Friday, January 17, 2020

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

• In U.S. v. Varner, a trans female prisoner moved the court to amend the judgment of confinement to reflect her new name, while asking the court to use her new name and preferred pronoun. My interest in the case is that the majority held that the motion to amend should have been denied for lack of jurisdiction, because no statutory or rule basis for amending a judgment applied. The dissent properly accuses the majority of issuing a "drive-by jurisdictional ruling;" what the majority labels a lack of jurisdiction is better understood as a failure of the petition on the merits, because Federal Rule of Criminal Procedure 36 allows for correction of clerical errors; the problem is that a clerical error is not at issue here. That is, the failure of the petition to satisfy the rule defeats the petition, but not for lack of jurisdiction.

I will not say much about the dispute between majority and dissent about the pronoun request, except that the dissent has the better reading of the request and I cannot imagine a court being more dismissive of the preferred-pronoun issue.

• In Horvath v. City of Leander, the court affirmed a grant of summary judgment against a firefighter on a claim that the city violated the First Amendment by insisting that he take a different job or wear a respirator because he claimed a religious objection to the TDAP vaccine. The majority found that the city offered a reasonable accommodation, which the plaintiff refused.

Judge Ho concurred in the judgment in part and dissented in part. Ho would affirm the judgment on the clearly established prong of qualified immunity, but then proceeds to rail against qualified immunity as unjustified by common law, the Constitution, or § 1983. He argues that the concerns justifying qualified immunity can be addressed if courts do a better job with the merits prong; the current problem "stems from misuse of the first prong of the doctrine. Simply put, courts find constitutional violations where they do not exist." If courts did a better job with the constitutional analysis, police would not be chilled or over-deterred.

But then he gives the game away about where this would take us. After all, "the Fourth Amendment does not prohibit reasonable efforts to protect law-abiding citizens from violent criminals--it forbids only unreasonable searches and seizures." Unspoken is the view that police can do whatever they believe necessary in the moment against someone they believe poses a threat to law-abiding citizens--it would be open season on anyone perceived as a threat. Unless, of course, those police officers speak rudely to a white woman who wants to pray while the officers are searching her house.

Look, I agree with Judge Ho that we should get rid of qualified immunity and let the Constitution do the work. But his opinion shows that the cross-ideological opposition to qualified immunity will give way to ideological splits on substantive rights--lots of Free Exercise violations when officers are mean t0 Christians, few Fourth Amendment violations when officers shoot African-Americans.

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, January 16, 2020

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, January 15, 2020

Upcoming guests

I am thrilled that we are going to have some guest-prawfs joining us in the coming weeks.

Beginning later this month and into February, we will be joined by Tuan Samahon (Villanova) and Christine Chabot (Loyola and a fellow former Jane Roth clerk). Welcome to both and I hope you enjoy their contributions.

In late February and March, we will have an on-line symposium on Ben Barton's new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU). More details to come.

Posted by Howard Wasserman on January 15, 2020 at 08:32 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 08, 2020

C.J. Roberts and the Year-End Report

At SEALS next summer, there will be a discussion group to mark fifteen years of the Roberts Court and the Court's renewed engagement in civ pro (something I wrote about at the six-year mark). For a topic, I was considering the way that Roberts has used his Year-End Reports to talk about civil procedure and the FRCP, in ways both good and bad, proper and less so.

Adam Feldman on Empirical SCOTUS looks at the particular words Roberts uses in these Reports to talk about the power and role of judges and the judiciary. Although about the judiciary broadly and not only civ pro, it offers a good starting point.

Posted by Howard Wasserman on January 8, 2020 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 06, 2020

A teaching experiment

Our new scheduling guru is trying something new this semester--teaching on consecutive days rather than alternate days. So rather than Civ Pro meeting Monday/Wednesday/Friday, it will meet Wednesday/Thursday/Friday.

I am excited to see how this works. It should be interesting to have students working and focused on just my material (or my material and material in one other class) in a few-day block. And it fits how I structure the class and syllabus by topic rather class session--we work through something in however much time it takes, even if that time cuts across multiple classes. I am anxious to see whether that works better when students return to a case or problem in 24, rather than 48, hours.

Posted by Howard Wasserman on January 6, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (7)

AJC's @JewishandProud Day (Updated)

AJC has designated today--Monday, January 6--as #JewishandProud Day, with a campaign urging people to "wear your Jewishness publicly" and to post pictures with your Jewishness and the slogan below on social media.

