PrawfsBlawg

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

I also wonder about the constitutional validity of Warren's proposals under current doctrine and given the current Court (putting aside that it would not pass).

In her Medium piece, Warren calls for federal legislation that would: 1) Prohibit states from interfering in the ability of a health care provider to provide medical care or from interfering in the ability of a patient to access medical care from a provider; 2) Preempt TRAP laws; 3) Guarantee reproductive-health coverage in health plans, including repealing the Hyde Amendment; and 4) general protections for women, in seeking care and elsewhere (such as at work).

Is this valid federal legislation and under what power? Not § 5. Without Roe, Due Process does not protect reproductive freedom, so a law designed to protect that freedom by prohibiting state-level bans would not be congruent and proportional as to constitute legislation "enforcing" the 14th Amendment. Perhaps it could be framed as a gender-equality provision, enforcing the equal protection rights of women. But is halting abortion discrimination against women or is it halting a particular medical procedure that happens to have a disparate effect on women? And if the latter, is a disparate-impact provision congruent-and-proportional to a constitutional right that only prohibits disparate treatment?

So the power source would have to be the Commerce Clause. But a law doing what Warren proposes would interfere with the traditional state function of regulating the medical profession, the doctor-patient relationship, the insurance industry, and local zoning. Might the same five Justices conclude that there is not a sufficient nexus to interstate commerce to allow federal law to supersede state law in this area of historic state power?

I welcome thoughts on these questions--not being a Commerce Clause scholar, I do not know the answer. But pinning this on Roe, or suggesting that the anti-choice craze that has taken hold in these states is simply a reaction to Roe, seems wrong.

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Ballparks as public spaces and free speech

Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.

Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

This presents two fun what-ifs. First, Fortas was 58 when he resigned and lived another 13 years. How different might the jurisprudence of the 1970s have been had he remained on the Court with Douglas (replaced by Stevens in 1975), Brennan, and Marshall  as a starting point. And maybe Fortas retires prior to 1980 and gives Jimmy Carter the appointment he never had. Second, how might Nixon's Court appointments have differed? If Fortas does not resign, Blackmun remains on the Eighth Circuit in 1971 when Black and Harlan retire within days of one another. Does Nixon nominate Blackmun for one of those spots, since he appears to have been Nixon's "next" nominee, or had his time passed? Does Powell or Rehnquist, who were commissioned simultaneously, get the other? And if Powell, how does Rehnquist get on the Court and, more importantly, still become Chief?

Update: SCOTUSBlog has an interview with author Michael Bobelian about his new book Battle for the Marble Palace, which examines Fortas' failed nomination as Chief, marking it as the starting point for the "modern" Supreme Court and "modern" appointments process.

Fun with evidence

The problem set I use in class has this as a problem in the hearsay section. Supposedly Charles Manson's lawyer would make this objection.

The answer to the hearsay problem is that the name is not an assertion, because it labels someone without saying anything about the state of the world. But I have seen the point made that the real issue is not hearsay so much as lack of personal knowledge of the fact.

Anyway, something to share next semester.

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

It is the empathy, stupid

Yesterday, I attended the 7th Circuit Bar Association Conference and the Judicial Conference of the 7th Circuit (a combined event that appears unique). I moderated a discussion on jurisdictionality (with Scott Dodson of Hastings and Jessica Berch of Arizona State) and watched an excellent panel on judicial independence and the rule of law. I also attended the dinner, which was keynoted by a conversation among Justice Kennedy, Justice Kavanaugh, 7th Circuit Chief Judge Diane Wood, and Northern District of Illinois Judge Gary Feinerman (who clerked for Kennedy the same term as Kavanaugh).

At one point in the discussion, Kavanaugh discussed the importance for judges to listen and to put themselves in someone else's shoes. They must hear and understand the positions of parties, attorneys, or fellow judges, in order to understand where they are coming from and the position they are urging. This is part of essential-but-vanishing "civility" in public discourse.

Wait, though. There is an English word for adopting another's perspective so you can understand their position (although Kavanaugh did not use it)--empathy. When President Obama suggested that empathy was an essential quality for judges, he was lambasted as urging lawlessness and the remark used as a basis for opposing his judicial nominees. Yet here was the darling of the Republican judiciary insisting that this is a necessary quality for him, as a judge, and for public debate more broadly.

Makes you wonder if the opposition to Obama's use of the term was not grounded in principle.

Bodycams and police discretion

Interesting story from a former police officer arguing that bodycams undermine community policing. The obligation to record everything eliminatesofficers' ability to ignore or skirt department regulations when it might be beneficial for relations with the community--for example, by not arresting a mother driving with young child and groceries with an expired license. As she puts it "[s]eemingly overnight, keeping my job meant doing everything by the book," because camera footage is subject to internal review.

Later, Miller argues that "[s]ince the adoption of body cameras, the law is the law." But hasn't the always been the law? Of course not, because police officers wield a tremendous amount of inherent discretion in choosing what laws to enforce, how, when, and why. And many officers, such as herself, wielded that discretion for good, in a way that helps the community and maintains good relations between police and public (or at least certain segments of the public). Bodycams, she argues, make that harder.

