assets was not conducted by live auction.  Jones’s and First United’s allegations of collusion seem way overblown if not desperate.  Jones’s history of playing fast and loose with the legal system leaves him with little credibility.  That said, you know what they say about keeping of with the Joneses. . . . Ultimately, the bankruptcy judge’s decision regarding the better bid is subject to an abuse of discretion standard of review.  The appearance by the Texas Comptroller seems heavy-handed and political.  It will be interesting to see what they have to say at the hearing, or if they are even permitted to speak – not sure that they would be considered a party in interest.

JOTWELL: Levy on Bayefsky on judicial institutionalism

The new Courts Law essay comes from Marin Levy (Duke) reviewing Rachel Bayefsky, Judicial Institutionalism, ___ Cornell L. Rev. ___ (forthcoming 2024), on the role and need for institutionalist judges and judging.

JOTWELL: Michalski on non-adjudication

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg, No Adjudication, on how much litigation resolves without a judicial determination and without the filing of more than initial pleadings.

Trump victories and institutional statements

The Chronicle of Higher Ed (paywalled) notes the absence of statements from university leaders about the election of Donald Trump, compared with the dozens that followed the 2016 election. The story highlights new letters from the presidents of Wesleyan, American, Emerson, and Morgan State (an HBCU). It also notes that it has been two days--the big joint letter of more than 100 presidents came more than a week later.

The article speculates a bit about why. It points to the recent increase in schools adopting Chicago Principles and institutional neutrality.* I wonder if the size of Trump's victory and the nature of his expanded coalition matters. A message of "we stand with and support members of X group likely to be targets" does not fly when many members of X group voted for this. Nor can one frame a narrative of "the country does not want this and you are in office by fluke of a bizarre election mechanism"--national and EC majorities clearly do want this.

* It describes that shift as a "backlash to pointed statements from some presidents about protests over the war in Gaza." I question that framing. Many schools adopted neutrality in response to criticisms of their perceived failures to speak about October 7 and the events that followed--recognizing (for good or nefarious reasons) the bind that general political engagement had created for them and the need to escape the hurly-burly of politics.

A word on the statement from Wesleyan President Michael Roth (which we received via email yesterday). Roth opposes institutional neutrality and believes universities should take institutional positions. But a believer in institutional neutrality would be comfortable with and supportive of most of what Roth said here. Chicago principles do not require institutional silence; the Kalven Report said:

[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

Roth focuses on specific pieces of the college's mission and values that will be vulnerable in the coming political regime--recommitting to campus DEI efforts and to academic freedom. These concerns affect the college as an institution of higher ed, exactly what a president should highlight, discuss, and protect on behalf of his college. It goes beyond general politics and the generic "people throughout the country are scared, please reject hate and govern justly" that marked the 2016 joint letter. Roth includes some flowery stuff about democracy and the rule of law, but he ties it to core pieces of the higher-education endeavor.

Sports Election Predictors

My quadrennial post. As when Trump won in 2016, they failed badly:

• World Series Missed: The National League Dodgers won the World Series (as they did in 2020, when Trump lost). This is now 18 for the past 30, 13 of 20 since the end of WW II, and 5 of 7 in the milenium (with Trump victories providing both misses).

Washington NFL Team Missed: The Washington Commanders beat the Bears in the final home game before the election (on October 27) on a last-play Hail Mary (that some were calling the Harris Hail Mary). As a predictor of a party retaining the White House, this is now 17/22, although wrong on the last four.

Ending Sports Droughts Hit: This favors Republicans. The Florida Panthers won their first Stanley Cup in franchise history and the New York Liberty won their first WNBA title. Each team has existed for less than 35 years (Panthers founded in 1993, Liberty in 1997) so these are short droughts compared with the Phillies winning the World Series for the first time after 97 years (Reagan in 1980) or the Cubs winning after 108 years ( Trump 2016) or the Red Sox after 86 years (W. 2004). Still "first title in franchise history" represents a milestone and breaks a meaningful drought regardless of how long a team has existed.

Finally, unrelated to sports but running through my mind this morning amid news of Trump's gains with Latino voters: The old saying was "Jews earn like Episcopalians but vote like Puerto Ricans." It turns out many Puerto Ricans do not vote like Puerto Ricans.

The Inconspicuous DHS

Apropos of Paul's post, I would recommend Chad Oldfather's The Inconspicuous DHS, written several months before RBG died.

Morality and why politics is not sport

This by Josh Chafetz captures the problems with "it's just politics and not worth destroying family and friendships" (most recently by J.D. Vance during a campaign event). Josh's key insight is that politics is not a hobby; it is a means to the ends of how we live. And one reasonably can (and perhaps should) have a line at which another person's views and desires of how we should live outweigh friendship. The debate is about where people draw the line, not about whether people should draw the line.

This is bound up with the sportification of politics. Politics is sport--games we watch for fun without real-world consequences. So if I can marry an Orioles fan or talk college sports at Thanksgiving with my uncle who went to the rival college or be friends with a White Sox fan, I can do the same with a person whose political preferences, if enacted into law, would strip my child of basic rights.

Shabbat and high-leverage World Series games

I am not sure I understand the point of this article about how the switch to the World Series beginning Friday night uniquely adversely affects the large Orthodox communities in New York and Los Angeles. Historically, the World Series played on Tuesday and Wednesday; Friday, Saturday, Sunday; then Tuesday and Wednesday (if necessary). Now it goes Friday and Saturday; Monday, Tuesday, Wednesday; then Friday and Saturday (if necessary).

