PrawfsBlawg

Motions to Strike in Action

Courts do not often strike (on motion or on its own) under FRCP 12(f), especially  an entire pleading. So this one is making the rounds and likely to appear in Civ Pro classes next year:

Plaintiff filed a § 1983 action, represented by Dragon Lawyers, P.C., whose firm logo is this:

The Complaint contained that logo as a watermark and a label on every page. The court was not amused--it struck the pleading, stating "[u]se of this dragon cartoon logo is not only distracting, it is juvenile and impertinent. The Court is not a cartoon."

The watermark is one of several mistakes that jump off the page. It misnames the court in the caption "District Court for the United States of America." And it asserts an 8th Amendment claim in a case arising from pretrial detention.

It is tempting to blame this on Trump and his minions and the Twitterfication of public policy--a pleading version of what Stephen Miller and his ilk do everyday. But lawyers have done stuff like this for years. Technology allows them to do it on another level.

Creative project blows up

I have written about the creative projects students do for Civ Pro. This year's batch included song parodies by two gifted singers, a picture of Twombly and Iqbal walking Conley to his retirement, a large movie poster featuring figures from the pleadings we work with, quite complicated board games, and many pictures of monkeys (I still use the complaint in the "Monkey Selfie" case).

But one song parody is getting a fair bit of love on TikTok (best of all, it is a song I actually know).

. . . And I did not speak out--because I was glad they came for them (Update)

Deborah Lipstadt gets Isaac Chotinered. It is not good. She becomes the latest Jewish thought leader to offer tepid criticism of Trump Administration excesses while blaming universities for bringing the attack on themselves and failing to distinguish antisemitic actions (she comes back several times to UCLA students unlawfully blocking parts of campus) from obnoxious-but-protected speech and generally unlawful actions (occupying buildings) for which any antisemitic motives are irrelevant to the unlawfulness. This is disappointing because Lipstadt is a lifelong academic and smarter than Jonathan Greenblatt.

I will flag two points:

    • She says "Freedom of speech is freedom of speech. Incitement is something else. I’m not a lawyer, and I’m not going to get into what that is." First, nothing that has happened on college campuses comes near incitement--harassment or threats maybe, but not incitement. Second, this is all about what unprotected speech is and is not. By punting on drawing the line, she allows (even requires) universities or government to eliminate some protected speech because it makes her group uncomfortable.

    • Chotiner asks about her comment to the Forward that “I don’t oppose many of the things that are being done. I just wish they would be done more deftly.” She responds: "'[D]eftly' was the wrong word. That sounds almost conspiratorial. They should be done according to law." What exactly should be done according to law? I doubt there is a "lawful" way to arrest and deport someone for their speech.

I titled the post as I did because what we are witnessing is not what Niemoller witnessed (or he described it wrong). People are not failing to speak out against the coming. People are actively cheering it because "they" are coming for those these people do not like and supposedly doing so in the name of protecting them.

Update: She is back-pedaling, somewhat.

JOTWELL: Vladeck on LaCroix on Interbellum circuit justices

The new Courts Law essay comes from Steve Vladeck (Georgetown) reviewing Allison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalism (2024) on the role of circuit justices in the constitutional order during the Interbellum Period.

Erie

A Civ Pro student on Friday referred to the "relatively unhinged Erie choice." Best mistake I have heard in the classroom.

It's not the antisemitism, stupid (again and again)

I hope the silence from anyone in the Trump Administration about the planned (and more-serious-and-destructive-than-reported) assassination attempt against a Jewish governor--on Passover, several hours after a community seder--(finally) disabuses everyone that this administration cares about antisemitism as opposed to using Jews to attack ideas and people they do not like.

That Shapiro was the target provides a layer of irony--MAGA loved Shapiro last summer when pushing faux anti-antisemitism in arguing that Kamala Harris did not choose Shapiro as her running mate because he is Jewish.

Size matters

Ilya Somin highlights an amicus brief signed by 86 colleges and associations in the AAUP student-visa lawsuit. Most of the signatories are liberal arts colleges and private non-research-centric universities, with a few exceptions (Georgetown, Fordham, Michigan State, the University of Maryland System). Many of the presidents pushing back in public lead liberal arts college, while Trump aims (for the moment) at R1 universities. Don Moynihan argues the divide makes collective action more difficult because different schools' needs and interests do not necessarily align or allow for similar remedies (e.g., University of Michigan depends on research funding in a way that Bard does not).

Something similar may play out among law firms. Large firms have surrendered--preemptively or otherwise--while smaller and boutique firms (most recently Sussman) have pushed back (along with large firms such as Jenner and Hale, obviously). The larger amount of money and the more varied practices of big firms makes it more difficult to make common cause with smaller shops. The firms most able to fight (financially) have more to lose in its business model.

More anti-antisemitism as fig leaf

Wesleyan President Michael Roth offers the latest "Trump is using Jews and it will end badly" take. He highlights the White House "Shalom ____" tweets ("Shalom Khalil," "Shalom Columbia," whatever) and the large dose of sarcasm in which Jews should not find comfort. And he calls out the ADL for losing sight of its mission in defending Musk's Nazi salute and in only belatedly (and under pressure) supporting due process for Khalil.

Roth makes one interesting move--highlighting why Jews are safe at Wesleyan (my kid feels perfectly at home) and why the "situation was different at Columbia. Protests became violent (both in the actions of the participants and those of the police who were called in to quell them). Tensions between supporters of Palestinians and Israelis were at times extreme." He highlights a March Atlantic article by Franklin Foer that "document[s] some serious antisemitic activity."

I read Foer's article (missed it in March). It discusses numerous incidents of antisemitic violence and harassment. But it mixes them with examples of obnoxious-but-protected speech, obnoxious-but-core faculty speech, and violations of neutral regulations (e.g., occupying buildings) that would be unprotected regardless of the occupiers' motivation (although the university's selective non-enforcement raises distinct discrimination concerns). For example, academic freedom and the First Amendment protect professors who engage in polemic, inside- and outside-of the classroom, at least to a point; Foer describes a prof's actions without identifying any line or where it might be. Foer argues (and Roth accepts) that this reflects an overall antisemitic environment. But the conversation must separate the protected from the unprotected--what makes students uncomfortable from what violates their rights.

Scope of Pullman

A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.

The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.

The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.

On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.

More Law v. Antisemitism

David Schraub writes about the ADL's announcement that it will not sponsor future editions of the Law vs. Antisemitism Conference unless the organizers grant it the right to exclude speakers, including those from Jewish Voice for Peace. David addresses the problem from his experience as site host for the 2023 Conference at Lewis & Clark. I agree with everything David says about the craven anti-intellectualism of the ADL and Academic Engagement Network.

I served as site chair for the 2024 Conference at FIU (link includes videos of every panel), held about five months after October 7. We discussed questions of balance in organizing panels, but encountered no demands about panel composition and no demands about who should or should not be allowed to appear or present at the conference. I cannot imagine the conference chairs will agree to this demand. This means the purported leading advocacy group on antisemitism will no longer sponsor the largest academic conference devoted to the issue because it cannot dictate the ideological content of the conference.

Real Genius

With Val Kilmer's death on Tuesday, I want to give some Gen-X love to Real Genius, Kilmer's second starring role (one year before Top Gun) and a mid-'80s classic. Some commentary on the film, including by the inspiration for the main female character. Kilmer plays an irreverent-and-rebellious student at a thinly veiled Cal Tech. It is loaded with great one-liners; my favorite: "I was thinking of the immortal words of Socrates, when he said, 'I drank what?'"

zichrono livracha.