But Miller's argument ignores that many officers used that discretion for ill. And no one--including the good officers--did anything to stop the bad actors. The clamor for a technological solution arose because of a felt need for some tool to reign in abuses of that executive discretion--police departments, fellow officers, municipal governments, prosecutors, and courts were not willing or able to do it. By purporting to offer incontrovertible video evidence (even if it is not incontrovertible) of "what happened," bodycams make it more difficult for the relevant actors to ignore misconduct. Miller questions the efficacy of bodycams in providing that check on "bad apples," and she is right that the point that is in empirical dispute. But nothing and no one has emerged as a better check.

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Electing women

A question asked over dinner: Why are so many nations ahead of the United States in electing women to the highest national office?

A possible answer: The influence of a nation's political system. Many (most?) of the women in these countries have been elected as prime minister (or its equivalent), the head of government who is not also the  head of state. So they are not elected nationally, at least not as a formal matter; they are elected in legislative districts and assume national office by virtue of leadership in a political party that attains a legislative majority (or leads a legislative coalition). This seems true of many of the European and Commonwealth countries that most Americans think of as having elected high-profile women leaders, although there are counter-examples in South American and Asia.

Note that the United States has elected a woman in this manner--Nancy Pelosi. But the U.S. political system does not give her the same power that Germany or Norway or New Zealand does.

About that New York Times cartoon

Hypo: A cartoonist wants to make the point that Vladimir Putin and Russia are dictating U.S. policy and that President Trump is following without thought or consideration and without knowing where he is going. The cartoonist depicts Putin as a guide dog, leading a sightless Trump; the guide dog has Putin's face and a collar with the Russian flag, while Trump is shown as a sightless man with dark glasses, with the guide dog on a lead taking him he knows not where.

I presume the meaning of that cartoon would be clear and that such a cartoon would be ok. If so, I do not understand why this cartoon becomes filled with anti-Semitic tropes when making what I believe to be the same point about Netanyahu and Israel. And any answer must not reduce to a prohibition on criticizing Israel in the same terms and using the same tools, including cartoons and satire, that would be used without objection against other nations and other political leaders.

What is anti-Semitic about this cartoon? (FWIW, my wife--who is more likely to find something anti-Semitic than I am and was less forgiving of Rep. Ilhan Omar than I was--is similarly confused).

   • Is it depicting a Jewish person as an animal, particularly a dog?  Anti-Semitic literature and cartoons (both old-fashioned European and modern Islamic) have depicted and described Jews as animals. But there also is a long history of depicting political leaders as animals. I interpret the picture depicting Netanyahu as the leader of a nation rather than as a Jew or a representation of Jews and the Star of David as the central piece of the Flag of Israel rather than as a Jewish symbol. Is my interpretation wrong? Can Israeli (or all Jewish) leaders not be depicted as animals because of the historic link to anti-Semitism?

   • Is it having Trump dressed like an Orthodox Jew, wearing a yarmulke, black suit, and white shirt? I find that piece out of step with what (I believe) the cartoon is trying to show. Unless Trump represents not only the U.S. but also American Jewry (or a segment of American Jewry). Either way, I do not see why this is anti-Semitic.

   • Is it the overall message that Israel dictates U.S. policy, recalling the ideas of secret-and-nefarious Jewish influence? That reduces to an argument that a common political critique--one country or one leader unduly influencing another country or leader--cannot be made against Israel or Israeli leaders. Or that criticism of Israel must be even-handed and reasoned ("Israel is wielding undue influence over U.S. policy, as do other nations") to avoid the charge of treating Israel differently because it is a Jewish State. Which precludes political cartoons criticizing Israel or Israeli leaders, as the "art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

I end with this: Describe a political cartoon making the criticism discussed at the top of the post--Netanyahu and Israel are dictating policy or action to a blindly following Trump--that would not be anti-Semitic.

More fast-food justice

The "Hash Brown Defense" worked.

A Connecticut driver was acquitted of distracted driving, with the judge ruling that the state had not proven beyond a reasonable doubt that Jason Stiber was talking on the phone. According to the Washington Post, the ticketing officer testified that he clearly saw Stiber holding an illuminated object to his mouth while moving his lips. Stiber offered evidence that his lip movement was "consistent with chewing," that cell-phone records showed he was not on the phone at that time, that his car had Bluetooth capabilities,  and that the arresting officer, Shawn Wong Won, was on the 15th hour of a 16-hour double shift at the time of the arrest. There is a written opinion out there (the WaPo story mentioned it, but did not link).

Two thoughts, one frivolous, one serious.

In my essay, I began with Hedgepeth v. Washington Area Metropolitan Transit Authority, in which then-Judge John Roberts rejected a § 1983 action by a teen who was arrested and handcuffed for eating McDonald's french fries in a Metro Station. So does the Connecticut case mean that hash browns enjoy more constitutional protection in the fast-food hierarchy than french fries?