Action Alert_#JewishProud_v2

One somewhat related, if delayed point: The story from last week about the dismissal of the entire class of cadets at West Virginia's corrections academy after they were photographed giving a Nazi salute beneath a sign reading "Hail, Byrd," in reference to instructor Karrie Byrd. According to reports, Byrd got into trouble (and is no longer employed by the state) because her statement to investigators that she was "not familiar with the 'historical or racial implications of the gesture' and that it was 'simply a greeting,'" was contradicted by testimony that Byrd encouraged the gesture and told a secretary that she is "a hard-ass like Hitler." Which suggests that had her defense not been contradicted by evidence that reveled in the salute, she might have kept her job--had it been true that she did not know the history or racism at issue, she would not have been fired.

Which brings me to what I have been thinking: Can we please agree that anyone who is not familiar with the historical and racial implications of the Nazi salute and "Heil Hitler" is too fucking stupid to hold any position of public trust?

Update I: A colleague stumbled across this 2004 RBG speech at the U.S. Holocaust Memorial, talking about how the Shoah played in Hungary and about her Jewish experience. Appropriate for the day.

Update II: I have closed comments, having spent the better part of today deleting updwards of 30 anonymous comments saying that the author hated me and thought I was vermin because I am anti-gun. Also comparing Justice Steven's Heller dissent to Holocaust denial. Not sure how this post could become about guns (or what I have ever written indicating I am anti-gun), but it got out of hand in a hurry.

Posted by Howard Wasserman on January 6, 2020 at 09:31 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, January 05, 2020

Limiting rules in football

On Saturday, the Tennessee Titans ran almost two minutes off the clock without a snap in their Wildcard Round win over the New England Patriots, exploiting a glitch in the rules that calls for a limiting rule.

Lining to punt on 4th down with the game clock running, the Titans took a delay-of-game penalty; the clock restarted when the ball was placed after the 5-yard walk-off. The Titans then false-started; the clock restarted when the ball was placed. The Patriots then jumped offside; the clock restarted when the ball was replaced. Finally, the Titans punted.

When a team commits a foul and the penalty yardage is walked off, the clock proceeds as it would have had there been no infraction--if the clock would have stopped, it restarts on the snap; if the clock would have run, it restarts once the ball is replaced. Inside of 5 minutes remaining in the second half, the clock restarts on the snap. As I explain here and here, the second rule is designed to inject excitement by preventing leading teams from wasting time and forcing them to run more plays, from the point in the game in which the incentive to waste time begins.

This game reveals three things:

First, although I did not think of it this way when writing the book (but should have), the second rule qualifies as a limiting rule addressing a cost-benefit imbalance under the default rule, akin to the Infield Fly Rule. The offense is acting contrary to expectation (taking a penalty); the time benefits it gains are much overwhelmingly greater than the yardage costs (and vice versa for the trailing defensive team);  the defense cannot do anything to stop the offense from intentionally committing pre-snap fouls; and a leading team has a perverse incentive to try this.

Second, the rules attempt to address the perverse incentives with two different limiting rules. Two successive delay penalties constitute unsportsmanlike conduct, a 15-yard infraction. This is why the second foul was not another delay, but false start. And a team cannot commit multiple fouls on the same down to "manipulate the game clock;" the penalty is 15 yards, time back on the clock, and the clock restarting on the snap. This rule is why, after the second penalty, the Titans were ready to punt. The third play came because the Patriots committed an infraction that gave the Titans extra time; the Titans cannot be blamed for the opponent's violation. But these two rules should be sufficient, unless officials are reluctant to find clock manipulation off one or even two false starts.

Third, the incentive for a leading team to waste time begins earlier than the 5-minute mark. It is not clear where it begins--that probably depends on score and location on the field. The only solution may be to change the default rule and always have the clock start on the snap following a penalty. That will necessitate other limiting rules involving clock run-offs to eliminate the perverse incentive for trailing teams to commit their own intentional fouls.

Posted by Howard Wasserman on January 5, 2020 at 05:47 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Thursday, January 02, 2020

Political grass is always greener . . .

Thursday morning, I read this Atlantic piece from Lee Drutman (New America Foundation) arguing that a pure ideological two-party system had broken the Constitution. It produced the situation that Washington, Hamilton, Madison, and others feared of the "alternate domination of one faction over another." Drutman urges Congress or states to institutionalize multi-party democracy and proportional representation; he argues that Madison's Federalist No. 10, "with its praise of fluid and flexible coalitions," envisioned some form of multi-party system.