So there always have been games Friday and Saturday, including when the Yankees and Dodgers played in 1977, 1978, and 1981. In fact, it was worse back then because they played Game Four on Saturday afternoon, meaning Orthodox fans missed all or most of two games.

The article seems to argue that the difference is that now Orthodox Jews miss significant or high-leverage games. Opening game has unique majesty and pageantry. And according to a 2014 SABR study, the team that wins Game One wins the Series about 64 % of the time. And Game Six will now be on Friday night, so they cannot watch the clincher of a close-but-not-to-the-wire Series. This contrasts with the past scheme, in which they missed a non-clinching Game Three and the clincher of a sweep.

The article's premise that this is a new problem seems a stretch, although I am not Orthodox. My only concern is that the National League team win, a far cry from my childhood when I lived and died with the Yankees.

Attorney courage and state interference

More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.

As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.

As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

More free speech in Free Florida

Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.

Some thoughts on the suit and the decision:

• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.

• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.

    Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.

    I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without

• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."

    The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.

• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."

Limits of private enforcement in a mixed scheme

In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.

And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's

A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.

So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.

We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.

NCAA adopts too-many-men limiting rule

The NCAA adopted a limiting rule in response to the too-many-players penalty in the Oregon-The Ohio State game. It creates a unique penalty for too many players "actively participat[ing] in a down," giving the offense five yards and the option of having the game clock reset to the time at the snap.

This differs from the NFL's solution. This is is not a dead-ball infraction; the teams must run the play against the extra defenders. But the clock reset leaves the teams in the same place, eliminating the perverse incentive for the defense by eliminating any benefit on the play.

Vagaries of public enforcement

As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.

Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).

The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.

In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.

Intentional too-many on the field on OU-TOSU

Oregon beat The Ohio State 32-31 Saturday night. The game was marked by a fortuitous or intentional late-game Oregon penalty.

Oregon lead by 1 with 10 seconds left and Ohio State with the ball on the Oregon 43 yard-line. Following a timeout, Oregon took the field with an additional deep safety (thus blocking any deep passes). The defense broke-up a short pass and ran four seconds off the clock, although it incurred a five-yard too-many-players penalty. But those five yards did not move TOSU into field-goal range, while the four seconds lapsed left time to run only one Hail-Mary. No one knows whether Oregon did this intentionally and Coach Dan Lenning did not say.

I wrote about this strategy in my Infield Fly Rule book, identifying it as a play requiring a limiting rule a la the IFR. The Giants unintentionally achieved the same effect at the end of Super Bowl XLVI, incurring a penalty when a twelfth defender was unable to leave the field (although he was not involved in the play) but gaining a time advantage that kept the Patriots from scoring the winning touchdown. Buddy Ryan designed this as "Polish Goal Line Defense," featuring three extra defenders to stop a goal-line play. I argue in the book that cost-benefit exchange on this play is not entirely one-sided (as with the IFR)--the disadvantaged team gains the benefit of five yards and the infringing team gains the benefit of lapsed time. But in this game situation, the former benefit is meaningless while the latter is overwhelming, effectively creating a one-sided exchange.

The NFL addressed this about a decade ago (following SB XLVI), introducing a dead-ball infraction for having too many players in formation (that is, ready to be involved in the play); the play is whistled dead and no time runs off the clock when officials identify the extra defender. This removes the incentive to intentionally incur the penalty by removing the time benefit. College football does not have this infraction, so the refs could not call the penalty until after the play. See if the NCAA makes this change after the season.

The Free State of Florida

I am getting the hang of this "Free State of Florida" thing, as well as the general Republican status as the party of free speech. It does not undermine freedom (and free speech in particular) to remove books from libraries; to control what teachers say in and out of the classroom; to control what professors write; or to require social-media companies to carry certain speakers and messages on their private sites. And now it does not violate free speech for the head of an executive agency to send a letter to a tv station warning it about legal implications, including criminal prosecution, if it runs a political ad that he insists is false.

For all the Republican talk about Tim Walz spouting fire in a crowded theatre (and I wish he would stop doing that), this line--the right to free speech "does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida"--is a long-winded way of telling the station it can be punished for doing just that.

And, of course, Oberlin sophomores shouting about a Charles Murray talk constitute the real threat to free speech.

Pete Rose, the Hall, and competing statutory interpretation

Given news that Pete Rose died Monday at age 83, I re-up this post discussing two TV documentaries (one new, one a few years old) about Rose and the Hall of Fame, specifically this point about posthumous Hall induction that has become newly relevant:

Someone (I think long-time Reds announcer Marty Brennaman) says it would be a tragedy for Rose to be inducted posthumously. I wonder. Rose supporters argue that the Hall is a museum that should record the history of the game and its players; Rose deserves a spot because the story of baseball (and certainly not the story of baseball in the 1970s and early '80s) includes Rose. But it also is a shrine, a way to honor, grant a title ("Hall-of-Famer" or "First-Ballot Hall-of-Famer"), and bestow unique privileges to certain players. Perhaps posthumous induction offers the right compromise: Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize**--being a living Hall Member.

