PrawfsBlawg

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.

Yale withdraws from US News

Dean Gerken's announcement. I do not think about legal education and metrics enough to predict what this will mean. I am curious to hear other people's thoughts, in particular for schools in the middle of the US News pack. Update: Harvard, too.

Effective v. Enforceable

Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:

The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.

The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).

Georgia trial court rejects judicial departmentalism

A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.

Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a  law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.

Here is the topper:

What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.

If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.

One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.

Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:

    • Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.

    • How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.

Chamber of Commerce on corporate speech

The chief legal officer of the U.S. Chamber of Commerce told a Fed Soc panel (paywalled) that corporate activism--particularly so-called "ESG (environmental, social, and governance) investment--is First Amendment protected corporate speech. The statement comes days after Sens. Chuck Grassley, Tom Cotton, Marsha Blackburn, Mike Lee and Marco Rubio-- anticipating a Senate majority--sent a letter to numerous law firms threatening them with investigations for assisting corporations in that activity.

So two issues for the other side of the political and ideological spectrum:

• Will the Chamber of Commerce pursue this First Amendment position in court and in legislative chambers if and when Republican officials come after some of these companies and their lawyers?

• I thought FedSoc and the conservative constitutional movement oppose canceling, threatening, or targeting lawyers for representing clients on causes of which they disapprove. It was bad when people criticized or sought to impose market consequences on firms helping Donald Trump and his minions bring frivolous cases to overthrow the election with frivolous cases. Apparently it is ok to threaten government action against law firms that helping companies take steps not to help the environment or the common good.

Argument in Talevski

Here is my recap of Tuesday's argument in HHC v. Talevski, considering whether any Spending Clause enactments can be enforced through § 1983 litigation. I remain bad at predictions, but best guess: The Court will not categorically reject § 1983 enforcement, perhaps unanimously. But a majority will hold that FNHRA precludes private enforcement (the SG's position) because of the statute's comprehensive administrative scheme.

SCOTUS questioning

What should we call the Justice-by-Justice questioning tacked onto the open questioning in SCOTUS arguments. (This is a vestige of the process from telephone arguments during COVID). During Tuesday's Mallory arguments, Justice Sotomayor called it "round-robin," a term I have used informally. But that does not seem accurate--a round-robin is a tournament format in which every team faces one another. Obviously the Justices do not face one another. And round-robin does not describe one competitor facing each of nine opponents.

In a more formal writing, I used  "serial questioning" or "sequential questioning," either more accurate. This is a series of questions by a series of Justices, asked sequentially.

§ 1983 and the Spending Clause

SCOTUS hears argument Tuesday in Health & Hospital Corp. v. Talevski, considering whether Spending Clause enactments (there, the Federal Nursing Home Reform Act of 1987 ("FNHRA")) can be enforced in damages actions under § 1983. I am covering the case for SCOTUSBlog; here is my case preview.

This is the latest in the Court's move to limit private rights of action, but with an important twist. The supposed separation of powers arguments driving limits on Bivens and implied statutory rights of action--Congress, not the courts, should make the policy choices and balancing of interests in creating private rights of action and Congress has not done so--do not apply. Congress made that choice in enacting 1983 as a free-standing cause of action and including the phrase "and laws" to allow plaintiffs to enforce statutory rights beyond constitutional rights. Not that I do not expect the Court to find some new means to its preferred end of limiting private litigation. Just that the recitation of separation of powers will not do it in this case.

Adjectives and verbs

When Donald Trump ran for President in 2016, there was a lot of talk about whether he was racist, which allowed him to defend himself by insisting he is "the least racist person" anyone has ever met. I wrote a post at the time arguing that it was a mistake to speak of whether some one "is ____," as opposed to whether the person "does ___ things." Stated differently, it is the difference in the law of evidence between "who someone is" and "what someone does." The former is unhelpful because it is impossible to look into someone's soul, it can be repeated as an insult, and it is too easy for them simply to deny that is "who they are." The latter allows us to evaluate conduct--the policy you propose would treat Muslims differently than other religious groups. Even if you are not a racist, you advocate a policy that is (whether in purpose or effect) racist.

This is playing out in the kerfuffle over the Brooklyn Nets' Kyrie Irving's tweets promoting a movie containing antisemitic ideas and messages. The Nets suspended Irving on Thursday and he apologized late on Thursday. That apology comes after several days of refusing to do so, which he explained as "I initially reacted out of emotion to being unjustly labeled Anti-Semitic." That is, he resisted when the framing was who he is rather than what he did--posting something and promoting a movie containing false and antisemitic statements. Again, a more useful framing.

Showing off or good writing and telling the difference

Third Circuit Judge Stephanos Bibas warned of "judges gone wild" in a speech before Harvard Fed Soc. He called out "the show off, [for whom] it seems to be all about the judge's musings, even the judge's ambitions to be notice." Jonathan Adler comments.

Coincidentally, Eleventh Circuit Judge Adalberto Jordan presented FIU's Judicial Lecture on Wednesday. The conversation turned to writing style and when a "turn of phrase" is warranted and useful. As an example, Jordan wrote the majority opinion declaring invalid Florida's "Docs v. Glocks" law prohibiting doctors from inquiring about the presence of guns in their patients' homes. Speaking of the plaintiffs' reasonable fear of discipline, he wrote that doctors "who are looking down the barrel of the Board's disciplinary gun, are not required to guess whether the chamber is loaded." Is that showing off and playing to Twitter? Or is it good writing? Is the answer, as Jordan added, you can't force it or overdo it?

Update: Richard Bales (Northern Kentucky) shares a piece he wrote some time ago on prudence in using references--use references and in ways that are self-explanatory and remember that the point is to "lead your reader to a deeper understanding of your topic-not to impress the judge with your wit or your knowledge of cultural arcana."

More on SB8 and its imitators: NYT v. Sullivan as Historical Analogue

Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan--a campaign of private civil litigation designed to chill conduct through costly litigation and liability--offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.

