PrawfsBlawg

Justice Thomas speaks

When called on by the Chief in the order-of-seniority question, Justice Thomas asked questions.

Maybe this suggests something about cold-calling v. taking volunteers.

7th Circuit universal injunction in sanctuary cities case

A Seventh Circuit panel on Thursday unanimously declared invalid DOJ's attempt to withhold funds from sanctuary jurisdictions and affirmed a permanent injunction, dividing 2-1 (Rovner wrote the majority, Manion dissented) on the scope of the injunction (while labeling them "universal" throughout). Rovner's opinion walks through the "veritable cottage industry of scholarly articles" on the subject, while suggesting that the scholarly trend is moving away from the constricted view that such injunctions are flatly prohibited.

The majority ultimately approves universality through a version of an indivisibility argument. Because the DOJ programs are formula grants, application of the invalid condition to other entities affects the amount Chicago receives; for Chicago to get the appropriate funds, no entity can lose funds because of this invalid condition. This is different than, for example, a purely discretionary grant of $ X, in which (unlawfully) depriving California of its money does not affect what Chicago receives. Thus, Chicago cannot get complete relief (the proper money to which it is entitled) unless the injunction bars withholding funds from everyone.

Manion's dissent rejects this on several points. The denial of funds to other entities would never reduce Chicago's award, only increase it (the court divides on what the regulations provide on this). Even if such a "windfall" is improper, the windfall comes only if money is denied to Illinois or other municipalities in Illinois; thus an injunction protecting within Illinois is sufficient, without protecting all entities throughout the country. In any event, the majority still errs by giving relief to non-parties in the guise of giving relief to Chicago.

The panel was unanimous on a different scope issue--"temporal" scope. The injunction prohibits DOJ from withholding funds in "future years." The court properly recognized that showing an injury from enforcement of a grant condition allows a party to challenge and a court to enjoin all current and future impositions of such conditions. The alternative would require a party to return each year to challenge each new denial of funds and imposition of unlawful conditions.

Civ Pro Workshop Series

Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) have organized a new remote Civil Procedure Workshop Series, hosted by and modeled on the Evidence Workshop run by Ed Cheng at Vanderbilt). It will be weekly 30-minute discussions with a guest speaker discussing current trends or topics, interesting factoids, or teaching ideas. It is open to all Civ Pro teachers.

The first workshop will be at 3 p.m. EDT (2 p.m. CDT, 1 p.m. MDT, noon PDT), Tuesday, May 5; Alexi Lahav (UConn) will discuss Bristol-Myers Squibb: Going Forward. I will speak on Tuesday, May 12 on a topic TBD.

Register at the above link by clicking on "Register for Civ Pro" (unless you also want to join Ed's Evidence Workshop, which I might do, as well).

Reopening universities

Whether and how to reopen colleges and universities (and with them, law schools) has been the topic of discussion by Brown President Christina Paxson in The Times and Adam Harris and Graeme Wood in The Atlantic. Wood's suggestion that "colleges are more like cruise ships and retirement homes than they are like hardware stores and driving ranges" is sobering. As is the reminder that a law school with 500 students, like a small college, can more easily distance students than can a large university.

I'm trying, Ringo; I'm trying real hard to be the shepherd

The path of the righteous man is beset on all sides by the
Inequities of the selfish and the tyranny of evil men
Blessed is he who, in the name of charity and good will
shepherds the weak through the valley of darkness
for he is truly his brother's keeper and the finder of lost children
And I will strike down upon thee with great vengeance and furious
Anger those who attempt to poison and destroy my brothers
And you will know
My name is the Lord when I lay my vengeance upon thee

 

Testing on (if not for) coronavirus

I am curious if people are planning on using COVID-19, the pandemic, and everything going on for exams and assessments for this semester. It presents legal issues across a number of subjects, including mine. Is it too soon, either because everyone is living through it or because the issues are not ripe? Is it triggering because everyone is living through it--the equivalent of testing about Ferguson while the protests were ongoing--and thus distracting and unfair?

JOTWELL: Coleman on Wood on the real world of sexual harassment litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Diane P. Wood, Sexual Harassment Litigation With a Dose of Reality, 2019 U. Chi. Legal F. 395 (2019), which demonstrates the real-world problems facing sexual-harassment litigants.

More on the demise of blogging

One of my favorite non-law policy blogs was the Reality-Based Community ("RBC"), started by UCLA public-policy professor Mark Kleiman^Z"L and then expanded to other academics. Kleiman died last summer and RBC closes shop at the end of April. The remaining bloggers are offering final posts with thoughts and memories of RBC.

Yesterday's post was from Keith Humphreys (Stanford Med School) reflecting, as I have in the past, on the decline in law-and-policy blogs in the face of the decline of paid journalism and the rise of social media and the gravitation of many bloggers and readers to Twitter and other social media. Fortunately, some of us are still going, perhaps more so in the current environment when we have nothing but time on our hands.

Why cross examination works--and doesn't work

USA Today columnist Michael Stern, a former federal prosecutor, explains how he would cross examine President Trump, keeping him from slipping away, generalizing, or lying, as he does in response to reporters' questions.

I share Stern's wish that reporters would do a better job of questioning Trump, beginning with asking shorter, non-multi-part, non-grandstanding questions. And I agree they have been doing a terrible job during these ridiculous briefings cum political rallies.

But the cross-examination analogy fails because of the different power dynamics. Cross examination is effective because a good attorney is in control and the witness is not. The witness must remain on the stand as long as the attorney wants to keep him there. The attorney can keep asking questions until the witness answers, she has the judge as a backstop to ensure the witness cannot sit there and not answer or try to leave the stand, and she has perjury as a legal backstop to keep him from lying. (We could say the same thing about oral argument, the other law analogy, where the judge as questioner similarly controls the event and the attorney subject cannot leave, refuse to answer, or lie).

