PrawfsBlawg

What is a "State of the Union Address"?

Nancy Pelosi has disinvited President Trump from coming the House of Representatives to deliver the State of the Union Address, given the "security concerns" created by the government shutdown. She proposes that they find another suitable date once the government has reopened or that he deliver the address in writing (as Pelosi notes was done prior to Woodrow Wilson) on the planned date of January 29.

But what is required for the President to "give to the Congress Information of the State of the Union"? Must the address be presented to Congress through the President's personal appearance in Congress or delivery of a written message to Congress? If the President gives a televised address from the Oval Office (or Mar-a-Lago or anywhere else) about the state of the union that everyone in Congress sees, has he given Congress that information?

And what is the inevitable next step in this escalation? Does Speaker McCarthy choose not to invite President Warren to the House at all, forcing her to deliver the address in writing only?

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

2018 Year-End Report

Chief Justice Roberts issued his 2018 Year-End Report. This year focused on the results of the investigation Federal Judiciary Workplace Conduct Working Group into the working conditions for law clerks and other judiciary employees and what is happening to implement those proposals with the Judicial Conference. As is his wont, the Chief began with a historical anecdote--the influence that law clerk Henry Friendly had on Justice Brandeis' dissent in Olmstead--and a paean to the work of law clerks and the symbiotic relationship between judges and clerks ("relationship is one of close association, candid intellectual exchange, and confidentiality"), on the centennial of Congress allocating funds for "legally trained assistants" for federal judges.

The report also briefly thanked court employees for keeping the courts operating in the face of another years of natural disasters--flooding in Florida and North Carolina, a typhoon in the Northern Marianas Islands, an earthquake in Alaska, and California fires.

The report closes with workload statistics for the year. Filings in the courts of appeals dropped two percent, while civil filings in district courts rose six percent. District courts saw a 17 percent increase in diversity cases with a 23 percent increase in personal-injury cases--the report does not say, but it would be interesting to see how much of the increase is tied to mass-tort cases going to federal court under CAFA's minimal-diversity requirement.

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.

Standing

Jonathan Adler has a good takedown of the expanded standing analysis, in which Judge O'Connor continues to find injury from the existence of a law absent any risk that the law could be enforced against the plaintiffs. The court relies on the correct principle that a person need not violate a law to have standing, but ignores that those cases required the plaintiff to show at least a genuine threat that the law would be enforced against him and that some penalty would result. He insists that no case requires an assessment of whether the plaintiff is injured by "disregarding" the law. It is true that courts do not put it in those terms, but that is implicit in the requirement of a threat of enforcement, which is triggered by someone disregarding the law.

O'Connor relies on Steffel v. Thompson, in which standing derived from Steffel's stated intention to resume handbilling and the express threat of the police to arrest him for trespassing (as they had his friend) if he did so. He also relies on Clements v. Fashing, in which the plaintiffs (challenging a state law that deemed candidacy for one office as resignation of an existing office) did not announce their candidacy for office, because that announcement would be deemed a resignation. That is, the plaintiffs in both cases would be subject to some mechanism for enforcing the law and it was that enforcement mechanism that caused the injury. In no case did the court find injury based on a statutory obligation that provided for no means of enforcement and no consequences.

O'Connor also tried to get cute, noting that "Chief Justice Marshall never asked whether William Marbury would be injured if he ignored the law and began serving as a justice of the peace without an official commission from James Madison." But that is because Marshall recognized that had Marbury done so, court personnel would have ignored him, not given him a courtroom in which to work, not carried out his orders, and perhaps asked the the Marshals physically remove him from the premises. All of which reflects the enforcement of the challenged law.

Two additional thoughts on standing. First, in a prior post, Adler analogizes the mandate-with-no-penalty to 4 U.S.C. § 8, which provides that "no disrespect should be shown to the flag of the United States of America" and enumerates what civilians and civilian groups cannot do with the flag. Obviously, the law is unenforceable under Texas v. Johnson. But we never get there, because the U.S. Code provides no mechanism for enforcement and imposes no penalties for failing to follow those rules. No court would accord standing to a plaintiff who argues "I want to use the flag as a covering for a ceiling (prohibited by § 4(f)), but I am refraining from doing so because I do not want to break the law," because the plaintiff would suffer no enforcement and sanction for using the flag to cover the ceiling.

Second, standing was established in part because the ban, even if not enforced to keep these plaintiffs out of the United States, sent a message of religious exclusion and made them feel less than full members of the community because of their religion. Some critics of those decisions derided this as "snowflake standing"--the plaintiffs feel bad and are hurt in their delicate snowflake sensibilities. But that does not sound much different than what the plaintiffs are arguing here-they will feel bad (their delicate sensibilities undone) if they have to act contrary to what the written law, otherwise unenforceable, requires them to do.