Here is the abstract:

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.

This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.

Affirmative action alternative? (Guest Suzanna Sherry)

The following post is by Suzanna Sherry (emerita at Vanderbilt and friend of the blog).

On Monday, the U.S. Supreme Court heard oral arguments about the legality of affirmative action. Some time before the end of June, the Court may well hold that it is illegal – either under the Constitution, a federal statute, or both – for colleges and universities to use race as a factor in deciding which students to admit. Conservatives hope, and liberals fear, that this will mean the end of affirmative action in educational institutions.

It won’t. Elite colleges and universities will quickly adapt, changing their admissions policies to achieve their goal of a racially diverse student body while purporting to be race-neutral. It will take only three easy steps.

Step one: Make the submission of SAT or ACT scores optional (some universities have already done so). This will break the applicants for admission into two pools. One, the test-submission pool, will consist of students who earned high scores on the tests. It will be almost entirely white and Asian-American. The other, the no-submission pool, will consist of students who either did poorly on the tests, or did not take a test because they feared they would do poorly. This second pool will contain applicants of all races and ethnicities.

Step two: Establish criteria for admission from each pool. For the test-submission pool, the criteria will presumably be the traditional ones: test scores, high school grades, recommendation letters, and interviews. For the no-submission pool, the criteria will sound good, but they will be vague and infinitely malleable: drive to succeed, the ability to overcome obstacles, a commitment to making the world a better place, and the like. And, surprise, surprise, it will turn out that Black and Hispanic applicants meet these criteria more frequently that white applicants do, at least according to the admissions officers’ evaluations.

So the students admitted from the submission-pool will be almost all white or Asian-American. The largest percentage of students admitted from the no-submission pool will be Blacks and Hispanics, who are currently being admitted through affirmative action program. Admittees from this pool might also include applicants with other desirable attributes, such as offspring of alumni or big donors or celebrities, royalty from around the world, and the occasional prize-winning oboist desperately needed by the school’s orchestra.

Step three: Determine the distribution of students who will be admitted from each pool. This can be a fixed percentage (60% from one pool and 40% from the other), or a minimum or maximum (at least 40% from one pool, which is the same as no more than 60% from the other pool). The distribution can be stated as a goal – which allows some deviation – or as a mandatory result of the admissions process.

It might take a year or two to get the criteria and the distribution just right. But in short order, these elite colleges and universities will have the same racial distribution that they do now. And because there will be two separate pools and no objective criteria by which to compare applicants in the no-submission pool, there will be no way to prove that race played any role deciding who gets admitted.

Alex Bregman in World Series

Game 3 of the World Series was rained out, with the teams tied 1-1. Alex Bregman homered in Saturday's Game 2; this was his sixth career World Series home run, most among Jewish players, one more than Hank Greenberg (and Joc Pederson).

Civ Pro Halloween

Civ Pro is a spring class around here, so no in-class costumes. Still, I got a visit from a student in my office. She is 4'11" tall; she wore a white t-shirt with the word "statement" on it.

A World Series request

One game of the upcoming World Series must have 

the Phillies wear this:

 

 

 

 

 

 

 

 

 

And the Astros wear this:

 

 

 

 

 

 

 

 

 

 

Wearing those uniforms, the Phillies beat the Astros in the best-of-5 1980 NLCS* 3-2, a series in which four games went into extra innings.

[*] The Astros joined the NL (as the Colt-45s) in 1962. They moved to the AL beginning in 2013 to establish two 15-team leagues with three five-team divisions. Of course, that re-balance was necessary because the Brewers had switched from the AL to the NL in 1998, a move that Commissioner Bud Selig engineered to help the team he had owned for 20+ years and that his daughter ran.

We are all judicial supremacists now

Jacob Sollum at Reason does not think much of New York and New Jersey exercising judicial departmentalism on gun regulation by enacting laws that likely (and in the view of one district judge, definitely) do not comply with Bruen. Note the language Sollum uses--"defying the SCOTUS decision," failing to "respect the constitutional right," "pretending to comply with the Second Amendment." As if the Second Amendment and what SCOTUS says about the Second Amendment are co-extensive.  I thought we liked  allowing the judicial branches to exercise their own constitutional ideas, even if they depart from the Court's ideas. And that they lose before a district judge--bound by SCOTUS precedent in a way the NY and NJ legislatures are not--it is not because they were trying to "fool[]" anyone.

This piece could have been written by an abortion-rights supporter about Idaho, Missouri, and Texas anytime in the 45+ years prior to June 2022. I guess not.

Revisiting the Koufax Curse

The Forward published my essay revisiting the Koufax Curse. The piece updates my 2020 study (conclusion: Teams still lose when their Jewish players play and should lose more); considers performance for 2022 (YK 5783) (conclusion: Relievers had a rough day); and revisits whether Max Fried would have pitched on Yom Kippur had the NL East been on the line.

Five teams with Jewish players are in the Division round. Fried got rocked in Game 1 of the Braves-Phillies series and will pitch a deciding Game 5 Sunday if the Braves can come back to win Game 4 (losing 4-2 in the 6th inning). Bregman has several key hits as the Astros staged two come-from-behind wins to lead their series with the Mariners 2-0. Relievers Scott Effross (Yankees) and Eli Morgan (Guardians) and back-up catcher Garrett Stubbs (Phillies) have not appeared.

Staying in your lawyering lane

Popehat offers a thread on bad lawyering arising from the recording of several Los Angeles City Council members and a union leader using racist slurs in discussing redistricting. An attorney for the LA County Federation of Labor emailed the LA Times, which obtained and published the recordings, threatening to sue. The latter was egregiously wrong (as the Times' lawyer demonstrated in a thorough response)--SCOTUS and SCoCA precedent protects publication of truthful, lawfully obtained information, including material that a third party unlawfully intercepts and passes to the paper, so long as the paper was not involved in the unlawful interception.  In fact, Bartnicki arose from an illegal recording of a conversation between two unions officials during contentious negotiations.