WH reporters hold none of that power. Trump can answer or not answer whatever questions he wants however he wants, then move to another (more obsequious) reporter or unilaterally end the rally. He suffers no legal consequences for lying or not answering. Nor does he suffer political consequences. The best cross-examiner could not achieve anything with a witness who has neither a desire nor obligation to answer fully and obligation.

The best a good cross-examining reporter could achieve is causing Trump to bl0w up, lose his mind, and walk off the stage. Perhaps not a bad result.

[Update: This is why I do not watch presidential debates. There is similarly no obligation to answer the question or to answer the question honestly. The mechanics of the procedure do not allow the questioner to pin the answerer down]

The complexities of the Senate

David Super's piece about a canceled election, which I mentioned last night, revealed a math error in my original post on the topic. Option # 3 (Acting President Grassley) would be the result of a 49-48 Republican Senate rather than 50-47 (I think I coded Kansas as a state with a Republican governor). This is based on a 35-30 Democratic rump, 13 states with D governors who can appoint who they want, 18 states with R governors who can appoint who they want, and one state with a D governor forced to appoint a Republican. The result is the same--Acting President Grassley (or a more qualified person chosen by the Republican majority)

A series of email exchanges with David adds some new wrinkles and complications.

David proposes that Cooper could finesse the appointment situation by finding the most liberal Republican available, someone who would not allow Trump/Pence to return to the White House, even if he would caucus with the GOP. That might get us out of President Trump, although it leaves Acting President Grassley.

In any event, that option is blocked by North Carolina's Senate-vacancy law, amended by the GOP legislature after Roy Cooper became governor, which requires the governor to appoint from a "list of three persons recommended by the State executive committee of the political party with which the vacating member was affiliated when elected." So it is not just that Cooper cannot appoint who he wants; he cannot appoint the Republican he wants. I imagine the North Carolina Republican party will find someone pretty Trumpist.

The more interesting wrinkle is this (also suggested by someone on a Con Law listserv discussion). North Carolina law allows the governor to appoint when there is "a vacancy in the office of United States Senator from this State, whether caused by death, resignation, or otherwise than by expiration of term." The vacancy in the Senate occurring at 12:01 p.m. on January 3 is caused by the expiration of the prior term combined with the failure of a new Senator to qualify because of the failure to hold elections. There are two ways to read this.

One is that the governor cannot make an appointment in this situation, because the expiration of the current term created the vacancy. If so, Cooper cannot make an appointment, leaving us with a 48-48 Senate.

The second reading is that an appointment is allowed because the failure of a new Senator to qualify caused the vacancy, which is an "otherwise" cause distinct from expiration of the term. But then it is not clear how that party limitation can or should apply. The party limitation applies when "the Senator [whose departure created the vacancy] was elected as the nominee of a political party." But there is no such Senator in this situation. Current GOP Senator Thom Tillis is not the Senator chosen as of 12:01 p.m., the moment the vacancy occurs, because of expiration of his term. It is of no moment that Tillis most recently was elected to the seat; the significance of that election ended with his term. (Just as it is of no moment who most recently held a House seat as of the expiration of his term). On this reading, we have a vacancy created "otherwise" that allows a temporary appointment, but no  former "Senator . . . elected as the nominee of a political party" to trigger the party limitation to limit the appointment. Cooper thus can appoint a Democrat, producing a 49-48 Democratic Senate. There follows a nice question of who resolves any dispute about the lawfulness of this appointment: the Senate, through its power to judge qualifications, or the North Carolina Supreme Court as the last word on state law.

So now we have a new question about the remaining 31 states, their statutes, and how they handle this combination of expiration of term and failure to qualify. For example, Minnesota's law says the governor can make a temporary appointment to fill "any vacancy," with vacancy defined as any time the office is not occupied. I looked at Minnesoat because it faced a similar situation in 2009 when the Al Franken-Norm Coleman recount and election contest continued into July; Republican Governor Tim Pawlenty floated the idea of a temporary appointment until the contest resolved, reading the statute to mean an undecided election created a vacancy supporting an appointment. A vacancy because no election had been held should be the same. Perhaps only some subset of the 32 open states can make appointments, meaning Senate control depends on which combination of states are able to appoint.

Even more January 20, 2021

Following my posts speculating about the effects of President Trump canceling the elections, David Super (Georgetown) games it out at Politico.

David plays out a few different scenarios than I did, to some interesting conclusions and ideas.

• He begins from the premise that Trump canceled the elections through an unlawful act, as opposed to states being unable to carry out the election because of COVID-19. This creates a greater possibility of a President Biden, because Democratic states are more likely to defy the President and hold elections. But he then says those states would not be sufficient to select a President because they would not equal 270 electoral votes, producing a stalemate. I disagree. The Twelfth Amendment requires someone obtain "a majority of the whole number of electors appointed." If the only elections are in Democratic states totaling (to pick a random number) 211 electoral votes, the President can be elected with 106 votes. He comes back to acknowledge that not someone can be elected with fewer than 270 votes, but having some states fail to appoint electors would cast a "cloud" over the process.

• David floats the idea that the current House could continue beyond January 3, despite the 20th Amendment. He argues that the availability of successors is an implied condition on the past Congress ending and that the most recently elected representatives could legitimately continue to serve, when the election was prevented by someone else's malfeasance. I am not sure I buy the argument. But it takes us down the road to a House contingency election (if no one gets an Electoral College majority) that could produce a 26-22 victory for Trump, given the split in state delegations. This could be confounded by the defying (Democratic) states electing some new members and perhaps changing the make-up of their state delegations.

• He argues that the rump Senate of 65 (if no new Senators are elected) may be unable to sit or select a President for lack of a quorum. He also gets a 51-49 Senate through new appointments. But, as I said in my first post, three states do not allow for appointments and North Carolina requires that the appointee be from the same party as the past seat-holder, which produces a 50-47 Republican Senate.