Thursday evening, I read this Tablet piece from Neil Rogachevsky (Israel Studies and Political Thought at (Yeshiva), arguing that multi-party democracy and proportional representation is what has placed Israel in its current political predicament, with no party able to form a government. He hopes that Benjamin Netanyahu might be able to push first-past-the-post as a parting gift to the country.

There are no right answers.

Posted by Howard Wasserman on January 2, 2020 at 09:06 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, January 01, 2020

How does a descendent of Huguenots, son of a fur trader . . .

The 2019 Year-End Report on the Federal Judiciary begins, as always, with an historical ditty. This year, it is the Doctors Riot in New York in 1788 as the reason that, as the lyrics in Hamilton tell us, "In the end, they wrote eighty-five essays, in the span of six months/John Jay got sick after writing five/James Madison wrote twenty-nine/Hamilton wrote the other fifty-one." Kudos to Roberts for the line "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical."

The theme this year is civic education and the essential role of individual judges, the courts, and the judiciary in providing that civic education. Roberts writes:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to under-stand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased that the judges and staff of our federal courts are taking up the challenge.

Three other things are sadly ironic. One is that the Court is poised to resolve cases involving congressional subpoenas that should be easy in a democracy--Congress can investigate a President, including through subpoenas of unconnected third parties, however it sees fit--but that seem to be genuine toss-ups given current political divides. Two is that the current President has done more to use social media to spread rumor and false information on a grand scale and the Court, when pressed, has fallen in line and may do so again.

Three, and away from the politics of the day,  Roberts does not mention the role that video or audio-recording-with-speedier-release of arguments could and should play in this civic education. He mentions courts posting opinions* online, giving the "public instant access to the reasoning behind the judgments that affect their lives." Wouldn't "instant access" to the public arguments leading to the "judgments that affect their lives" provide a similar public civic-education benefit?

[*] He does offer a nice description of the distinction between an opinion and a judgment--"judges render their judgments through written opinions that explain their reasoning." That distinction is key to judicial departmentalism and the non-judicial branches engaging in meaningful constitutional interpretation. More on that later.

Posted by Howard Wasserman on January 1, 2020 at 09:26 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, December 30, 2019

Hate crimes charges in synagogue stabbing (Updated)

The United States has filed federal hate-crimes charges against Grafton Thomas, accused of stabbing five people at a shul during a Chanukah celebration. The charges were brought under § 247, which prohibits obstruction of a person's free exercise of religion through the use of force. According to the complaint allegations by FBI Special Agent Julie Brown, Thomas' handwritten journals and internet searches focused on some anti-Semitic content.

I have never been a fan of hate-crimes laws. I believe SCOTUS gave too-short shrift to the First Amendment concerns in upholding the concept in Wisconsin v. Mitchell. I am not convinced that Thomas' actions are "worse" because he targeted Jews as to require different crimes or punishments. Nor do I (as sort-of part of the "attacked" group*) feel safer or more protected that Thomas will be prosecuted for the specific crime of targeting Jews as opposed to the more general crime of attempted murder or assault-with-a-deadly-weapon or something like that.

[*] To be clear, in response to a reader email, I am not trying to separate myself from the victims of these attacks as "different" types of Jews. By sort-of, I was making the point that the attacks have been localized in insular Jewish communities in New York. So I am part of the group as a Jewish person; I am not part of that insular and localized group. For purposes of this post: If the attacks were taking place against Jews in Coral Gables, Florida (where my temple is located), I would not be in any greater favor of hate-crimes laws as the solution.

I did not know about § 247, distinct from § 249(a), which makes it a crime to willfully cause or attempt to cause bodily injury to a person because of, among other things, the victim's actual or perceived religion, race, or national origin. I am curious why the U.S. Attorney charged under § 247 rather than § 249. Is the difference that this attack occurred during religious exercise--a Chanukah celebration at a place of worship--rather than from encountering a Jewish person on the street? And if the US Attorney pursues others of the dozen-or-so attacks on Jews of the past eight days, which occurred on the street, would it use § 249 instead?

Update: Marty Lederman also wonders why the government used § 247 rather than § 249, because it would be easier to prove both the motive element and the jurisdictional elements under § 249 than § 247 (although Marty believes the government can prove both as to § 247).