Popehat's thread focuses on the union attorney's "epically foolish" email. He offers three reasons she might have sent it: 1) She is a bad lawyer, which is unlikely in this case; 2) She is an expert on labor law but knows nothing about the First Amendment, so strayed from her area of knowledge; or 3) her client forced her to do this. The solution to # 2 is to recognize your lane and never send something like this without consulting an expert.

I want to add more to # 2. A colleague insists that every student should take First Amendment because every lawyer should know the basics of free speech. Even if you do not practice in the area (and most do not), that basic knowledge informs what you do. And a rudimentary knowledge of basic First Amendment principles can help you avoid errors on those principles.

Yale responds to Judge Ho

NLJ story here. The school revised its free-expression policies to include three conditions on protesting/disagreeing with a speaker: no blocking access to the event or facility; no disrupting the event and university operations; no compromising the safety of those attending or other members of the community. Dean Gerken sent a letter to the community highlighting the hiring of a new dean of students, the revision to the code of conduct prohibiting surreptitious recording of classes and other school events and activities, and a commitment to students resolving disagreements in-person.

I do not know whether it satisfies Judge Ho's complaints about free speech on campus, which I found disingenuous; they equate protest and criticism of an invited speaker with cancellation or drowning out. Free speech means sit-and-listen and hope the speaker deigns to engage with you or go away; anything else violates free-speech norms. The new policies seem to leave room for that sort of counter-speech so long as they do not "disrupt" or "block access," vague and capacious terms that could create problems if applied too broadly. (For example, a sufficiently large peaceful protest outside a building forces people to navigate a crowd to get inside--I would hope the school does not treat that as prohibited blocking).

The Franchise: Sandy Koufax and Yom Kippur

The new podcast The Franchise: Jews, Sports, and America, hosted by Meredith Shiner, dropped its first episode, on Sandy Koufax and Jews playing on Yom Kippur. I discuss my Koufax Curse study (around the 11:00 mark).

I learned one new thing: Max Fried was one of the cursed in 2019. Pressed into first-inning relief when the Braves' starter surrendered four runs, Fried was almost as bad, giving up another four earned runs in less than two innings of work. According to journalist Jeff Schultz, Fried was fasting when he entered the game. He had anticipated that he would not be needed to pitch until later in the game, after sundown and the opportunity to eat something before taking the mound. Other pitchers make a similar Yom Kippur compromise--going to the park, dressing, and being available to pitch while fasting.

JOTWELL: Mullenix on Dodge, Gardner, & Whytock on Forum Non Conveniens

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing William S. Dodge, Maggie Gardner, & Christopher A. Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. (forthcoming 2023).

Jewish pop culture without Jews

For Shabbat, two items about Jewish pop culture and non-Jews and the relation between them.

• The Patient tells the story of a serial killer who holds a psychiatrist hostage, seeking therapy to stop him from killing. Non-Jew Steve Carrell plays the explicitly and deeply Jewish therapist, Dr. Alan Strauss. This character's Jewishness goes beyond the name; it is central to the character and the story. Strauss mourns his deceased wife, a Reform cantor; he is estranged from his son, who became Orthodox; flashbacks show tension points around the wife singing at the Orthodox wedding and giving ice cream to her non-Orthodox daughter's children when the Orthodox son's grandchildren cannot have it (long explanation of the laws of Kashrut). The most recent episode, Kaddish, revolves around Strauss reciting the Mourner's Kaddish for his wife.

Carrell (as ever) is great in the role. But the show highlights the representation question--when should a Jewish actor play a character so identified with Jewishness. This is not an incidentally Jewish character where the writers happened to give him a Jewish name; Strauss' Jewishness and Jewish faith is inextricable from the story. Showrunners Joe Weisberg and Joel Fields (both Jewish; Fields' father was a rabbi) said the original version of Dr. Strauss was not necessarily Jewish; that part of the character filled-in as the project developed. Carrell does an OK job with the prayer (which, FWIW, is Aramaic rather than Hebrew), although he recites it with an Eastern-European-cum-old-Jewish-Brooklyn-man tone different from his normal speaking voice.

• Bad Sisters is a pitch-black dramedy in a small city in Ireland; it tells the story of four sisters plotting (and perhaps succeeding?) in killing their fifth sister's abusive husband. This decidedly non-Jewish show features Leonard Cohen's Who By Fire in the opening credits. That song is inescapably Jewish--even by Cohen standards. It riffs on Unetanneh Tokef, a central (and troubling, to many) piece of the Yom Kippur liturgy that asks who will live and find peace and happiness and who will suffer and die and how in the coming year, mitigated by prayer, righteous actions, and returning to Hashem. I have not figured out why they chose this song, beyond it being great. Certainly not for its Jewish themes. Maybe because it is about punishing a person for his misdeeds? Maybe because it lists different ways someone might die, some of which feature in the actual plot?

The Fried Curse?

A potential Jews-in-Baseball moment on the horizon this week.

The Braves lead the Mets by two games in the NL East with three games to play; the Braves' magic number is one. The Braves also own the tiebreaker--if the teams finish tied, the Braves win the division. But suppose the Mets win the next two games and the Braves lose the next two; the teams are tied entering the final game of the season, to be played at 4:10 p.m. on Wednesday--Yom Kippur.* Braves ace Max Fried would be scheduled to pitch and would be the guy the Braves want in a seeming must-win game. Will he pitch? And if he does, can he overcome the Koufax Curse?

[*] It could be a very Jewish game. The Marlins feature two Jewish relief pitchers--Jake Fishman and Richard Bleier.

Unsurprisingly, I am not a fan of MLB's bloated post-season. But I do like that it set the system to incentivize teams to win the division. The NL East winner gets a first-round bye and will not play until next Tuesday or Wednesday. The loser plays a best-of-3 series this weekend, then would face the 110-win (with three games left) Dodgers in the next round. A team may want to use its best pitcher in this game. If they win, he can be fully rested to start Game 1 after the bye. If they lose, he misses the short weekend series. Will Fried be the man, even on Yom Kippur day?