• He introduces an interesting wrinkle if we get into § 19 and the cabinet: § 19(e) states that a cabinet officer under impeachment at the time of the vacancy cannot act as president. A Democratic-controlled House could manipulate who becomes acting president by impeaching cabinet officers, especially those who they deemed complicit in Trump's cancellation of the elections. David puts it this way: "Democrats enjoy debating which Trump Cabinet member they think is worst; this could force them to decide which one they find most tolerable."

Homestead 42

The fifth (and penultimate) episode of Plot Against America aired last night. It is the first episode where we see the government acting to disadvantage Jews, either directly or through inaction in the face of private violence. We have seen examples of private Anti-Semitism bubbling to the surface--desecration of a cemetery, anti-Semitic comments and insults and confrontations in public--without an explicit link to anything from the government. There is an Anti-Semite in the White House, but we have not seen him say or do anything to give the public "permission" to act out. The closest was a state dinner for German Foreign Minister Joachim von Ribbentrop.

That changed this week in two respects. We see a group of thugs (the hint is they are from the German-American Bund) violently attach the audience at stump speech by (Jewish) presidential candidate Walter Winchell, while police stand by and watch. And we hear later radio reports that the Winchell audience attacked the bystanders.

The centerpiece of the episode is implementation of Homestead 42. This an Interior program (designed by a rabbi who works in the administration) that asks/urges/coerces/orders/conspires with companies to transfer Jewish (or "urban," in the parlance) employees from the East Coast to rural areas off the coasts, with the government paying moving expenses but not increased salary or bonuses. Herman, a salesman for Met Life, is transferred to Danville, Kentucky. He joins a lawsuit to enjoin the transfer, but the lawsuit fails in the district court; facing another year of litigation, he quits his job rather than move.

So would such a law would be invalid today, would it have been invalid then, and why?

Under current law, workers would seem to be able to raise the following. It violates § 1981, by creating unique contract terms for Jewish works (Jewish is treated as a race for § 1981 purposes). It also may violate Title VII, depending on whether an unwanted transfer is an adverse employment action. THere is an argument that the companies act under color of federal law and are violating the First and Fifth Amendments, depending on how coercive the government program is. And the program violates the First and Fifth Amendments, by compelling (or even encouraging) private action that targets certain people for disadvantage (or at least unwanted action) because of race and religion. Although the program is "voluntary" in that the workers can quit their jobs rather than move, a point Interior Secretary Henry Ford makes, it still singles out one group for a Hobson's Choice.

The more interesting question is whether it would have been declared invalid in 1942. The claims against the companies would be tougher--there was no Title VII, § 1981 had not been pulled from the scrap heap, and the state-action doctrine was in its infancy, the "close nexus" test not yet developed. As for the claims against the United States, would this sort of race- or religion-based targeting of a group for relocation off the coasts and to the middle of the country have survived challenge in 1943? Put differently, would Korematsu and Endo have come out differently were the United States not at war, steadfastly neutral in the War in Europe and with a thriving economy?*

[*] Keeping the rest of history constant, the Court to hear this case would have looked 67 % the same as the Korematsu Court. It would have included five FDR appointees (Black, Reed, Frankfurter, Douglas, and Murphy), plus Stone, a Republican Coolidge appointee, whom Lindbergh might have elevated to Chief in 1941, as FDR did in real life.

University of Miami sued in South Carolina

A putative class action has been filed on behalf of all students against University of Miami, alleging breach of contract and unjust enrichment for sending students home and for teaching them remotely. A lot of people (especially Michael Abramowicz at Volokh) were anticipating such lawsuits and writing about whether schools will have a force majeure defense.

I find the case interesting because the action was filed in South Carolina (where the lead plaintiff lives), raising some jurisdiction and forum-selection problems. Too bad I wrote my exam, because this is a beauty.

Paragraph 8 lists a bunch of minimum contacts, including:

has solicited students residing in South Carolina to attend their institution;
has accepted money, including application and other fees, from students residing in South
Carolina; has participated in college sports competitions and/or academic competitions in
South Carolina; have websites accessible to students in South Carolina; have entered into
contracts with South Carolina residents; and generally have minimum contacts in South
Carolina . . .

A few potential problems.

Sports and academic competitions and an accessible web site are contacts with the state, but those contacts do not seem to "give rise or relate to" the breach of contract claim. That UM's women's basketball team plays Clemson once a year has no connection to whether the school breached its contract by teaching students on-line.

Entering a contract with a South Carolinian gives rise to the claim. But the claims of non-SC class members are not based on contracts entered into  in South Carolina; those contracts were entered into elsewhere. A claim should "relate to" contacts where the defendant engages in identical conduct in the forum state and outside the forum (this is the point in Ford, which was to have been argued at the end of the month). But Bristol Meyers rejected (although not in a federal class action) jurisdiction over claims by out-of-state plaintiffs over out-of-state conduct, even where that conduct is identical to the in-state conduct over which in-state plaintiffs sued. This is Bristol Meyers--identical contracts with SC and non-SC plaintiffs, all plaintiffs together in SC.

There was communication and engagement with South Carolina--soliciting, sending materials, accepting money. But the contract was "about Florida," in that this is where performance was to occur and the things for which plaintiffs paid--dorm space, campus spaces, parking--were in Florida.

If there is jurisdiction, there could be a strong transfer-venue argument, since Miami is the locus of performance of the contract and it is obviously not inconvenient for the plaintiff to travel there, even if she is home in her chosen venue.

One last point on the merits: What do the plaintiffs want and what do they believe the school should have done? They want room-and-board and other campus fees reimbursed, which makes some sense. But what about with respect to tuition? Full tuition reimbursement, even though the students are receiving some (if inferior) instruction? Reimbursement of the difference in value between on-line and in-person education (either for the entire semester or the pro rata portion that went online), however that can be determined? Suspend the semester with full reimbursement and a requirement that the students return for (and pay for) an extra semester at the tail end, thereby delaying graduation by 4-6 months? Or do they want reimbursement and a pass for the semester, so they graduate with only 7 1/2 semesters of course work. Paragraph 24 complains that "the value of any degree issued on the basis of online or pass/fail classes will be diminished for the rest of Plaintiff’s life." Would that be as true if the school awarded a degree with one less semester of work?