But, as I mentioned in the same post, posthumous induction requires some cooperation and compromise between MLB and the Hall. Rose's name remains on MLB's ineligible list, even after death. Under MLB's interpretation of its eligibility rules, ineligibility ends at death (when a person no longer can hold any formal position within MLB or a team); it thus lacks any mechanism for removing a deceased player from the list. But the Hall interprets MLB ineligibility (and thus Hall ineligibility) to continue until MLB affirmatively removes a person from the list. Someone therefore must alter its interpretation--either MLB must create a mechanism for removing deceased players from the list (making them legally, if not practically, eligible) or the Hall must be willing to accept someone as not practically ineligible although his name remains on the list.

I feel as if there is a Chevron analogy at work here.

Fifth Circuit makes a Heck-of-a-mess

I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).

At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.

Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.

Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.

But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.

I cannot believe the Court will not take this case. Lord knows how badly they will botch it.

Tinker and universities

The Sixth Circuit reversed a 12(b)(6) dismissal of a lawsuit by a then-pharmaceutical student who was investigated and dismissed (although the dismissal was reversed) for social-media posts that violated "professionalism" standards. The court found her speech protected and that the right of a university student not to be punished for protected speech clearly established (despite on-point precedent involving a pharmaceutical student and social-media posts about sex and fashion). It also handles some fun Civ Pro stuff about what evidentiary materials a court can use on a 12(b)(6) without converting to summary judgment.

This should be an easy case, at least at 12(b)(6). Her speech was online and off-campus; unrelated to the school, her activities as a student, and her future career as a pharmacist; and violates professional norms only if those norms are unacceptably content- and viewpoint-based.

One problem: The court relied on the "disruption" test developed in high-school speech cases (Mahanoy and Tinker). Circuit precedent requires it, although recognizing that what disrupts a university should be different than what disrupts a high school. Still, the prospect that a university can restrict speech under the quasi-heckler's-veto that prevails in high schools is dangerous. In essence, that is what the school tried here. And I would have preferred a more rousing defense of an adult's free-speech rights.

Procedure Matters, Episode LIX

Kind of a weird one but it illustrates how the rules operate and interact in confusing ways.

Plaintiff brings False Claims Act qui tam action; defendant answers but does not raise the constitutional invalidity of qui tam actions as an affirmative defense; defendant moves for judgment on the pleadings based on constitutional invalidity (qui tam actions violate Article II). The court denied the motion because defendant did not raise the affirmative defense in the answer, so it is not part of the pleadings for FRCP 12(c) purposes. Defendant had to amend its Answer to add the constitutional defense, which might be tricky since the court had set a scheduling order (which heightens requirements for amending).

This is a plausible outcome. But I think the court errs (or at least fails to perform proper analysis) in two respects. Both go to the court's failure to actually decide whether qui tam actions violate the Constitution.

First, the constitutional defense should be a built-in defense--the constitutional validity of the law sued upon should be built into the complaint's allegations of a violation of that law. Defendant could have responded to the complaint with a 12(b)(6) motion raising the constitutional defense, which would have forced the court to decide whether the Constitution permits qui tam actions. If so, a defendant should be able to raise a built-in defense on a 12(c); even if not pleaded in the answer, the affirmative defense is built into a complaint that mentions and includes allegations about the FCA. For comparison, a defendant can raise the statute of limitations on a 12(b)(6) if the complaint includes dates showing the claim is untimely; if the defendant answers without an SL defense and moves under 12(c), the court can still look at the complaint, see that the complaint is untimely, and grant the motion, even if the defendant did not plead SL.

Second, before deciding the defense must be in the answer, the court waves away the constitutional analysis. The court says this (and this is all it says):

Under the present state of the law, Defendants’ separation-of-powers challenge to the qui tam provisions of the False Claims Act is insufficient on its own to demonstrate that Relators’ complaint is implausible. Further, even if “[t]he FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,”and even if it is time to revisit the matter, it is equally true that “lower federal courts should not ‘pass on questions of constitutionality . . . unless such adjudication is unavoidable’ . . . .”

That is a cop-out. If qui tam actions are constitutionally invalid, they do render the complaint implausible--no reasonable inference from the facts taken as true shows plaintiff can recover, given the constitutional defects in the FCA. But the court must decide the open constitutional question to make that plausibility determination. It cannot stop with pointing out that other (non-binding) precedent has gone the other way and thus does not outright preclude the claim or make the claim frivolous.

People will come, Ray

In memory of James Earl Jones, who died Monday. I used a piece of his monologue as an epigram my first piece on fan speech.

 

FIU College of Law seeks tenure-track doctrinal faculty

Florida International University College of Law, South Florida’s public law school, invites applicants for multiple tenure-track positions to begin no later than the 2025-26 academic year. We seek candidates in Environmental Law, Intellectual Property/Technology, and Criminal Law and Procedure, as well as coverage in other first-year and core upper-level courses such as Administrative Law.

FIU Law features a diverse, intellectually vibrant faculty community celebrating scholarly engagement, public service, academic freedom, and transformational teaching. It ranks as the third most diverse law school nationally and graduates more Hispanic lawyers than any other law school. More than a third of FIU Law students are the first in their family to attend college. FIU Law graduates have ranked first among the 12 Florida law schools on the last nine July administrations of the Florida bar exam.  In 2023, more than 90% of FIU Law graduates secured full-time, long-term bar passage required, J.D. advantage, or professional positions.  For more information about FIU Law, visit http://law.fiu.edu/.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It ranks as a top-70 public university in U.S. News and World Report’s Best Colleges, and is the fourth-ranked public university, according to the America’s Best Colleges 2024 rankings published on WSJ.com. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”). A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as a preeminent state research university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. (or its equivalent), a strong academic record, a record (or the promise) of scholarly achievement, and zest for effective teaching. Rank based on qualifications and experience.  Competitive benefits include excellent insurance options, a defined-benefit plan, defined-contribution plans, and a deferred compensation plan.