Posted by Howard Wasserman on December 30, 2019 at 05:10 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Tuesday, December 24, 2019

Constitutional small claims court

Clark Neily at the Cato Blog proposes a constitutional small-claims court for low-level constitutional violations. Neily's starting example is a cop citing a woman for disorderly conduct for saying "bitch" in public, an obvious constitutional violation, then ordering away (on the silent threat of arrest) an attorney who attempted to intervene. Neily's proposal would create a small-claims-court/traffic-court hybrid, with small-money damage awards paid from an escrow fund established by each department. Neily acknowledges the major structural departure, but says it is better than the current approach, "which is to collectively shrug our shoulders at the vast majority of relatively low-level civil-rights violations committed by cops hundreds, if not thousands, of times a day across the country."

It is an interesting idea, of a piece with other proposals to enable recovery on small violations. In my Civil Rights class, I discuss Jim Pfander's proposal to allow plaintiffs to seek only nominal damages in exchange for eliminating qualified immunity.

There are a host of details to work out, as Neily acknowledges. They begin with whether this system is in federal or state court and what that choice says about our current assumptions about the federal judiciary and civil rights. If at the state (or municipal) level, recall that municipal traffic courts have become money-making institutions for themselves, their local governments, and their police departments, creating their own constitutional violations. We might worry about recreating that system, even with the different goal of compensating citizens against governmental overreach. Finally, should it be limited to police or should it extend to other executive officials who violate rights in a small, l0w-level way, such as the staffer in the Recorder of Deeds office?

Posted by Howard Wasserman on December 24, 2019 at 11:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Saturday, December 21, 2019

More on the role of academic experts

Andrew Ferguson in The Atlantic offers a new contribution to the debate over academic experts in public debate and public affairs and he pulls no punches in arguing that academic experts have nothing to add to public-policy debates. He aims his current ire at historians in the current impeachment debate, but spares some for nuclear scientists who argued for disarmament in the '80s and doctors arguing for stem-cell research in the '00s. He also questions the motives of the "obscure signatories from backwater colleges scattered between the coasts" who enjoy the ego boost of seeing their names alongside better-known professors. As I said, he pulls no punches.

I do not reject the participation of experts as completely as Ferguson does, because I believe there is a place for that participation. Ferguson's pithy point is "[i]f I want to understand the Whiskey Rebellion of the 1790s, Sean Wilentz [the Princeton history professor] will be my go-to guy, I promise. But Trump’s impeachment, and contemporary politics in general?" The problem is that the Whiskey Rebellion (or some other historical event) might be essential to understanding contemporary politics, making that expertise essential to understanding contemporary politics. The same for nuclear scientists. Ferguson dismisses their actions as assuming that "knowing how to build a bomb was the same as knowing whether it should be used," ignoring that scientists' knowledge of the bomb's effects is relevant, thus helpful, to the political question of whether the bomb should be used. I agree that some of this is argument from authority. But some of this input from experts is necessary, proper, and essential.

Which brings us to Ferguson's insistence that "[t]he whole democratic enchilada rests on the assumption that when it comes to prudential matters of public importance, the view of the stevedore is as valuable as that of the Princeton professor." But I am not sure that is democracy's assumption (putting aside that we are a republic, not a democracy). Democracy assumes that the stevedore and the Princeton professor's votes count equally in selecting representatives and that the stevedore and the Princeton professor have an equal right to speak on matters of public concern. But democracy does not assume the surrender or rejection of any role for experts and expertise. Nor does democracy assume that, on a matter on which the Princeton professor offers an expertise that the stevedore lacks, the stevedore's views should be as influential on policy decisions. Just as I expect the stevedore's views should be more valuable and influential on the question of working conditions on the docks.

Ferguson is on the same page as Paul, Eric, and others who criticize academics for trading on their prestige in opining on matters beyond their expertise; the trick then becomes figuring out when those academics are truly speaking as useful experts and when they are speaking as credentialed citizens (as Brian Kalt put it, "your average lawyer"). But Ferguson goes one step further in rejecting all expertise.

Posted by Howard Wasserman on December 21, 2019 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Sunday, December 15, 2019

Proposal for Law Journal Publication Reform

Brian Galle (Georgetown; Chair of AALS Section on Scholarship, Advisory Committee on Law Journal Reform) has shared the working draft of the Section's proposal for reworking the publication system. It makes two proposals. It is worth a read.

The moderate change is Limited Submission with Mandatory Acceptance ("LSMA")--authors submit to a limited number of journals and must accept the first offer. A supplement would impose a "quite period" of four weeks--no journal can make an offer on a piece for four weeks from receipt. The sweeping change is a Matching System, a la medical residency--authors identify the journals they would publish in and journals identify the articles they would publish.

The Section meets on from 3:30-5:15 on January 5 at the AALS Annual Meeting.

