Monday, April 19, 2021

Bad state action arguments (Updated)

MyPillow, facing a billion-dollar defamation lawsuit by Dominion Voting Systems over Mike Lindell's post-election nuttery, has sued Dominion (note: It is a new action, not a counterclaim--not sure why). It asserts claims for violations of the First Amendment and due process.

How? Here is ¶ 89: "Defendants, at all times relevant hereto, were performing and fulfilling a traditional and exclusive state and governmental function of administering public elections, pursuant to state statutes, ordinances, regulations, customs, rules and policies established thereunder, and as such, were acting under color of state law."

Administering elections qualifies as a traditional-and-exclusive public function, when the government delegates or turns control over the election machinery to a private entity, such as the Democratic Party in Jim Crow Texas. It does not apply to government contractors who support the government in performing those traditional-and-exclusive government functions. So this argument is silly and doomed to fail. Although I suppose it at least has a better doctrinal base compared with those arguing that Twitter, YouTube, et al. act under color because managing a "speech forum" is a public function or because § 230 immunity makes them the government or because saying they are committed to free expression makes it the government.

Update: Fleshing this out a bit following an email exchange with a reader.

    First, none of this matters to the present action. Even if Dominion acted under color in performing election-related functions, it does not act under color for all purposes. The allegation in this action is that Dominion violated the First Amendment by publicly criticizing and suing MyPillow for defamation. Dominion is not under color in doing that, because it is not wielding any authority derived from government. The claim is not saved by the argument that Dominion was responding to MyPillow criticisms of Dominion's allegedly under-color election conduct. The chain of causation does not extend so far. Devin Nunes--an actual government official--does not act under color when he sues cows for criticizing how he performs his (under color of law) government functions.

    Second, Dominion's supposed malfeasance was all over the place in the post-election litigation and various Kraken and Kraken-adjacent complaints were loaded with allegations of how Dominion voting machines helped throw the election to Biden. No one thought to include Dominion in any of those suits on this theory?

    My presumption in these arguments is that Dominion's role is limited to selling/renting the machines to the government, installing them, training government officials on them, and providing technical support where necessary; Dominion is not more actively involved in running the collection and counting of votes. This makes Dominion like the company that provides tasers or handcuffs for police--even if those devices somehow contribute to the constitutional injury, providing them does not alone create state action. A greater level of joint cooperation with government officials might change the conclusion, creating joint participation and a nexus because government enables the private misconduct. (The example from a reader is police hiring private security to provide additional crowd control at a public event). The complaint does not provide any facts showing a greater level of engagement by Dominion.

Posted by Howard Wasserman on April 19, 2021 at 04:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Academic Feeder Judges

Academic Feeder Judges, my study of where legal academics clerked, has been published at Judicature.

Posted by Howard Wasserman on April 19, 2021 at 03:57 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, April 12, 2021

Panel: The Law and Politics of the 2020 Election and its Aftermath

FIU College of Law will host a panel, The Law and Politics of the 2020 Election and its Aftermath, from 1-2:15 EDT on Tuesday, April 13 (tomorrow). Panelists are Carissa Byrne Hessick (UNC and PrawfsBlawg), Ellen Katz (Michigan), Brian Kalt (Michigan State), Genevieve Lakier (Chicago), and Steve Vladeck (Texas and formerly PrawfsBlawg). It should be a great discussion.

Click here to join us.

Posted by Howard Wasserman on April 12, 2021 at 11:12 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 06, 2021

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 30, 2021

Return of Kitty Genovese?

The video-recorded attack on an (unidentified) elderly Asian-American woman in New York is striking two themes: the increase in bias-motivated violence against Asian-Americans and the apathy of the men inside the building who watched the attack on the sidewalk, then closed the door when the attack was over and the woman was lying on the ground. The staff members have been suspended pending an investigation in cooperation with the SEIU; the union says that their current information is that the workers called for help and urged people not to rush to judgment. Meanwhile, video and stills of the attacker have been released and calls are out for information about the identity of the assailant.

The story brings to mind Kitty Genovese, whose 1964 murder wrapped into an inaccurate narrative of bystander apathy that remains 57 years later, even as recent accounts have shown that narrative to be false. That this new (apparent?) apathy was caught on video makes the narrative more powerful and potentially stickier. It is different in two respects. First, it does not allow a complete-apathy narrative, as witnesses say someone on the street (not captured on video) chased the assailant, who pulled a knife before escaping. Second, the apathy is bound up with the anti-Asian narrative. So this is not public apathy, but racist apathy directed at a vulnerable population.