Appellate Review

The point of these orders was to pave the way for immediate review of the declaratory judgment. All parties had asked for certification of interlocutory review under § 1292(b), but Judge O'Connor instead certified a final judgment on one-but-less-than-all claims. But on the Con Law listserv, Marty Lederman identified a problem--it is not clear that the court finally resolved even one claim. The plaintiffs asked for a declaration that the mandate is invalid and a permanent injunction prohibiting implementation or enforcement of ACA; the court granted the former, but never addressed or reached a conclusion as to the latter remedy. A judgment, even on one claim, may not be final if remedial issues remain on that count.

Another commenter on the listserv suggested two possible outs. One would be to deem the certification of finality as the denial of the injunction. A second would be to treat the improper Rule 54(b) certification as a § 1292(b) certification and proceed that way. Otherwise, the court would have to dismiss the appeal for lack of jurisdiction and send the case back to the district court to enter the injunction (thereby creating appellate jurisdiction under § 1292(a)(1)) or to certify under § 1292(b).

One question is why Judge O'Connor proceeded this way, since the parties all requested a § 1292(b) certification and not a 54(b) certification. One thought is that he did not want to certify that there could be "substantial ground for difference of opinion" as to constitutional validity or severability. O'Connor has gone to great rhetorical lengths in all of his opinions and orders to make this seem like an obvious, not-at-all-close case with one obvious result, in which defendants can prevail only by demanding that courts acts in an invalid, unlawful, illegitimate, impermissible activist way. Section 1292(b) would require Judge O'Connor to declare that it might be possible for a court, acting in a legitimate way, to reach a different conclusion. That he does not want to certify.

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Tenth Circuit offers an interesting mix of Younger, Rooker, and jurisdictionality

An area of seeming confusion for courts is the collision between Younger abstention and lack of jurisdiction under Rooker-Feldman. The doctrines are similar, as they both limit the power of federal courts to interfere with state adjudicative proceedings. In theory, the line is sharp--RF prohibits actions that formally or functionally ask the federal court to review the state decision, while Younger prohibits federal courts from halting ongoing state proceedings. In practice, they seem to run into one another, especially when courts use Younger as the basis for dismissing challenges to non-final state orders.

This Tenth Circuit case offers a different side of the collision.The federal plaintiff, the defending party in a state attorney-disciplinary proceeding, argued in federal court that the state bar lacked jurisdiction to discipline him, since he is not barred in that state (he maintains an office in the state, but practices only in federal court and federal immigration proceedings there). The district court abstained under Younger. But by the time the federal case reached the Tenth Circuit, the Colorado Supreme Court had suspended the plaintiff, ending the disciplinary proceeding. So the Tenth Circuit reversed the Younger dismissal, because the end of the state proceedings means the first prong of the Younger analysis (ongoing proceeding) is not satisfied, so the plaintiff can bring an action for a D/J action that the state tribunal lacked jurisdiction over him (because he is not barred in Colorado). The Tenth Circuit explained:

Consider our options. On the one hand, "if we were to reverse the dismissal," Plaintiff could (obviously enough) renew his already-filed claim before the district court. Id . On the other hand, "if we were to affirm the dismissal," Plaintiff could immediately refile in any event "because the dismissal was without prejudice." Id . "In these circumstances, we vacate dismissal . . . and remand these claims to the district court so that it can reconsider them without the need to abstain now that the state proceedings have ended." Id

This seems wrong on several levels.

First, the point of Younger is to eliminate federal interference with state proceedings; that interference remains after the state proceeding ends, if the federal action seeks to undermine or undo the results of that state proceeding. This is the point of Wooley v. Maynard (the "Live Free or Die" license plate case). Maynard had been convicted of traffic offenses three times for covering the motto on his plate; all three proceedings were over. The Court held the federal suit not Younger-barred only because he did not challenge or affect the results or consequences of those prior convictions and sentences; he sought only to prevent future enforcement of the law against him. The implication is that had Maynard sought to undo the past convictions, Younger would have barred the action. This federal action seeks to do what Maynard did not--invalidate the result of the state proceeding; that seems  inconsistent with "Our Federalism."

Second, even if Younger does not bar the federal action, Rooker-Feldman should. The plaintiff challenges the order of a state court suspending him from the practice of law and a federal judgment in his favor would declare that order as erroneous. In fact, attorney discipline is one of the most common situations for RF. And there is no "state court lacked jurisdiction" exception to RF.* The Tenth Circuit may have wanted to punt that issue to the district court. But this action should not go forward.

[*] In any event, I would argue that the plaintiff's argument as to the state proceeding is not that the state courts lacked jurisdiction, but that state law (attorney regs) does not apply to him because he is not barred in Colorado. That is a merits challenge to the reach of state law, not a jurisdictional challenge to the power of the court.

Ipse Dixit on the Infield Fly Rule

On Thursday, I did an interview with Brian L. Frye (Kentucky) for his Ipse Dixit Podcast on my new book on the infield fly rule. It was a fun conversation.

JOTWELL: Campos on the Bolch Institute on class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing  the Bolch Institute at Duke University's guide to best practices in class actions.