The more serious thought is that courts virtually always believe police officers when they testify to talismanic phrases--"I smelled marijuana," "He reached for the waistband of his pants," "I clearly saw a weapon in his hand." But here the court did not believe the officer when he said he clearly saw a cell phone in the driver's hand. And the stakes of taking the officer's word in this case--a $300 fine--are infinitely lower than when courts justify police shooting an unarmed person. I am not questioning the outcome or suggesting that the court should have believed the officer here; I am highlighting the different approach and outcome.

JOTWELL: Coleman on public comments on the code of judicial conduct

The new Courts Law essay comes from Brooke Coleman (Seattle), commenting on the proposed changes to the federal judicial code of conduct and the advocacy work by the Law Clerks for Workplace Accountability.

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

On the need and scope of the Infield Fly Rule, Exhibit # 613

The Mariners turned a double play against the Angels on a fly ball to second base, on a play that illustrates two points about the need for and scope of the Infield Fly Rule.

The Angels had runner on first with one out. The runner, Brian Goodwin, broke for second; the batter, Justin Bour, popped the ball on the infield dirt near the second baseman. Goodwin ran back to first, while Bour, assuming the ball would be caught, began walking towards the dugout. Seeing this, one Mariners infielder yelled to his teammate to let the ball fall to the ground, which he did. He threw to second for the force on Goodwin (the third baseman was covering second on a shift against the lefty Bour), then a relay to first for the inning-ending double play on the non-running batter.

This demonstrates why baseball does not have or need a limiting rule for fly balls with a runner on first base only (so a force in effect at only one base). There would have been no chance for a double play on this play had Bour run (or even jogged) to first base. The Mariners might have chosen to let the ball fall to the ground to get the one out as a force on the speedy Goodwin while allowing Bour to reach first. But that is a relatively equitable exchange--one out for one baserunner, with a loss of speed on the basepaths. The Mariners gained the inequitable advantage of an inning-ending double play only because Bour did not do what he is expected to do--run to first base on a batted ball.

The video provides a great shot of why the Infield Fly Rule is necessary. Watch the play, imagining a second baserunner on second. We can see how easy it would have been for the second baseman to let the ball hit the ground and immediately make the first of one or two throws for a double play--had the fielder been quicker grabbing the ball off the ground, he could have made one throw to second base for a tag-the-runner-on-second/tag-the-base-to-force-the-runner-on-first double play. And we can see how screwed the baserunnners would be. Having run all the way back to first, Goodwin could not turn around and run 90 feet the other way in time to beat the throws; neither could a second baserunner. And this is with the defense being somewhat nonchalant on the play and a bit confused, because it was unexpected. Imagine life without the Infield Fly Rule, when the defense plans and practices for this play and is ready to pull it off.

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

SCOTUSBlog preview: Accrual § 1983 actions

I have a SCOTUSBlog preview of next Wednesday's arguments in McDonough v. Smith, considering when a § 1983 fabrication-of-evidence claim accrues for statute of limitations purposes. The basic dispute is whether the limitations period starts running on favorable termination of the underlying criminal proceedings.

It is an interesting arrangement, with the United States supporting the petitioner/plaintiff position that the lawsuit (filed within three years of his acquittal on criminal charges that were based on fabricated evidence) was timely, but arguing that the plaintiff's claims should be dismissed on prosecutorial immunity grounds on remand. There are amicus briefs from criminal-defenses lawyers and fed courts scholars supporting the petitioner, urging the Court to maintain a scheme in which a criminal defendant is not forced to pursue § 1983 litigation until the criminal proceedings have resolved.

Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions

I mentioned that last Friday I had the privilege of attending the 27th Rothgerber Constitutional Law Conference at Colorado Law, on the subject of national injunctions.

I did not take comprehensive notes on all the papers, but here are a few highlights, ideas, and questions that I took away:

• Two of the eleven presenters--Michael Morley (FSU) and I--oppose universal injunctions. And Michael thinks my reliance on judicial departmentalism is monstrous (my word, not his). Ahmed White (Colorado) talked about the use of labor injunctions and the jailing of Eugene V. Debs to warn against reliance on injunctions to achieve progressive policy goals. Everyone else argued that universality is fine, although courts should exercise discretion in issuing them. (Part of my objection is that I have not seen grounds for discretion that are not satisfied in every case).

• Alan Trammell (Arkansas) made a cute rhetorical move, trying to shift the focus from Trump and Obama (which naturally provoke partisan reaction) to the case of Kim Davis and whether, once she disregarded Obergefell, the district court should have been able to order Davis to issue licenses to all couples. I say no (and suggested that Alan could use the pre-Obergefell mess in Alabama as another example). Alan also made a nice historical move, tying these injunctions as another example of procedural innovation, the predecessor to 1960s developments such as Monroe v. Pape, structural-reform injunctions, and 23(b)(2) classes.