Maybe Dobbs is different

During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."

But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T₁ can be punished or sanctioned at T₃ after precedent changes and that conduct loses its constitutional protection at T₂. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.

If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.

I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.

SCOTUS to continue livestreaming arguments

SCOTUS announced it will continue audio livestream for all scheduled arguments, with the live audience back in the building. This is very good, if surprising. I expected the Justices to treat livestream as a substitute for an in-person gallery and to drop the substitute once the gallery returned, so I am happy to be wrong. It will be interesting to hear the differences when the audio include live-audience laughter.

Note that this announcement limits it to argument, not opinion announcements. Will the Court resume announcing opinions and reading summaries in front of an audience or will it continue to post them in 10-minute intervals on the web site? And if it resumes live announcements, what is the possible argument against livestreaming those as well?

Also noteworthy is that the parade of horribles associated with live media (there is no distinction between video and audio for these purposes) have not come to pass.

Still getting procedure wrong

Following last night's Eleventh Circuit benchslap, Judge Cannon sua sponte modified her order by excluding seized materials from those to be reviewed by the special master and striking two paragraphs ordering the SM to prioritize and make available to plaintiff's counsel the documents marked classified.

Two problems, I think. The amended order moots the 11th Circuit stay and thus Trump's appeal of the stay. The court of appeals only stayed the order as to the documents marked classified; since the order no longer affects those documents, there is nothing to stay. But that highlights the second problem--how does Judge Cannon have jurisdiction to modify the order? The government appealed the entire order, although it sought a stay only of the part related to classified documents (so it could continue the criminal investigation pending appeal). But if the entire order is in the 11th Circuit, how does Judge Cannon have jurisdiction to modify it? The unstayed portions must be complied with (i.e., the SM proceedings go forward). But the district court should not have the power to change an order that has left the district court and is on appeal--otherwise a district court could hamper appellate jurisdiction by repeatedly changing the orders in the case.

What am I missing?

The wrong abstention

The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.

I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.

Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.

The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.

But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.

A state could stop this in the Fifth Circuit

I have not had much to say about the Fifth Circuit's abomination in NetChoice. (Mike Masnick at TechDirt offers a good summary). The First Amendment analysis is absurd; it should be stayed soon; SCOTUS must grant cert (given the nature of the internet, the Court cannot allow this circuit split to survive); and I hope reversed later this Term by (at worst) 6-3 (Gorsuch is the only person about whose vote I am unsure). Someone said it reads like a Twitter rant and I think that is fair.

But the timing of this story is fortuitous. The Society for the Advancement of Judaism, an NYC Reconstructionist synagogue that has rented space to a local Republican organization refused to do so for an event with election-denier Dick Morris. The organization is protesting, insisting that this is not about Morris and election denialism but about a new general refusal to rent to Republicans--while the Temple could legitimately decide it does not want its forum used for election denialism, denying the forum to all Republican speech is different. NetChoice rested on a similar distinction--while sites perhaps can take steps against Nazi speech (which the Court dismissed as hypothetical), taking steps against "mainstream" conservative or Republican views is "censorship" that the state can stop.

Privately owned speech spaces (this Temple or the comedy club in Halleck) provide the best analogy to social-media sites--a privately owned space in which speech can occur, opened to speakers. Under the Fifth Circuit's logic, a state or city could pass a law preventing such spaces from "censoring," at least as to the "ordinary Republican speech" this organization says it intends to present.

Federer and McEnroe (Updated)

Roger Federer announced his retirement last week. He will play the Laver Cup (a Europe v. U.S. exhibition tournament) next week, then hang it up. Federe has not played in more than a year and has missed big chunks of the past several seasons with various injuries. He lost his last match at 2021 Wimbledon quarter in straight sets, with a third-set bagel, at one point slipping and falling on an easy volley; you could tell his body was no longer right.

I am an inveterate Federer-stan. I stayed in his camp in the G.O.A.T. debate--until it became impossible to deny reality that Nadal or Djokovic was better. This is true on any measurement: 1) Grand Slams championships (Nadal 22, Djokovic 21, Federer 20*); 2) Weeks at # 1 (Djokovic); 3) Head-to-head (16-24 v. Nadal, 23-27 v. Djokovic). What is left for Federer-stans is the inarticulable grace and artistry--Federer and his game looked different than everyone else, beautiful beyond ordinary tennis. It is telling that in the coronation of U.S. Open champion Carlos Alcarez as the next great player, he is described as combining the best of Djokovic and Nadal; no one mentions or compares him to Federer, because no one replicates Federer's game.

[*] Sports what-ifs are easy, but Federer should have 22. He inexplicably gave away a 2-set lead to Juan Del Potro at the 2009 U.S Open Final and blew two match points against Djokovic in the 2019 Wimbledon Final.

I circled around to John McEnroe. Like Federer, McEnroe's game looked different than everyone else, having some balletic beauty that no other players (even players with a similar serve-and-volley style) shared or replicated. And that grace and beauty elevates the player in the history, even if the numbers do not match the memory. That is partly why we remember McEnroe's relatively brief run at the top. And it is why we will remember Federer in a place even when the record book places others ahead of him.

Update: A fellow Federer-stan suggests additional metrics under which Federer retains G.O.A.T.-ness. Federer's peak 4 1/2-year run (2003-2008) is unrivaled. He spent 237 consecutive weeks as world # 1 (almost double Djokovic) and remained # 1 from the beginning of 2005 to the end of 2007. Aside from two losses to Nadal in Paris, he was so far above the rest of the world. He made the semis in 46 tournaments, including 23 in a row; even if he did not win, he was always in the hunt. (Similar to Jack Nicklaus who has the most major titles and the most second-place finishes). Points well-taken.

