Sunday, March 24, 2019

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?

Posted by Howard Wasserman on March 24, 2019 at 01:52 PM in Culture, First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, March 23, 2019

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.

Posted by Howard Wasserman on March 23, 2019 at 04:14 PM in Howard Wasserman, Sports, Teaching Law | Permalink | Comments (1)

Thursday, March 21, 2019

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.

Posted by Howard Wasserman on March 21, 2019 at 11:07 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (3)

Tuesday, March 19, 2019

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.

Posted by Howard Wasserman on March 19, 2019 at 06:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Howard Wasserman on March 19, 2019 at 11:42 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, March 18, 2019

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.

Posted by Howard Wasserman on March 18, 2019 at 06:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, March 13, 2019

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.

Posted by Howard Wasserman on March 13, 2019 at 06:09 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, March 08, 2019

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.

Posted by Howard Wasserman on March 8, 2019 at 07:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Thursday, March 07, 2019

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.

Posted by Howard Wasserman on March 7, 2019 at 10:27 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, March 06, 2019

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.

Class

Posted by Howard Wasserman on March 6, 2019 at 10:42 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Tuesday, March 05, 2019

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?

Posted by Howard Wasserman on March 5, 2019 at 04:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, March 01, 2019

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.

Posted by Howard Wasserman on March 1, 2019 at 09:01 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, February 28, 2019

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).

Posted by Howard Wasserman on February 28, 2019 at 09:43 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Howard Wasserman on February 28, 2019 at 08:56 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, February 27, 2019

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?

Posted by Howard Wasserman on February 27, 2019 at 08:54 AM in Criminal Law, Howard Wasserman | Permalink | Comments (10)

Tuesday, February 26, 2019

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.

Posted by Howard Wasserman on February 26, 2019 at 05:20 PM in Criminal Law, Food and Drink, Howard Wasserman | Permalink | Comments (1)

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.

Posted by Howard Wasserman on February 26, 2019 at 03:12 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, February 24, 2019

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.

Posted by Howard Wasserman on February 24, 2019 at 01:12 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, February 19, 2019

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.

Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (9)

Sunday, February 17, 2019

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.

Posted by Howard Wasserman on February 17, 2019 at 02:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (13)

Saturday, February 16, 2019

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?

Posted by Howard Wasserman on February 16, 2019 at 02:40 PM in Howard Wasserman | Permalink | Comments (2)

Friday, February 15, 2019

Cert before judgment

SCOTUS granted cert before judgment under § 1254(1) in Dept. of Commerce v. New York, the challenge to the inclusion of a citizenship question on the census format. The Court added it to the April sitting. This is the first time it has done this with a stand-alone case since Dames & Moore in 1982. Other high-profile examples were Youngstown Steel and Nixon.

Presumably the Court sees the case as uniquely time-sensitive because DOC must complete the census form by the end of spring/beginning of summer.

Posted by Howard Wasserman on February 15, 2019 at 02:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, February 14, 2019

"Over My Dead Body"

We have intentionally avoided talking about Dan's murder, the investigations and prosecutions that have followed, and various stories and speculation about all of it.

Nevertheless, I want to flag the new Podcast Over My Dead Body (from the same company that did Dirty John, which I did not listen to, and Dr. Death, which was great), which will spend the first season talking about Dan, the marriage, and the case. The first three episodes dropped this week; I am about halfway through # 1. So far, the reporting is straight-forward and not salacious or tacky, if a bit tongue-in-cheek at points (as most podcasts are). Dan's parents are interviewed and are sources for the material, as is David Lat of Above the Law.

Posted by Howard Wasserman on February 14, 2019 at 11:25 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 13, 2019

Right result, mess of an analysis

Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.

At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.

But this should have been a pretty easy case and I am not sure why the court took such a complicated route.

• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.

• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.

As I said, the right result. But a convoluted way to get there.

Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, February 07, 2019

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, February 05, 2019

Blogging's Future

Rick Garnett writes at Mirror of Justice that this week marks 15 years of his blogging there (and slightly less time blogging here). He closes the post as follows:

The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years.  Twitter wasn't around.  Facebook, believe it or not, was launched on the same day as Mirror of Justice.  (Arguably, we've done better at our mission than they have at theirs!)  Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything.  A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.