Posted by Howard Wasserman on March 30, 2021 at 06:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So these officers are off the hook, so this case does not even put the next officer on the hook for the same misconduct. So the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail on clearly established. The court will never provide the precedent it has deemed necessary. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, March 27, 2021

Court finds personal jurisdiction in Ford

SCOTUS decided Ford on Thursday, with all Justices agreeing that jurisdiction was proper. Kagan wrote for five (Chief, Breyer, Sotomayor, Kavanaugh); Alito concurred in the judgment; Gorsuch, joined by Thomas, concurred in the judgment. My SCOTUSBlog analysis is here.Kagan's opinion makes for a good teaching case, with a nice overview and summary of the doctrine (I am going back and forth about whether to use this instead of WW--I have a week to decide). On the relatedness question, Kagan concludes that a claim can "arise out of" the defendant's minimum contacts or it can "relate to" the defendant's minimum contacts; the former suggests causation, while the latter can looks for "an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State and is therefore subject to the State’s regulation." Relate to contemplates relationships lacking that causal showing. This is where Alito jumped off. Arise out of and relate to mean the same thing and both require some causation, which was present here. Gorusch and Thomas question the entire International Shoe framework, without identifying what might replace it.
The case leaves many unanswered questions.

What is the status of the reasonableness factors that are supposed to be the third step in the analysis? The Court has not mentioned or relied on them in any recent case. But they should control the result in the local-company hypos in FN 4 of Kagan's opinion (about a retiree wood-carver in Maine) and in Breyer's Nicastro concurrence (about Kenyan coffee producers); the defendant had contacts and the contacts gav rise, but it would be unreasonable to drag these small defendants to distant forums. Kagan alludes to considerations such as fairness  to the defendant and notice to the defendant and the competing interests of the forum state and other states in adjudicating, but appears to bury them in the first two prongs, rather than leaving them as a third step.

What else would satisfy relate to but not arise under? Some courts or judges have argued that relate to allows a longer causal chain, while arise under looks for  a transactional connection. For example, in Clemens v. McNamee (Roger Clemens' defamation suit against the former trainer who narced him out to the Mitchell Commission), the dissent argued that McNamee had contacts with Texas through his training activities in Texas (he traveled there 30+ times) and that those contacts "related to" Clemens' defamation claim because the Texas-based training put McNamee in a position to know about Clemens' PED use. Brennan made a similar move in his Helicol dissent--all the contracts and preliminaries for the relationship with Helicol were negotiated and entered into Texas, contacts that made the deal, and thus the accident, possible. Would the same majority endorse those views?

There has been some interesting discussion on the Civ Pro Profs List of what must be "related" for the second prong. Is it a relationship between the defendant's contacts and the claim and the forum? Or between the plaintiff's claim and the forum? Or some combination of the two.

Posted by Howard Wasserman on March 27, 2021 at 03:42 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, March 26, 2021

Playing baseball on Shabbat

In an early draft of my article on Jewish players and Yom Kippur, I included a discussion of "why Yom Kippur," among all other parts of the Hebrew calendar. In particular Shabbat, which, Armin Rosen argued in the essay that started me down this path, is more sacred than either of the High Holy Days. I considered what might happen if a player would not play on Shabbat--at a minimum, it raises practical difficulties for a non-pitcher to have to know he must miss 36 games (22 % of the games) before the season even begins. At the same time, I think a team could and would accommodate that player--especially a star--to its financial benefit. (I pulled this section for length, although I may try to do something with it as a stand-alone piece).

A number of publications and people are telling the story of Elie Kligman. Kligman is a high-school senior from Las Vegas, pitcher and power-hitting infielder who is transitioning to catching; he is ranked as the 14th-best high school player in the state. He also is Shomer and has never played on Friday nights or Saturdays; most leagues and tournaments have accommodated him, at the urging of his lawyer/agent father. Kligman is talking about playing big-time college baseball and hopes to make the Majors. And he is already talking about not playing on Shabbat if he gets there. Part of the reason he is switching positions is that catchers often get at least one day off each week because of the physical toll; his day off could be Shabbat.