TL;DR: It's too much money to stand on First Amendment principle

I signed a letter of Northwestern alums urging the Board and the administration to hold the line. The well-lawyered response did not inspire confidence that NU will hold out--"With the federal government providing hundreds of millions of dollars annually to Northwestern in student financial aid and research grants, each of our choices carries risk to our institution." Worse, it does not appear NU (or any other school, perhaps save Princeton) wants to make the government take the money (something that, at the end of the day, it might be unable to do). In Civil Rights, we discuss how narrowing private rights of action (implied or under § 1983) to enforce Spending Clause enactments leaves funding cuts as the sole enforcement mechanism and how that is hard to do, given the statutory procedural and substantive protections. Apparently the real reason is that the federal government will not strip funds from Alabama for a discriminatory driver's license policy; it will strip funds from Northwestern for not doing enough to silence objectionable speakers.

Meanwhile, as another law firm falls, I wonder: Each firm has committed $ 100 million to pro bono work on which it and the Administration agrees. But will firms do additional work (beyond $ 100 million) on pro bono matters with which the Administration does not agree? Or is it committing to limiting its pro bono activities to those issues the Administration will support.* And does no one see the First Amendment problem with that? Milbank actually had an additional thing I had not seen with other firms--it pledges viewpoint and political diversity in its pro bono committee.

[*] Reportedly, Paul Weiss has stripped from its website PR stories about its pro-LGBTQ+ work. So that hints at the answer.

I join

Josh Chafetz (Georgetown). I join you heartily and gratefully. This is fine--very.

Searching for agreeable Jewish organizations

My wife and I are struggling to find space in the Jewish community, given our (to some extent) heterodox views about Israel and Israel's centrality to the Jewish faith and what it means to be Jewish, as well as our willingness to tolerate (or at least accept the reality of) antisemitic speech on and off campus and the First Amendment obligation to deal with hateful views.

I am more troubled by this silly poster than I probably should be. But so much seems wrong: The easy jokes about "kvetching." The centrality of complaining to much Jewish humor. The First Amendment. The fact that people said the same thing to Jews (perhaps including my grandparents) 100 years ago. The fact that Jewish study calls us to question (which is just another form of complaining) everything. Beyond all that, this bothers me because it accepts the MAGA framing that all who disagree with us (however mild or peaceful) should shut up or leave, which runs counter to my understanding of Judaism and democracy (which run together here).

(Assuming this is real. I found it floating around social media and commented on by a lot of people I trust. I will delete if I learn it is false).

Somin on university lawsuits

Ilya Somin argues that universities should challenge speech-based deportation of students, rather than leaving it to individual challenges (or even class actions) by the students.

Universities (especially public universities) took the lead in challenging the Muslim travel ban and other policies during Trump I. They claimed injury from not having these students as part of the community, with the associated financial and mission loss; they succeeded with various forms of third-party and association standing. The standing argument for universities now might be stronger, because they may be able to frame a form of first-party standing--the threat to their students violates universities' First Amendment rights to create an academic community and forces the university to institute certain speech policies it may not like.

Charlie Sykes interviewed Anne Applebaum and asked an interesting question: Why are institutions so hesitant to challenge Trump now compared with eight years ago. Applebaum speculated it is about January 6--everyone knows Trump has no boundaries and will resort to violence. I had a different take (although perhaps it is related): Trump did not target universities or law firms or companies. It was easy to stand-up for others (e.g., banned immigrants) when there was nothing personal on the line. Facing direct sanction, universities and firms choose to lay low and appease, hoping to get along unscathed. The fallout affects the firms as well as the people they might represent.

A Final Four Minyan (Updated)

Three of the four head coaches in the Men's Final Four are Jewish--Jon Scheyer (Duke), Todd Golden (UF), and Bruce Pearl (Auburn). All are explicit and open in their Jewish identities. As an undergrad, Scheyer participated in a Duke improv video showing everything he could do in 75 seconds (as a high-schooler in suburban Chicago, he scored 21 points in 75 seconds of game time); among the things is biking to the campus Jewish center, emerging with a tallis and long beard, and spinning a dreidel. Pearl spoke about Israeli hostages following a post-game press conference. Golden played in the Maccabi Games and for two seasons in Israel. (He also has been accused of sexually harassing and stalking female students at UF, although the Title IX office found no statutory violations).

We may not be done. USC women's coach Lindsay Gottlieb is Jewish; the Women of Troy play in the Elite Eight tonight, although without superstar JuJu Watkins, who tore her ACL in the Second Round. (Update: UConn beat USC by 14. USC made them work for it even without Watkins--they cut a 19-point deficit to 5 late in the third).

Finally, on the overall theme: Nine Jewish players were on MLB Opening Day rosters, with three more players on the injured list.

Combatting antisemitism (Updated)

This is the Trump Administration's latest undefined-and-meaningless catch phrase. It appears in the surrender agreements from Columbia, Paul Weiss, and Skadden. Marco Rubio has cited it as a central feature of American foreign policy and thus a reason to deport non-citizens who engage in certain protest activities.

But what does it mean and what does it allow?

Antisemitism has existed for one day less than Jews have existed, in many evolving forms and severity. So I do not know how Donald Trump and his minions (no pun intended) are going to eliminate it now--people are going to believe what they believe and say what they will say. And if we cannot eliminate it, I worry that Donald Trump and his minions will do what they are doing--controlling what people say and believe by arresting and deporting those who engage in wrong-think, stripping money or otherwise threatening universities who do not align campus speech (faculty and student) with the Administration's views, and coercing law firms into pursuing litigation (whatever that may look like) against those who hold or express those wrong views. That is before we get to the impossibility of defining antisemitism and controversy over the HIAS IHRA definition and the likelihood that many will consider Rumeysa Ozturk's op-ed or an academic talk about the Gaza death-toll "antisemitic." And before we get to how heads would explode if a Democratic administration declared that "combatting racism" represented U.S. policy and compelled universities to do to (purportedly) racist speakers what the current Administration is doing or threatening as to (purportedly) antisemitic speakers.

Update: As if on queue, Harvard, with the same code for "do more to restrict speech the Administration does not like," although addessed as "addressing" (rather than combatting). Yes, antisemitism "is present on our campus," as it is everywhere in the world. Also present on campus is racism, misogyny, anti-trans bigotry, anti-Nazi hatred, and a whole range of ideas that different people may like or dislike. What do these schools believe they can do without undermining any commitment to free thought, free speech, and academic freedom? Because Donald Trump does not care about those--he just wants "those people" off campus. So nothing short of that will appease him. Or too many Jewish organizations.

Free speech stuff

Random stuff, connected by the Administration's assault on free speech and the refusal of many to recognize or acknowledge it for what it is.

1) Good statement from J Street criticizing the Trump Administration for using "fighting antisemitism" as pretext for attacks on immigrants and universities and on constitutional protections, especially free speech. It echoes the not in our name theme that many in the Jewish community have pushed.

2) I see a telling disconnect between how people (especially Jews) view the detention of Rumeysa Ozturk and the detention of Mahmud Khalil. Many people see Ozturk as a free speech problem--agents seized her for core First Amendment activity of writing an anodyne newspaper op-ed. But they view Khalil as purely a due process problem--seizing and deporting him is fine, so long as they give him process prior to deporting; no one acknowledges that the government seized him for core First Amendment activity of protesting. (This was the ADL position--give him process, but thank you for protecting delicate students from pro-Palestine speech). Even if you accept that Khalil violated some campus rules in those protests, the government does not revoke green cards for minor property violations; the special attention to him arises from the message underlying those violations. One cannot distinguish the underlying speech problem from these cases, at least under U.S. free speech law.