A different take on the purpose of the Infield Fly Rule

Baseball historian (and paralegal) Richard Hershberger for the fall 2018 issue of SABR's Baseball Research Journal argues that the infield fly rule developed from the difficulty of defining and determining when an infielder had caught the ball. He traces the 20-year evolution of the definition of catch, including the development and use of a "momentarily held" standard for only infield-fly situations (the batter is out if the infielder "momentarily held" the batted ball). This marked an "expansion" of when the batter is out, removing for baserunners, umpires, and infielders confusion over when the ball was caught and thus over whether they were forced to run. The ultimate Infield Fly Rule took this to its logical conclusion, but rendering the batter out no matter if, how, or how long the infielder touched the ball.

I am sorry this paper was not out while I was writing the book; I would have enjoyed discussing and responding to it in the book.

Standing in the ACA case

Good analysis from Nicholas Bagley (Michigan) about the standing problems for the two individual plaintiffs in the ACA litigation. A few additional thoughts.

• This illustrates how enforcement is the trigger for constitutional litigation, not the existence of a constitutionally defective law. An invalid legal obligation that will not be enforced cannot be the subject of litigation. An invalid legal obligation that will be enforced through a tax penalty of $ 0 is, functionally, a legal obligation that cannot be enforced. It still would be better if we discussed this as a question of merits and not jurisdictional thresholds. If these plaintiffs are not injured because the law cannot be enforced against them in any way, then their substantive constitutional rights are not being violated.

• The plaintiffs' argument that they are injured because they believe following the law is the right thing to do (even when that law is not enforceable) is the flip side of requiring government officials to act lawfully  or refrain from acting unlawfully (e.g., reservists in Congress, non-natural born citizens serving as President). Neither is a basis for standing.

• I have not seen any good argument that the 20+ States have standing. But the court skirted that question through the "one good plaintiff" rule--because someone had standing, the case could proceed without having to consider anyone else's standing. Update: In a companion piece, Bagley doubts that the 20 states have standing, which should mean the court cannot enjoin the Administration from enforcing the law as to him; in Bagley's words, the judge has "tied his own hands."

• Standing and jurisdiction have always been dicey in the ACA litigation; this case represents the latest and weakest effort. I wonder if the Fifth Circuit (or SCOTUS if it gets that far) will use that as the basis to get rid of this case, without having to touch the bizarre merits.

• Bagley describes standing doctrine as "near and dear to the hearts of the conservative legal establishment," so that even conservative judges on the Fifth Circuit (and Roberts and Kavanaugh on SCOTUS) will be unlikely to allow this sort of case to go forward. But the doctrine developed when the conservative legal establishment was trying to stop environmentalists from preserving the Nile crocodile, lawyers from challenging unwarranted surveillance of their foreign clients, and atheists from challenging states' creative ways to give government funds to parochial schools. This is the ideological drift of standing--the doctrine may not be so near and dear when it prevents "two guys from Texas" from taking down the nation's health-care system.

Sad law-prof blogging news

Concurring Opinions is shutting down at the end of the year. This is sad news. CoOp spun out of Prawfs in its earliest days and I experienced them (as reader and then as author/guest-author) as companion sites, covering similar issues of law and legal education with a similar sensibility. The posts containing the table of contents from new issues of law reviews will be missed. And this closing reflects the broader migration of this sort of legal writing to Twitter and Facebook.

Gerard indicated that there would be some farewell posts over the next two weeks.

A quick word on the remedy in the ACA case (Updated)

Sam Bray (as always) beat me to exploring the remedy issues in the district court's declaration on the constitutional invalidity of all of DACA. The court declared ACA invalid in its entirety, but declined to issue an injunction and provided only a declaratory judgment. Here is the wind-up to the post, with which I entirely concur.

In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. *

I also want to flag this language from Marty Lederman's post: "[C]ontrary to almost every media account you've read in the past few hours (come on, New York Times!) Judge O'Connor did not "strike down" the "entire Affordable Care Act" (something he lacks the power to do, in any event) . . ." A federal court cannot erase or eliminate or remove a statute, so it would be wonderful if that term could be removed from the lexicon.

Update: The other procedural/remedial issue is what happens next. The court granted what it called partial summary judgment on one claim (or one issue in one claim) and entered a declaratory judgment, but no injunction (although that is what the first count of the complaint requested). But it is not clear what is appealable here and how. There is no injunction, so § 1292(a) is not in play. Section 2201 says a "declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such," but the view among limited cases is that this assumes the decision is otherwise-final in the sense of disassociating the district court from the case and leaving it nothing to do but execute the judgment. With other claims remaining in the case, this D/J is not final. An appeal would seem to require certification under § 1292(b) or Rule 54(b).