Applicants should send a CV, cover letter, and list of references to Appointments Committee co-chairs Eloisa Rodriguez-Dod and Howard Wasserman at [email protected]. Questions about these positions can be directed to Eloisa Rodriguez-Dod ([email protected]) or Howard Wasserman ([email protected]). Review will begin August 20, 2024, and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status.

FIU College of Law seeks legal writing faculty

Florida International University College of Law, South Florida’s public law school, invites applicants for a contract position in Legal Skills and Values, to begin no later than the 2025-26 academic year.

Legal Skills and Values consists of two required courses in the first year of law school and an additional required course by the end of a student’s fourth semester. The eight-credit sequence covers essential legal skills including legal research, objective and persuasive writing, legal analysis, oral communication, client counseling, contract drafting, and negotiation.  We seek collaborative, creative teachers to join our dedicated team teaching in the first-year portions of the program.

FIU Law features a diverse, intellectually vibrant faculty community celebrating scholarly engagement, public service, academic freedom, and transformational teaching. It ranks as the third most diverse law school nationally and graduates more Hispanic lawyers than any other law school. More than a third of FIU Law students are the first in their family to attend college. FIU Law graduates have ranked first among the 12 Florida law schools on the last nine July administrations of the Florida bar exam.  In 2023, more than 90% of FIU Law graduates secured full-time, long-term bar passage required, J.D. advantage, or professional positions.  For more information about FIU Law, visit https://law.fiu.edu/.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It ranks as a top-70 public university in U.S. News and World Report’s Best Colleges, and is the fourth-ranked public university, according to the America’s Best Colleges 2024 rankings published on WSJ.com. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”). A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as preeminent state research university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. Lateral candidates should show a demonstrated record of teaching excellence. Entry-level candidates should show commitment to excellence in teaching and significant potential as law teachers. At least five years of experience in legal practice and/or judicial clerkships is preferred.

Applicants should send a CV, cover letter, and list of references to Appointments Committee co-chairs Eloisa Rodriguez-Dod and Howard Wasserman at [email protected]. Questions about these positions can be directed to Eloisa Rodriguez-Dod ([email protected]) or Howard Wasserman ([email protected]). Review will begin August 20, 2024, and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status

AI and oral assessments

Over the years, we have had many posts and conversations about oral assessments. I have written about my oral arguments in Fed Courts and Civil Rights, which now provide the sole end-of-semester assessment (everything else happens in-semester).

A thought this morning: Would oral assessments provide a solution to the Chat GPT/AI problem?

Defending Michael Roth

Not that he needs me to. I agree with Steve--and have said as much, here and elsewhere--that university's discovery of the freedom to offend and to express the idea we hate miraculously appeared only when offense began targeting Jews.

As to Roth*: My instinct is to take him at his word--he intends to apply "no right not to be offended" across the board. He said as much during the parents' convocation last week. Of course, that tells us nothing about how the administrators in the DEI office act on the ground, but I only know so much at this point.

Full disclosure: I have been a fan for many years, since long before the current campus controversies or my kid's interest in going to the school. I saw video of him (from just after the Great Recession, when the bottom dropping out of humanities began accelerating) defending liberal arts and college education being about more than getting a job; I was hooked. That he has (mostly) gotten the speech stuff right--and that my kid decided to go there--only adds to my fanboydom.

Roth said something else to parents I found interesting: That students have a right not to be harassed but no right not to be offended and that the line between them is clear and obvious in most cases. And I think most people in that room agreed--it is clear and obvious. But I expect most would disagree with me (and him) about which side any particular case fell.

"Modest violations of the rules"

Wesleyan (where my son had his first class this morning) President Michael Roth published a NYT op-ed encouraging more political activity on campus this year, arguing that universities exist for the good of the individual and the good of the world, inherently political and public-leaning spaces in which to "practice democracy."

Speaking of last spring's encampments, Roth writes "[s]ince the protest was nonviolent and the students in the encampment were careful not to disrupt normal university operations, we allowed it to continue because their right to nonviolent protest was more important than their modest violations of the rules." Framing long-term encampments as "modest violations of the rules" is a unique take--certainly different from the notion that the encampments represented a sea change from small rulebreaking for a limited time to something "more aggressive, more interfering, and more permanent."

Musk suit proceeds v. Media Matters

So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.

On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.

On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).

While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.

Do reasons for non-enforcement matter?

The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.

Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:

That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.

I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.

Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."

Handball

Like many people every four years, I love team handball. Denmark won the men's Gold and Norway the women's Gold (with Denmark taking the bronze).*

[*] My non-sports-fan niece did a semester in Copenhagen. One day she and some friends encountered a massive crowd celebrating on the streets--turned out they were celebrating some big win by one of the teams. They had no idea why the crowd was out there but they joined the celebration anyway.

I do not understand why handball is not bigger in the United States, at least as a college sport. It fits the U.S. sports mentality--high-scoring, fast-paced, lots of running and jumping, and physical, although without the concussion risks of football and other tackling sports. (For example, it is a penalty and "suspension" to hit the goalie in the face with a shot, even accidentally). It combines elements of sports Americans already play and watch--basketball, soccer, lacrosse, baseball. It could attract good athletes from these sports with the promise of teaching the skills. For comparison, lacrosse (men's and women's) has developed a high profile at the collegiate level, including a fair number of nationally televised games. Many top programs (especially as the women's game developed) began with coaches seeking out good athletes and taking care of the rest. It seems to me the same could and should happen with handball, which involves skills (dribbling, throwing, running, jumping) that players already possess and do not require them to learn to handle a new piece of equipment.