Two interesting proposals. I am trying to think about which approach is best specifically for professors at schools outside the top-50 or top-75 schools.

Posted by Howard Wasserman on December 15, 2019 at 09:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, December 12, 2019

Evidence that Jews do not run Hollywood

I have written that The Goldbergs (a show we love and watch regularly) struggles with how explicitly Jewish it wants to be. This week's Christmas-themed episode might have been its most Jewish. It showed gifts wrapped with blue-and-white paper with Stars of David; visible Happy Chanukah bunting; and a Menorah with candles. Best of all, it showed Beverly lighting first-night candles.

Then she blew them out.

Posted by Howard Wasserman on December 12, 2019 at 07:29 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Jewish-as-race-or-national-origin

I have not weighed in on the dispute over the administration's new order on anti-Semitism and Title VI. I do not like the new regs in my guise of free-speech advocate, because it appears to have potential to incentivize schools to restrict a lot of protected speech (including naked anti-Semitism) for fear of losing federal dollars.

But I do not understand the supposed apprehension that David Schraub describes: Jews do not want to be described as having a distinct national origin because it highlights "otherness," non-Americanness, and the historic charge of disloyalty. Schraub argues that "[i]f Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity." But this is incomplete. Schraub ignores the word "race" in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by "ethnicity and ancestry") under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.

Posted by Howard Wasserman on December 12, 2019 at 07:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, December 11, 2019

JOTWELL: Pfander on Sohoni on universal injunctions

The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Mila Sohoni, The Lost History of the "Universal" Injunction, 133 Harv. L. Rev. (forthcoming), which shows the long SCOTUS practice of issuing universal injunctions (without calling them such).

Posted by Howard Wasserman on December 11, 2019 at 12:37 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 10, 2019

Marvin Miller and the Hall of Fame (Updated)

Marvin Miller--the first executive director of the Major League Baseball Players Association and the creative force behind the modern economics of baseball and all professional sports--was elected to the Hall of Fame yesterday. The election comes seven years after Miller's death. And, although I did not know this, against his express wishes.

Miller was passed over several times by various committees between 2003 and 2010, likely because the powers-that-be wanted to deny Miller the honor, at least while he was alive. In 2008, Miller, askedtthe Baseball Writers Association of America, the main selection body, not to nominate him again; he declared himself "unwilling to contemplate one more rigged veterans committee whose members are handpicked to reach a particular outcome while offering the pretense of a democratic vote. It is an insult to baseball fans, historians, sports writers and especially to those baseball players." Miller was no doubt especially angry that in 2007, former commissioner Bowie Kuhn, Miller's chief antagonist, was elected just before his death. Despite the request, Miller was nominated in 2010, then posthumously in 2014, 2018, and this year.

There is an interesting debate about how the Hall should handle those wishes. On one hand, it is a museum designed to tell the history of baseball and to recognize those who made the game--that history cannot be told without Miller. On the other hand, the Hall of plaques does more than tell a story; it singles people for a unique honor, an honor that should be bestowed only if both parties wish. Miller's children have made clear they will not attend and accept induction in their father's place. And it is hard not see the election as one final power play against Miller--selecting him against his wishes, but when he could no longer decline appear and make his own case.

Speaking of Miller and Kuhn, Slate's Hang Up and Listen uses Miller's election as an excuse to parse Flood v. Kuhn, especially the bizarre Part I in which Justice Blackmun rattles off a laundry list of historic players from a bygone era. Several tidbits on this.

That part of the opinion was written for only three of the five Justices who formed the majority (Blackmun, Stewart, and Rehnquist). Chief Justice Burger and Justice White refused to join that part of the opinion, White expressly because an paean to baseball and a recitation of players had nothing to do with the case and no place in a judicial opinion.

The list includes only two African-American players--Jackie Robinson and Roy Campanella. And they are from a different baseball era. The white players all played in the 1900s-1930s. Based on a quick glance, it appears no one on the list began his career beyond the early '30s. The latest player is Hank Greenberg, who retired in 1948, but debuted in 1930. Robinson and Campanella played from the late-'40s to mid-'50s. Blackmun's original draft did not include any African-Americans; he added Robinson, Campanella, and Satchel Paige at the insistence/request of Justice Marshall. But Blackmun could not (or did not bother to) match anyone to the era that is the focus of the rest of the list, although several historically great Negro League players (e.g., Josh Gibson) were contemporaries of Ruth, Gehrig, etc.  Marshall then dissented in the case, so he did not join the list at all.