3) NYU canceled a speech by Johanne Liu, former president of Doctors Without Borders, apparently fearing her talk would be perceived as anti-Trump and antisemitic. The last decade has been filled with people insisting that the greatest to free speech comes from a university canceling or disinviting speakers (it is a key metric in FIRE's free speech report card) or otherwise interfering with their ability to speak and be heard without interruption. Those who do not like what the speaker says should sit quietly and politely listen, perhaps asking a challenging (but polite) question in Q&A. Apparently that applies when the objecting person is a queer sophomore wanting to avoid feeling othered by the speaker--not when the objecting person is the President of the United States supported by masked ICE agents. I pick on FIRE a lot, but I want to hear what they have to say on this.

Law Deans' Letter

Here. Good on FIU Dean Antony Page for signing.

On institutional neutrality

Amid failures of universities to speak as one voice against the attacks on academic and of law schools to speak as one voice against attacks on law firms and the legal profession, critics complain about institutional neutrality and the Chicago Principles--the supposed view that institutions should not take corporate positions on matters of public concern.

As I wrote a few days after the election, the 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.

The Administration threatens the university mission by cutting funding and seizing control over hiring and curriculum; Kalven would say a university can (must) defend its interests and values. That universities and law schools have failed to do so reflects not institutional neutrality but cowardice.

Challenging EOs

Genevieve Lakier's guest post at Balkinization criticizes the Fourth Circuit stay of an injunction barring enforcement of Trump's anti-DEI executive order. She argues that the Fourth Circuit treated the EO as government speech, a broad statement of government policy, ignoring its legal force and immediacy. Demanding that challenges wait until agencies enact regulations implementing the EO prolongs its chilling effect.

Trump's penchant for EOs creates some puzzles for constitutional litigation.

1) When is something sufficiently enforceable as to allow litigation? Had Trump urged--at the State of the Union or in a letter to congressional leadership or some other public message--Congress to enact identical anti-DEI legislation, no one can bring suit until Congress enacts (and Trump signs) the legislation. Had Trump given a speech--but no signed EO--ordering executive agencies to enact identical anti-DEI policies, no one can challenge anything until the agencies act. So what is it about the EO that makes it different and challengeable when neither of the other two do not? Is it the president's signature?

2) Jack Goldsmith argues that courts issue more universal injunctions against Trump actions than against actions by Democratic presidents. Sam Bray counters that Goldsmith relies on studies that do not count universal vacaturs of regulations under the APA. That exclusion skews the numbers--"The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations."

3) It also makes convenient Ohio S.G. Elliot Glaser's argument that universal vacatur is permissible but universal injunctions are not. So courts can universally stop the common mechanism through which Democratic Presidents act but not universally stop the common mechanism through which Republican Presidents (especially Trump, who sees EOs as reflecting his power as a man of action) act.

4) I wonder if the in-between nature of EOs warrants courts issuing DJs but not injunctions. An injunction is less necessary or appropriate when there is no enforceable policy to enjoin. But--accepting Lakier's argument that the EO is sufficiently imminent and chilling--a declaration that the policies commanded in the EO might be a sufficient fallback. Lakier seems open to this. And it satisfies what Steffel suggests to be the purpose of DJs--so one need not act at one's peril to determine their rights.

Fairness in sports

This piece by Jonathan V. Last is the best argument against the simplistic "fairness" argument related to trans girls playing girls sports. Sports are inherently unfair--athletes at all levels possess different levels of ability that creates an imbalanced playing field. Male puberty (tempered by hormone therapy) could offer some further benefits and imbalances in some situations, but it is not uniform or even predominant. In any event, none of it matters until something real is on the line (money, college scholarships, etc.). Last comes at it as a former high-school and college athlete, youth-sports coach, and parent of a D-I-quality athlete, who has competed for much of his life at a level above his peers (he did not surrender a hit in three years of little league).

College presidents speaking out (?)

Slowly--Christopher Eisgruber (Princeton); Danielle Holley (Mount Holyoke); Michael Roth (Wesleyan); Lee Bollinger (formerly Michigan and Columbia). Should we draw anything from three of this group being law professors? University pushback may be wrapped in the (perceived) hierarchy of higher education. Wesleyan and Mount Holyoke are elite institutions. But they are not THE elite institutions, because of their size and their missions. Many university leaders must respond. But the responding group must include the elite-of-the-elite. Eisgruber is a start. Who from Harvard, Yale, Stanford, et al. will follow? Penn is down for the count--it reportedly working to cede to the Administration's demands around the $ 400 million in funding, including "doing more" about antisemitism (read: sanctioning students who express otherwise-protected views about Israel and Jews), empowering campus police,* centralizing university discipline, and placing academic departments in receivership.**

[*] My future colleague Vanessa Miller writes about the rise and regulation of campus police departments. She picked a good time to write about these things.

[**] And, like clockwork, Penn learns how appeasement works when the Administration comes after for allowing a trans-woman to compete on its women's swim team--three years ago.

In the midst of the protests and encampments in Spring 2024, my temple hosted a panel discussion on campus antisemitism; panelists included Julio Frenk, then-University of Miami president and now-UCLA chancellor. Frenk argued that the Nazis destroyed German universities by driving out Jewish faculty and students and that they never recovered--no German universities are among the top universities in the world. His point was that American universities will destroy themselves if they do not get campus antisemitism under control.

It is ironic that the Trump Administration is attempting (and may succeed) in destroying American universities by defunding research, destroying academic freedom, and detaining faculty and students who hold distasteful view--all in the name of stopping antisemitism. I doubt Frenk and others cheering the Administration's efforts around antisemitism (which may include the powers-that-be in my temple) recognize that irony.

"in such inferior Courts as the Congress may from time to time ordain and establish"

I expect flacks for an authoritarian administration to denigrate the power of trial courts or the administration's obligation to obey. I expect better from the head of the opposition party (who has a J.D.), but maybe I shouldn't, because the lesson of the past week is that Chuck Schumer sucks at his job--generally and in the current moment.

But for those in the cheap seats:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Inferior-court judges wield as much of the judicial power as SCOTUS and enjoy the same structural independence as SCOTUS, subject to hierarchical review within the judicial system. Impeaching lower-court judges for their decisions is as problematic as impeaching justices for their decisions. Ignoring unstayed-and-unappealed lower-court orders is as problematic as ignoring a final SCOTUS opinion (which really triggers a final district court order).

SCOTUS has original jurisidiction in an unextendable universe of four cases--"affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." That means cases must pass through lower courts--including single-judge district courts; if they do not, they never reach SCOTUS. So to reduce the threat to the judiciary to that last stage--and to say we are in crisis only if the Administration disobeys the last stage--willfully misunderstands the process.

In some ways, the current conversation follows from the common misunderstanding of Cooper. Everyone views the case as the Court demanding that everyone follow its precedent, Brown. In fact, Cooper arose from Arkansas efforts to avoid a district court judgment in the unique litigation over desegregating Little Rock schools. This might be clearer had SCOTUS written that opinion to less emphasize judicial supremacy and more to emphasis the judicial process. Instead, Cooper makes SCOTUS the center of it all--allowing Schumer stupidly and Leaviit intentionally to treat lower-court judges as unimportant and powerless.