As the host nation for the 2028 Olympics, the U.S. team automatically qualifies for the tournament. The U.S. is nowhere near ready to compete against the best international teams. But maybe a good showing will spark interest in the sport at lower domestic levels. In fact, that was USA Team Handball's plan in the mid-aughts when Chicago vied for the 2016 Games--get a team into the tournament and create interest and passion for a cool game. Maybe it can happen 12 years late.

Not just federal judges

There seems to be problem with judges acting out some skewed version of Scared Straight with people who do not meet their standards of decorum. Lacking life tenure, this guy may suffer consequences--he has been suspended, although only pending "sensitivity training."

Interestingly, the judicial immunity question may be more favorable to the girl, should she pursue a § 1983 action. I described why Judge Benitez was on the line. But as I read this story, Judge King was not presiding or conducting any proceeding when this happened. It was in court and the judge was in his robe, but he was conducting an educational program for a youth group, which should not be a judicial function (the group had watched a trial, but the trial had ended).

Why randomize assignments?

I guess I should have considered this when I answered Gerard's first question, but here goes: What would be the point of randomized assignments? Of all the things Congress can try to bring the Court to heel, why would it want to do this? Is the idea that analysis and precedential effect (if not outcome in this case) might change if Justice Barrett wrote a particular opinion rather than Justice Thomas? Assuming agreement on basic principles and given the collective nature of the writing process, would the final opinion be so different?

And might there be unintended consequences? Unable to get everything he wants, Justice Alito leaves the opinion in a 5-4 and writes separately, eliminating the majority and, to the extent Marks matters, giving more power to his individual opinion without him having to do the work of maintaining a majority. Do we lose something if there is no Justice who becomes the go-to person on some issues (e.g., Ginsburg on procedure or Gorsuch on Indian law).

If it does not do much as a stand-alone change, it might be a cute addition to Sherry's plan--random assignment of that single, unsigned, unenumerated opinion. This creates further distance between individual Justices and case outcomes.

It should be constitutional

In answer to Gerard's question: Suzanna Sherry proposed a system in which the Court issues one per curiam majority opinion, without names or counts. She defends constitutionality by arguing, in essence, that Congress cannot dictate or influence resolution of a case but can control how the Court communicates its decision. I think her argument would support the choice of who communicates the decision for the Court as well as how the Court presents that decision.

Faculty Hiring

Collegiality for collegiality's sake

Steve Vladeck's latest Substack (paywalled) discusses Justice Kagan's remarks at the Ninth Circuit Conference. With respect to collegiality, Steve quotes Kagan and writes the following:

Third, and in a similar vein, in responses to questions about how the justices are getting along internally, Justice Kagan pivoted to a response about why the answer shouldn’t matter that much to the public—not because collegiality is unimportant, but because the issue isn’t whether the justices are friendly; it’s whether their relationships influence their colleagues. As she put it:

“I can’t imagine why the public should care if we go to the opera together, or we can talk about baseball together. What the public should care about is … if the collegiality brings about a certain kind of decision-making process. In other words, if it leads to people listening to each other in talking about the law and in talking about cases and making decisions. If it leads to people being able to step into each other’s shoes and see the world through another person’s eyes or see certain legal issues through a different perspective.

Again, I think there’s some nuance here. The point is not, as some accounts reported it, that the justices’ collegiality is unimportant; it’s that it’s important as means to an end—with a subtle insinuation that there isn’t enough of that kind of camaraderie on the Court today.

I made a similar point years ago when people complained that President Obama and Speaker John Boehner could not sit down and have a beer, comparing them unfavorably with the Scalia/Ginsburg safaris and opera trips. I pointed out that this friendship rarely convinced either person to switch a position or compromise--which is what everyone wanted from Obama and Boehner. We do not want collegiality on multi-member bodies for its own sake, but as a means to a better-functioning multi-member body. (With Kagan pushing the ideal of empathy that Obama proposed but never defended). Media coverage of politics and the Court (stuck in a Sorkin-esque vortex of wanting everyone to get along and agree with one another) cannot see past the former.

Not reporting v. accurately reporting

In citing Jay Rosen and Tom Nichols in this post, I expressed concern for the media's hyper-focus on certain narratives (Hillary's emails in 2016, Biden's age and mental acuity until a few weeks ago) to the exclusion of others. I have never advocated for not reporting what Trump says (and Nichols has been a big "show Trump in all his insanity" advocate) or for withholding negative stories about Biden, Harris, and other Democrats.

I have different criticisms of the media; Paul may disagree with these, as well, but they are different than what Rosen and Sullivan seem to have been pushing. I criticize inaccuracy and imbalance in the name of objectivity (and fear of accusations of bias). I criticize the media being worked. I criticize media  ignoring or cleaning up Trump's incoherent ramblings. I criticize the media allowing a narrative to take hold--usually the one Republicans have pushed--and allowing that narrative to color what they publish and how they present it.