• Charlton Copeland (Miami) offered a separation-of-powers perspective, arguing that universal injunctions may be uniquely appropriate against executive overreach to restore a balance among the branches, even if universality would not be appropriate against the same policy enacted by the legislature. In other words, the separation of powers arguments against executive policies (in addition to any substantive constitutional arguments) changes the nature of the remedy.

• Zach Clopton (Cornell) talked about how preclusion (if applicable against the government, as it should be) can provide an additional policy consideration for the court in deciding the scope of the injunction. This triggered a question I have to address in my contribution for the symposium and in another article--Would allowing non-mutual offensive preclusion against the government undermine judicial departmentalism? If the executive has the power to disagree with judicial precedent but not injunctions in a given case, does giving that judgment preclusive effect undermine that executive power.

• Mila Sohoni (San Diego) talked about the history of universal injunctions against state laws, including in some famous First Amendment cases such as Barnette and Hague v. CIO. She showed the language of several of these injunctions, some of which expressly prohibited application to the plaintiff and others, while others were silent as to who was protected. As to the latter group, that presents an interesting question of default rules--if the injunction is silent, should we presume that the injunction is particularized to the plaintiff or presume that it is universal? Sohoni's history shows that these injunctions are not new. The  response is whether it matters--perhaps we have been doing it wrong all along. Mila joins me in using universality as the proper term, which captures the expansive who of the injunction.

• Portia Pedro (BU) started from her experience working for an LGBT organization during the marriage-equality litigation. She argued that prohibiting universality treats government defendants more favorably than other defendants. Or functionally prohibits injunctions, turning everything into nothing more than a declaratory judgment.

It was a great program. And it gave me a lot to think about and a lot to add to some current projects.

Your [Office holder]

President Trump likes to refer to himself as "Your President," as in "This is outrageous harassment of Your President by the Democrats." Over the weekend, speaking to a group of Jewish Republicans, he referred to Benjamin Netanyahu as "Your Prime Minister."

Has any previous President used this framing? It sounds new to me. It also has a ring of monarchism or authoritarianism--"Your Majesty," "Your King," "Your Dear Leader."

27th Annual Rothgerber Constitutional Law Conference: National Injunctions

On Friday, I will participate in the 27th Annual Rothgerber Constitutional Law Conference, sponsored by the Byron R. White Center at University of Colorado Law School. Thanks to Suzette Malveaux for putting this great program together and including me in the conversation.

Participants include Zachary Clopton (Cornell), Charlton Copeland (Miami), Davis Hausman (ACLU), Michael Morley (Florida State), Portia Pedro (Boston University), Doug Rendelman (Washington & Lee), Mila Sohoni (San Diego), Alan Trammell (Arkansas), Ahmed White (Colorado). I look forward to the weather in Denver and to seeing how the speakers divide on the core question of the propriety of universal injunctions.

Free speech petards

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing. Last week, Davis rejected the call in a letter to Republican Assemblyman James Gallagher, citing the First Amendment and President Trump's executive order purporting to require universities receiving federal funds to  promote free enquiry on campus consistent with the First Amendment. Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

The answers, in order: 1) Of course not; 2) Of course not; 3) Of course not. But the President's intent cannot overcome charges of viewpoint discrimination.

Constantineau returns again

Earlier this month, I highlighted an exchange in the American Legion argument in which Justice Kavanaugh seemed to adopt the idea that SCOTUS can avoid deciding federal constitutional issues in deference to a state supreme court applying the state constitution to the problem. Justice Gorusch made the same move in last week's argument in Rucho v. Common Cause (the North Carolina partisan gerrymander) in an exchange with the attorney for the League of Women Voters:

But -- but you also have the state supreme court option, as -- as Justice Kennedy -- Kavanaugh pointed out. And we often overlook that possibility in -- in our -- in our federal system.

Fortunately, and unlike  in American Legion, counsel here was ready with the right answer: "Other options don't relieve this Court of its duty to vindicate constitutional rights."

Theme warning.

JOTWELL: Steinman on Burbank & Wolfe on class action statutes of limitations

The new Courts Law essay comes from co-section-editor Adam Steinman (Alabama), reviewing Stephen B. Burbank & Tobias Barrington Wolfe, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018), considering the common law nature of the tolling rules for FRCP 23.

Inclusive forests and racist-insult trees

The history podcast Backstory did an episode on the history of profanity. The fourth piece is an interview with Smith College history professor Elizabeth Pryor, who is the daughter of comedian Richard Pryor. (You can listen and read the full transcript of the story at the link).

Pryor begins with a story about a lecture on citizenship and the Civil War, in which a white student repeats the following joke from Blazing Saddles (which Richard Pryor co-wrote with Mel Brooks):

The joke is relevant to a lecture on 19th-century citizenship, a time in which Irish people did face discrimination.

But Pryor describes the class encounter as follows: "And she said, 'We don’t want the CH’s and the N words, but we will take the Irish,' but she said all the words."