Remedies and the Constitutional Crash

An interesting remedial angle to the attempts to litigate against the ongoing constitutional crash.

It demonstrates the limits on declaratory and injunctive relief in the face of large-scale government wrongdoing. Injunctions take time, with stays and immediate review. Some enforcement takes place in the meantime, even if it might prove invalid. That enforcement chills others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. Those who have to wait it out suffer harm--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but soft liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it. And that is before we get to DOJ's litigation misconduct. Judge Boasberg's actions show that courts will take small, measured steps and build a careful record before dropping the contempt or sanctions hammer on government attorneys. That creates more delays and more opportunities for the government to stall, with the attendant harms to rights-holders.

Damages should fill this gap, imposing liability and providing a remedy for past injuries caused by misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that interstitial unlawful behavior. This reflects the consequence of the more-or-less-death of Bivens and how difficult (if not impossible) it is to obtain damages against federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees, because they can get injunctive relief. But the lag creates its own harms. Of course, Bivens is not the only problem. Even if Congress enacted a federal equivalent to § 1983, qualified immunity would defeat most damages claim. I doubt any court would say it was clearly established on March 15 that the government could not remove people from the country under the Alien Enemies Act or that it could not detain a Green Card-holder for his expressive activities--because no Administration had previously tried.

Constitutional litigation has long flipped the remedial hierarchy, preferring equitable remedies (injunctions) to legal remedies (damages). Current events reveal some unique problems with that flip.

Procedural puzzles and Trumpian abuses

Some links and brief comments as litigation swirls around the Trump Administration's various abuses of power.

1) Sam Bray on DOJ's too-clever-by-half insistence that it did not violate the injunction barring removal of gang members under the Enemy Aliens Act because the plane had left US airspace. Bray explains that equity applies to the person, not the place.

I argued against the term "nationwide injunction" (and in favor of universal or non-particularized) because it allows this geographic point to leak in. An injunction applies to the defendant everywhere the protected person goes. So an injunction issued in the District of Columbia prohibiting enforcement of a law against the plaintiff protects the plaintiff and prohibits enforcement against him wherever he goes. A term such as "nationwide" allows DOJ to argue--however disingenuously--that the injunction does not go beyond the nation.

2) Competing takes--one from Sam, one from Steve Vladeck--on DOJ's emergency petition in the birthright citizenship case, which seeks a stay to pare back the injunction's universality.

3) A procedural question off Trump's new nonsense that the pardons of January 6 Committee members are invalid because done with an autopen: Does Liz Cheney or another person have standing to bring an EpY challenge to any prosecution or is such challenge ripe? Ordinarily the answer would be no because the prosecution and the constitutional issues are too speculative. But: 1) Trump has made it clear that he is coming for them (and under the unitary executive we need not wait for DOJ) and 2) the constitutional issue--the validity of the pardon--is obvious and present, regardless of what charges they bring.

By the way, Sam's posts appear on the new Divided Argument blog, a group blog by a group of top Fed Courts types, including Richard Re, who will be blogging there rather than here in the future. Subscribe and bookmark.

Kilborn v. UIC

Seventh Circuit holds that UIC Law Prof Jason Kilborn adequately pleaded a First Amendment retaliation claim where the school sanctioned him in response to student objections to tests and discussions of some race-related issues in class and to how he spoke about the subsequent controversy. (I wrote about the early days of the case--in 2021). Some noteworthy things in the opinion:

• Garcetti does not apply to a professor's testing and classroom speech or to out-of-class conversations arising from the controversy over his classroom speech. Academic speech is presumptively (if not per se) of public concern--engaging students on policy issues, giving them a taste of real-world controversies, and addressing controversies within a public institution, such as when it is ok to refer to racial slurs in classroom materials. The court declined to do the Pickering balancing at the 12(b)(6) stage. So we go back for discovery and summary judgment, unless the school decides to cut its losses.

• No qualified immunity on Garcetti. This is interesting. Pre-Garcetti, Connick/Pickering offered "qualified protection" for academic freedom . Garcetti left open (in a footnote and a Souter concurrence) whether it applied to academics and no Seventh Circuit precedent applied Garcetti to university classroom speech. Thus, "[b]ecause our pre-Garcetti cases clearly establish a right to academic freedom in this con- text, and neither Garcetti nor our more recent case law undermines that right," the right to classroom speech Kilborn alleges was beyond debate--pre-Garcetti precedent told UIC administrators they could not punish Kilborn for this speech and Garcetti did not suggest any differently.

This is a good result in the eye of someone (me) who hates qualified immunity. But it seems to flip the presumption--absent new law telling the university speech is unprotected, it should have understood that it was protected and thus not sanctionable. Implicitly, university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech in the absence of contrary precedent. But QI usually goes the other way--the officer can act absent clear precedent that he cannot act. I think this case will make an interesting puzzle in the next edition of the § 1983 treatise.

• Defendants have QI on Kilborn's compelled-speech claim (based on having to go through diversity training). Barnette clearly establishes a right to be protected against compelled speech by the government as sovereign; it does not speak to government as employer. And whatever Janus said about compelled subsidies for unions does not resolve employers compelling employees to speak. In an essay a few years ago (part of a symposium FIU hosted on Barnette's 75th anniversary), I suggested that Garcetti could undermine or limit Barnette in the employment context, particularly in light of Janus. This opinion at least suggests that is an unresolved question in a damages action.

Again, note the inconsistency, which turns on different defaults. UIC was protected in reading Barnette and Janus narrowly and acting on the view that it could compel employee speech absent precedent saying otherwise; it was not protected in reading Garcetti broadly and acting on the view that it could stop classroom speech absent precedent saying otherwise.

• If it carries the day elsewhere, the court's free speech analysis protects university professors against state and federal efforts to stop DEI and other "woke" classroom speech. If the First Amendment protects a prof whose classroom speech (in the school's warped view) makes certain students feel bad or uncomfortable, it protects her when she (in the state's warped view) makes those students feel good or comfortable.

Legislative Immunity?

How is this suit by a Maine legislator alleging she was stripped of her voting rights in retaliation for her anti-trans statements not barred by legislative immunity? She wants an injunction prohibiting the legislature from denying her vote or from ignoring her vote. This just seems obvious; what am I missing?

Moynihan on real chilling effects

Don Moynihan (Michigan, Public Policy) on government chilling speech in real and meaningful ways but no one noticing because people have been screaming about woke college students for so long. It captures most pieces of the current free speech crisis in one space, missing only Columbia and the ADL surrendering any pretense to caring about free speech and civil liberties.

Not in my name (Update)

It is a strange time to be Jewish in America. Government censors purport to be protecting us by trying to silence speech that they regard as antisemitic (which usually means critical of Israel and Israeli policy). Universities are targeting and punishing speakers and speech in the name of protecting Jewish students, at the cost of intellectual and academic freedom. Leading Jewish organizations (especially ones that rhyme with Panty Exclamation Teague") welcome anyone who supports the Netanyahu government, including when they make Nazi salutes or spread false claims that Leo Frank framing a Black man.

And it is a feeding frenzy across the ideological spectrum. As Democrats begin to fear a loss of Jewish support, they see the need to "do something" to show that they will protect Jews, even from imaginary or overstated threats. And so Democrats in the Democratically dominated Connecticut has introduced a bill targeting antisemitism (and anti-Islam bias, but let's not kid ourselves) on all campuses in the state.

Update: I guess I should add stripping funding from a university because it did not do more to restrict speech that certain people do not like.

This will not end well for Jews, because it never does. And we are foolish to pretend otherwise just because we like where the winds blow in the moment.