Jordan Chiles and the Jurisprudence of Sport

Jamie Fox (Stetson) offers an interesting Twitter thread on the brouhaha over the bronze medal in the women's floor exercise illustrating  the jurisprudence of sport--the conflict (without a clear correct answer) among finality, substantive fairness, procedural fairness, formalism, justice, etc. He offers the thread to incoming law students to give them a sense of what they are about to encounter (and that it is not necessarily over the day's great moral dilemmas).

As things stand, the USOC plans to appeal the  Court of Arbitration for Sport ruling, although it is not clear what higher court would hear such an appeal--whether  Switzerland's highest court or the European Court of Human Rights. And why should the ECHR care or have anything to say about the judging in a gymnastics competition?

One remedial piece to this, according to this report: In its appeal, Romania asked that the IOC award multiple medals--to give Ana Barbosu what she earned in the competition without humiliating Chiles by making her return the medal. This is an attempt at equity. But the case is complicated and I can see why, given its rules, IOC and FIG rejected it (not agreeing--just understanding). FIG sets its rules to avoid multiple medals, except as a last resort;  judges use the execution score and then the difficulty score as tie-breakers. They award multiple medals only in the (unlikely) event of deadlock in all three scores. Barbosu and Romanian teammate Sabrina Maneca-Voinea had identical total scores, but Barbosu initially won bronze on the execution tiebreak. Moreover, this is not a simple case of flipping third and fourth. Chiles finished fifth in the initial scoring, below Barbosu and Maneca-Voinea--the judges' inquiry giving her an additional .1 point jumped her into third andvacating that decision removed that .1 and dropped her back to fifth. To give Barbosu a medal and allow Chiles to keep her initial medal requires that Maneca-Voinea also receive a medal. Romanian proposed doing that, likely because the additional medal would go to a Romanian. But I can see FIG not wanting to award three bronzes.

Pete Rose, Shoeless Joe, and the Hall of Fame

Charlie Hustle & the Matter of Pete Rose is a four-part HBO Max documentary telling three stories at once--Rose's playing career, Rose's ban and the years that followed, and his current life. Daniel Fienberg offers a lukewarm review. The central issue, as with everything Rose, is whether he should be enshrined in the Hall of Fame. While writing this post, I came across Backstory: Banned for Life, a 2020 ESPN program (paywalled--need an ESPN+ subscription) about Rose and Shoeless Joe Jackson and their status on the permanent ineligible list.

There are many pieces to the "Rose in the Hall" question, which Charlie Hustle describes but does not fully unpack.

1) The Hall and MLB--independent entities making independent decisions--play an interesting game of hot potato as to who is responsible for keeping Rose out. MLB placed Rose on the permanent ineligible list in 1989 (with eligibility to seek reinstatement). The Hall two years later enacted a rule that those on MLB's ineligible list are ineligible for Hall induction; the change largely responded to Rose's looming Hall eligibility (1992 would have been his first year on the BBWAA ballot). It has become known as the "Pete Rose Rule," although it came amidst a groundswell for putting Jackson  in the Hall following the movies Field of Dreams in 1989 and Eight Men Out in 1988. Charlie Hustle then includes a clip of a  MLB Commissioner Rob Manfred kicking the can back to the Hall, stating that nothing requires the Hall to retain its rule linking Hall eligibility to MLB eligibility; in other words, those who want Rose in the Hall should take the case to the Hall, not to him.

According to ESPN, in 2020 MLB announced that it interprets its ineligible list to limit employment and other involvement with MLB and its team; ineligible status ends when the person dies and he can have no further involvement in the game. The Hall responded by interpreting its rule to apply to anyone on the ineligible list, living or dead. This creates a genuine catch-22 with respect to a dead player. The Hall says the player remains ineligible unless MLB takes affirmative steps to remove the person from the list; MLB says it cannot do anything once the person dies and the effects of ineligibility end.

2) Both shows discusses the Steroid Era and Houston Astros sign-stealing, showing that MLB never punished any of the involved players, to say nothing of punishing them as severely as it punished Rose (or Jackson). But this misses the key point. Gambling on baseball remains the game's cardinal sin, a prohibition (and punishment) posted on every clubhouse and antithetical to baseball operating as a legitimate competitive enterprise and not professional wrestling. PED use and sign-stealing are milder violations that many within the game regard as part of a longstanding search for competitive advantage. Moreover, the BBWAA has served as MLB's enforcer--Roger Clemens, Barry Bonds, and other steroid-linked players never received more than 65 % support and nowhere close to the necessary 75 % on writers' ballots.*

[*] This reflects another way in which Selig failed as MLB commissioner.

3) Rose may not be the BBWAA's call, which Charlie Hustle discusses. Players can appear on the writer's ballot up to ten years after first eligibility (a player falls off the ballot if he received less than 5 % the prior year); after that, the Veterans' Committee (comprised of Hall members, executives, and historians) considers these players. So if Rose becomes eligible for the ballot (whether through actions of MLB, the Hall, or both), does he begin on the writers' ballots, since he has never appeared on the ballot and thus the ten-year clock has not begun? (Bob Costas suggests this). Or does he jump to the veterans, since it has been more than ten years since Rose would have appeared on the ballot? Given how the writers approached players with steroid connections, I cannot imagine Rose getting to 75 %, although it would be interesting to see whether his support would grow (as happened with Clemens, Bonds, et al), who reached mid-60s by their final years. In Charlie Hustle, one journalist says he voted for Clemens and Bonds every year and would vote for Rose if his name appeared on the ballot. On the other hand, Rose's strategy has been to cultivate support from Hall members (Charlie Hustle features Hall members Tony Perez, Mike Schmidt, and Reggie Jackson expressing support). This affects the goal of getting Rose into the Hall while he is alive (he is 81); chances drop if he has to go through the motions of up to a decade before the writers.