Pryor got the joke backwards. The difference between the joke and how Pryor describes the joke gives it an extra layer, especially as it relates to that lecture. The people of Rock Ridge use racist epithets to describe Black and Chinese people but are willing to accept them in their community; they do not use epithets to describe the Irish people but are unwilling to accept them in their community. This presents some nice questions to explore: Which is worse--being excluded or being described in disparaging terms? How much do the epithets show that Black and Chinese people are not accepted in the community, even if allowed to live among them, because identified in disparaging terms? Does the sole focus on words obscure actions?

Football or basketball? Boise State or Gonzaga?

A thought hatched while watching the first two rounds of March Madness and the various mid-major schools winning or playing competitive: If you run a university and want to make a name for yourself through athletics, would you rather have a good football program or a good basketball program and is it better to throw (a limited amount of) money into developing football or basketball?

The prevailing answer is football, because that draws more alumni interest and money. Schools such as UNC, Kansas, Duke, and Kentucky (or Indiana and UConn back in the day)--consistently great in basketball, generally non-competitive with the rare-blip exception in football--still believe that football success is essential. Jealousy of football contributed to the fall of the original Big East (which has been reborn as a basketball-first conference of Catholic schools, all technically east of somewhere). On the other hand, success in basketball seems easier to obtain--a basketball program costs less than a football program and success can be established by snagging two or three great players. And basketball comes without football's physical and moral baggage.

This question is especially salient for schools such as FIU--non-flagship public schools in a low-mid-major conference (comprised of similar schools and one former SWC school no one else wanted) with a finite amount of money to spend on this project. Consider:

Sustained football success caps out at competition in the conference, conference championships, and invitations to obscure, middish-December bowl games that no one watches against similar low-mid-major schools. The chance to make that leap is limited by the conference. And even if you make the leap, you remain locked out of the highest level of competing for a national championship, which will never look beyond the power conferences and Notre Dame. And all this requires a lot of money and a lot of player, who may suffer severe mental and physical problems because of the sport.

Sustained basketball success could mean consistent appearances in the NCAA Tournament, with early-round games watched or followed by many people and early-round victories offering more opportunities to play top-level teams on national tv. There is a chance, however remote, to play for a national championship. The Tournament Selection Committee is at least a bit more solicitous of non-power-conference schools, this year inviting multiple schools from some non-major conferences.

The question, in short: Is it better to be Boise State or Central Florida in football or Gonzaga or Wichita State or Towson or George Mason in basketball? The prevailing wisdom is the former; I would take the latter.

Personal jurisdiction problems in Nunes v. Twitter (Updated)

At the Civ Pro Listserv, Alan Trammell (Arkansas) questions whether there is personal jurisdiction in Virginia in Nunes v. Twitter (to say nothing of bovinal jurisdiction over Devin Nunes' Cow).

The jurisdictional allegations are a garble and, Alan notes, not consistent with recent P/J precedent. (of course, the entire complaint is poorly drafted nonsense, so no surprise the attorney would get this wrong, as well). But here is what we can glean. Twitter is a Delaware corporation with its principal place of business in California. Liz Mair is a Virginia citizen and the sole member of Mair Strategies LLC. Devin Nunes Mom and Devin Nunes Cow are unknown. Nunes is a California citizen and a representative of that state.

There is general jurisdiction over Mair and Mair Strategies, both of which are "at home" in Virginia under recent precedent because domiciled there. That is easy. In fact, I would guess that Nunes sued in Virginia because that was the surest way to get Mair.

As for Twitter, it is not domiciled in Virginia, so it is not obviously at home under the new analysis. The complaint alleges that Twitter is "at home" in Virginia, in between allegations of Twitter's ubiquity, being registered to do business in Virginia, targeting Virginians with advertising, and earning revenue from source customers; it later alleges that Twitter engages in "continuous and systematic business in Virginia." This sounds in the old "doing business" test for general jurisdiction, which the Court has rejected three times in the past decade. Giving counsel the benefit of the doubt about his understanding of current P/J doctrine, he might be setting up one of two arguments: 1) By mentioning registration, it jumps into an ongoing scholarly debate about whether registration constitutes consent to personal jurisdiction or 2) the Court has left open the possibility that a company can be at home beyond its state of incorporation and PPB in extraordinary circumstances, so maybe he is going to argue this is the extraordinary case and Twitter the extraordinary defendant. I doubt either works here, but each at least reflects a current understanding of jurisdiction.

However great the marketing, advertising, and revenue drawn from Virginia, it has nothing to do with this lawsuit, so it no longer provides the basis for general jurisdiction. But that advertising and revenue does not give rise or relate to the mean comments on which Nunes is suing, so it cannot form the basis for specific jurisdiction. Another option for specific jurisdiction is a Walden/Calder argument. But Nunes has no obvious connections to Virginia, other than that it is close to where he works in DC; his connections to Virginia are not greater than his connections to any other state besides California. The mean comments about Nunes do not discuss him or his conduct specifically in Virginia and were not "directed to" or "aimed at" Virginia. A Walden/Calder argument might work in California or DC, but my guess is he does not want to sue in either place, where he potentially is wildly unpopular.