My son is a 1st-year at a school in Connecticut. People on campus sent out the bat signal for students to make themselves heard at a hearing today. He nabbed a speaking slot. His comments are after the jump.

My name is Reuben Wasserman, I am from Miami, Florida, and I am a first year student at Wesleyan University. I OPPOSE SB 980 An Act Improving Safety on the Campuses of Institutions of Higher Education.

When I was applying to colleges just last fall, I was constantly asked by my peers which Florida universities I was applying to, just in case I decided to stay close to home. My answer was simple: none. I refused to apply to any universities in Florida largely because of the student repression and attacks on academic freedom occurring on those campuses. I knew about those policies all too well; my parents are both professors at a public Florida university. I saw firsthand the impacts that increased state scrutiny had on their classes, conferences, and on students and faculty alike. I watched these anti-free speech measures create an atmosphere of fear not only on college campuses but extending off campus as well. When I was admitted to Wesleyan, I saw not only the chance to attend a college I enjoyed but a chance to escape student and faculty repression. This measure destroys my chance at that. And the worst part? It destroys this chance in the name of my protection.

I proudly identify as Jewish. My father started wearing a yarmulke after the horrific Tree of Life shooting in a show of resistance to antisemitic violence and rhetoric. I watched my peers in middle school do Heil Hitler as a joke and a sneer at me and my three other Jewish classmates. I am very familiar with what antisemitism looks like. It’s impacted me, it’s impacted my family, and most of all it’s impacted my community for centuries. So I will not let this bill speak for me as not only a Jewish person but a Jewish student in Connecticut. This bill does not protect me. Banning speech will never protect me. Controlling what we discuss in the classroom and on campus will never protect me. The surveillance that this bill enacts ensures that the freedom of speech and academic freedom of my peers and professors is at best discouraged and at worst outright punished.

I want to remind you again: I’ve seen this all before in Florida. The laws with similar intentions passed by the Florida state legislature did not reduce antisemitism. Virulent antisemites like the Proud Boys still exist at home. I still received jeers as an openly Jewish student in high school. Instead of protecting me, the Florida laws created a culture of fear in which those very discriminatory actions thrived. That culture did not protect me as a Jewish person, nor will protect me in Connecticut this time around. As a Floridian, as a Jewish person, and as a Connecticut college student, I urge you to vote NO on SB 980. It will not protect me. It already hasn’t.

JOTWELL: Effron on Young on legal information

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Kathryne M. Young, Getting Help, 2024 Wisc. L. Rev. 1149, on the gap between providing legal assistance and providing legal advice.

Preliminary injunction does not create prevailing party

So Lackey v. Stinnie holds 7-2 (Roberts for the Court; Jackson, joined by Sotomayor, dissents).

The majority adopts a categorical rule: A plaintiff never prevails based on preliminary injunctive relief; a judicial order must establish the enduring change to the relationship with the defendant to establish prevailing-party status. A case that ends on anything other than a final judicial decree on the merits (or its equivalent, such as a consent decree) render the preliminary relief "fleeting" rather than enduring. In this case (reflecting a common sequence), the government mooted the case by repealing the challenged law after the preliminary injunction. Thus, although the PI gave the plaintiffs what they wanted from the litigation--their licenses back and the opportunity to drive--and they retain those licenses after the end of the litigation, plaintiffs do not prevail because they did not get this relief (the ability to drive) from a final court order. Problematically, the court adopted the categorical bar that had been the law in the Fourth Circuit until the en banc court below in this case overruled its precedent. The court rejected more-nuanced approaches in some lower courts, which consider the basis of the PI (was the focus on the merits or on irreparable harm) and how much the PI relief endured by the end of the case.

According to the dissent, the majority conflates the need for success when the case ends (which dictionaries define as creating prevailing-party status) with the need for a judicial ruling on the merits to end the case. If a plaintiff gets what he wants early in the case and retains it at the end of the case, it does not matter why or how the case ends. This is particularly true where the case ends as moot--whether because the government moots by ceasing the challenged conduct (as here) or because plaintiffs sought specific short-term relief  that ends when the short period lapses (e.g., protesting at the DNC on three specific dates). Plaintiffs got everything they want from litigation (the right to keep their licenses or to protest) but no longer can recover fees in either case.

The case echoes Buckhannon Bd., the Court's last major attorney's-fee case, in a number of respect. Buckhannon rejected the "catalyst theory" (allowing plaintiffs to prevail if the lawsuit prompted the government to change its challenged conduct prior to any judicial ruling); Lackey extends Buckhannon to require that the judicial ruling finally resolve the case.

    • Lackey rejects the view of every court of appeals (11) to address the issue; Buckhannon adopted the view of the one circuit (ironically, the Fourth) to reject catalyst in the face of eleven adopting it. Not sure how the results of "percolation" should affect SCOTUS--if lower courts agree on a legal question, does that suggest something about the "correct" answer to which the Justices should defer?

    • Both cases turn on the importance of a judicial order as opposed to practical relief. Buckhannon and Lackey together require a final judicial order for prevailing-party status. Both dissents argue that the point of litigation is to get something in the real world (money or the right to engage in or be free from some conduct); the judicial order is the means, not the ends.

    • Both cases involve quarrels over efficiencies. Both majorities insist that their bright-line rules limit wasteful satellite litigation over fees; both dissents insist that the majority creates perverse incentives for plaintiffs to litigate longer, seek nominal damages for no good reason, and to resist mootness or settlement to maintain the possibility of prevailing-party status by getting to a final judicial order. Both dissents insist that the majority disincentivizes attorneys from undertaking cases (§ 1988(b) seeks to encourage representation) for fear that their efforts will not reach final judgment despite their basic merits; the majority dismisses these concerns as "entirely speculative."

The outcome surprises me a bit given the ideological drift of constitutional litigation. Lackey has a liberal bent--a challenge to a state law burdening criminal defendants (mostly poor and of color). But the increasing use of § 1983 litigation (and thus of § 1988(b)) attorney's fees for conservative causes means this decision will affect the other side. An anti-abortion group hoping to display photos of aborted fetuses at a particular intersection on a given date will not be a prevailing party. See how this plays out.

Courtroom policies and constitutional substance

Following up on the efforts to recuse a judge from hearing a challenge to a trans-athlete policy because of the judge's standing courtroom practices: Judge Crews (D. Colo.) refused to recuse and refused to rescind the courtroom pronoun policy. Crews (and his courtroom policies) have not stopped plaintiffs' attorneys from misgendering the trans athlete at the heart of the case (who is not yet involved in the litigation and thus not protected by the policy). And Crews twice told counsel that he would refer to the athlete by female pronouns as a matter of courtesy and respect (as he is duty-bound to do) but this should not be confused for prejudgment and did not require plaintiffs to do the same. It seems to me we are in Rick's baseline hell here because any judicial practice will reflect the goals of one side in a case such as this--a judge who insisted on using male pronouns to describe a trans-woman athlete could be said to prejudge the matter by accepting plaintiffs' arguments about biological sex.

But then Judge Dale Ho (S.D.N.Y.) recused (paywalled) from a challenge to a minority-supporting investment fund because of his courtroom policy encouraging participation of less-experienced attorneys, including those from historically underrepresented backgrounds; lawyers from Consovoy McCarthy alleged the policies violate Equal Protection and reflect prejudgment in the case. Consovoy attorneys made the same move against another S.D.N.Y. judge, prompting her to rescind a similar policy.