Then there is a question of who can appeal. The United States agrees with the plaintiff states' basic constitutional argument about the zeroed-out penalty and that some provisions are not severable, so it is unlikely to appeal that; it disagrees with severability as to the rest of ACA, so it may appeal that. But what about the core constitutional issues? States were allowed to intervene to defend the parts of the law that DOJ would not, but under Hollingsworth an intervenor that would not be subject to the force of the order would not have standing to appeal. The House likely will intervene come January 3 and would have standing under Windsor, but that would be too late to appeal for § 1292(b), which requires appeal within ten days of certification. Maybe DOJ will appeal the declaration as a whole, then limit its legal arguments, with the states again intervening in the Fifth Circuit to pick up the slack.

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

9th Circuit taps the brakes (slightly) on universality

The ever-harrowed Ninth Circuit tapped the brakes slightly on district courts issuing universal injunctions. In affirming on the merits an injunction barring enforcement of religious opt-out rules from the contraception mandate in an action brought by five states, the court held that the district court abused its discretion in having the injunction extend beyond the plaintiffs.

The court hit a few important notes. It emphasized that universality is generally disfavored and especially disfavored absent class certification. It highlighted the problems with universal injunctions, including the loss of percolation of issues, the effects on non-plaintiffs, and the risks of forum shopping. And it applied the "complete relief" principle to conclude that a particularized injunction gives states complete relief from the economic harms the opt-out rule would impose on them. That other states may suffer similar harms did not affect the plaintiff states.

The court made clear that universal injunctions are not prohibited, but must be limited to cases in which broad relief is necessary. And it said the issue (as with an earlier case rejecting universality as to sanctuary cities) was a failure to develop the record as to other states, suggesting that building a better record may justify universality. 

But the court grappled with the scope question, a step back from recent hints from that court that universal injunctions were becoming the default, at least in certain cases.

Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule

I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.

Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Alan Trammell, Demystifying Nationwide Injunctions, which uses preclusion principles (including arguing that offensive non-mutual preclusion should be available against the government) to support the power to issue broader injunctions.

Alan's paper just came across SSRN yesterday, so I look forward to reading and citing it. My initial thought is that the preclusion analogy (even accepting that Mendoza is wrong) runs into the fact that allowing non-particularized injunctions allows the issue court to police the effect of its own judgment, whereas preclusion ordinarily is the bailiwick of the second court. This is sort of the issue in Nevada v. Dept of Labor and the private attorneys held in contempt for violating the injunction of one court (based on privity principles) by representing a plaintiff in a different lawsuit in a different court . To the extent the injunction binds these private attorneys, it would be through preclusion, which would be for the second court to determine, not the issuing court.

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Backing off universality, at least for sanctuary cities

Judge Ramos Southern District of New York enjoined DOJ's sanctuary-city policies in an action brought by New York, Connecticut, New Jersey, Rhode Island, Washington, Virginia, Massachusetts, and New York City.  (H/T: Ilya Somin, who analyzes the substance of the decision).

Ramos declined to make the injunction universal, although not per se rejecting universality. He emphasized that no sanctuary-city injunctions have remained universal through appellate review and that recent decisions have stayed any non-particular application. The court did extend the injunction to each state's municipal subdivisions, concluding that subdivisions suffer the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions." This is the converse of the  Ninth Circuit extending an injunction from party San Francisco to non-party California, because some grant funds sent to California were then distributed to San Francisco. Here, I presume, the state would have to cover any budgetary shortfall caused by the municipality's loss of DOJ funds. Either direction is consistent with the complete-relief requirement. But the court did not accept or apply the broader argument that some states and cities have urged (and that one AG presented during Q&A) that because DOJ has a limited pool of money and the size of the grants varies with the number of applicants, the injunction must be universal so that funds are not disproportionately allocated to non-sanctuary jurisdictions in a way that leaves nothing for sanctuary jurisdictions by the end of litigation.

In any event, this court's approach is a far cry from that of the Ninth Circuit in the DACA litigation, where the court seemed to approach universality as the default.

Nationwide Injunctions at the National Association of Attorneys General

Yesterday, I appeared with Suzette Malveaux (Colorado) for a panel on nationwide injunctions at the fall meeting of the National Association of Attorneys General. It was a fun discussion. Time ran short, so I did not have the chance to make one point: State AGs stand in a unique position because they are the only class of litigants who may be both beneficiaries and victims of universal injunctions--beneficiaries when they sue the federal government, victims when they defend the validity of their state laws.

I will post a video link if one becomes available.

A funny thing happened on the way to the court of appeals

Here is my SCOTUSBlog recap of Tuesday's argument in Nutraceutical Corp. v. Lambert, considering whether the 14-day period for seeking interlocutory review of a class certification order is subject to equitable tolling.

The most notable part of the argument was the humor--the transcript shows eight breaks for laughter, seven during petitioner's argument. Which makes sense, given stated concerns for Martian invasions. I await Jay Wexler's analysis of the case.

"10,000 mostly drunk people" and "contempt of cop"

Here is my SCOTUSBlog recap of Monday's argument in Nieves v. Bartlett. I genuinely am not sure how this comes out, as no one on the Court was blatantly leaning in one direction and everyone seemed determined to find a middle ground between the government's extreme that would let no claims go forward and the respondent's extreme that would let too many claims go forward.