M*A*S*H*

Saturday marked the 50th anniversary of the 1972 series premier of M*A*S*H*, a show I watched religiously on first-run and re-runs beginning around 1978-or-so through the 1983 finale (still the highest-rated non-sports television show) and beyond. I am sure I have seen every episode at least 5-10 times. I pop-in on it on MeTV every so often; I can identify most episodes within about 5 seconds. It has not aged well in many respects, although as a former show writer pointed out, it takes place in an Army camp in the middle of a war in the early 1950s; of course the behavior taking place there is unacceptable in 2022.

Many of written about the show's change in tone over 11 seasons; the process began with the cast changes in the fourth season (replacing the commanding officer and second-banana doctor with more serious and fully formed characters) and accelerated over time the final eight seasons. Much of this focuses on the show's anti-war attitude becoming more text in many of the stories, the show becoming what we now would call a "war dramedy."

Here is a different way in which the tone change presents. I can think of three story lines the show repeated, in whole or part. The first time, within the first three seasons, it was played mostly for laughs, without getting into depth or nuance or considering the bigger picture or issues; the second time, sometime later in the run and with new characters, the show took the issues seriously and considered broader ramifications.

Consider:

    • Conducting fake surgery. White Gold (Season 3) Hawkeye and Trapper slip something into the drink of Col. Flagg (a recurring military-intelligence officer played for dry laughs) to mimic symptoms of appendicitis and remove his appendix; they want to stop him from taking medical supplies to trade for information. Preventative Medicine (Season 7) Hawkeye does the same to a reckless commander who is causing casualties in absurd numbers, but B.J. objects and refuses to participate in a violation of his oath. The button on the episode is more wounded coming in and that removing one cause of death and destruction in war does not stop the larger toll of war.

    • Summary Executions. Officer of the Day (Season 3) Col Flagg (he's back) wants the camp to release a wounded North Korean guerilla so he can execute him in Seoul; Hawkeye and Trapper sign-off at gunpoint, then sneak Klinger (whom Hawkeye had promised a trip to Seoul) into the ambulance. Guerilla My Dreams (Season 8) A South Korean officer wants the camp to release a wounded woman, whom he says is an enemy guerilla; the officer has a reputation for torturing suspects. Hawkeye et al resist and try to sneak her out of camp, only to have the Korean soldiers stop them at gunpoint and take the woman away. The woman speaks of how she hates the American soldiess and would gladly kill all of them.

    • Adopting war orphans. Kim (Season 2). A wounded, seemingly orphaned little  boy, is brought to camp. Rather than send him to an orphanage, the camp keeps and cares for him for a time, prompting Trapper to decide to adopt the boy; the process of doing so is presented as relatively simple. (The mother is found at the end). Yessir, That's Our Baby (Season 8). A baby (the child of a Korean woman and American G.I.) is left at the camp; they try to get her sent to the U.S., but no one (Red Cross, Army, South Korean government, State Department) will cut through red tape and work with them. At one point they raise the issue of adopting her and are told "not a chance." Because the child is half-American, she cannot be placed in a Korean orphanage; they leave her at a monastery.

This is not a comment on which is "better." Only that it illustrates how the show evolved and became more complex over time.

And isn't it ironic? Don't you think?

It's like Nazis who can get a stay.

It's Yeshiva when they can't get a stay.

It's the biggest case that the Court didn't take

And who would've thought? It figures.

Law School Exceptionalism

One more thought on the Yeshiva case. Cardozo Law School has LGBTQ+ student organizations and responded to the university's recent appeals with a public statement reaffirming support for the community and student organizations and stating that the university's efforts "do not pertain to the Cardozo School of Law and will have no impact on law school policy." This is consistent with the position of Albert Einstein Medical School and some graduate programs, whose student populations are less Orthodox and whose curricula are less steeped in Orthodox teachings.

This offers an important example of "law-school exceptionalism"--central universities recognizing that law schools are unique entities and treating them different than other campus units in terms of faculty governance, student life, student control, etc. It was a central feature of the late-2oth/early-21st-century heyday of legal education. It allows a law school to have an LGBTQ+ student organization where the university has decided that such a group--and the rights for which it fights--runs contrary to the institution's core educational values. Whatever its views on the merits of anyone's position, the university will not micro-manage the law school on such matters and will leave it to its choices and preferences. Some is accreditation-driven--law schools can argue that requiring it to eliminate such groups would run afoul of the ABA and AALS. Some is competition of the market--law schools can argue that they cannot attract sufficient top students in New York if they run a school perceived as unwelcoming to LGBTQ+ students.

Law-school exceptionalism also is, in some places, a vanishing virtue. As the nature and perceived value of legal education have changed, so has (some) university willingness to allow law schools to operate with such procedural or substantive independence. This could provide an interesting test of Yeshiva's commitment to this ideal. Cardozo's statement on the litigation suggests the dean feels confident the university will not turn this into a larger issue of central control. But it is a piece worth watching as this case proceeds.

Morissette, J., dissenting

A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.

Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."

In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?

The politics of abortion (Update)

Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.

[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.

I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?

So what do Graham and Senate Republicans hope to get out of this?

    1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.

    2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.

    3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."

[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.

    4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.

    5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.

Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and  hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."

JOTWELL: Carroll on Greene & Renberg on judges without J.D.s

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022), examining the phenomenon of low-level state judges who do not have law degrees.

The queen is dead, long live the king (Updated)

Three thoughts, as someone who, when my wife and kid woke up early to watch William and Kate's wedding, joked "didn't we fight a war so we didn't have to do this?"

• TIL they change the words to the British national anthem. It makes sense, but I had never gotten confirmation (since hardly anyone is alive who remembers anyone other than a queen).

• The combination of the events in the U.K. and ongoing political events here highlights something Gerard has written about--the possible gains from separating the roles of head of state and head of government. The U.S. is unusual in being a stable liberal democracy that combines those roles. Perhaps a central executive of some stature, disengaged from partisan competition and policymaking, can help lower the political temperature and avoid things such as one side's refusal to accept electoral defeat. On the other hand, Elizabeth's statute came from serving for 70 years and becoming indistinguishable from the nation. A figurehead HoS also presumes unified legislative/executive control. So maybe our system is too far gone.