Before getting too excited about the next "Mickey Mantle bred on blintzes and gefilte fish" (as was written about 1970s slugger Mike "Super Jew" Epstein), I want to know more about just how good he is. Who is recruiting him and how good a prospect is he? The story says there are a "handful" of college coaches interested in him, but will not say who or what level. A scout says he could make an "impact" for a Power-5 conference team in a year or two. And a statement such as this--"Based on talent and desire, Kligman is good enough to realistically entertain his dream of playing Major League Baseball, or at least top level college ball"--means nothing. Top-level college baseball is roughly equivalent to high-A minors, a long way from The Show.

Like every other Jewish baseball fan, I want this story to be true and I hope Kligman makes it and 5-10 years from now I can write about his team switching their Friday home games to 2:15 starts. But at the moment, the story about his MLB prospects is, at best, incomplete.

Story published just in time for Shabbat.

Posted by Howard Wasserman on March 26, 2021 at 05:33 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, March 18, 2021

SCOTUS March Madness

SCOTUSBlog is running a 16-person bracket for greatest Supreme Court Justice. Marshall, Holmes, Warren, and Scalia are the top seeds. Frankfurter is 15th seed, which seem bizarre. Here is the methodology. Based on results so far, it looks like recency bias and liberal bias may prevail, with a touch of groundbreaking bias thrown in. As of this moment, the only close match-ups are the 5-12 between Brennan and Ginsburg and the 6-11 between Black and Rehnquist.

Vote early, vote often (Round 1 closes this Sunday).

Posted by Howard Wasserman on March 18, 2021 at 05:55 PM in Howard Wasserman | Permalink | Comments (2)

Civ Pro: No Coke, Pepsi

Two fun things in recent Civ Pro classes.

First, I taught Scott v. Harris today. For the first time, not one student took the position that the video might support the plaintiff and show that the use of force was unreasonable. Maybe everyone who took that position had her camera and did not feel like doing hand-raise. But I was surprised.

Second,we Discovery last week, with a group argument over Coca-Bottling v. Coca-Cola, a dispute over discoverability of the formula for Coca Cola (what is now Classic) and the discovery and sanctions order coming from that dispute. But then, because I could not resist and believe I should impose my pop-culture preferences on them as much as the other way around:



Posted by Howard Wasserman on March 18, 2021 at 01:48 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, March 16, 2021

Testing the Ainge Curse

BYU has a school policy against playing games on Sunday, grounded in LDS religious obligations. In 2003, the NCAA Basketball Tournament Selection Committee put BYU in a bracket space that required it to play a potential second-weekend game on a Sunday. The NCAA pledged not to let that happen again. But it did it again this year. BYU is the 6th seed in the East Region, which is scheduled to play on Sunday/Tuesday; the Midwest Region is scheduled to play on Saturday/Monday. If BYU reaches the Sweet Sixteen, the East and Midwest will switch schedules. Because fans will not be present and teams are bubbled and not traveling, the switch is administratively easy and can remain contingent until we see the results of the first weekend. (H/T: Josh Blackman)

Last year, Yeshiva University's men's team made the D-III tournament. It played at 2 p.m. Friday, with the host school knowing the team had to leave the gym by 5 for a 5:46 Shabbat, then at 8:45 p.m. Saturday.

Posted by Howard Wasserman on March 16, 2021 at 02:42 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, March 11, 2021

Zombie revivals

Michael Dorf writes about a new Arkansas law that bans all abortions except to save the life of the woman in the case of a medical emergency. Dorf wonders why Arkansas (or any other state) does this rather than attempting to enforce an existing law. He argues it is partly political--current legislators and the current governor want the political trophy of such a law, as opposed to give the attorney general the glory of new enforcement. There also is the problem that Arkansas or another state may be under an injunction not to enforce the existing laws, so the new law is necessary to create a new enforcement opportunity. Alternatively, the AG would have to ask the district court to lift the injunction, which may be difficult when done in anticipation of SCOTUS overruling precedent.

Some good thoughts here that I want to incorporate into my Zombie Laws paper.

Posted by Howard Wasserman on March 11, 2021 at 04:11 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Posted by Howard Wasserman on March 11, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 10, 2021

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, March 09, 2021

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, March 04, 2021

Whither Ford?

Alabama Law Review will host a virtual symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival, 9 a.m.-3:30 p.m. CST tomorrow. Registration here.

The timing of the symposium makes it worth noting that the Supreme Court has not decided the Ford personal jurisdiction cases, which were briefed last spring and argued on October 7. The Court has not announced its next opinion day and the new sitting does not begin until March 22. So it will be 5 1/2 months, at least, from argument to opinion. It must mean the Court is going to do some very unfortunate things to personal-jurisdiction doctrine or some minority of the Court is drafting dissents to complain that the Court did not do something unfortunate to personal-jurisdiction doctrine. Either way, I am surprised it has taken so long.