Update: Some email exchanges raise the question of why he went to Virginia. Alan pointed out that Henrico County, Va. is not a conservative bastion. My theory: His lawyer thinks he can get Twitter anywhere on a doing business theory and Virginia is the only place he knew he could get Mair. And Virginia has rural areas, so that helps with reaching the cow.

Update: A commenter asks whether Nunes could establish specific jurisdiction over Twitter because the offending tweets came from Virginia. All Twitter has done is provided a nationwide platform for anyone, anywhere to use for their tweets, having no involvement in this particular tweet or that particular user. I think more purposeful direction of the conduct at the forum state is required; knowledge of where the tweet might (or did) come from is not enough.

Racial bias and diversity jurisdiction

Scott Dodson's new article (forthcoming in Duke L.J.) came at a good time, as I began diversity jurisdiction (and the rationales for it) Monday and continue on it tomorrow and have presented some of his ideas in class. Scott argues that outsider bias does not justify diversity jurisdiction, while considering other reasons for having (and perhaps expanding) that jurisdiction. This includes suggestions that diversity jurisdiction might alleviate racial bias in state courts.

Reorienting diversity jurisdiction around racial bias (regardless of in- or out-of-state) offers a strong new argument against the complete-diversity requirement, as illustrated by New York Times v. Sullivan. Sullivan sued four Alabama-based African-American civil rights leaders (Shuttlesworth, Lowery, Seay, and Abernathy) who had signed the Times ad; this prevented removal to federal court, by destroying complete diversity and adding non-removable forum defendants. The complete-diversity requirement made no sense in Sullivan even on the local-bias rationale: Having a local defendant did not cure the bias when: 1) the local was an African-American who was functionally an outsider in 1960 Alabama and 2) there was an obvious outsider (The Times) waiting to be hosed.

The racial turn adds to this position. There unquestionably was bias against the African-American defendants in state court because of their race (the trial court allowed Sullivan to enforce the judgment against the four men). Scott's argument suggests their presence in the case, rather than keeping the case in state court, should have been the basis to make it (and cases like it) more readily removable.

Nunes v. Devin Nunes' Cow

I do not have much to say about Nunes v. Twitter, which includes as a named defendant "Devin Nunes' Cow." The lawsuit is absurd, reflects no understanding of the First Amendment or defamation law, is poorly drafted, and should be sanctioned frivolous under Rule 11 (or the Virginia counterpart). Folks are having fun with it across the Interwebs.

But some are expressing concern that this lawsuit, while facially ridiculous, is part of a broader campaign by Trump supporters and allies to bring defamation lawsuits, even patently meritless (if not frivolous) ones, hoping that the costs of defending will bankrupt or silence critics. If so, it calls to mind the campaign among Alabama officials against civil rights activists and the northern press that led to New York Times v. Sullivan. But the attorney fee provisions in state SLAPP laws are designed to protect defendants against this strategy, making that the more important component of these laws (rather than the special motion to strike, which is really just a 12(b)(6)) and the component that unquestionably should apply in federal court.

More right-wing snowflakes are outraged

This story about calls by some UC-Davis students and California Republicans for the firing of a Davis professor who called (on Twitter, several years ago) for the killing of police officers reminds me of a comment I made last summer about calls by the Broward County Police Benevolent Association to boycott the Miami Dophins for not forcing players to stand. The political right, on and off campus, has as little patience for objectionable speech as the political left and is as ready to call for boycotts and firing of speakers who say mean things they do not like.

The Davis situation and the Dolphin situation share another similarity (as does the ongoing controversy at Sarah Lawrence College, which has gotten far greater attention but is still a call to sanction a professor for "expressing his views"). As one person put it on Twitter: "[T]erms that absolutely no one in the media has used so far to describe this episode include snowflakes, call-out culture, victimhood culture, outrage culture, cancelled, coddled, PC run amok, censorship, self-censorship, fragility, identity politics, or micro-aggressions."

And just to head-off a response: The prof's speech, while obnoxious, is constitutionally protected and comes nowhere close to incitement.

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Even more on Judge Sutton

This seemed too long for a comment to Gerard's post, so I will lay it out separately.

The rights-violation prong in a qualified-immunity case is not treated as dicta. In Camreta v. Greene, the Court held that it would hear "winner's appeals" from officers in cases in which the lower court held that the right was violated but granted immunity because the right was not clearly established. In justifying the decision, the Court stated the "constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions. They are rulings that have a significant future effect on the conduct of public officials" The Court quoted a Scalia dissent from denial of cert in a similar case in which he argued that winner's appeals were proper because "[t]hat constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases."

So I wonder if the same could be said about the state constitutional decision in the cases Sutton has in mind. Both are grounded in concerns for clarifying the law. Both also have concerns and effects on appealability. Camreta ensures that unfavorable merits determinations are not rendered unappealable by the favorable judgment on the separate prong of the analysis. Sutton's proposal would better position state courts to immunize decisions from SCOTUS review under the independent-and-adequate doctrine.