Update: David Frum frames it around two interesting points. One is separating the trappings of wealth and power and actual power--the person with the trappings has no power, the person with power has no trappings, lives in a small house, and regularly encounters rudeness (think of Question Time). The other is how accidental both systems are. The Constitution modeled presidential power after monarchical power as it existed in in 1787, only for the British to organically limit that power in the following years. The British couch an evolving system in long tradition, while the U.S. tries to pull an ancient system into the modern world.

• Chief Justice Rehnquist wrote in Hustler that "our political discourse would have been considerably poorer without" political cartoons--not only for the caustic (and sometimes tasteless) satire and criticism that brings down the powerless (as Rehnquist emphasized), but for their ability to wordlessly capture a moment and an emotion. Behold:

Does lawyering matter?

Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.

But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.

The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.

Thoughts on the Trump special master suit (Updated)

A couple quick thoughts on Donald Trump's attempt to appoint a special master to do something (I do not believe Trump's attorneys understand what a special master can do). A hearing on the motion is scheduled for later today.

• DOJ wanted to argue that Trump cannot make an FRCrP 41(g) motion for return of property because the government documents taken under the warrant do not belong to him (even if the search was unlawful). Trump replied that he has standing to contest the search (which he obviously does) but said nothing about a 41(g) motion. The problem is DOJ using "standing"--with its constitutional implications--to describe it. This is another example of the term confusing things. Everyone uses it as a synonym for "he cannot prevail on this issue under this law because he has no affected legal rights," but in a way that unnecessarily draws Article III into what should be a discussion of substantive merits or procedural rules.

• This thing is a procedural mess. Trump filed a new civil action that was neither a pleading nor motion, arguably in the wrong division of the SDFla, and without affecting service. Judge Aileen Cannon issued a minute order asking Trump to clarify what the hell this thing is (I warned my students to never do anything to be on the receiving end of such an order, although I doubt Trump's lawyers) care; he supplemented the papers, although barely and not in a way that offered a meritorious substantive argument or complied with procedural rules. Judge Cannon then indicated a preliminary inclination to grant the request and ordered expedited briefing. That brings us to today. By the FRCP, none of this should have happened. Trump initiated a new civil proceeding without filing a complaint, moved the court for relief without establishing jurisdiction (essentially asking the court to superintend the magistrate in a separate existing proceeding), and never served or obtained a waiver. But the judge did not care and is plowing ahead. In this Serious Trouble episode (around 20:4o), Ken White says "Sometimes, federal judges just get kind of fed-up with procedural niceties and just want to cut to the chase." Descriptively true, but it kind of undermines everything some of us do for a living. (I suppose the response to a student who tried to raise this point would be that judges are more likely to do this in a case involving the former President of the United States facing a federal indictment, but you are not likely to represent the former President of the United States, so you need to follow the rules).

• We begin discussing the jurisdiction of the Courts of Appeals in Fed Courts next Tuesday, which means we should begin discussing mandamus the following week. Which is good, because if Cannot gives Trump anything, the government is going to mandamus her, probably successfully. And the fact that the judge flouted procedure as she did should factor into the court of appeals reasoning on whether to grant the writ.

Updates: Reports on the hearing suggest she is inclined to appoint a special master to review all documents, along with Trump's team but not the government, including for executive privilege (which should not be in play here). She also seems inclined to enjoin DOJ from continuing to review the documents for purposes of a criminal investigation (while allowing ODNI review to continue). In other words, she is going to enjoin DOJ from investigating a crime in a case in which no complaint has been filed. If these reports prove true, it may suggest this is not a federal judge who wants to cut to the chase at the expense of procedural niceties but a judge who does not know what she is doing.

As to # 3, perhaps knowing how this is going, the government asked the judge to issue a formal injunction, which is immediately reviewable as of right. This avoids government having to satisfy the heightened requirements for mandamus (although I imagine they are satisfied here).

Judicial departmentalism in action

Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:

• Pre-2018: State regulations prevent trans people from changing markers.

• 2018: Federal court declares reg violates equal protection

• 2020: State enacts legislation codifying regulation

• 2021: Federal court declares legislation violates equal protection

• 2022: Court orders state to pay $300,000 in attorney's fees.

Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.

It is unwieldy. But it is how the system should work.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

What is so bad about Saul Goodman and other questions

Two questions about the penultimate Better Call Saul, with spoilers, after the jump.

What is bad about Saul?

As I wrote several episodes ago, the theme of BCS that decent Jimmy McGill becomes irredeemable Saul Goodman and we have moved deep into that. Last night included a flashback to a Rosencrantz-and-Guildenstern-type meeting, early in the BB timeline, between Kim and Saul and between Kim and Jesse, both of which are designed to show how far Saul has gone.

Here is Rolling Stone' Alan Sepinwall, a critic I love reading and listening to and seems a generally liberal person, as far as he shows in his writing, on the Kim-Jesse interaction:

Jesse is only there because his buddy Emilio — a.k.a. Walter White’s first murder victim — has come to Saul seeking legal representation. (In the “Better Call Saul” episode of Breaking Bad, Jesse tells Walt that Saul got Emilio out of trouble on two different occasions, despite the cops having him dead to rights.) Like Kim’s various interactions with Saul and/or Gene in this episode, she says very little, just waiting for the nicotine to kick in and hoping that the rain will stop before she has to listen to too much of this overgrown kid(*) bragging about ways for criminals to evade the justice system. She believed passionately in her work as a public defender, but guys like Jesse, Emilio, and Combo are the dark side of that work — the ones who present an ongoing danger to others each time a lawyer like Kim or Saul gets them off. And she really can’t stand listening to the future Mr. Driscoll praise the legal chicanery of the man she hopes to never see again.