Posted by Howard Wasserman on March 4, 2021 at 04:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, March 01, 2021

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

Posted by Howard Wasserman on March 1, 2021 at 10:46 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, February 25, 2021

Jurisdiction and Merits in the FTCA

SCOTUS unanimously held Thursday that the Federal Tort Claims Act's Judgment Bar applies where the district court dismisses an FTCA claim for lack of jurisdiction based on a determination that the complaint fails to plausibly allege elements of an FTCA claim. While the Court acknowledges that failure to state a claim ordinarily does not deprive the court of jurisdiction, the FTCA is unique. As a waiver of sovereign immunity, all elements of a meritorious claim are jurisdictional.

Descriptively, I think this is right, given the text of the FTCA, But it is bad news from my everlasting project of sharply separating jurisdiction and merits and not letting Congress make the former relate in any way to the latter. It also is bad news for my position that sovereign immunity should not be deemed jurisdictional--the suability of a defendant goes to the "who can be sued" prong of the merits, not jurisdiction. Another area to cover (along with standing) if I ever write this piece.

Justice Sotomayor concurred to address an issue briefed but not used in the decision--whether the judgment bar should apply in a case (such as this one) in which the plaintiff brings FTCA and individual claims in one action. Sotomayor suggests (rightly, I think) that the bar should not apply in those cases because claim preclusion would not apply there. It would be odd for a decision in one claim within a single action to have a preclusive effect on other claims in the same action.

Posted by Howard Wasserman on February 25, 2021 at 06:19 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, February 18, 2021

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

Posted by Howard Wasserman on February 18, 2021 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, February 11, 2021

Oh, My

Bruce Castor, one of Trump's impeachment lawyers, went on a weird tangent in his opening statement about how people refer to the Senator from their state as "my Senator," arguing that this is a sign of respect and reverence. But this made me think about the use of the possessive for government officials.

I use the possessive to describe Senators from my state because there are many Senators. I cannot say "the Senator" because that does not distinguish her from the other 99. The possessive identifies a particular Senator based on one personal fact that serves as a shorthand--he represents me. But it has nothing to do with respect. For example, "my Senators are craven, cowardly supporters of insurrectionists and a wannabe authoritarian with no respect for the Constitution."

I do not use the possessive to describe the President because there is only one President and no confusion in saying "the President." The possessive for a unique officer also feels monarchical ("My Queen") or dictatorial ("Mein Fuhrer"). But it again has nothing to do with respect--I have never labeled Presidents I like as "my President."  Trump liked to use the possessive to describe himself ("I am your President").  Which may explain some things.

Posted by Howard Wasserman on February 11, 2021 at 10:26 PM in Howard Wasserman | Permalink | Comments (5)

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 10, 2021

Healy on cancel culture

Thomas Healy (Seton Hall) has a great short essay arguing that social censure of speech--what conservatives denounce, ad nauseum, as cancel culture--is a form of protected counter-speech in most contexts. I especially like the closing flourish: "For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent."

If anything, Healy may underplay the protected nature of much of what gets derided as "cancel culture," for reasons I have discussed in prior posts. The anti-cancel arguments benefit powerful speakers who can have access to a forum to be heard, then demand that other speakers only engage "on the merits" and reject anything else as silencing, while feeling no obligation to engage with the little people.

Healy also has a great response to complaints about silencing, reminding us what the marketplace of ideas is about:

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

I had not thought to put it in these terms, but this is right. The "marketplace of ideas" is not a debating society. Its purpose is not to air all ideas to air all ideas, but to identify those ideas that we want to adopt and to reject those that we do not. The left/liberal criticism of the marketplace is that it does not work and abhorrent ideas continue to exist and to flourish, even as most people find them offensive. If government cannot silence speakers and speech and even one person is entitled to hold onto a bad idea, disassociating from those ideas and from those who espouse those ideas must be built into the market.

Worth a read.

Posted by Howard Wasserman on February 10, 2021 at 03:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (15)

Quint, the USS Indianapolis, and the COVID vaccine

Random thought, as COVID takes a (hopefully) last-gasp spin, 90 % of the country waits for the vaccine, and lots of people return to normal in anticipation of an as-yet-not-widely distributed solution.