One further, unrelated Sutton point: Justice Kavanaugh name-dropped Judge Sutton in argument in American Legion v. American Humanist Association, asking respondent whether the Court should avoid deciding the Establishment Clause issues here because the Maryland courts could handle this under the Maryland Constitution. Counsel missed the question, prompting  Justice Sotomayor to jump in three pages later to bail her out. Kavanaugh seemed to use Sutton's book to bolster Justice Rehnquist's Chief Justice Burger's dissent in Wisconsin v. Constantineau, in which he argued that a federal court should abstain under Pullman when the state courts have not addressed the issue under the state constitution.

And since we are on the subject, I will highlight Jim Pfander's JOTWELL review of Sutton's book from January.

JOTWELL: Michalski on Gluck, et al. on opioid litigation

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Abbe Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) J. Law, Med. & Ethics 351 (2018), exploring how courts are litigation claims and issues arising from the opioid epidemic.

Summary judgment al fresco

I am a northern by birth, upbringing, and inclination. Even after almost 16 years in Miami, I miss seasons and relish the several weeks where the temperature does not get above 71 degrees and is in the 60s in the morning. We had one such day today, the first in several weeks and likely the last  until next December.

So I took advantage of it and taught my Civ Pro class outside. I have wanted to try this for years and I found a day with perfect weather and a class (on summary judgment) for which I did not need the dry-erase board. Below is a photo, taken from the top floor of the building. The students seemed to enjoy doing this. It was a good class, with a lot of students engaged and participating. And it was kind of interesting to see where students chose to sit--who in the sun, who in the shade, who on the ground, etc. I even had one former student sit off to the side and listen.

Bleg: Graduation honors

I am looking for some information about what graduation-related honors or awards graduating classes vote on for faculty. At FIU, we always have had a hooding committee of two faculty members. I know some schools have a  class-selected faculty grad speaker. My graduating class at Northwestern had "The Last Lecture," given a few days before graduation by faculty member chosen by the graduating class.

What do other schools and faculty do?

Lawyers, counselors, and wrongdoing

Scott Greenfield of Simple Justice takes strong issue with Adam Benforado's criticism of the lawyers in "hiding abuse, silencing + further harming victims, and protecting abusers." Greenfield cannot understand how a law professor does not realize that "even members of the clergy accused of abuse are entitled to constitutional rights, including the right to effective assistance of counsel." To "decide beforehand that a defendant is unworthy of lawyers honoring their oath and respecting the constitutional rights of their clients . . . is to make the ends justify the means."

It seems to me that this is too narrow a view of the lawyer's role, particularly the lawyers for the Church, as opposed to the lawyers for any priests charged with a crime. Greenfield is right with respect to the lawyers representing priests charged with crimes and defending them in a criminal prosecution.

The scandal was the Church's failure to do stop the misconduct by its priests--moving them to different parishes, allowing them to continue working with children, threatening and manipulating would-be accusers. The scandal was the institution's internal management where it identified and recognized wrongdoing and not only did not stop or punish it, but affirmatively enabled it to continue. And the lawyers for the Church helped that. I read  Adam as criticizing those lawyers. One vision of the attorney role is as counselor, helping that institutional client do the "right" thing in response to that identified wrongdoing, rather than helping the institution to further enable it. If for no other reason than that when the wrongdoing is exposed--and it always is exposed--the fallout for the client will be even worse and more costly, so helping the client do the right thing also protects the client's interests.

JOTWELL: Kalajdzic on Erichson on class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Howard M. Erichson, Civil Litigation Reform in the Trump Era: Threats and Opportunities Searching for Salvageable Ideas in FICALA, 87 Fordham L. Rev. 19 (2018).

Everyone needs a lawyer

So argues Ken White (of Popehat fame) about yesterday's Michael Cohen hearing. Everyone needed the unique skills that trial lawyers provide about how to behave as a witness (Cohen), how to handle a sleazeball witness who helps you (Committee Democrats), and how to conduct cross examination without just loudly attacking the witness (Committee Republicans). It dovetails with this argument that real oversight requires the hiring of skilled lawyers to conduct the questioning, not grandstanding political figures.

A question for crim pro types

A federal court ruled last week that federal prosecutors (namely, then S.D. Fla. US attorney, now-Secretary of Labor Alex Acosta) violated the Crime Victims Rights Act in entering a plea agreement and non-prosecution agreement with Jeffrey Epstein over sex-trafficking and related charges. The victims want the court to invalidate the plea agreement and NPA.

My question for learned crim pro type: How is such a remedy possible? The US Attorney agreed to the NPA in exchange for Epstein pleading to, and serving time on, the state charges.* Epstein now has served that sentence (although he remains under its collateral consequences, such as being a registered sex offender).

[*] At his confirmation hearing, Acosta defended the deal by arguing that it is a good result when the agreement to drop the difficult federal charges could produce some jail time.

Wouldn't invalidating the federal plea agreement implicate his state conviction and sentence? And would that create some Double Jeopardy or Due Process problems? Obviously there is no true Double Jeopardy problem if the federal government now prosecutes him regardless of what happened in state court. But does it change when the federal and state charges were enmeshed and agreements as to one implicated agreements as to the other?