Finally, there was some horse-trading among the Justices about who to include. That still does not explain how Moe Berg made the list.

Posted by Howard Wasserman on December 10, 2019 at 03:01 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (2)

Monday, December 09, 2019

Segall on the role of law professors

Eric Segall has an excellent post at DorfonLaw about the proper role for law professors in controversial legal and political disputes. The obvious trigger was the four prawfs who testified at the impeachment hearings. But Eric expands it to participation in congressional testimony, confirmation hearings, amicus briefs, letters on public matters, etc. And blogs--he questions whether writing publicly, in our professional (and professorial name) about matters beyond our scholarly expertise either trades on the professorial name or dilutes it.

Two thoughts. First, Eric references the letter that 2000 law professors signed arguing that Brett Kavanaugh's demeanor at his hearing was not judicial and should have been disqualifying. I did not sign for the reason Eric offers for not signing--the question of Kavanaugh's demeanor did not call for any scholarly expertise and was really a cover for political opposition to Kavanugh's appointment.* I had a heated debate with my wife and overly engaged daughter, who did not buy the distinction or the idea of trading on my position to suggest expertise on a contentious political matter on which I could speak not as an expert but as a "concerned citizen."

[*] Which I shared. And which I offered in emails to several Republican Senators (not my own, because I chose not to waste my breath), using my name but not my title or position.

Second, a blog, like other social media, strikes me as a different medium of work. I am trading less on my position and expertise and more taking an opportunity to write for a regular audience about things that interest me and about which I know something (even if I do not know as much about these things as I do about universal injunctions). Regular readers of the blog know and expect that some of what I write about is going to be non-expert interests (baseball, Judaism) or personal matters (family, etc.). And you understand that this is part of the forum and what I like to do here. That is different than using my professorial cache (such as it is) to talk about a non-expert matter to a new, unfamiliar audience in a different forum, such as the op-ed page of the The New York Times or an advocacy letter to a congressional committee.

Posted by Howard Wasserman on December 9, 2019 at 03:11 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Saturday, December 07, 2019

Legislatures creating universality

As I discuss in a forthcoming piece, the combination of remedial particularity (no non-particularized injunctions) and departmentalism (the executive can ignore judicial precedent about a law's constitutional validity, at least until the matter reaches court) leaves an essential role for the legislature. The only way to stop the executive from enforcing or threatening to enforce a constitutionally dubious law, even one declared invalid by SCOTUS, is to repeal that law.

That was the task of the Commission to Examine Racial Equity in Virginia, which last month released its Interim Report identifying dozens of state laws for repeal; these include the anti-miscegination law at issue in Loving, some education laws enacted during Massive Resistance to Brown, and some laws targeting the "feeble-minded." Josh Blackman comments.

The action is symbolic, because any enforcement effort would fail. Any government official attempting to enforce would be sued for damages (qualified immunity would be lost, because the invalidity of these laws is clearly established by SCOTUS precedent), injunctive relief, and attorneys fees. And the line attorney litigating the case likely would be sanctioned (although I doubt it would be by contempt, as Josh suggests). But there is a substantive component, if read as the legislature checking the executive in some manner.

Posted by Howard Wasserman on December 7, 2019 at 12:51 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 06, 2019

Students finding interesting issues (Further Updated)

I gave my Evidence exam earlier this week. In the study/review lead-up, several students asked me a similar question (not sure if all were using the same commercial materials or if they all were talking):

A party calls an adverse party and is allowed to ask leading questions on direct under 611(c)(2). Can the party ask that witness about specific instances of untruthful conduct to impeach under 608(b), which is ordinarily allowed only on cross. In other words, when a party is allowed to ask leading questions under 611(c)(2), does that convert direct into cross for all purposes?

I presented the question to the Evidence Prof listserv. No one knew of case law raising the issue or the certain answer. One person said my students deserve a pat on the back for identifying and thinking up this issue.

The prevailing view among professors is that the party can ask about 608(b) specific instances. This derives from three things: 1) 607, which allows a party to impeach its own witnesses, from which it follows that all methods of impeachment are available; 2) 611(c)(2), which contemplates "direct" examination that functions like cross; and 3) because the party could have waited for the other side to call that witness and then cross examined the witness on specific instances, it should be able to do the same thing when it calls that witness itself for strategic reasons.

Thoughts?

Update: A reader emailed me to say that, despite the language of 608(b), courts allow specific-instances evidence on direct. The reasoning is that 607, allowing a party to impeach its own witnesses, trumps the limitation in 608(b)--all methods of impeachment are available to impeach any witness at any time--your own on DEX or the other party's on CREX.