I am reminded of Quint's U.S.S. Indianapolis speech in Jaws. Towards the end, he describes being most frightened waiting for his turn to get onto the rescue craft. Which makes sense--he had survived five days and safety was in sight. One might have the same feeling now--having revamped life to avoid getting sick, the end is in sight and it is most scary waiting for your turn and not wanting to get sick (or worse) after muddling through for the past year. But many people and communities seem to take the opposite tack--showing no heightened fear while waiting and returning to normal ahead of actual safety.

Plus, Robert Shaw is great in the scene.

 

Posted by Howard Wasserman on February 10, 2021 at 10:36 AM in Howard Wasserman | Permalink | Comments (3)

Tuesday, February 09, 2021

;

Lauren Oyler on the joy of semi-colons. I join you heartily & gratefully. This is fine—very.

Posted by Howard Wasserman on February 9, 2021 at 10:35 AM in Howard Wasserman | Permalink | Comments (3)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, February 07, 2021

Shotgun pleadings and the (continued) death of FRCP 12(e)

The creation of "factual insufficiency" under FRCP 8(a)(2) and 12(b)(6) dismissals without prejudice--informally pre-Twiqbal and formally since--made FRCP 12(e) motions for more definite statement into a relic. If the complaint lacked sufficient facts or details, a defendant would move to dismiss for failure to state a claim rather than for a more definite statement. The result is the same--the plaintiff gets another chance to plead--and courts and defendants followed the 12(b)(6) route.

So 12(e) evolved in the other direction, as a tool against prolix complaints--100+ pages, 750+ allegations (often containing irrelevant and inflammatory information), 25+ claims against a random host of defendants, with no clarity about who did what or what conduct violated what rights. Such a complaint fits Rule 12(e)--the massive amount of disorganized information renders the pleading "so vague or ambiguous that the party cannot reasonably prepare a response." Defendants (and courts) should not be required to excavate the rubble of the pleading to figure out what is going on and how to respond.

The Eleventh Circuit has gone a different route. It introduced the doctrine of "shotgun pleadings." It recently described four types of shotgun pleadings (or, probably more accurately, four characteristics, since I imagine they can combine): 1) a complaint with multiple counts in which each count incorporates every prior paragraph, including the paragraphs in the prior counts; 2) a complaint "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;" 3) a complaint that does not separate causes of action into distinct counts; and 4) pleadings with multiple claims against multiple defendants that does not specify who did what or who each claim is brought against. All solid categories. But under the Eleventh Circuit's doctrine, the appropriate tool is a 12(b)(6), not 12(e). More importantly is the consequence: Where a plaintiff represented by counsel has a complaint dismissed as shotgun and fails to request leave to amend, the district court must give one chance to replead. Subsequent shotgun pleadings can be dismissed with prejudice.Using 12(b)(6), and dismissal with prejudice, seems to rest on two ideas. First, if the plaintiff had a valid claim, she would not have filed a shotgun pleading; that she believed it necessary to lard the complaint with extraneous material shows she could not identify facts showing a violation. Second, there is something that looks like a sanction here, especially where plaintiff is counseled. Shotgun pleadings "waste judicial resources waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and undermine the public’s respect for the courts."Meanwhile, the doctrine leaves even less for 12(e) to do.

Posted by Howard Wasserman on February 7, 2021 at 10:11 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, February 05, 2021

New Draft Papers

I have two new articles on SSRN and in circulation to law reviews.

Zombie Laws explores something I discussed here--the statute that remains on the books following a judicial declaration of invalidity, which Fifth Circuit Judge Gregg Costa called a "zombie law." The article discusses how Congress and state legislatures can narrow, expand, or eliminate them. Larry Solum was good enough to flag this one.

Congress and Universal Injunctions discusses five legislative proposals for eliminating universal injunctions and why they do or do not work tor resolve the problem.

Posted by Howard Wasserman on February 5, 2021 at 02:27 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Thursday, February 04, 2021

What Southworth hath wrought

Bd. of Regents v. Southworth is an odd case. The action was brought by students at a public university challenging the use of their student-activity fees to fund groups or expression to which they objected. The Court rejected the claim because the forum was viewpoint neutral. I believed (and wrote at the time) that this was the wrong approach. Students were not compelled to fund any speech, so there should not be any free speech problem; they were required to fund a forum that the government operated. No one's First Amendment rights were violated, because no one was required to fund any speech or to give money for any objectionable speech; they gave money to the government that the government used to enable private speakers. And that does not change if the forum is not viewpoint neutral. The thing funded remains a public forum, just a viewpoint-discriminatory public forum. Any First Amendment claim should lie with anyone denied access to the forum on viewpoint-discriminatory grounds has a strong First Amendment claim. But the funders should have nothing.