4) Someone (I think long-time Reds announcer Marty Brennaman) says it would be a tragedy for Rose to be inducted posthumously. I wonder. Rose supporters argue that the Hall is a museum that should record the history of the game and its players; Rose deserves a spot because the story of baseball (and certainly not the story of baseball in the 1970s and early '80s) includes Rose. But it also is a shrine, a way to honor, grant a title ("Hall-of-Famer" or "First-Ballot Hall-of-Famer"), and bestow unique privileges to certain players. Perhaps posthumous induction offers the right compromise: Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize**--being a living Hall Member.

[**] Which has been at least part of the ick factor with Rose over the years, although he defends his need to make a living.

5) Charlie Hustle never mentions Shoeless Joe, other than to explain the Black Sox (and the irony that they threw the 1919 World Series to the Reds, Rose's team) and the origins of the gambling prohibition. In particular, it does not address how arguments about Rose affect Jackson. (It includes the segment, described above, comparing non-punishment of steroid use and sign-stealing, but does not mention the genuinely comparable gambling case). This is a problematic omission, because you can discuss Rose' induction without discussing Jackson's--if Rose can be forgiven and allowed into the Hall, why should Jackson not be forgiven and allowed in? Some (including Rose in Banned) distinguish the cases because Rose apparently never bet against the Reds. But that argument misunderstands three points of the gambling rules. First, gambling affects games over a season, those bet on and not bet on. Second, the gambling rule reflects the ideal of the player seeking to win for the team that pays him and for the competition, not for some outside gains. Third, and most important, the gambling rule is prophylactic. It seeks to avoid any hint or risk that gambling might affect outcomes, play, or decisionmaking in games; it avoids the scent of gambling's effects, irrespective of actual effects. The rule therefore cannot distinguish betting on one's team from betting against one's team from taking money to tank becauseall cause the harms--the risk of the appearance of impropriety--MLB seeks to prevent.*

[*] On Banned, the host too readily concedes to Rose that what Jackson did is worse, ignoring the underlying rationales for barring gambling.

Banned shows that the links between Rose and Jackson are more extensive than I realized:

    • In early 1989, the South Carolina legislature petitioned MLB Commissioner Bart Giamatti to consider reinstating Jackson, part of a broader groundswell of renewed support for Jackson following his sympathetic portrayal in the two movies. Giamatti asked former federal prosecutor John Dowd to make the case for Jackson, which he did (TL;DR: Jackson played well in the Series and received no due process prior to his suspension). Giamatti was considering it--then stopped when the Rose case blew up a few months later; he could not reinstate (or even consider reinstating) Jackson while also investigating and potentially punishing Rose for similar misconduct. Giamatti also hired Dowd to conduct the investigation into the Rose allegati0ns. Dowd sits for interviews; he does not like Rose.

    • The Hall's 1991 rule change affected Jackson, short-circuiting some momentum among Hall members and the public following the movies. This can lead to two conclusions: 1) Despite its name, it did not target Rose but reached two similarly situated players or 2) Rose screwed Jackson, because the immediacy of dealing with Rose imposed unintended consequences on Jackson.

    • Former MLB Commissioner Fay Vincent (who worked with Giamatti, became commissioner when Giamatti died, and served until Bud Selig and the owners shanked him to set-up the 1994-95 strike) relays a conversation with Ted Williams in which Williams expressed support for Jackson. Vincent said if they let Jackson back in, Rose comes with him; Williams bascially said "no, fuck that guy," views supposesly held by Hall of Famers of Williams' era.

Interesting stuff. I remain in the no-Hall camp. But I am coming around to the idea of posthumous induction for both, with plaques detailing their bans in addition to their accomplishments.

12(b)(6), summary judgment, and conflicting video

I think the Fourth Circuit reaches  the right place--further proceedings required. A trial court can consider a video on a 12(b)(6) if "(1) the video is 'integral' to the complaint and its authenticity is not challenged, but (2) only to the extent that the video 'clearly depicts a set of facts contrary to those alleged in the complaint,' or 'blatantly contradicts' the plaintiff’s allegations, rendering the plaintiff’s allegations implausible." The district court should have denied dismissal because the video did not blatantly contradict the allegations in the complaint.

But I think it gets there via two mistakes, sounding in the general problem of conflating 12(b)(6) and summary judgment, especially in civil rights actions: 1) Expanding what the court can look at on 12(b)(6) and 2) conflating 12(b)(6) and summary judgment when dealing with conflicting information.

1) A court on a 12(b)(6) is limited to the allegations within the four corners of the complaint plus documents attached as exhibits. FRCP 10(c), 12(d). Courts have extended that plus to include documents that the complaint mentions or relies on, which makes sense on a rule of completeness--if the complaint refers to something (e.g., a contract or a magazine article), a rule of completeness dictates that the court treat the entire thing as part of the complaint. Otherwise a plaintiff could selectively and inaccurately quote pieces of a broader thing to create a false impression. Courts have further extended this to videos.

The 4th Circuit does not explain what "integral" to the claim means--whether it includes complaints that identify the video as a source or otherwise expressly rely on the video or whether it includes any set of facts describing events for which publicly available video may be found. If video cases are not to subsume 12(b)(6), it should not extend as far as the latter. That is, if the complaint includes factual allegations X, Y, and Z and there happens to be video evidence of those facts that the complaint does not mention, discuss, or rely upon, the video should not be treated as part of the complaint.