As a matter of prejudgment and judicial ethics (which I do not study), are these cases distinguishable? I do not believe either reflects prejudgment; judges must be free to enact lawful policies until they cease to be lawful. A judge's lawful practices cannot be the basis for recusal once a case comes around that might challenge or be inconsistent with those practices. Otherwise, parties pushing  litigation positions would be able to pick their judge--only a judge who has never sought to advance racial minorities or to show respect for trans people in an (at-the-time) lawful manner. And we are back in baseline hell. Unless it depends on the courtroom policy--is there a difference between a "be respectful in my courtroom" policy and an "enhance the diversity of the bar" policy, in terms of what judges should be doing?

Harper's Letter and real threats to free speech

Amid genuine government efforts to restrict or retaliate against speech--the White House limiting AP access because of objections to its style guide, deputized private thugs removing people from town hall meetings, government stripping funding from universities where researchers focus on certain topics and viewpoints--some have returned to the infamous Harper's letter of 2020. They wonder-facetiously, since we all know the answer--whether the Harpers authors worry that government threats to suppress speech (as opposed to annoyed readers complaining about the authors themselves) threatens "the free exchange of information and ideas, the lifeblood of a liberal society" or creates a "stifling atmosphere [that] will ultimately harm the most vital causes of our time." Does a promise from the Acting U.S. Attorney for the District of the District of Columbia (and nominee for the permanent slot) to "be vigilant in standing up against entities like the AP that refuse to put America first" suggest that "journalists [will be] barred from writing on certain topics" and face "swift and severe retribution" for what they say? Or is that only when it comes from an Oberlin sophomore complaining about these authors rather than the machinery of the United States government.

I do not expect intellectual honesty from Bari Weiss and her fellow travelers (and some of the Harper signatories should have known better, even in 2020). Most do not fear reprisal from this administration and do not care that their critics or ideological opponents will face such retribution:

    "Hey, please be thoughtful in how you write about powerless trans people"--dire threat to free speech.

    "You lose your government funds if you use the word trans person and your ability to access common spaces if you do not describe bodies of the water with out preferred terminology"--no problem.

I think we are witnessing the Converse Cry-Wolf. It is not that these people screamed about threats to free speech for so long that no one believedsthem when they now warn about real threats to free speech. It is that these people do not even recognize, acknowledge, or care about these real threats to free speech.

Proposal to eliminate the tush-push

I wrote about the controversy over the tush-push* as a sports rule and possible efforts to ban it. An unidentified team (ed.: Turns out to be the Packers) has submitted a proposal to ban the play, citing health-and-safety (as opposed to competitive-balance) concerns. We will see what happens.

[*] The Eagles (who, apropos of nothing, will not visit the White House) play is officially called the "Brotherly Shove," so the Yiddish should not have found its way into the Super Bowl.

Substance, procedure, and the current constitutional crisis

Sen. Curtis (Utah) went on Face the Nation and said this:

Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system--* Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say, exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play in. We have the ability, I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and- and then Congress, let's step up, right? We need to- I'll be the first to say we. This is a problem the Congress is, in many cases, has given the American people.

He has been taking some crap in some quarters, especially for the part about "test[ing] the Constitution. "No," they respond, "we follow the Constitution, we do not test it." But while "test" is a bad word choice, I am not sure he is wrong.

The retort of "we follow the Constitution" begs the question because no one knows what the Constitution means and no one has the final word on the meaning of the Constitution. Trump and his minions (presumably) believe what they are doing is lawful and pursue this course on that belief; other constitutional actors (namely the courts) express their views, but that plays out within a somewhat lengthy process. Alternatively, Trump and his minions know what they are doing is unlawful (or at least do not care); other constitutional actors (again, the courts) may bring them to heel, but that plays out within a somewhat lengthy process.

Ultimately, Curtis gave a procedural response to a substantive question. Host Margaret Brennan (who is so far out of her depth) asked whether Curtis had a point of view of the wisdom of everything Trump is doing and whether he is pursuing a good course of governance, a question about the substance of his actions; Curtis responded with a procedural answer--the Executive acts, other branches respond, and we get an answer to the immediate question. But that tells us nothing about whether he--a member of the Senate and a constitutional actor--believes the President should do th4ese things. He punted to "the courts will tell us whether it is valid" as "the beauty of our system." (Seemingly without recognizing Congress as a constitutional actor and his role in that process).

This distinction among constitutional procedure, constitutional substance, and policy substance confounds most discussions. Take birthright citizenship. The President did not "act like a king" in issuing the EO if he believes that Kim Wong Ark is wrong or distinguishable; he acted on his independent constitutional judgment, which can be challenged in the other branches. The real issue is the substantive--whether his view (and the views of conservative scholars rallying to his defense) is defensible. Or take firing military leaders or pardoning J6 insurrectionists or appointing nut jobs to high offices. This is not a matter of constitutional procedure or constitutional substance--no one doubts the Commander in Chief can fire who he wants to and no one doubts the pardon power; it is pure policy (or norms, if you like) and how we believe leaders should act in office.* And this is actually where Congress--a rival policymaking body--can but fails to act.

[*] Sandy Levinson might say it reflects constitutional substance by exposing the many defects in the Constitution. Fair enough. But we are stuck with the Constitution we have.

Interviewers and commentators should maintain these distinctions. If Donald Trump is acting like a king, it is not necessarily because he has exceeded his constitutional powers-the President has quite broad, and ill-defined, powers. It is that he is governing in an objectionable way that maximizes his power towards bad ends. So the question for congressional Republicans should be "Do you think it is a good idea to have Dan Bongino as Deputy FBI Director or a statutorily unqualified person as Chair of JCOS or to eliminate top military lawyers or to eliminate birthright citizenship." The question should not be "can the President do this," because the answer is always either "yes" or "we'll let the courts decide."

Major and Minor Trans Issues, Again (Updated)

I previously criticized efforts by some Democrats and non-conservatives to defuse Democratic vulnerability to anti-trans demagoguery by sacrificing minor issues such as sports participation in favor of major issues, such as allowing trans people to live their lives, including their names and pronouns. I argued this cannot work because those opposed to trans rights (which has become the entire Republican establishment) do not and will not draw these distinctions--recognizing trans people is objectionable in all forms and contexts.

Case in point: Attorneys in the lawsuit (in the District of Colorado) challenging the Mountain West Conference's trans-participation policy have moved to recuse Judge Kato Crews from the action. The reason? Crews (along with several other judges on the court) adopted a joint set of practice rules, including a provision inviting counsel to identify the pronouns of relevant actors in each case and to use appropriate names and pronouns in court. They argue that the policies restrict the speech of plaintiffs and lawyers (which, yes, procedural rules do that all the time) and demonstrate bias--"An impartial forum cannot exist where the Court has so forcefully signaled the Courts’ personal views on sex and gender identity that the Court is willing to use its contempt power to enforce those views."

In other words, they object to anything recognizing the humanity and equality of trans people and have no interest in some compromise in which trans people can live as they want, as long as they stay out of certain limited areas (such as women's sports). Conversely,they allow no space for the sort of compromise some propose--asking a lawyer to be respectful and not be an asshole to a trans person during litigation reflects bias and prejudgment about the bigger issue of sports participation.

I expect Judge Crews to deny the motion. But it gives us a sense of where we are.

Updated: Marty Lederman discusses the case on Bluesky, including a link to the motion with asks Judge Crews to rescind his court rules. Marty frames this within a pending Sixth Circuit case in parents claim their children have a First Amendment right to misgender their school classmates. Whatever the outcome there, I agree with Marty that it is absurd to think the First Amendment precludes courts from regulating how attorneys and parties refer to one another in the litigation process.