The grounds on which Southworth was decided leads, unavoidably, to Smith v. Regents of Univ. of Minnesota. The plaintiffs were students who paid the mandatory fees. Some of their claims survived 12(b)(6) to the extent they challenged the unbridled discretion that university administrators had in deciding who received money, space, or other services. These plaintiffs were not denied money or space or other funded services; they simply do not like who does  receive money, space, and services or how that decision was made.

This makes no sense, however we look at it. On the merits, this should not violate the First Amendment, because the plaintiffs have not been compelled to speak or to fund anyone's speech, nor have they been denied access to a public forum to which they are entitled. Any unlawfulness in running the forum does not change the lack of connection between the plaintiffs and any fund recipient.  Or we could wonder how the plaintiffs have  standing, since they have not been harmed in any concrete way by the way the money was spent (the injury is not to their pocketbook, since they must pay this money no matter how the funds were spent) and they will not get their money back if the school changes its procedures. Or we could say this recognizes a new form of taxpayer standing under the Free Speech Clause, despite the Court's extreme narrowing of taxpayer standing in recent cases. Anyway of looking at is wrong. And that Southworth and the current court talk about this in First Amendment merits rather than standing terms and that we could criticize this decision either shows, again, that there is no meaningful difference between them except when courts treat them as different.

To say one nice thing about this decision: There is a wonderful discussion (at pp. 13-18) about the standard for 12(b)(6), the meaning of Twiqbal, and the differences between legal and factual insufficiency; I already shared it with my Civ Pro students. Not surprising, as Judge Patrick Schiltz was a Civ Pro scholar in his prior life.

Posted by Howard Wasserman on February 4, 2021 at 02:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

JOTWELL: Bookman on King on global civil procedure

The new Courts Law essay comes from Pamela Bookman (Fordham), reviiewing Alyssa King, Global Civil Procedure (Harv. J. Int'l L., forthcoming).

Posted by Howard Wasserman on February 4, 2021 at 01:40 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 03, 2021

Remembering Justice Brennan (Updated)

In their biography of Justice Brennan (which I reviewed), Seth Stern and Stephen Wermiel describe Brennan's post-retirement concerns that his legacy on the Court would be forgotten, especially as compared with his friend Thurgood Marshall.

Irin Carmon profiles Justice Sotomayor in anticipation of her assuming the new role as senior-most dissenter for the "New Three Musketeers" of herself, Justice Kagan, and Justice Kruger (an African-American woman appointed to replace the retired Justice Breyer). Carmon writes "[o]n a Court that runs on seniority, Breyer’s move would anoint Sotomayor as the most senior justice in what is usually, in the most heated cases, the resistance — the true heir to Ginsburg and, before her, John Paul Stevens and Thurgood Marshall."

The use of Marshall rather than Brennan in that sentence exemplifies Stern and Wemiel's point and Brennan's concern. Brennan spent 15 years (from Justice Douglas' 1975 retirement) as a liberal senior associate Justice on the increasingly conservative Burger and Rehnquist Courts. Brennan assigned those dissents. Or he assigned the majority opinion when he cobbled together a majority without the Chief (a skill for which he was renowned). Marshall served that role for one term between Brennan's 1990 retirement and Marshall's 1991 retirement.

This is not to disparage Marshall, a legal giant and an historic Justice. But if we are discussing the Court as it operates and tracing the line of "great dissenters" or "great leaders of the dissenting bloc," that line runs through Brennan, not Marshall.

Update: This appears to be a common phenomenon. Stories and commentary about Sotomayor's recent capital-punishment dissents have described her as Marshall's heir in that area. Even though Brennan assigned and wrote as many of those opinions and joined with Marshall in the routine dissents from cert denials.

Following RBG's death in September, I asked whether Ginsburg's greater influence was as a Justice or litigator, comparing the general view that Marshall's greater influence was as a litigator. The view had been that Marshall's significance arose from being the first African American Justice and for bringing that voice to the Court, but not for the influence of his jurisprudential work. The trend seems to be to bolster Marshall's reputation as a jurist. And that seems to be coming at the expense of Brennan's.