The court does not explain which side the case falls. The complaint alleged a bunch of facts; defendant's 12(b)(6) introduced the video, emphasizing that it was "publicly available" and "integral to" and "apparently relied on" in the complaint. Publicly available should not matter (unless it is part of a public record and a subject of judicial notice). And I do not know how the complaint "apparently relie[s]" on the video--either it does or does not. Unfortunately, plaintiff did not object to the court considering the video and used the video to argue it meaning in opposing the motion, effectively waiving the 12(d) argument. The court therefore did not resolve the "not entirely clear" question of whether the video qualifies as integral to this complaint.

2) If the video is part of the complaint, I do not think the "blatantly contradicted" standard should apply. Blatant contradiction comes from Scott v. Harris, where the Court disregarded the plaintiff's deposition testimony of what happened during a high-speed chase (specifically whether he was a threat to persons and property) by watching video of the chase and concluding that the video was capable of one reasonable interpretation. The Court therefore need not accept plaintiff's version of events or draw reasonable inferences for the non-movant plaintiff ("I was driving fast but safely") when his evidence was "blatantly contradicted" by the video whose one true meaning ("he was a threat'") the Court can divine by watching.

Putting aside the correctness of Scott and the idea that the video shows one obvious thing rather than being subject to interpretation, the approach makes some sense on summary judgment. Opposing parties offering competing evidence, stories, and versions of events; the court decides whether the evidence each offers sufficiently conflicts as to show a factual dispute requiring jury resolution. "Blatant contradiction" gets us to the place of the defendant offering the video, the plaintiff offering no evidence (as is his burden of production), leaving no disputed facts requiring jury resolution. I do not agree with the standard, but it is consistent with the inquiry on summary judgment.

But 12(b)(6) is supposed to be different. The court hears one side--what the plaintiff offers; it hears no facts or evidence from the defendant. The court takes everything the plaintiff alleges as true and considers whether the plaintiff can win if everything he says is true. Where the complaint contains adverse allegations or facts, the court can consider those and rule against the plaintiff--we say plaintiff has pleaded herself out of court. Where the complaint includes contradictory allegations, the court need not resolve that conflict or decide which is true; it accepts everything true and decides if the plaintiff loses under either of those sets of facts. Consider Craig v. Rich Township High School. A fired school counsleor alleged that he published his book (the speech for which he was fired) outside of work , but the book (which he attached to the complaint) included content connecting to his counselor job. The court could consider that fact in the Pickering balance on a 12(b)(6) because the facts showing connectedness were in the complaint. The court did not disregard contrary facts; it took all facts as true, some of which showed why the plaintiff lost under controlling law. Or imagine a hypo I use in class--a Black non-attorney brings a race-discrimination claim against the law firm that denied him a job, with allegations that he was told he was not hired because he is not an attorney and because he is Black. The court would not unpack or reconcile the facts; it would take both allegations as true, with one fact (not hired because not an attorney) defeating the claim.

So how should this case have come out? Where (as it seems to have been in this case) there is ambiguity whether the complaint relies on the video, the court should treat it as not having relied and not treat the video as part of the complaint. The court therefore should have either refused to look at the video and denied the 12(b)(6) or converted  to summary judgment; the latter moves allows the court to consider whether the plaintiff's testimony is "blatantly contradicted" by the video as a competing piece of evidence. But if the video is clearly part of the complaint, then the court should review the video and decide if it plausibly shows a violation, without regard to other allegations in the complaint. If the video defeats the claim, we would say the plaintiff pleaded herself out of court by including adverse facts for the court to take as true. Blatant contradiction never comes up, because the plaintiff is on the hook for the effects of all the facts she includes in the complaint.

A civ pro puzzle

Something I was thinking about while listening to several papers on personal jurisdiction at SEALS last week. It shows how the analysis has shift under us:

Imagine the facts of World Wide Volkswagen in 2024: Defective car sold in New York by two New York companies (distributor World Wide and dealer Seaway) and two non-New York companies (Audi from Germany and VWA from New Jersey), accident occurs in OK.

Before 2011, we mostly agreed on the following:

    1) No jurisdiction over WW and Seaway in OK

    2) General "doing business" jurisdiction over Audi and VWA in OK (although this was the subject of the Twitchell/Brilmayer debate)

    3) General jurisdiction over all defendants in New York--Audi and VWA on "doing business" and WW and Seaway because they are incorporated there.

In 2024, I think we have the following:

    1) No jurisdiction over WW and Seaway in OK

    2) Specific jurisdiction over Audi and VWA in OK under Ford, because they serve the OK market for the same cars (although not the car in the accident). Not general jurisdiction because neither is at home and Daimler/Good Year reject doing business.

    3) General jurisdiction over WW and Seaway in NY because each is "at home" there.

    4) Specific jurisdiction over Audi and VWA, although the theory depends on where Audi and VWA designed, manufactured, and sold the car to World Wide for distribution:

        • If any of that happened in New York, then specific jurisdiction because the case "arose" in New York because something about the defective product occurred there.

        • If all of those things happened outside New York (i.e., Audi sold the car to WW in New Jersey), specific jurisdiction would require the "related to" analysis of Ford--they serve the NY market for the same cars as the one at issue in the case, even if their NY activities did not involve the car at issue.