This is disturbing. On Sepinwall's framing, Saul is bad because he does what a defense lawyer is supposed to do--he defends clients and forces the state to prove its case beyond a reasonable doubt before putting them in prison.  Sepinwall talks of "evad[ing] the criminal justice system" and "legal chicanery." Maybe Saul did something illegal or unethical in helping Emilio, Combo, and these other clients. But (again in the spirit of "show, don't tell") we have not seen it, nor have we seen it as different in kind from what "Jimmy" did. Jimmy/Saul did a lot of illegal stuff--lied to the court about Lalo's identity, helped deal meth, provided information on a murder, and laundered money. And maybe that illegal stuff is part of the representation he is does here. But, again, we have not seen it. Successfully representing even obviously "dead to rights" people in court should not be mentioned in the same breath.

Worse, Sepinwall distinguishes the criminal defense Jimmy does from the criminal defense Kim wanted to do (before she threw it away on the scheme that resulted in Howard Hamlin's murder), framing the latter as noble and the former as the corrupt work of the evil Saul Goodman, the "dark side" of criminal defense. In fact, it is the core of the work of a defense lawyer. A lawyer who only wants to defend innocent people needs to find another line of work. Kim wanted to limit her defense to indigent people who committed small-bore crimes and were caught in the system. Which, fine. But her work is not nobler or more moral than what Saul does (again, assuming he stays within legal lines as to in-court representation).

Could Saul and Kim be charged with a crime?

I pose this to crim law people out there. In last night's episode, Kim goes to the DA and signs an affidavit detailing their scheme (which she also show to Howard's widow): They falsely made it seem that Howard was abusing cocaine, caused his work on a case to implode, and destroyed his personal and professional reputation; when he confronted them about the scheme at their apartment, Lalo (who was there on a separate matter and not connected to the scheme) murdered him. There is some talk about whether she will be charged with anything; she says she does not know* and that hers is the only evidence of what happened.

[*] Howard's widow is angry about this, pointing out that she is supposed to be a great lawyer. Yes, because great lawyers know everything about all law. That is why Law Twitter is the way it is.

The question appears to be whether they could be charged in Howard's death. Could she (or they) and for what? Can felony murder extend that far--to murder by an unconnected person after the underlying felony was complete?  Is there some other theory of criminal liability for Howard's death? What about for the underlying scheme to destroy his reputation, separate from his death.

There is a separate prospect of a civil suit (which the widow mentions, although Kim does not have much money). Maybe defamation or IIED? Something else? There is a statute of limitations problem--six years elapsed in the BCS/BB universe--although I imagine a good argument for tolling based on fraud.

Leaving comments open because I would like to hear from some crim folks.

Assiging pre-1L summer reading

Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society,  lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?

Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).

Playing on Tisha B'Av

While Jewish baseball fans focus on who plays or does not play on Yom Kippur and the Koufax Curse,Tisha B'Av (commemorating the destruction of both Temples and all other pre-Holocaust tragedies to befall the Jewish People*) presents the pardigm Jewish holy day for which most Jewish-American baseball fans do not care whether anyone sits out.

[*] The Holocaust is marked by Yom Ha'Shoah, which is set near Israel Independence Day and Israel Memorial Day. Many Orthodox Jews, particularly Chasidim, fold Holocaust commemoration into Tisha B'Av. Jewish scholars debate whether the Holocaust is an extraordinary event or one of many great historic tragedies.

Until now. Tisha 'Av ran from sundown Saturday to sundown Sunday. Here are the results.

Saturday Evening:

• Alex Bregman (3B, Astros). 1-for-4 with a double and run scored (albeit meaningless in the ninth inning of a 4-0) game. Astros lose 4-1.

• Max Fried (P, Braves). 6 innings, 6 hits, 4 runs (2 earned), 5 strikeouts. Part of the error that allowed two runs to score. Smacked his head on the field trying to make a play. Braves lose 6-2, swept in double-header, fall 5.5 games behind Mets in NL East.

• Rowdy Tellez (1B, Brewer): 1-for-2 after entering game in 6th inning. Brewers lose 7-5.

Sunday Afternoon:

• Bregman: 0-for-3. Astros lose 1-0

• Scott Effross (P, Yankees: 1 inning, 3 hits, 3 earned runs (that put game out of reach). Yankees lose 12-9.

• Joc Pederson (OF, Giants): 1-for-2. Giants win 6-4

• Garrett Stubbs (C, Phillis): (Rare start): 1-for-5 with a run scored. Phillies win 13-1.

• Tellez: 0-for-3 with a walk. Brewers lose 2-1

 

So Tisha B'Av looks a lot like Yom Kippur: Teams lose (2-6), Jewish players, especially pitchers, do anywhere from badly to not-so-great. I sense a pattern.

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Britney Griner and WNBA pay

I am sure someone has written this, but I will throw it out again. Britney Griner was in Russia playing basketball because the WNBA does not pay its star athletes enough money to build the type of financial nest that will carry her when her career ends at age 35-40. WNBA stars have been doing this for years because the overseas money--especially in Russia, where oligarchs own several teams and use sports to amass and show wealth and influence--dwarfs WNBA money. Russian teams and leagues also treat players better in terms of travel, accommodations, schedule, etc.

Nor is this the first time WNBA players have gotten caught up in Russian political intrigue. Sue Bird and Diana Taurasi played for Spartak Moscow Region; the mobbed-up team owner, Shabtai Kalmanovich, was murdered.

Standing sucks up more stuff

The district court dismissed the lawsuit by three Republican House members challenging security screening (and the fines imposed for ignoring the screening) in the House building following January 6. The court held, properly, that establishing the screening mechanisms and sanctioning members for violating those mechanisms were protected from judicial review by the Speech or Debate Clause--they involve internal rules governing how the legislative body operates and conducts its business.

But the court based the dismissal on lack of standing--plaintiffs lacked standing because the challenged conduct (and the actors who engage in that conduct) cannot be questioned in any other place. But that is not how the Clause is understood. That the challenged conduct is legislative means it cannot form the basis for constitutional challenge in court; it does not mean the plaintiffs did not suffer an injury fairly traceable to some conduct.