Further Update: Two further thoughts, from an email exchange with a reader. First, this was a piece of popular journalism written for a non-legal audience and Marshall is more famous among non-lawyers/non-legal scholars than Brennan. Second, there is a tendency to inflate Marshall greatness and significance as a jurist so it matches the unquestionable significance of his membership on the Court. The combination is problematic, to the extent we regard journalism as "writing the first draft of history."

To use an analogy from my other great interest: Jackie Robinson was a a figure of great and essential historic importance, as well as a great baseball player. But he was not a greater baseball player than Stan Musial (or, for that matter, Willie Mays or Hank Aaron). And it is unwise to say he was. As the reader said, because of his historical significance, it makes sense that MLB retired Robinson's number and marks Jackie Robinson Day every season. But we do not want Bill James to rank Robinson higher than Musial, Mays, and Aaron because of that historical significance in becoming part of the game.

Posted by Howard Wasserman on February 3, 2021 at 08:52 AM in Howard Wasserman, Judicial Process | Permalink | Comments (8)

Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Wednesday, January 27, 2021

Drawing Constitutional Law

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Posted by Howard Wasserman on January 27, 2021 at 09:06 PM in Howard Wasserman | Permalink | Comments (0)

JOTWELL: Bartholomew on Lammon on class-action appeals

The new Courts Law essay comes from new contributor Christine Bartholomew (Buffalo), reviewing Bryan Lammon, An Empirical Study of Class-Action Appeals.

Posted by Howard Wasserman on January 27, 2021 at 10:57 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 26, 2021

Universal injunctions return to the Fifth Circuit

That did not take long, this time over the new "pause" on deportations. Plus, Judge Tipton did not cite me as among the scholars who have criticized these injunctions or urged different nomenclature. It remains to be seen whether SCOTUS continues to use the shadow docket to show its distaste for universal injunctions as it did during the Trump Administration.

Posted by Howard Wasserman on January 26, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 20, 2021

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Posted by Howard Wasserman on January 20, 2021 at 04:36 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Painting Constitutional Law

Coverimage

I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Posted by Howard Wasserman on January 20, 2021 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Monday, January 18, 2021

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Posted by Howard Wasserman on January 18, 2021 at 11:02 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 15, 2021

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Kilborn included the following short-answer question on his exam:

After she was fired from her job, Plaintiff sued Employer under federal civil rights law, claiming employment discrimination on the basis of her race and gender. [discussion of other evidence omitted]  Employer also revealed that one of Plaintiff’s former managers might have damaging information about the case, but no one at Employer knew where that former manager was, since she had abruptly quit her job at Employer several months ago and had not been heard from since.  With nothing to go on but the manager’s name, Employer’s lawyer pieced together several scraps of information and concluded that this former manager must be located in a remote area of northern Wisconsin.  Employer’s lawyer spent $25,000 to hire a private investigator, who successfully located the former manager in northern Wisconsin.  Employer’s lawyer traveled to meet the manager, who stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a “n____” and “b____” (profane expressions for African Americans and women) and vowed to get rid of her.

                Later, Plaintiff’s lawyer served [another discovery demand, omitted, and] an interrogatory demanding the identity and location of any person with any information related to the termination of Plaintiff’s employment at Employer or potential discrimination against Plaintiff by Employer or any agent of Employer.

The question asked whether the employer could refuse to disclose the witness's location (while disclosing her name) on grounds of work-product privilege.

The school's BLSA chapter responded with a petition. It calls for, among other things, multiple sections of all mandatory classes (so students can avoid professors such as Kilborn with a "history of bias"), Kilborn's resignation from the academic affairs committee, and an "open dialogue event" with Kilborn. The ATL piece is somewhat sympathetic to Kilborn, surprising, given that site's general rage against professors who use racist language and epithets in class.

Amendment: Kilborn was subject to university sanction--the school placed him on administrative leave, cancelled his new-semester classes and committee assignments, and barred him from campus. There is some uncertainty over the grounds for the university sanction or the process followed; I have deleted comments or speculation from the original post about that process. Regardless, the exam question sparked controversy and triggered a student petition within the school; that raises teaching issues worth thinking about. The post focuses on those.

Please note that I have never met Jason in-person. I know of him from posts to the Civ Pro profs listserv, where he has discussed infusing anti-racism and racial-justice issues into the Civ Pro curriculum. So this is not defending a friend. But I am genuinely curious as to what was wrong with the question. What are the rules, so professors can avoid creating "momentous distraction and cause[ing] unnecessary distress and anxiety" or demonstrating "lack of respect, decency, and civility?"