Class certification in felon-disenfranchisement case

In February, the Eleventh Circuit declared invalid a Florida law that required released felons to pay court-ordered financial obligations before their voting rights could be reinstated, affirming an injunction prohibiting enforcement as to the 17 named plaintiffs. At the time, I wrote:

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

We got the answer on Tuesday. The district court certified a 23(b)(2) class of all persons who would be eligible to vote but-for unpaid obligations and a sub-class of persons who would be eligible but-for unpaid obligations and who show a genuine inability to pay those obligations. The state opposed certification in part on the grounds that an injunction is unnecessary, because the state will abide by any ruling if the plaintiffs prevail on the merits. The district court responded:

Here, though, the Secretary’s promise to abide by any ruling is not enough. After entry of a preliminary injunction in favor of the 17 individual plaintiffs, the Secretary advised Supervisors of Elections throughout the state that the ruling applied only to the 17 individuals. The March 2020 elections went forward on that basis—without any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit. Class members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.

The district court properly nailed the state on its inconsistency--promises of future voluntary compliance with a particularized injunction are undermined by past refusal to voluntarily comply, making the next step of class certification necessary. This is perhaps how litigation should work--a particularized injunction for individuals, expanded to a class if the state chooses not to voluntarily change as to non-parties. This is how some of the marriage-equality litigation proceeded, notably in Alabama.

But the state's framing, at least as described by the district court, is circular: The state would "abide by any court ruling." But any court ruling is limited to the named plaintiffs, so not changing conduct towards non-plaintiffs is not a failure to abide by the ruling. We need a new concept to capture what we want the government to do in changing its enforcement behavior to persons not protected by the injunction. Perhaps we could think of it as abiding not by the injunction but by the law-declaratory aspect of the court's judgment--the signal from the court as to the state of the law, separate from the order compelling government to act or refrain from acting, that hints at what will happen if government continues (as it is free under the particularized injunction) to enforce its laws as to non-parties.

Universality in Texas

Following on Dan's post about the Tuesday's Texas abortion case and courtesy of Josh Blackman, there is FN 19 of the opinion:

 

Although not necessary to our decision, we note that the district court purported to  enjoin GA-09 as to all abortion providers in Texas. But Respondents are only a subset of  Texas abortion providers and did not sue as class representatives. The district court lacked authority to enjoin enforcement of GA-09 as to anyone other than the named plaintiffs. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”). The district court should be mindful of this limitation on federal jurisdiction at the preliminary injunction stage.

This is obviously dicta, given how the case came out. But it illustrates two points about the scope-of-the-injunction issue. First, it is not limited to cases involving ederal law and certainly not limited to federal executive orders and regulations. Because the real issue is injunctions extending beyond the parties, it is present regardless of the source of law. Second, had the court come out the other way on the merits, this is a good example of a case in which the practical effect would be universality, either because the government will fall in line and not enforce against anyone or because it would be easy for other providers to join and have the injunction extended to them.

Zoom as the new normal in the legal academy?

Yes, says Josh Blackman.

As for virtual academic conferences, workshops, and symposia, I wonder if we should separate long-term and short-term. Short-term, I could see schools doing this to deal with coming budget crises. One of the first things to go may be money for faculty travel, conferences, workshops, and symposia. Schools determined to weather the budget problems while maintaining some an academic and intellectual culture may choose this option. Longer-term and once the financial problems (hopefully) pass, how strong will the push be to get real human contact in our lives? Will the current experience make us not accepting of the new normal but longing for what we had? Then the question is when short-term ends and long-term begins.

As for class, I share Josh's bottom-line assessment of "more positive than I expected." I have been able to recreate, more or less, my live class in terms of how the conversation goes, the level of interaction, etc. There is a slight delay and things move more slowly than when we are in the same room. But I agree the students have been flexible and as well-prepared and engaged. I even took advantage of the technology to save class time--posting a recording of me talking about material (the types of civil actions) I would have lectured on in class. (Talking to a blank computer was awful).

Josh says "[u]niversities will demand more classes to be taught virtually." True. But the X-factor is that students hate this. That might be due to the sudden transition or the sense that this is not what they signed up for. But the common refrain that I have heard--and that some of my colleagues have heard--is how inferior this form of instruction is. I hope this gives faculty, like me, an argument to use when "stand[ing] athwart history, yelling Stop."

(Still) More on 12:01 p.m., January 20, 2021

I shared my thoughts on what happens if President Trump declares an emergency and tries to suspend the elections and stay in office. A reader raises an issue as to my seventh option, so I amend my earlier argument slightly. [Update: This conversation has taken off on a listserv, so I am putting in a page break and adding some additional points]

1) I suggested in my original post that, in the absence of elections, state legislatures would adopt a new method of appointing electors. But I suggested only states with unified legislative/executive control would be able to participate, because no agreement would be possible in a divided government--a governor would not agree to legislative appointment  by a legislature controlled by the other party and a legislature controlled by one party would not give power to the governor. This affects eight states with Republican legislative control and Democratic governors, four states Democratic legislative control and Republican governors, and Minnesota, which has a divided legislature.

A reader suggests that the reference to "legislature" in Art. II § 1 gives the legislature the power to act unilaterally to appoint electors, without passing a law requiring gubernatorial approval or subject to gubernatorial veto. Legislature means the legislature itself acting on its own; legislature is not a synonym for "by law" (which would mean via the appropriate state lawmaking process). If so, 12 of those states (everyone but Minnesota, I presume) will appoint electors committed to the candidate of the controlling party: eight Republican legislatures for 93 votes for Trump, four Democratic legislatures for 28 votes for Biden. Trump wins 310-223. That would be a landslide.