The argument will be best remembered for the Chief describing Arctic Man as "10,000 mostly drunk people in the middle of nowhere," a description that thrilled the journalist who wrote the leading story about the festival.

JOTWELL: Mullenix on Vitiello on a civ pro companion

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Michael Vitiello, Animating Civil Procedure (Carolina Academic Press 2017),  a companion to Civ Pro casebooks offering a procedural-justice gloss on the major cases and issues.

Universal injunction in asylum-point-of-entry (corrected)

These are coming too quickly to process. The District Court for the Northern District of California issued a universal preliminary injunction (styled a TRO, but done adversarially and scheduled to last more than 14 days) prohibiting the government from enforcing new regulations denying asylum to any persons who present themselves at places other than lawful points of entry.

Unlike the Ninth Circuit in the DACA case, which Sam Bray analyzed, the court did not explain its scope ruling, other than by pointing to three things: facial unconstitutionality; the cert grant in the second travel ban case that allowed the preliminary injunction to stand as to people "similarly situated" to the plaintiffs (before the whole thing became moot); and the relevance of the APA. Sam discusses (with links) the third point and whether the APA really demands universality. The first point relies on Califano v. Yamasaki's "extent of the violation" language, ignoring that Califano involved a nationwide class (and thus a violation of the rights of the class), not the permissible scope of an injunction in an action brought by an individual. The second point continues to get far too much mileage out of loose language in a decision on a stay and granting cert. I have been accused of undervaluing that language, and perhaps I have. But courts are treating it as SCOTUS precedential imprimatur for universal injunctions, which is wait it cannot bear.

Sam argues that courts are close to making universal injunctions the default remedy in cases under APA, immigration cases, and cases with entity plaintiffs. This case supports that position.

SCOTUSBlog preview: Equitable exceptions to claim-processing rules

I have a SCOTUSBlog preview of Nutraceutical Corp. v. Lambert (to be argued Nov. 27), considering whether the time period for taking a Rule 23(f) interlocutory appeal of a class-certification order is a claim-processing rule subject to equitable exception.

The case was the main topic on this week's First Mondays, live from Duke Law School and featuring Marin Levy and Stephen Sachs, who had fun with the underlying facts  of the suit involving the allegedly fraudulent sale of "Cobra Sexual Energy."

SCOTUSBlog Preview: First Amendment retaliatory arrests

I have a SCOTUSBlog preview of  Nieves v. Bartlett (to be argued November 26), considering whether a plaintiff seeking damages for a First Amendment retaliatory arrest must show absence of probable cause. The Court last term punted on the question in Lozman v. City of Riviera Beach, because the case involved a retaliatory municipal policy, not only one officer's single retaliatory decision

I describe this as a sneaky-important case, because it involves a collision of two Roberts Court commitments--protecting First Amendment rights and immunizing law enforcement from damages suit and liability. The last part of the petitioner's brief downplays the constitutional importance of talking back to, challenging, criticizing, or insulting police officers performing official functions, insisting it is not speech on matters of public concern that should be protected against retaliatory motives; this eliminates the need for damages liability to vindicate that speech. The brief also argues that police departments will discipline rogue officers who engage in retaliatory arrests, especially in an age of body cameras and citizen video, when departments are more committed to internal accountability. The second point is laughable as an empirical matter. The first is correct on free-speech principle only if the First Amendment does not extend to the rough-and-tumble of ugly public protest or if police officers, the public officials with whom the public has the most direct contact, are above rhetorical challenge and criticism. But both are ideas I could see this Court majority buying, with the second commitment prevailing over the first.

The limits of Spiderman

Ilya Somin has an interesting post wielding the Spiderman Principle--"With great power comes greats responsibility"--to argue against judicial deference to the executive and supposed executive expertise in those areas, such as immigration and national security, in which the executive is believed to have the greatest power. Under the Spiderman Principle, the fact that executive power is so great in these areas requires greater judicial scrutiny and greater justification from the executive, to ensure that this power is used responsibly and not abused.

I agree with Ilya that excessive judicial deference is a problem. But it seems to me the Spiderman Principle does not get us very far, because it cuts both ways. The courts would argue that deference and referral to expertise is compelled by the Spiderman Principle--it is how they bring some responsibility to temper the exercise of their great power to declare invalid the executive's conduct.

What sovereign immunity has wrought (Update)

Steve writes at SCOTUSBlog about a motion in a pending cert case asking the Court to decide on the validity of Matthew Whitaker's appointment as AG, in order to figure out who should be substituted (for Jeff Sessions) as respondent in the petition. This is happening while lower courts consider the validity of the Whitaker appointment in more substantive contexts. (Gerard Magliocca believes that a Court order compelling briefing will compel Whitaker to withdraw or compel the President to nominate a new AG).