JOTWELL: Wasserman on Berman on personal jurisdiction

I have the new Courts Law essay reviewing Paul Schiff Berman, The Future of Jurisdiction, 102 Wash. U. L. Rev. ___ (forthcoming 2025). I plan to incorporate some of his insights into the course this semester.

Defining misinformation

Free speech advocates opposed government efforts, urged by members of the public, to restrict and eliminate misinformation about COVID, the 2020 election, January 6, conversion therapy, and other subjects. They warned, in part, about the danger of giving the government the power to define what is true and to restrict speech the government defines as "misinformation." If you give the Biden Administration the power to define the truth about COVID and to suppress as "misinformation" any speech that departs from that truth, nothing stops the Trump Administration from defining the truth about something liberals care about and suppressing as misinformation speech that departs from that truth.

I did not expect that the warning would become real over something as stupid as Donald Trump unilaterally renaming the Gulf of Mexico and his administration insisting that using that name reflects a "commitment to misinformation" worthy of sanction. Yet here we are.

Update: Eugene has more.

Redefining chutzpah or the continued death of corporate media

This op-ed, enumerating Trump's many constitutional abuses and insisting that "this unconstitutional overhaul of the American government — far more sweeping, haphazard and cruel than anything he campaigned on" is not what voters signed up for. Here is the call to action:

America faces a new reality, and it demands wisdom, endurance and courage. The United States is now led by a president who appears willing to stampede over any person, law, congressional statute or country that stands in his way. He is driven by impulse and is disinterested in rules, history or reality.

How Americans and the world handle such a president will determine much about the next four years, and it will ask much from all of us. We must meet the moment. Mr. Trump won the election fair and square, but his position is that of president, not king or god-emperor. Every time Congress allows him to exceed his constitutional role, it encourages more anti-democratic behavior and weakens the legislature’s ability to check further erosion of the norms and values that have helped make this nation the freest, richest and strongest in the world.

Nonsense. Trump campaigned on all of this, certainly in kind and mostly in degree. To the extent Trump did not discuss some of these things, Project 2025 laid it all out. But The Times spent the campaign sanewashing his comments about this stuff, accepting his (disprovable) denials about Project 2025, and downplaying (the old "seriously, not literally" or whatever nonsense) the threats. And the news section continues to give less attention to--or downplay the import of--for example, Musk's IT abuses compared with how it covered Hillary's emails. The campaign presented the opportunity to highlight and draw attention to the abuses Trump promised, to paint the real picture for the public.* To have covered the campaign as it did--and to continue to cover Trump as it does--and then shame readers for not fighting back harder redefines chutzpah.

[*] Perhaps it would not have mattered. We'll never know.

To its credit, it published this essay from Katherine Stewart, which begins: "They told us they would smash the institutions that safeguard our democracy. And that is exactly what they are doing. Many Americans chose not to believe what they were saying. Will we now believe what we are seeing?"

What happens on Pullman Abstention

The Fourth Circuit abstained under Pullman from the dispute over the North Carolina Supreme Court election; the district court had abstained under Burford, which the court of appeals said was the right conclusion for the wrong doctrinal reason.

But the court's explanation of the difference in coverage and effects seems off. Pullman is appropriate because unclear state laws may moot a federal constitutional claim. True enough. But Pullman differs from Burford in that Pullman requires the federal court to retain jurisdiction should state litigation not moot the federal issues. Under Burford, the district court dismisses because the dispute will be resolved in the state's complex remedial system (the reason for abstaining in the first place) and the case will not return to the district court. The court ordered the district court to retain jurisdiction over the federal issues, citing England.

The court relied on long-standing precedent for this, but it seems wrong. Pullman should require dismissal of the action to allow the parties to fully litigate state issues through the state judiciary. The case may return to federal court, but it does so as a new lawsuit. England does not address the court retaining jurisdiction. It allows the plaintiff to "reserve" the federal issues in state court, thereby avoiding claim preclusion upon possible return to federal court with the new purely federal action.

Retaining jurisdiction following Pullman abstention also destroys the distinctions with certification. Certification was a more expedient alternative (a "more precise tool," as Justice Sotomayor put it) because: 1) it went straight to the state's highest court and 2) the federal court otherwise retained the action pending resolution of the state questions. The Fourth Circuit's approach destroys one of those two distinctions.

Not the biggest deal given everything else being litigated in federal courts (more on that later). But a notable example of how lower courts go in strange directions.

JOTWELL: Bartholomew on Noronha on equitable awards

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Alexander J. Noronha, On Behalf of All Others Similarly Situated: Class Representation and Equitable Compensation, 122 Mich. L. Rev. 733 (2024), on the equitable origins of class-rep awards.

Time is a flat circle, sport-and-speech edition

My first published article at FIU, Symbolic Counter-Speech, explored the idea of using symbols to protest the symbols themselves.  Examples included events up to and at the start of the Iraq War, when Canadian baseball and hockey fans booed Star-Spangled Banner to protest the U.S.-led war and U.S. baseball fans booed Oh, Canada because Canada did not support the war. (Surprisingly, the U.S. did not go so far as to rename it "Freedom Bacon").

Reports of Canadian hockey fans booing the anthem in response to President Trump initiating a trade war with Canada shows we have gone nowhere in 22 years.

Update: Fans at a game between Nashville and Ottawa in Nashville booed Oh Canada. Free speech for me and for thee.

Personalism mediated by parties

I like Paul's modification of my post; I offer one different framing. Madison, et al. knew and feared personalism. As others have noted, visions of Trump (and Musk and other hangers-on) fill The Federalist. Madison believed some combination of changing-and-evolving factions and inter-branch competition would limit the success of personalism. So the (unexpected?) development of political parties enhances the danger of personalism--the reach of the personal can take root and spread across the branches through the mediating force of the parties. The party connects members of Congress to the demagogue and places them in greater thrall to the personal than they otherwise might have were he acting alone.

As for the Democrats being out of ideas: Would it make a difference? I would love to see them bring the Senate to a grind. But I don't know what good "new ideas" they could offer that would make a difference or slow down everything that has been going on.

Levinson & Pildes, to the extreme

Daryl Levinson & Richard Pildes' Separation of Parties, Not Powers argued that the basic component and theory of separation of powers--competition and cooperation between the branches--ebbs and flows depending on whether one party controls both branches. They published the piece in 2006, covering periods through W.'s first term, when the push-and-pull was over policy and perhaps some political use of legislative oversight.

The current crisis (and yes, it is a crisis) takes their thesis to the extreme. It is not just that a Republican Congress does not push back on a Republican President's policy goals and actions; that follows from shared policy preferences. This is a Republican Congress not pushing back on a Republican President's efforts to neuter Congress and to place all power in the executive. It shows that, even in the extreme, political partisanship defeats separation of powers--party loyalties and prerogatives prevail over branch loyalties and prerogatives.

303 Creative, Exclusive Private Enforcement, and Blue State Revenge

My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.

Abstract after the jump.

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This Article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

"Palpably unfair acts" and the Infield Fly Rule

Because I do not watch actual football games, I am late to the discussion of another example of Infield Fly-like rules in other sports, this time in the Eagles-Commanders game.