This still assumes there is a House of Representatives to open and count the electoral votes or that the Senate can do so without the House; otherwise, we fall to Option 10. It also assumes the state legislatures can function come January if there were no fall 2020 election or that they act before their sessions end.

2) (A point that a commenter made to my original post): The President Pro Tem need not be the senior-most member of the majority. Instead, as someone argued on the list, the Senate will look for someone who would make a good caretaker President, would not be missed in the Senate, and is from a state with a same-party governor. In other words, if it goes to the PPT, do not assume it will be Leahy (Vermont has a Republican governor) or Grassley. But that raises several alternatives: 1) PPT goes to Leahy or Grassley or someone similar as a career-capper, a last act before leaving public service (hopefully on the assumption the person also would make a good caretaker); 2) the PPT, whoever it is, declines because he does not want to surrender his Senate seat, leaving us with Acting President Pompeo; or 3) the PPT has confidence (if not an outright quid pro quo) that his same-party governor will reappoint him to his vacated seat once a President is selected.

3) Another list member offered this: The Speaker need not be a member of the House. This means her term as Spreaker is not constitutionally capped at two years and does not run with the term of the House. So the current House could, prior to January 3, name Hillary Clinton (although not a member) as Speaker with a term to run until the House selects a new Speaker, whenever that is. The current House also could extend the length of Pelosi's term as Speaker, allowing her to remain as Speaker after her term as representative ends on January 3. There thus is a Speaker on January 20 who can resign and act as president. This is a cute idea, but it raises several questions:

    Regardless of what a prior House did, can there be a Speaker of the House if there is no House (as there will not be come January 3 if the states cannot hold elections)?

    Can a Speaker who is not a member of the House qualify to act as president? Section 19(a)(1) says the Speaker acts as president "upon his resignation as Speaker and as Representative in Congress." On one reading offered by a list member, only someone who holds both the Speakership and a seat in Congress can act as president because only someone who holds both can resign both. An alternative reading (which I prefer) is that it means the person must resign whatever positions she holds--if the Speakership and a seat, she must resign both; if only the Speakership, she resigns that. As another member argued, the "resign both" language likely was intended to avoid an Incompatibility Clause problem--make sure a person could not act as president while retaining her legislative seat. But that purpose does not support reading the text to limit the class of Speakers who can act as president.

All of which is to say that this does not begin and end with what states do with the electors. The range of legislative options is greater than I suggested in the original post.

Emergency Florida Diploma Privilege

An online petition is calling on the Florida Board of Bar Examiners to extend a "one time, sui generis" diploma privilege to all graduates of ABA-accredited law schools registered for the July 2020 Bar Exam. Such an expanded privilege is one of several suggestions in this multi-author paper about what to do about the Bar Exam in the current circumstances.

Creative Projects

I have written before about the creative projects I do in Civ Pro (I stole the idea for Josh Douglas of Kentucky). For voluntary extra credit, students put together something fun related to the class and the subject: skits, videos, song parodies, poems (lots of haikus), paintings, storybooks, comic strips, etc. At the Q&A session the day before the final, we display and perform them. Many of them are quite good--law students have talent.

The question is whether to do this this year and how. Many of the larger projects are collaborative, which obviously is impossible this year. We will not be in the same space to display the visual projects or to perform. I suppose people can read or show their projects through the Zoom connection and I can run any videos through it. Keeping the project might provide some sense of normalcy (as well as extra points).

Thoughts?

L'état, C'est Trump

"When they disrespect me, they're disrespecting our government."

Put aside that the First Amendment exists so people can disrespect the government. The President--or any government official--is not the government and the two should never be conflated.

Altering courses mid-stream

The move to remote instruction affects course coverage because class moves more slowly. There is a time lag, however slight, between when I call on a student and when she unmutes her microphone and gets ready to answer. In-person, I relied on volunteers, which limited the possibility of calling on someone who had no clue or was unprepared to talk. This meant fewer long silences, fewer times repeating a question or backing up to prior principles, and less time spent deciding when to try to work the student through something and when to move on or to bring in "co-counsel." Having to cold-call introduces those delays. (This should not be read as a knock on my students this semester, who have been prepared and engaged through a lot of technological and personal problems). But things move slowly.

This affects course coverage. When we went inside, we had about half a day left on discovery. This was followed on the syllabus by Summary Judgment, Subject Matter Jurisdiction, Personal Jurisdiction, Venue, and Erie. With nine 70-minute classes remaining, I have to make some hard choices.

• Erie is gone. This is too bad because I like teaching it and it is the most "gamey" part of the class. I assign two cases--Erie and Hanna--then we work through a series of current problems to illustrate the various moves on the flowchart. I will miss doing this.

• I skipped the capstone problem for Discovery (based on a long-ago lawsuit in which Coca-Cola bottlers attempted to obtain the formula in discovery), in which I split the class into parties and work through the discovery issues. I could not make it work online, with cold-calling.

• On SMJ, I am basically skipping Federal Question Jurisdiction. We examined the different types of statutes and I will lecture (or post a primer on the course blog) about the Well Pleaded Complaint Rule and about the Mims standard for arising under. I am less concerned about this because I focus on FQJ in Fed Courts, going beyond what I do in Civ Pro to include Grable and complete preemption. It may be that this cursory overview becomes the new normal.

• On Personal Jurisdiction, I expect to have, at best, 7 days to cover what I usually cover in about 9+ (including Venue). My plan is to skip Pennoyer and lecture/write a primer on the different types of actions (in personam, in rem, etc.) and the basic idea of the Power Theory.

I will swing back in three weeks and let you know how it goes.

Rothgerber Conference: Women's Enfranchisement now online

The 28th Annual Ira C. Rothgerber Conference on Constitutional Law, sponsored by the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, slated for next Friday, April 3, will be online as a Zoom webinar. Registration is free.