This is another example of how much time is wasted by sovereign immunity, rather than being honest about the fact that the government, and not any individual officer, is the real defendant in a challenge to a constitutionally invalid law.

Update: There is a discussion on the Civ Pro/Fed Courts Prof listserv about why plaintiffs ever sue the officer by name rather than office. FRCP 17(d) provides that "A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added," so it is permissible to sue the title. And since an EPY action is against the officer in his official capacity, it is against the office/title, so we end up in the same place. This gets me to my original point--if we just sued the office (and thus the U.S.), it would remain more straight-forward.

White House must return Acosta credentials

According to news reports, District Judge Timothy Kelly ruled from the bench, granting a TRO based on the failure to provide process, without reaching the First Amendment question.

It will be interesting to see if the White House appeals. Although the order was styled as a TRO, the court would treat it as an appealable preliminary injunction should the government choose to appeal. But the court never reached whether the First Amendment in any way limits control over press access. And the due process focus means that, in theory, the White House and Secret Service could give him process tomorrow and reach the same decision. There is a motive to return the credential and let the litigation play out in the district court first.

Update: Garrett Epps (Baltimore) at The Atlantic ties Kelly's decision to the unsung decision in Island Trees v. Pico, in which SCOTUS held that the school district had unfettered power to select books to place on the shelves, but the First Amendment imposed limits on the district removing books already placed (based on objections to content. I highlighted Pico as an important example of why Brennan was the heir to Holmes in protecting free speech, although a decision that gained little traction, including in debates over internet filters in libraries. I agree with Garrett that it would be nice to see a revival of the decision, including in a new context.

C.J. Cregg = Sarah Sanders (Updated)

Attorney David Lurie argues in Slate that CNN should sue the Secret Service over revocation of reporter Jim Acosta's press credentials. He argues that CNN has a good case. D.C. Circuit precedent holds that reporters must receive process in the denial or revocation of credentials and that the basis for revocation cannot be that the reporter criticized the President or anyone else in the White House. And the President admitted that Acosta's credentials were revoked because he did not treat the presidency with "respect" and that he might do the same to other reporters.

Update: CNN and Acosta, represented by Gibson Dunn, has filed suit, claiming violations of the First and Fifth Amendments and the APA; named defendants are Trump, Kelly, Sanders, William Shine (Deputy Chief of Staff, the Secret Service, and the head of the Secret Service.

The incident brought to mind S3E4 of The West Wing, titled "On the Day Before." Press secretary C.J. Cregg gets pissed at a reporter who inaccurately reported on something that C.J. had done. C.J. tells the reporter that she is having the reporter's credentials revoked and that the reporter must call C.J.'s office every day so C.J. can decide if the reporter will be allowed into the press room. And this was played with C.J. as the hero, standing up and justly sanctioning the vapid, dishonest, and unethical reporter.

This is another illustration of Aaron Sorkin writing the Trump Administration in the Bartlet Administration,  with much of the behavior and norm-breaking that we have seen the past two years; the difference is that Sorkin's characters did it in service of a liberal Democratic agenda, while the Trump Administration has done it in service of a very different agenda. There is no difference between Trump and Sarah Sanders stripping Acosta of his credential and C.J. doing the same to that fictional reporter--both are mad because the reporter treated them unfairly.

I am Spartawitz or Wearing a yarmulke after Pittsburgh

I began wearing a yarmulke the Tuesday after the October murder of eleven Jews at Pittsburgh’s Tree of Life Synagogue. I would have started sooner; the idea came to me almost immediately. But I wore a baseball hat on Sunday, so my head was covered. On Monday, I was late getting to work and forgot, as finding a head covering had not become my routine. I wore one to an inter-faith memorial service at my Reform temple near Miami on Monday evening, and it has remained.

This is new for me. I grew up in an unaffiliated Hebrew School that combined Conservative liturgy with a Reform commitment to justice; yarmulkes were reserved for services. I attended a public school district that was about 45% Jewish, but not one kid in my class wore one. I  attend a Shabbat morning minyan, a small, joyous, informal service at which I wear a tallis and a baseball cap, usually bearing the logo of my daughter’s private, Episcopal-affiliated middle school (we both appreciate irony).

The deaths in Pittsburgh triggered a desire to publicly pronounce and announce my Jewishness. Not that this was not already obvious to anyone paying attention—my last name is Wasserman, I grew up in the suburbs of New Jersey, I work in academia, and I am obsessed with Jewish baseball players. This was different. I was challenging anti-Semites or other people who are uncomfortable around “different” Jews. As if saying hineni—“Here I am.”

Update: Tablet's Unorthodox discusses (around 58:30) a letter from a listener who similarly began wearing a yarmulke following the shooting. He discusses greater initial apprehension of a negative reaction from other Jews than I had.

The practice of wearing a head covering outside of prayer is said to rest on two ideas. One is as a reminder that Hashem always is above us and that we must remain humble as we walk through life. The second is to stand apart as Jews, to dress differently from the Nation around us and thus to affirm and celebrate our separate identity as the People Israel.