It's not clear to me what the future holds for this blog-venture, or for blogging generally.  I'd welcome others' thoughts! 

Paul has thought and written about this question in the past, so he is the best and most thoughtful person to answer. We had a brief exchange here about the migration of some blog writing to Facebook and, as Rick notes, to  Twitter in fewer words and emojis; there is some debate about how heavy that migration has been. As someone who is not on Facebook or Twitter and believes both have made discourse worse, I hope blogs do not go the way of the 8-track.

It may be that fewer blogs remain, but those that do will keep going strong, whether as a replacement for or complement to Facebook and Twitter. The Volokh Conspiracy announced that Irina Manta, Stephen Sachs, and Keith Whittington have joined as permanent authors. I am thrilled that Gerard has joined us, a move I expect will add new life to this site. And MoJ serves a particular and special message that is not easily replaced and so should continue.

In any event, congrats to Rick on 15 years.

Posted by Howard Wasserman on February 5, 2019 at 11:34 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, January 30, 2019

JOTWELL: Pfander on Sutton on state constitutionalism

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Judge Jeffrey Sutton's new book on state constitutions and their role in constitutionalism.

Posted by Howard Wasserman on January 30, 2019 at 09:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, January 22, 2019

Frivolous lawsuits for me but not for thee

What are the odds that the New Orleans Saints season-ticket holders bringing these absurd lawsuits vote Republican and support litigation reform?

Posted by Howard Wasserman on January 22, 2019 at 11:31 PM in Howard Wasserman, Sports | Permalink | Comments (10)

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

Posted by Howard Wasserman on January 22, 2019 at 11:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, January 21, 2019

SCOTUS does Civ Pro, confusedly

I just listened to last week's argument in Home Depot v. Jackson, which showed how confused the Justices get about Civ Pro. The issue is whether a third-party claim brought under CAFA can be removed by the third-party defendant. In the case, Citibank brought a debt-collection against against Jackson in state court; Jackson filed a counterclaim and impleaded Home Depot on an unfair trade practices class action. Home Depot wanted to remove the third-party claim under CAFA, which allows for removal of class actions with an amount-in-controversy over $ 5m on minimal diversity. The Court has held that a counterclaim defendant (otherwise known as the original plaintiff) cannot remove; the question is whether that is true of a third-party defendant.

Some thoughts:

• There was a lot of confusion about the distinction among counterclaims, cross claims, and third-party claims, even among the advocates. That confusion affected the question of whether Home Depot is a "defendant" or a "third-party defendant" and whether there is a difference between those two things. Does "any defendant" in § 1453(b) include third-party defendants as well as original defendants? Or, to put it in dueling metaphors, is a third-party defendant a black rabbit compared with all other defendant/rabbits? Or is a defendant a rabbit and a third-party defendant a weasel.

• Jackson's lawyer made what I think should be the key point, although I am not sure the Justices saw it this way (Justice Breyer hinted at the point in his own unknowing way). If Home Depot can remove here, then any third-party defendant can remove if he is diverse from the defendant/third-party plaintiff. (He gave an example of a generic tort action against a corporation, with the corporation then impleading its diverse insurer, which then removes). I do not see a relevant difference between CAFA removal of a class action and § 1441 removal of that, or any other, individual action. I did not hear Home Depot's counsel or any Justice suggest one. So if a third-party defendant is a defendant, then all third-party claims must be removable, not only those removable under CAFA.

• I kept thinking that it also would allow removal of a federal claim brought as a third-party complaint. There was some discussion about that being limited by the Well Pleaded Complaint rule, which applies to § 1331 but not § 1332. But I always have understood the WPC as implicitly applying to § 1332, as well, by placing the focus on the identities of the parties and claims named in the WPC--we determine diversity by looking at the parties named and the amount sought in the complaint. The point being that unless Congress says otherwise (as in America Invents), the "civil action" removable under § 1441 is the one established in the complaint and removal cannot be based on additional claims filed by different parties against anyone.

• Justice Alito came across as disrespectful of advocates who urge positions he disagrees with and law reviews. Consider this exchange

JUSTICE ALITO: . . . somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA. And there's a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so thatwe can keep these things in state court. Is that not correct?