It remains stunning how every constitutional and procedural issue gets sucked into the standing/jurisdictional framing.

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

You need 5 to do anything

An interesting discussion on the Con Law Prof listserv this week about Justice Brennan's famous "rule" for his clerks that you need five to do anything. There are several ways to interpret that statement, suggesting different things about the Court and its actions.

The first is "if we have 5, we can do whatever we want." This suggests judicial lawlessness, power politics to impose policy preferences without regard to text, precedent, or law. It also reflects the accusation some have leveled against the current majority--they are doing what they want as policy because they can. And defenders of the Court respond that they are following Brennan's rule. And as Eric Segall would say, there is no law to be found anywhere.

The second, urged by several former Brennan clerks on the listserv, is "it takes 5 to do anything." Stated differently, you only can do anything with 5. This suggests humility in working within a multi-member Court--you need to get 5 on board, which might mean compromising and settling for less than you would like. But Brennan remained committed to lawyerly tools and did not advocate pure policy goals.

The third, from another clerk, was a statement of resignation in a case he lost--"well, they have 5, they can do what they want." Again, thsi does not suggest judicial lawlessness or accusing the other side of ignoring law in favor of personal goals. It reflects reality--"they have a different view than I do, but they have 5 and I do not."

More on preferred first speakers and the minimization of counter-speech

Two recent examples of the "Preferred First Speaker" problem and how it is warping discussions of speech and counter-speech, even among First Amendment advocates.

The first is the cancellation of a show by Dave Chappelle at a comedy club in Minneapolis, when club staff refused to work the show. Greg Lukianoff and Conor Friedersdorf regard this as another example of cancel culture and deplatforming of a world-famous comedian; while the club is a private venue, its actions are "bad for free speech." Ken White (Popehat) shows why this line of argument stacks the deck in favor of the first speaker and and against counter-speakers--no one asks whether the initial speaker's (Chappelle) speech is "good for free speech," only the responsive speech. At the same time, Friedersdorf and Lukianoff presumably would have been find had the club owner fired the employees who refused to work the show, without recognizing that their refusal to work is imbued with some free-speech interests. The point is that it is not enough to say "bad for free speech," without evaluating the competing free-speech interests. A lot was made about the show having been booked and canceled. But I expect if the story was "we refused to book Chappelle in the first place because our employees made clear they would not work the show," the reaction would have been the same.

The second is this National Review piece complaining about some University of Michigan med students walking out of the White Coat ceremony during a keynote speech by a UM professor who is a prominent anti-choice activist. The conservative reaction to this incident combines with the reactions to various "disruption" incidents to reveal how preferred the first speaker is. Opponents cannot protest loudly in the room, cannot protest loudly outside the room, cannot silently protest in the room, and cannot absent themselves from the room. Free speech requires that they sit silently and listen and say and do nothing, no matter how much they disagree. On this view, all protest and all counter-speech violates the free-speech rights of the powerful person given a formal platform. That cannot be right.

The piece also worries that this incident shows these students are not fit to be doctors:

One of those duties is to care for patients who may have different political views. If a patient says or believes something with which doctors disagree, they still must care for that person. One cannot be confident that they will properly serve this patent if they have cannot tolerate beliefs that contradict their own.

Note that "tolerance" now means not only allowing someone to speak, but having to stay and listen to what she has to say. Taken to its logical end, a doctor or medical student cannot protest or object to anyone's speech, because they may have to treat that person and doing anything other than sitting and listening to what someone has to say equals lack of tolerance and implies that they therefore would not properly treat that person. Third, it is iconic for this to come from the National Review--the only time I heard of doctors refusing to treat patients over political disagreements was in 2010-11, when several doctors announced that anyone who voted for Obama should seek care elsewhere.

Undermining judicial review

In my post on California's SB 1327, I noted Ilya Somin's post . He quoted the ACLU's May letter objecting to the proposal, in which it said the bill "creates an end run around the essential function of the courts to ensure that constitutional rights are protected."

This criticism--and it is a common one--misunderstands the procedural point. These laws do not eliminate judicial review; they shift its posture. Pre-enforcement offensive review is unavailable, pushing rights-holders into a defensive posture. A rights-holder must violate the law, get sued, and raise her constitutional right as a defense to liability. This action will begin and remain in state court, with (discretionary) SCOTUS review at the end of the process. This is recognizable as judicial review--a court passing on the constitutional validity of a law and determining whether it can be enforced--and allows courts "to ensure that constitutional rights are protected." It is wrong to say otherwise.

The problem with these laws--if there is one--is not that they bar judicial review, but that they require a less-preferable or less-ideal form of judicial review. Those who reject parity between state and federal courts do not like that litigation will begin in state court and that SCOTUS's discretionary jurisdiction may mean no federal forum. Rights-holders must "act at their peril" by violating the law and getting sued to obtain review, something they may choose not to do out of fear of liability. That creates a substantive problem--the loss of constitutionally protected activity. And it creates a procedural problem--the absence of statutory violations means "any person" will not sue, which mean the rights-holder has no opportunity for judicial review. The rights-holder also may be unable to obtain necessary binding precedent when litigating defensively. If the trial court dismisses on constitutional grounds, "any person" may choose not to appeal, taking his loss and going home until the next lawsuit, while leaving the rights-holder free from liability now but fearing the next lawsuit. Doug Laycock argued that offensive litigation provides three unique benefits--preliminary relief, prospective relief (beyond precedent), and class-wide relief--not available in defending a single suit.

These are valid criticisms of SB8/SB1327-type laws. But critics and advocates do not capture them through the simplistic "this prevents judicial review." Critics must explain why the model of judicial review the law allows is inferior and insufficient to offensive pre-enforcement litigation. Further, they must explain not why offensive pre-enforcement litigation is better, but why it is constitutionally necessary. And they must explain not why defensive litigation is worse, but why it is constitutionally insufficient. Screaming about "end runs" around judicial review does not make that case.