I was motivated by the latter idea and its symbolism in a moment of distress for the Jewish People. I described it to one (non-Jewish) colleague as an “I am Spartacus” moment. (“I am Spartastein”? “I am Spartawitz”?) A student who has worn a yarmulke his entire life stopped by my office to thank me—having always stood out in this noticeable way, he appreciated other Jews joining him in such a public display. I have heard stories of rabbis in France warning congregants not to wear yarmulkes outside, given the increase in anti-Semitism there. I would not be so dissuaded, although I believe (hope?) the situation in the U.S. is less fraught and dangerous.

But I have experienced two things in the past week or so. First, it has become more than symbolic. Having something on my head reminds me of my identity and my place as part of the Jewish People at every moment. I appreciate the constant sense of belonging; I am not sure I am not walking with my head slightly higher. (This is easy to say at 50; I am sure I would have felt differently if I were obligated to do this at 15). Second, I am beginning to appreciate the first idea—the constant awareness of humility and the feeling of something greater as I walk my four cubits.

I do not know how long I will continue to do this, if I will return to my old fashion stylings when the immediate memory of Pittsburgh has faded, if I become annoyed by the feeling the thing is flying off my head when I pace around in class, or if this is a permanent change in my life and my identity. But early results suggest a substantive response in a symbolic act.

Perfection, athletic skills, and sports

This Deadpsin piece defends the scoring system in gymnastics, under which Simon Biles won the all-around despite falling in two events (her routines have such a higher degree of difficulty than everyone else that even large point deductions for falls do not bring her back to the pack.

The piece includes the following:

Gymnastics is is an aesthetic, performance-based sport. As such, its ideas of winning and perfection are deeply intertwined. The history of the sport suggest that victory and perfection often go hand in hand, and that you can’t have the former without the latter.

Ideas about “perfection” exist in other sports too. There is such a thing as a perfect game in baseball, and they are always the same—a pitcher faces 27 batters and gets them all out in order. Football’s quarterback ratings are notably, ridiculous obscure, but an upper boundary exists and a few dozen quarterbacks have hit it over the years. Perfection is as rare in those disciplines as it is anywhere else. It’s special, but by no means a guarantee of victory. A pitcher can be perfect through nine and watch his bullpen blow it in the tenth; a quarterback putting up a perfect 158.3 has given his team a chance to win, but only a chance.

This captures my line between sport and non-sport. Performing skills perfectly or well is intertwined with victory in non-sports, because victory is determined by a judgment on the internal value and quality of those skills. Victory in sport is extrinsic, determined by the outcome of the performance of the skills and not by the skills themselves. This is true not only for the aesthetic quality of the skill (how nice the jump shot looks or how hard the pitcher throws), but the overall performance of those skills, which still may not produce victory.

Packers fan finds counsel for First Amendment claim against Bears

I have written about Beckman v. Chicago Bears, a lawsuit by a Bears season-ticket holder and Packers fan who was prevented from going onto the field in Packers gear. Proceeding pro se (although with some informal guidance for a time), Beckman survived a 12(b)(6) by a very forgiving district court. It now appears Beckman has obtained counsel for the long-haul--the First Amendment Clinic at Duke and a Chicago attorney named Michel Lieber.

I think his First Amendment claim is a good one, if he can get past the state action problems. I remain surprised it took him this long to find counsel, but I am glad he found someone. This could get interesting.

Judicial departmentalism and birthright citizenship

The President announced plans to issue an executive order that would deny citizenship to children born in the U.S. to non-citizen parents. Assume: 1) Trump (or the attorneys and aides advising him) genuinely believes this is constitutionally valid, on the best understanding of § 1; 2) § 1 of the Fourteenth Amendment guarantees birthright citizenship (i.e., Trump and his attorneys are wrong); and 3) the Court has given no signals of intent to move from its current interpretation of § 1.

So how should we speak about what Trump is proposing? Should we say he is acting unconstitutionally? Is that fair, given that he is an independent constitutional actor who believes in the validity of what he is doing? How might we otherwise describe it? If we accept the President's independent constitutional interpretive authority, can he exercise it even if he knows he will lose once the dispute reaches court? Or is his power more limited, to those situations in which he has reason to believe (from some judicial hints) that the Court may move off the judicial interpretation, so defeat in court is not guaranteed?

Update on the Yiddishe World Series

We are three games into the 2018 World Series, featuring one Jewish player on each team. The first two games, both Red Sox wins, were quiet on this front. Ian Kinsler started both games at second for the Red Sox and was a combined 1-for-7 with an RBI. Dodgers outfielder Joc Pederson did not start either game; he was one of the Dodgers' four top hitters, all left-handers, who did not start against lefty starters, although he entered both games late, going 0-for-3 combined.

Game Three, an 18-inning Dodger win and the longest game in World Series history, had the Great, the Good, and the Ugly for the Chosen People.