The Eagles had the ball about a yard from the goal line. Everyone knew they would run the "Tush Push" (three players in the backfield push the quarterback on a sneak), which has become nearly unstoppable. The Commanders tried to time the snap and get to the QB before he had the ball and the pushers had a chance to push, including by a player jumping over the top of the line. They mistimed it three times, earning an offsides penalty each time. After the third infraction, the official announced that he would, if the Commanders did not cut the crap, call a palpably unfair act, which allows an official to award a score.

This is an IFR-type situation: The Commanders engaged in conduct contrary to ordinary expectations (intentional infractions); the Eagles could not counter (they cannot stop a player from encroaching repeatedly); it secured the Commanders an overwhelming advantage (the Eagles never had a chance to snap the ball); and the Commander had the incentive to keep doing it because it incurred no risk to keep doing it  and thus hoped to time it right that one time.* The palpably unfair conduct call eliminates the incentive to keep trying the play by imposing a cost--the touchdown they are trying to stop.

[*] An offside infraction is harmless with the ball inches from the goalline--the the penalty is half the distance to the goal line (Zeno's Paradox applied to football) and no new set of downs.

I addressed the palpably unfair rule as a limiting rule in the IFR book when discussing Super Bowl XLVII between the Ravens and 49ers. The Ravens had a safety kick with seconds remaining on the clock. Ravens players were recorded on the sideline saying that if the 49ers returner broke free, they should run onto the field and tackle him to keep him from scoring. Such a play would earn a palpably unfair call and likely the officials awarding the touchdown. And the Ravens' planned strategy fits the IFR elements--contrary action according an overwhelming advantage that the opponent cannot counter, with the team having every incentive to try it.

Interestingly, some have argued for a different limiting rule--ban the tush-push. This argument sees the IFR-type problem in reverse: The offense enjoys an overwhelming-and-non-c0unterable advantage (the mass of bodies and momentum is impossible to defend) and an incentive to do this every time in that short-yardage situation. Eliminating the tush-push eliminates the unfair disadvantage on the defense. And, in turn, eliminates the defense's incentive to commit palpably unfair acts.

Update: Whether the tush-push should be banned is an interesting one. Most limiting rules arise because the structure of the game creates the overwhelming imbalance--the runners in an infield fly situation are stuck and will be put out whether they run or stay; the time the offense loses running a futile play against extra defenders cannot be recovered. We can debate whether the imbalance from the tush-push is structural. On one hand, this is one team taking advantage of its bigger-and-stronger players to overwhelm the defense; we did not ban peak Earl Campbell from running through over-matched defenders (watch some old clips). And we allow multiple defenders to tackle one runner; that does not differ from a collective "runner" moving forward as a giant blob. It also is telling that only the Eagles use this move to the same degree. On the other, one could define the structure of football as one ball carrier against the defense, not an offensive collective against the defense.

LaForte Fractures

Sharing for no good reason: We have been watching The Pitt, Noah Wylie's new not-ER hospital drama. In the second episode, they treat a guy who hit a car door while riding on a scooter and face-planted, suffering a LaForte Fracture, in which the top of his face comes lose from the bottom jaw (they refer to it as a "floating face"). They show (because this is not a network show) the doctors moving the top of his face back into place.

This development excited us because I suffered a similar injury in a bicycle accident a couple years ago. Mine was a LaForte II (only the upper jaw was loose), as opposed to the LaForte III on the show. Still, it took us back. (My Fed Courts students from that semester sent me a get-well card wishing me a speedy recovery from my "concrete and particularized injury." They learned something.)

I had one nitpick: They made a big point of saying that the guy was not wearing a helmet, intimating that this worsened the accident and "this is what happens when you're stupid and don't wear a helmet." This is nonsense. I was wearing a helmet. A helmet does not help when you slam face-first in the pavement.

Craven, cowardly, and clueless

Republicans in the Idaho legislature are pursuing a resolution urging SCOTUS to overrule Obergefell. The exercise is performative bullshit. SCOTUS resolves lawsuits, not requests from random people to do things. The article quotes Tobais Wolff (Penn) as saying "the Supreme Court will no more respond to a letter from the Idaho Legislature than they would a letter from me." It also quotes one legislator emphasizing the need to make a statement about protecting rights.

The clueless part is that the legislators could make a statement that would have actual legal effect: Pass a law limiting marriage to one man and one woman (presumably a new version would specify cis-man and cis-woman) and set up a lawsuit by a couple denied a license; then they can marshall their legal brilliance to argue to the Court why it should overrule its precedent. They cannot claim a belief in judicial supremacy; the proposed resolution begins "[s]ince court rulings are not laws and only legislatures elected by the people may pass laws." Such a view of the balance between the judicial and legislative powers suggests the legislature can (and should) pass a law reflecting the views of the people of Idaho and let the legal controversy play out.

The answer is the cowardly part. They do not want the political blowback to enacting a law contradicting SCOTUS precedent. They likely fear being lumped with Massive Resistance and the authors of the Southern Manifesto--who, to their (limited) credit, offered a procedurally and substantively coherent vision of constitutional judicial review. They also likely fear the hundreds of thousands of dollars in attorney's fees they will pay for litigating two guaranteed losses in the lower courts and a likely loss in SCOTUS (which I do not believe is so anxious to overrule Obergefell, as opposed to limiting its application). But these people will not put their money or their power where their mouths are.

And so we get the craven part--a legally, procedurally, and practically meaningless performative gesture.

Nazi jokes and Nazi salutes

I have no real use for the ADL and less for Jonathan Greenblatt. I have long believed they see antisemitism lurking around every corner, often in a way the conflicts with my views on First Amendment protection for hate speech. So I am not the group's target audience. And October 7 produced a genuine uptick in antisemitic speech and incidents, so I began to see a bit of the group's point.

But Greenblatt and the group's response to Elon Musk's adventures destroys any credibility. First, it was a Nazi salute; it did not just "appear to be," as so many outlets (including The Forward) described it. And it was made on stage at an inaugural even by a person with an office in the West Wing and the ear of the new President. Minimizing it as "an awkward gesture in a moment of enthusiasm" is absurd. Greenblatt exacerbated the problem by condescendingly telling everyone who disagrees with him (those who are "on edge") to chill out by "giv[ing] one another a bit of grace, perhaps even the benefit of the doubt, and take a breath" and "hop[ing] for healing and work[ing] toward unity in the months and years ahead." As if Musk and the president he supports are not expressly targeting those they do no like. Demanding that one side give the benefit of the doubt and work toward unity--while the other runs roughshod--is offensive nonsense.

Greenblatt made himself look worse by chastising Musk over bad puns about Nazi leaders, taking umbrage about the Holocaust as a unique event that should never be joked about. (Maybe have a word with Mel Brooks?). One might see this as attempted compensation--chastising the joke to overcome the criticism for his response to the salute. But I think Greenblatt sincerely sees the latter as worse than the former. And that reflects bizarre priorities--an online joke deserves strident condemnation but a political speech celebrating a president set to pursue some problematic policies is no big deal. Of course, it is consistent with the view that the pro-Palestinian shouts of an Oberlin student represent an existential threat to Jews but government policy that harms Jewish interests is no big deal.

To be clear, both of Musk's actions warrant condemnation. And both are constitutionally protected, so nothing (besides cementing my negative opinion about him) should befall Musk. Greenblatt's disparate treatment reflects more about the ADL than it does on Musk's character. That is sad.

Update: From Jodi Rudoren at the Forward. She makes a point I considered after posting--the subsequent jokes should lend some "context" to the salute, strengthening the view that it carried an antisemitic message. Also, Greenblatt's quotations are moronic--"we don't know anything, but I can say it was not a Nazi salute."