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers, visit the CU Law Rothgerber event page.

Think Yiddish, cast whoever

A controversy arose in the U.K. last year about casting non-Jewish actors in expressly Jewish roles in an expressly Jewish show called Falsettos (about a Jewish father who leaves his family for a man, just after the son's Bar Mitzvah).

The question has become relevant because of two television series about Jewish people dealing with Nazis in the U.S.: The Hunters, which I watched and hated, and The Plot Against America, David Simon's adaptation of Philip Roth's counter-factual novel about Charles Lindbergh being elected President in 1940 and unleashing a wave of anti-Semitism.

The Hunters cast Jewish actors (Josh Radnor, Saul Rubinek, Carol Kane, Jeannie Berlin, Rubinke's daughter) for most of the major Jewish roles. Al Pacino, playing the head Nazi hunter and Auschwitz survivor, was the exception (although, spoiler, it did not matter).

In the first episode of the companion podcast to Plot (beginning around the 14:00 mark), Simon discusses setting out to make the show with an entirely Jewish cast and crew . He changed direction when he recognized the need to work with the best people and the universality of the story of oppressed "others."

Thus, the father is played by Morgan Spector (half-Jewish) and his sister-in-law is played by Winona Ryder (half Jewish, strongly self-identifies). But the mother is played by Zoe Kazan (Greek from Turkey, granddaughter of someone compelled to name names before HUAC) and the older cousin is played by Anthony Boyle (Irish-Catholic from Belfast); Simon talks about how he convinced them to take on the roles because their (or their families') experiences are comparable to the Jewish experience. And John Turturro plays a rabbi, although Simon and co-host Peter Sagal agreed Tuturro had played so many Jewish characters in his career (Barton Fink, Herbert Stempel, Joey Knish) that he is basically Jewish.

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Justice Kagan writes for a clear six (herself, the Chief, Alito, Sotomayor, Gorsuch, Kavanaugh). Justice Thomas writes an opinion concurring in part and concurring in the judgment. Justice Breyer (joined by Justice Ginsburg) writes an opinion concurring in the judgment. But the labels on the separate opinions are confusing. 

Thomas labels his opinion  "concurring in part and concurring in the judgment," while saying in the first paragraph that he "cannot join the Court’s opinion in its entirety."

A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority's reasoning and path to the judgment.

Thomas identifies three points of disagreement and pieces with which he does not join: 1) The standard for stare decisis (the majority demands a special justification, while Thomas believes precedent can be overruled if is demonstrably erroneous), although everyone agrees that controlling precedent should not be overruled under either standard; 2) the majority's advice to Congress about how it can enact a valid abrogation, which is dicta; and 3) whether copyrights are property for due process purposes, a point the parties stipulate in this case. None of these points affected how the majority reached its conclusion. It thus makes no sense to label this a concurrence in the judgment; Thomas joined (or appears to have joined) all the parts of the opinion that led to the judgment. This should be a concurring opinion, with Thomas providing a seventh vote for the majority.

Breyer labeling his opinion as concurring in the judgment seems strange for a different reason. He agrees that Florida Prepaid resolves the case, although he disagrees with the Court's sovereign-immunity doctrine (for reasons described in his dissents in several of those cases, which he string cites). And writing on a clean slate, he believes abrogation is proper. But the majority opinion resolves the case as Breyer believes it must be resolved--applying Florida Prepaid. It thus seems the appropriate approach would have been to join the Kagan opinion but to write the opinion he did as a concurring opinion (not concurring in the judgment). It seems odd to concur in the judgment but not provide an alternative explanation or analysis for that judgment beyond "what the majority said, with which I disagree but with which I am stuck."

This seems like a half-measure version of Justices Brennan and Marshall in death-penalty cases. They dissented from every summary disposition and cert. denial on the grounds that capital punishment violates the Eighth Amendment, refusing to follow established precedent and insisting the case should come out the other way. Breyer wants to follow precedent, even precedent he sees as wrong. But that means he agrees with the majority's analysis applying controlling precedent, even if he would prefer to reject that precedent.

So at the end of the day, this is a 9-0 case--everyone agreeing that the statute is invalid in light of Florida Prepaid and three Justices expressing different views about the doctrine or pieces of the majority's analysis.

Finally, during SCOTUSBlog's live blog of opinions, Tom Goldstein identified a "generational divide" among the Court's liberals. The old guard of Ginsburg and Breyer--who were on the Court and dissented when this abominable line of precedent developed--continue to reject the doctrine. The new guard of Sotomayor and Kagan (who wrote the opinion) accept the current legal regime as correct. It is an interesting idea. Although query whether they regard it as correct as much as they recognize they are stuck with it and do not have the skin in the game to point to past dissents, as Breyer does.

JOTWELL: Mulligan on Rubenstein on federal common law

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing David. S. Rubenstein, Supremacy, Inc. (UCLA L. Rev., forthcoming), exploring the interaction among federal-contractor immunity, preemption, and federal common law.

Acting President Who?

This post is a lark, inspired by a question from my daughter, a question from a colleague, and general paranoia among liberals that President Trump will cancel or undermine the election so he can remain in office in 2021.

Whether the election can happen and how is a genuine concern given coronavirus. But there is no single "election;" there is a series of 51 simultaneous elections in 50 states and D.C., and it is unlikely Trump at his most nefarious can stop alll. Nevertheless, assume the worst-case scenario of no election in any state this fall. The possible results are infinite.

Let's have some fun.

Trump's term as President (and Pence's as VP) end at noon on January 20, 2021. This is non-negotiable. The failure to hold elections means there is "neither a President nor Vice President" due to "failure to qualify," putting us into the Presidential Succession Act.