    • The question did not use explicit and complete epithets, which had been the flashpoint for past controversies over what professors said in class or wrote in materials. ATL has covered those controversies at length, sharply criticizing faculty for mentioning the word. Eugene Volokh and Randall Kennedy present the contrary view, relying on the "use-mention" distinction.

    • Is the rule that bowdlerized reference to epithets is not OK? What if the test had the witness say "n-word," as in "she stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a n-word and c-word"? Are all references to epithets off-limits?

    • Is it only racist epithets, given the focus on "centering race" in the academic discussion? What if the question used a misogynist epithet or anything other than a racist one? What if this question only had the employer calling the plaintiff a "c____" or a "b____"?

    • If bowdlerized use of the word is not OK, is all reference to racist epithets not ok? What if that last sentence of the facts had the witness state "she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and referred to her with profane expressions for African Americans and women"? Does the reference to the epithet, even this obliquely, cause the same distress and anxiety? Students will be as aware of the "profane expression for African Americans" being referenced as by saying it with ____ or *** or "n-word."

    • If any reference or hint at epithets is not ok, then does it follow that exam questions touching on racist discrimination are off-limits? What if that last sentence of the exam had said the witness "stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and talked about how much they hated having to employ African-Americans"? The question reveals discriminatory animus without using the word. Of course, the legal issues might come out differently in that case than in an epithet case. If this is problematic, then it seems to eliminate one major litigation area, or at least certain types of cases in that litigation area, as a testing subject; I discussed this issue several years ago.

    • How much does subject matter? The question tested work-product privilege, so the petition argued that the hint at the epithet served no educational purpose. Would the reaction have been different had the question been asked in, say, Employment Discrimination? For what it is worth, a friend who teaches that subject often tests with a fictional religion with fictional stereotypes and fictional epithets. But does that capture the same idea, given the effects of history? It has been decided that this word is the worst in the English language, so bad it cannot be written or spoken or even mentioned. It follows that its use may affect the outcome of a case in a unique way not captured by a fact patter in which someone calls a member of the Church of the Shiny Rock (my friend's actual example) a "Rockette" (I made that one up).

    • This may create unique problems for Civ Pro (and Fed Courts, Evidence, and Civil Rights--basically my entire teaching package). The course material itself is not "sensitive," compared with Con Law or Immigration or Employment Discrimination. But teaching and testing Civ Pro requires that we adopt and use the substantive issues that reach court and must be litigated under the rules we are teaching and testing on. One could argue that there is always another way to test on work-product privilege--use a slip-and-fall tort claim that will not affect anyone's feelings. But one could respond that discrimination claims comprise a substantial piece of the federal docket and it makes no sense to ignore such common claims. Kilborn told ATL that the class casebook uses a lot of employment cases, so that context pervaded the course and made sense as a testing vehicle. And, as I wrote several years ago, the full range of litigation subjects and issues should be fair game.

    • Kilborn also told ATL that the question was designed to illustrate how civil litigation can be used to help women of color overcome the burdens they face in the workplace. And the egregious nature of what the witness reports the employer saying may be relevant to why the employer was so determined not to reveal the witness and why the plaintiff would have a "substantial need" for the information. In other words, just as the precise nature of discriminatory conduct is important "context" in a substantive E/D class, it may provide essential "context" for procedural questions. Given Kilborn's intent, there is great irony that this question has led to these consequences.

Closer to home, I have been watching the litigation in Stallworth v. Nike, a lawsuit by an African American couple alleging that they were subjected to "shopping while Black" in a Santa Monica Nike store and that the SMPD had an agreement with the area stores to arrest or detain anyone on the word of the stores. The complaint runs 50 pages and 200 paragraphs, although without detailed allegations of how Nike and SMPD worked together to create action. The complaint contains pages and paragraphs about the plaintiffs' personal and professional histories, Nike's role in social justice, and last summer's protests; they want to frame the case--likely for consumption by the public rather than the Court--within the broader anti-racism movement. I considered assigning this as one of my in-class pleadings, as an opportunity to discuss the propriety and effectiveness of pleading-as-press release and to analyze the sufficiency of the state-action allegations. I decided against it--partly because it is a long pleading (the other complaints I use are <20 pages) and partly because I could not predict student reactions. There are no racial epithets, but the case touches a raw topic.

Posted by Howard Wasserman on January 15, 2021 at 05:25 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (23)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (10)