But I wonder if the limitation-to-cross continues to apply in one situation: When Pty II uses its witness to impeach Pty I's witness. So imagine the following:

Tom has testified, called by Pty I. On the plain language of 608, Pty II could impeach Tom on specific instances of conduct in the following ways:
   • On CREX of Tom, ask him about Tom's untruthful acts: 608(b)(1)
   • Call Ira; on direct, ask him about Tom's character for truth under 608(a). But not specific instances of Tom's conduct under the text of 608(b)(2), because this would not be on CREX.
 
But under the approach courts take to reconcile 608(b) and 607), could Pty II ask Ira, on direct, about Tom's specific instances of untruthful conduct under 608(b)(2)? I understand allowing 608(b)(1) evidence on direct if I am forced to impeach my own witness. But the rationale for that extension does not extend to 608(b)(2) evidence in the Tom/Ira situation I describe here.
 
Further Update: My original emailer says the answer is no, Pty II can't ask Ira about Tom's specific instances. That owes to the prohibition on extrinsic evidence in 608(b), not the cross-examination requirement. Ira testifying to Tom's specific instances would be extrinsic evidence. Which makes sense.

Posted by Howard Wasserman on December 6, 2019 at 11:26 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Thursday, December 05, 2019

Another study shows handwriting > computers

New in the Journal of Legal Education, from Colleen Murphy and Christopher Ryan, Jr. of Roger Williams Law and Yajni Warnapala of the Roger Williams Mathematics Department. The study looks at performance in required 2L Con Law and Evidence courses at Roger Williams. It also contains a piece from Murphy's 1L Civ Pro class, showing that students who were given the option of using a laptop but were shown a memo describing the studies comparing handwriting with computer notetaking were more likely to elect not to use computers.

Posted by Howard Wasserman on December 5, 2019 at 06:45 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Friday, November 29, 2019

More state action and private vendettas

I wrote awhile back about a case in which police officers took private action against a citizen (trashing his car) based on a personal vendetta resulting from a professional dispute (the citizen filed a departmental complaint about them). The Seventh Circuit found no state action in an analogous case. A citizen shouted at a police officer while he was making an arrest and criticized the officer (and perhaps threatened his family) on Facebook, prompting the officer to file a criminal complaint with a fellow officer, prompting that officer to arrest the citizen. The court held that, although the original interaction came when the officer was on the job, he acted as a private citizen in filing a criminal complaint with another officer, who then pursued those charges.

The Seventh Circuit's analysis would reject the potential claim in the earlier case. I imagine the court would say the officers acted as private citizens in trashing the guy's car and it is not enough that the dispute traces to official police conduct.

Posted by Howard Wasserman on November 29, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, November 27, 2019

JOTWELL: Azad on McAlister on unpublished dispositions

The new Courts Law essay is a guest submission from Ryan Azad (a clerk on the California Supreme Court), reviewing Megan McAlister, "Downright Indifference": Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 1 (2019), arguing that unpublished opinions should at least explain the reasoning for the benefit of the (often pro se) litigants.

Posted by Howard Wasserman on November 27, 2019 at 10:55 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Introduction: Broad strokes of the text of Art. III and the broad structure of the federal judicial and judicial decisionmaking.

SCOTUS Jurisdiction: Original; § 1257; § 1254

Ct App Jurisdiction

District Court Jurisdiction: Federal Question (including Grable); Complete Preemption; ATS

Non-Article III Jurisdiction: Magistrates, Bankruptcy, CAAF

11th Am

Justiciability: Standing/Ripeness/Mootness

Abstention:

I added Non-Article III a few years ago. It takes about 1-1 1/2 days, so it could go and leave most of the additional time I need. But I thought (and think) is is too important, given how much more decisionmaking is done by non-Article III actors. I also used to spend less time on 11th Amendment, which I cover in Civil Rights. But I have no guarantee students will take that course and I believed they needed fuller coverage.

Just to clarify: We get to the basics of congressional control--the difference between the source of SCOTUS power as opposed to lower-court power, for example. We do not get to things like the Hart-Wechsler debate, the stripping debates of the 1980s, court-packing, and the various recent  proposals to change SCOTUS structure--in other words, the fun, theoretical, and not likely to happen stuff.

Thoughts?

Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Eric Rasmusen, IU, and the First Amendment

For those who missed it, Indiana-Bloomington Provost (and law professor) Lauren Robel issued a public statement excoriating business professor Eric Rasmusen's publicly expressed views about women, racial groups, LGBTQ people, and others, while insisting that the First Amendment prevented the school from firing the tenured professor. The school did prohibit Rasmusen from teaching single-section required courses and imposed special blind-grading obligations. Rasmusen has responded. Many, such as Gregory Magarian (Wash. U.) on the blog Lawyers, Guns, and Money saw this as counter-speech in action. Brian Leiter doubts that a university administrator should comment on a faculty member's speech--he argues Robel should have stopped at "the First Amendment protects this speech, Rasmusen does not speak for IU, and we are monitoring to ensure compliance with anti-discrimination laws. Josh Blackman questions whether there is a First Amendment difference between firing a professor and hampering his teaching by reducing the size of his classes--either is a sanction imposed because of his speech.

On a different note, the Magarian interview is interesting as a wide-ranging discussion of where the First Amendment is trending. Note particular his discussion of Citizens United as not quite the bogeyman everyone says.

Posted by Howard Wasserman on November 25, 2019 at 10:59 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Sunday, November 24, 2019

A pleading question

The Comcast argument from two weeks ago featured competing hypotheticals designed to show proximate cause under § 1981, but instead showed the problem of pleading oneself out of court. Following some comments on my prior post, I have been thinking about both (which I would like to use in Civ Pro next semester).

Hypo # 1: African-American not hired by law firm; receives letter saying "You're African American and we don't hire non-lawyers."

Option # 1: Complaint quotes the "You're African-American" language of letter but nothing else. I think the Complaint passes muster, although the defendant may be able to offer the full letter on a 12(b)(6), which would change the analysis.

Option # 2: Complaint quotes entire letter (or attaches letter as written instrument). Complaint fails unless plaintiff alleges fact rebutting the non-lawyer piece of the letter. We would say P has pleaded himself out of court, but including a fact that undermines his claim.

Hypo # 2: Hotel refuses to rent room to African-American, telling him "We don't rent to African-Americans and we are out of rooms."

Option # 1: Complaint only quotes the first statement. Again, I think the complaint passes muster.

Option # 2: Complaint quotes both statements. I think the Complaint would fail for the same reason as the first case. A commenter suggests otherwise, because it may be that the hotel was lying about there being no rooms. But must the plaintiff allege a fact rebutting the statement that there are no rooms, at least on information and belief, to show that it might be false? Just as the lawyer-applicant must allege facts rebutting non-lawyerness as the basis for not hiring? If the "reasonable alternative explanation" language of Iqbal does any work, this would be it--the complaint provided the alternative explanation. Or does drawing all reasonable inferences for the plaintiff allow for the inference that the hotel is lying about the adverse fact?

Posted by Howard Wasserman on November 24, 2019 at 11:15 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, November 19, 2019

I'm old

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

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Sunday, November 17, 2019

Pleading yourself out of court and other thoughts on Comcast

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

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

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

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

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

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

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

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

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

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

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

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

Leavenworth, ep. 4: Perspectives

The following is from my FIU colleague Eric Carpenter.

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

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

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

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

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

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

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

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

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

 

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

Saturday, November 16, 2019

Inexplicable decisions, in one post

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

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

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

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

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

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

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

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

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

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

All that is wrong with Twitter, in one story

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

The following ensues:

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

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

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

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

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

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

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

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

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

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

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

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

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

Leavenworth, Breaking News

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

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

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

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

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

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

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

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

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

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

 

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

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

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

FIU: We pass the bar and we dress well.

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

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

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

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

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

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

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

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

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

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

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

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

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

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

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

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

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

Argument in Hernandez v. Mesa

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

Update: Transcript here.

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

Monday, November 11, 2019

John Oliver on SLAPP suits

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

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

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

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

 

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

Friday, November 08, 2019

State-level universality

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

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

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

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

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

Thursday, November 07, 2019

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

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

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

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

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

Wednesday, November 06, 2019

Allen v. Cooper argument review

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

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

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

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

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

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

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

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

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

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

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

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

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

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

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

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

Friday, November 01, 2019

Fun with diversity (Updated)

Two fun news stories on diversity.

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

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

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

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

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

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

Wednesday, October 30, 2019

JOTWELL: Mullenix on Choi on class-action mega fees

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

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

Capping off a year in a yarmulke

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

So what have I learned after a year?

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

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

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

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

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

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

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

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

Saturday, October 26, 2019

Baseball and politics, again

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

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

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

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