Acting President Pelosi. The Speaker of the House is first in the statutory line, unconstitutionally so in the eyes of many and unwisely so as a policy matter in the eyes of most. But there is a problem: If there is no election in November, it will not affect only the President; presumably states would be unable to hold House elections. There thus would be no House come January 3, because no House members would have been elected.  If there is no House, there can be no Speaker. If there is no Speaker, the President pro tempore of the Senate becomes acting president. Meaning:

Acting President Patrick Leahy. The Senate is a continuing body, with roughly 2/3 of the body returning in the new Congress. Thirty-five Senate seats are up in 2020; if there are no elections, those 35 seats will not be filled. Thus, the Senate in the 117th Congress in January 2021 will consist of 65 returning Senators. The breakdown of that rump is 33 Democrats, 2 Independents who caucus with the Democrats, and 30 Republicans. The President pro tem is the senior-most member of the chamber majority--Patrick Leahy of Vermont. But:

Acting President Grassley. In 46 states, the legislature can empower the Governor to make a temporary appointment to a Senate vacancy, pending an election at a future point (timing varies by state). Three of the four (OK, OR, RI) that do not allow temporary appointments have a Senate seat up this year. Thus, of the 35 contested seats, appointments could be made for 32 of them; of those 32, 13 are in states with a Democratic governor and 19 are in states with a Republican governor. Three (Arizona, North Carolina, and Wyoming) require the appointee to be of the same party as the vacating Senator; North Carolina's Democratic governor would have to appoint a Republican to the seat vacated by Republican Thom Tillis. This means 12 Democratic appointees and 20 Republican appointees, creating a 50-47 Republican Senate. The President pro tem (as in the current Senate) would be Chuck Grassley of Iowa. But:

Acting President Mike Pompeo. Five of the states with contested seats that would need an appointment (Montana, New Hampshire, North Carolina, Texas, and West Virginia) have 2020 gubernatorial races. If the election for President, House, and Senate does not happen, neither can the election for governor. Absent a governor and lieutenant governor, succession would depend on the weeds of the organization of state government--is either house of the legislature a continuing body that would have a leader who could serve as governor? If not, no appointment is possible in those five states. This means loss of four Republican appointees (by Republican governors in New Hampshire, Texas, and West Virginia and cross-party appointment by a Democratic governor in North Carolina) and one Democratic appointee (by a Democratic governor in Montana). That leaves us with a 46-46 Senate. Absent some sort of compromise, there would be no President pro tempore of the Senate. The succession law takes us into the cabinet, beginning with the secretary of state. Unless:

Acting President Grassley. Suppose that anticipating these gaps, the Senators in the three states guaranteed a same-party replacement resign in December 2020 so the governor can make the appointment. Those would be Republicans in NC, TX, and WV. They would remain in those seats through January 3, 2021, making it a 49-46 Republican Senate that chooses Grassley as President pro tem, who becomes acting president. Or:

Acting Prsident Grassley. Alternatively, the terms for those five governors end after January 3, when the new Congress begins and the Senate vacancy becomes clear. Each thus could make an appointment then, before his term expires, adding four Republicans and one Democrat to a 50-47 Republican Senate. Unless:

President Trump. The Constitution empowers each state to appoint electors "in such manner as the legislature thereof may direct." Every state has directed electors be chosen by popular election. But facing such an emergency, states could change their laws to provide a different selection mechanism--legislative or executive appointment. A state presumably will enact a law changing its selection method only if both chambers and the governor are from the same party. Twenty-two states, for 219 electoral votes, have unified Republican control and will appoint electors to vote for Trump; 15 states + D.C., for 195 electoral votes, have unified Democratic control and will appoint electors to vote for Biden. Twelves states, for 124 electoral votes, have a Republican-controlled legislature and Democratic governor or vice versa, and one state has a divided legislature. Those states may be unable to agree on a selection method--the legislature will not give the governor of an opposing party the appointment power; the governor will veto any attempt to give the power to the legislature. So the electoral college votes for Trump over Biden, 219-195 (which Trump will call the greatest landslide in U.S. history). The Twelfth Amendment provides that the winner must obtain a majority of the whole number of electors appointed. Because those 13 states did not appoint electors (because there was no election and no alternative appointment mechanism), the whole number is 414; 219 constitutes a majority and Trump is reelected. Alternatively:

President Trump. Those 13 states, not wanting to be left out, could compromise and create a mechanism to split their electoral votes. Trump gets 281 electoral votes (219 + half of 124) while Biden gets 257 (195 + half of 124). Trump is reelected. Unless:

President Trump. The electoral votes must be opened and counted before a joint session of the House and Senate, presided over by the President of the Senate (i.e., the Vice President).  Because there was no election, however, there is no House. Is the Twelfth Amendment satisfied if only the Senate is present for the count? If yes, Trump is president. The answer to that question may depend on the composition of the Senate (see above). If no:

Acting President Grassley or Pompeo. If the votes cannot be properly counted, no one will have qualified as President or Vice President. We are back into the statute. There still is no speaker. Maybe there is President pro tem, depending on the composition of the Senate (see above). Or we are back in the cabinet. Unless:

President Trump or Biden? If coronavirus is the source of election interference, the answer may turn on how many states--and of what partisan composition--will take steps to enable meaningful, simple, and manageable vote-by-mail. The easy partisan answer is that Democratic-controlled states are more inclined to expand the franchise than Republican-controlled states; easy vote-by-mail is an expansion (enabling) of the franchise in this context. So the answer may be depend on who is willing and able to create better vote-by-mail systems.

I will close by saying this is a parlor game because I am bored right now. I do not expect Trump to interfere with the election. I do expect life to be normal enough come November to hold an election or that states will create mechanisms to handle it (one side effect of the current situation is the number of governors flexing their muscles in the absence of federal action). I believe there will be the usual transition of government power come January.

But blogs exist for these kind of parlor games. Feel free to weigh in.