Fast food justice

One of my professional regrets is that I was unable to place this piece in any law review, although it remains my most-downloaded piece on SSRN. It was too early in the days of online supplements, I was entering only my third year, and I could not find any place for it.

This case would make a wonderful addition to the sequel (H/T: Peter Oh of Pitt): A Connecticut man is challenging a $ 300 traffic ticket for distracted driving by arguing that what the officer believed was his cellphone was a McDonald's hash brown that he was eating for breakfast while driving.* He was convicted by a magistrate, appealed to a trial judge, and is awaiting ruling.

[*] Query how eating while driving does not distract a driver.

Mandatory-but-non-jurisdictional FRCP 23(f)

SCOTUS on Tuesday decided Nutraceutical Corp. v. Lambert, holding that FRCP 23(f)'s 14-day time period for seeking permission for interlocutory appeal of a class-certification order is a mandatory claim-processing rule not subject to equitable tolling. My SCOTUSBlog analysis is here. The Court was unanimous, per Justice Sotomayor.

It appears that the Court is approaching something like clear lines, at least in how to approach questions if not the answer with respect to any particular rule. Anything appearing in an REA-established rule must be a non-jurisdictional claim-processing rule. That leads to the second question of whether that claim-processing rule, while non-jurisdictional, possesses similar characteristics, such as non-tolling, based on the text, structure, and history of that rule.

On the other hand, under Scott Dodson's approach (which the Court expressly considered but declined to adopt in Hamer) this would have been jurisdictional, as it marked the line between courts. Of course, Dodson then would have required the Court to consider tolling, because rules can be jurisdictional but still subject to equitable exception.

New flag controversy at Ole Miss, different result (so far)

Prior to a game played while about 100 pro-Confederacy protesters marched through Oxford and onto campus a few hundred feet from the arena, where they were met by about 50 counter-protesters.

At least so far, no one has criticized the players, not even the President. I am curious whether anyone will do so, given that this in specific response to what many people regard as a racist rally by a "hate group." This also highlights the changing meaning of using the flag to counter-speak--the message here was different in context than what Kaepernick did. Finally, we have clear state action here, unlike with the NFL; any attempt to punish the players would implicate First Amendment rights.

Ole Miss Coach Kermit Davis spoke about it after the game (video is embedded in some of the links above):

This was all about the hate groups that came to our community trying to spread racism and bigotry, you know, in our community. It’s created a lot of tension for our campus. I think our players made an emotional decision to show these people they’re not welcome on our campus. We respect our players freedom and ability to choose that.”

Davis' support is important because when was announced as coach last spring, he went out of his way to announce that he would create a program with a "respectful team that respects the flag and the National Anthem." Perhaps he now realizes that these protests are not disrespectful--or at least that it is not as simple as throwing around the word respect.

Thomas calls for reconsideration of NYT v. Sullivan

In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.

In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.

Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.

The continued relevance of Barnette (Updated)

In Lakeland, Florida.

Update, Monday, 2/18: More stories and details coming out about the arrest, including the Lakeland Police offering the following:

To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance as noted in the Polk County School Board Code of Conduct for Students. This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom. The students name is not being released in accordance with Florida Public Record Laws regarding juveniles arrested for a misdemeanor.

But note the question-begging here. The Dean of Students and a police officer went to the classroom on a report of a disturbance and asked the student to leave, which he finally did after 20 requests; the student was arrested for disrupting a school function and resisting the officer. But the "disturbance" that triggered the initial classroom visit was created by the substitute teacher who argued with the student when he declined to recite the pledge. The Dean and the police removed the student from the classroom even though the teacher acted inappropriately, as the school recognized in asking the teacher to leave the school immediately.

There also is some blame-shifting and ass-covering between the school and the police. The school insists that it did not request an arrest or that charges be filed, that it merely discussed the code of conduct with the student and his family, and that it does not condone what the substitute teacher did. Meanwhile, the police are setting up a contempt-of-cop argument: The kid got lippy and resistant, justifying the arrest; it is not about the speech in which he engaged. This as we wait for SCOTUS to decide whether probable cause for some charges justifies retaliation for First Amendment conduct.

Random thoughts on a Saturday

• In announcing his state of emergency, President Trump went on a rambling and oddly cadenced tangent about how horrible the Ninth Circuit is. I wonder how he feels about the District of D.C. and the D.C. Circuit and whether he believes the case belongs there.

• This offers another example of indivisible rights and remedies. The President cannot be enjoined from moving money or building the wall as to some people and not others, especially as to the environmental groups, who claim standing (on behalf of their members) arising from the loss of enjoyment of many stretches along the border.

• When pro golfer Matt Kuchar won $ 1.3 million and paid fill-in caddie David Ortiz $ 5000 (whereas caddies typically earn  10% of the golfer's purse), did he also promise that on his deathbed Ortiz would receive total consciousness?