The great:

 

Sandy Koufax gave Dodger starter Walker Buehler a standing ovation as Buehler left the mound after pitching seven innings of two-hit shutout ball with nine strikeouts. Koufax is two months shy of 83 and looks as if he still could pitch.

 

 

The good:

Pederson gave the Dodgers a 1-0 lead with a home run in the third. But for a blown save, that would have been the game-winning hit.

The ugly:

Kinsler. Inserted as a pinch-runner in the 10th, Kinsler was almost picked-off first. He was called safe and the call upheld on replay review, although it was close. Kinsler then advanced to third on a single, but overslid third base and barely scrambled to get his foot back on the base before being tagged. He then was thrown out trying to score on a fly ball to center. The throw was off-line, up the third-base line. But Kinsler got such a slow break off third that he basically ran into the tag about fifteen feet before the plate.

Then, with the Sox up 2-1 with two out in the bottom of the 13th, Kinsler's wild throw on a grounder up the middle allowed the tying run to score and the game to continue for five more innings and a 14th-inning stretch. Game Four in about nine hours.

Don't be a lawyer

We are big fans of Crazy Ex Girlfriend, especially the music. Tonight, the show takes on law school and practicing law. Enjoy.

Update: Having seen the episode, the main plot development is the lead character deciding she does not want to be a lawyer anymore (although she is shown as being good at it). I must admit to expecting her to decide midway through the episode that she instead would become a law professor.

On the Georgia voting case

A district judge in the Northern District of Georgia on Wednesday preliminarily enjoined enforcement of certain regulations, specifically the "exact match" requirements for absentee ballots. Plaintiffs were three voting-rights organizations and a number of individual voters. A few thoughts:

• This is the type of case that Amanda Frost highlights as appropriate for universal* injunctions--time-sensitive and on a large scale. But this case also shows ways to extend the scope of the injunction by extending the scope of litigation. The court found that the voting-rights organizations had direct standing, given the burdens the regulations placed on them in having to notify the public of this problem. The organizations also argued associational standing on behalf of their members, although the court did not address that. The case also would have been perfect for a 23(b)(2) class and the court could have entered a classwide preliminary injunction prior to certification.

[*] Another reason "universal" works better as a term--an injunction halting enforcement of state law can be universal in extending beyond the parties, but not nationwide in any sense. And to then have nationwide and statewide injunctions would add a layer of nomenclature to the identical problem.

• It is interesting that no political party or campaign sued and attempted to assert third-party standing on behalf of voters (the typical path to broad injunctive relief against voting restrictions). This illustrates the way in which the franchise has become a partisan issue--one party wants to make voting more demanding (put aside whether the reasons are valid or not), the other party wants to make voting easier and available for more people (again, put aside whether for valid reasons or not). So a party jumping into a lawsuit, even to protect a neutral principle such as the right to vote, will appear to be acting for partisan advantage. This is especially true in Georgia, where the person making and enforcing the restrictions is a candidate for governor.

Two worth reading

Light week, but I wanted to link to two pieces worth reading.

The first is by Brooke Coleman (Seattle) on the unrepresentative composition of the Rules Committees (as appointed by the Chief). The second compares the linguistic paternalism and authoritarianism of the LGBTQ+ movement to the anti-porn feminist movement of the 1980s.

JOTWELL: Lahav on Frost on nationwide injunctions

The new Courts Law essay comes from Alexandra Lahav (UConn), reviewing Amanda Frost, In Defense of Nationwide Injunctions (N.Y.U. L. Rev., forthcoming). My views on this subject are well-known here. Amanda visited FIU last week to present her paper and to debate  injunctions for several student organizations.

70 Years of the International Law Commission

This Friday and Saturday, FIU Law Review will host 70 Years of the International Law Commission: The Role and Contributions of the ILC to the Development of International Law. It is organuzed by Charles Jalloh, my colleague at FIU and a member of the ILC. The roster includes judges, scholars, and ILC members from around the world. Friday schedule is here, Saturday schedule is here. It will be live-streamed, so plan to check it out.

Infield Fly Rule as Mitzvah

On last week's edition of Tablet Magazine's Unorthodox podcast, a listener letter (read at the 1:07 mark) argues that baseball is the most Jewish sport, because it has "long tradition, weird and obscure rules that are subject to interpretation and doesn't change on a whim."

I like it, but it got me thinking: Which of the 613 Mitzvot is analogous to the Infield Fly Rule?

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Historical baseball note

This may prove premature; if so, I apologize. The Red Sox and Dodgers, two of MLB's historic franchises, are each one game away from the World Series, so I had to look up whether they had ever met in the World Series in those long histories. The answer is in 1916, when Babe Ruth was the Red Sox star pitcher and the team from Brooklyn was known as the Robins. The broadcasters could have fun with this one.

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Catch-up rule in baseball

I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Might progressives adopt judicial departmentalism?

Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.

Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.

But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).

I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Back-to-back Jewish World Series

Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.

Truly baseball's new gildene elter.