PAUL BLAND:  . . .There was a law review article by an advocate. It's not really a law review article and a peer-reviewed article. I think it's more like a blog. But, anyhow, a guy writes an article saying -

* * *

JUSTICE ALITO: Since when are law review articles peer reviewed?

MR. BLAND: You know, that's a good point.

JUSTICE ALITO: Who are they reviewed by?

(Laughter.)

MR. BLAND:

You're totally right. I-- I'm so sorry. I -- I should never have said that, you're right.

JUSTICE ALITO: They should be -- maybe they should be peer reviewed.

MR. BLAND: Law review articles are student reviewed, they're not peer reviewed. I -- I -- I withdraw. That was --

JUSTICE BREYER: I'm fine on law review articles.

The law review stuff is a funny exchange. But the underlying premise is that Jackson's argument to keep the case in state court is somehow illegitimate because it originated on the pages of law reviews. This is troubling for a couple of reasons. Justice Alito does not express similar concerns with the creative, scholar-driven theories urged (and continuing to be urged) against the Affordable Care Act. If you believe Chief Justice Roberts, the problem with legal scholarship is that it is not sufficiently helpful to lawyers and courts. Now, an idea urged in court is somehow questionable because it was presented in scholarship as a way to convince lawyers and courts on an issue. This is not the first time that Justice Alito has cast aspersions on advocates urging positions towards a legal goal--he similarly questions death-penalty abolitionists for their advocacy.

Posted by Howard Wasserman on January 21, 2019 at 01:26 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 17, 2019

Impeachment as process

Yoni Applebaum's piece in The Atlantic arguing for impeachment is getting much attention. At its core is the argument that impeachment is an investigatory and inquisitorial process and the only means for the legislature to keep the executive in check between quadrennial elections. It is not about whether the Senate convicts or even whether articles of impeachment pass the House; it is about the inquiry process. And, he argues, atomized committee investigations do not get the whole picture the way a full impeachment inquiry would.

Posted by Howard Wasserman on January 17, 2019 at 10:28 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, January 16, 2019

What is a "State of the Union Address"?

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

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

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

Posted by Howard Wasserman on January 16, 2019 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

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

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

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

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Universal in name only

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

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

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

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

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, January 10, 2019

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

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

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

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

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, January 01, 2019

2018 Year-End Report

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

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

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

Posted by Howard Wasserman on January 1, 2019 at 12:43 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

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

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

Standing

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

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

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

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

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

Appellate Review

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

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

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

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, December 29, 2018

A tale of two appeals

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

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

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

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, December 28, 2018

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

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

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

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

This seems wrong on several levels.

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

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

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

Posted by Howard Wasserman on December 28, 2018 at 01:30 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, December 20, 2018

Ipse Dixit on the Infield Fly Rule

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

Posted by Howard Wasserman on December 20, 2018 at 05:21 PM in Books, Howard Wasserman, Sports | Permalink | Comments (0)

JOTWELL: Campos on the Bolch Institute on class actions

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

Posted by Howard Wasserman on December 20, 2018 at 08:55 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, December 19, 2018

A different take on the purpose of the Infield Fly Rule

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

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

Posted by Howard Wasserman on December 19, 2018 at 07:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Tuesday, December 18, 2018

Standing in the ACA case

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

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

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

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

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

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

Posted by Howard Wasserman on December 18, 2018 at 04:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Sunday, December 16, 2018

Sad law-prof blogging news

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

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

Posted by Howard Wasserman on December 16, 2018 at 10:31 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Saturday, December 15, 2018

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

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

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

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

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

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

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

Posted by Howard Wasserman on December 15, 2018 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Deepening split on SLAPP laws in federal court

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

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

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

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

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, December 14, 2018

9th Circuit taps the brakes (slightly) on universality

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

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

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

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

Posted by Howard Wasserman on December 14, 2018 at 07:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Thursday, December 06, 2018

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

978-1-4766-6715-7I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.

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

Posted by Howard Wasserman on December 6, 2018 at 09:31 AM in Books, Howard Wasserman, Sports | Permalink | Comments (3)

Wednesday, December 05, 2018

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

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

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

Posted by Howard Wasserman on December 5, 2018 at 09:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)