Assessment in a Time of Cholera (Updated)

Larry Cunningham (St. John's) discusses assessments in the current situation--he raises a number of questions, then proposes a framework for answering them. He rejects the suggestion making the Twitter rounds (which some of my colleagues have offered) that we cancel the semester and give everyone a "pass" in the course; we have "solutions—albeit imperfect ones—to the challenges we are facing. Giving up the semester should be a last resort."

I have been thinking about the grading questions this weekend because of the ongoing interim assessments I do throughout Civ Pro.

I distributed the preliminary exam (a one-week take-home of the type of short-answer questions on the final) last week; it is due Thursday. I have been working with our registrar to devise a mechanism for submitting electronically (I have 130 students in two sections, so email is not an option). My plan had been to print them out so I can grade on paper, but FIU moved us off campus effective Monday afternoon. So I will get electronic copies of all the papers and will try to grade on the computer, using the Comments feature to make comments and assign a number. I expect it to take longer than it would on paper, just because I read and can type comments and remarks more slowly than if I am working through it with a pencil and paper.

I expect to assign at least three essays in the three weeks we are guaranteed off campus (an essay is on one topic from the class, assigned to a random group of 6-7 students). The smaller numbers mean they can be emailed to the register, send to me, and graded electronically.

The question is the final exam, which ordinarily a four-hour in-class, open-materials, short-answer test. I guess I will make it take-home. I had been thinking of doing that before this hit, to get less-rushed and (hopefully) better-written answers. The question, as Larry raises, is the "integrity" of the exam. I have heard enough rumors of students cheating to fear take-home exams as a matter of course. But I am not sure there is an alternative.

Submitting grades will not be a problem (something Larry raises) will not be a problem, because we have been doing that through the school's web platform for years.

Read Larry's post; he goes deep into macro issues such as what to do about the curve, scholarship retention, rankings, etc. And looming over it all is who decides--how much is for individual faculty for individual classes, how much for faculty as a governing body, and how much for the administration.

Update: The argument against canceling the semester--in general and for law schools in particular--is content dissemination: Students need to know stuff for other classes in the remainder of the curriculum and for the Bar. And that is a good argument.  Larry's post shows that assessment remains tricky, even if content dissemination can go online. So I wonder if the answer is to keep classes through the end of the semester, but cancel final exams and projects and give everyone a "Pass."

On two days of online teaching (sorry, remote instruction) (Updated)

Josh Blackman offers good thoughts on teaching via Zoom, which is the tool I have been using. My responses to Josh's bullet points and further thoughts after two days and four online classes (both 70-minute Civ Pro section). My verdict: Not as bad as it could have been; not my preference and I am unlikely to become a convert in support of this as the new normal.

1) Normal Appearance: Nope. I took advantage of this as the chance to wear shorts, a polo shirt, and a pullover. From the waist up, I look business casual. Not sure I am not going to wear a robe, a la Hogwarts, one day.

2) Put on a Show: Rather than sitting or standing in front of my laptop camera, I am conducting the class in a classroom, facing a Zoom camera with a screen showing the students. That is, I am conducting my regular class from my regular position in the room. I am pacing and moving around, as I do in class. The difference is I am talking to a screen of headshots rather than live people.

2 1/2) Dry-Erase Board:  The one limit on the "regular show" concerns the dry-erase board. I learned after the first class that it is useless--the camera cannot pick up what is written on it from a wide-field camera. So my usual interaction with stuff on the board (key language, flowcharts, maps of parties and claims) is out. My solution is to write out whatever I would put on the board and post it in advance of class to the course blog. It should work well enough.

3) Call on Students in Alphabetical Order: I do not cold-call in Civ Pro, relying on incentivized (participation is part of the final grade) volunteers. That cannot work in a large class because the Zoom screen only shows 25 people at a time. I am cold-calling, but I am doing it via the seating chart. I think it works as well as alphabetical, because the students know who they sit next to and so they are on notice when they might be next.

4) Switch the Camera Up: I see Josh's point about staring at one thing for too long. I think/hope that I overcome this because they do not see a close-up of my face, but what they would see if they were in the room. I am standing about 15 feet away from the unit, so I have no opportunity to play around.

5) Check the Chat Feature Often: My big lesson from day one to day two, along with stopping every 15-20 minutes for questions, either shouted out or on the chat feature. The students are using the chat feature to help one another out with answers. When a question was giving one student trouble, I cold-called the student who had answered it in the chat.

6) Virtual Office Hours: I love this idea and may try to implement it.

Other Thoughts:

• The interaction is slower and it takes longer to get through material--at least it feels that way. There is a time delay in the student response to me and likely in my response to the student. I think I am repeating rephrasing because I do not have a group of faces that I can read to determine if it is sinking in. Cold-calling contributes to that. With volunteers, the person answering is ready to go--if she is off the mark, I move on; if she is close or in the general vicinity, we can try to work through the question. With cold-calling, I feel obligated to try to work through it with someone who is at a complete loss.

• This probably relates to how I am using Zoom and that I do not have the computer right at my fingertips. I do bring up the speaker and I not necessarily see the person answering (if she is not one of the 25 on the first screen), so the back-and-forth is not visual. That makes it harder.

• That said, I my rethink cold-calling in Civ Pro when things return to normal. The students have been pretty good when called on, including some who had never or rarely raised their hands through the semester. I always have feared cold-calling a student who is lost and brings the conversation to a needle-screeching halt. But maybe my assumption has been wrong.

• I have had technological problems every class. This does not happen when the only "tech" problem I usually have is that the marker is out of ink.

• A question on economies of scale. I teach two sections of Civ Pro of ~65 each (the entire full-time class), opposite my colleague who teaches Crim to that group--I teach Section A and he teachers B in one time slot; then we flip in a second time slot. So would it work for each to combine section so we each teach once per day--I teach all ~130 Civ Pro in one time slot, my colleague teaches all in Crim in the other slot?

    I would never attempt to teach that many at once in an in-person class. But if I am cold-calling and the interaction is less engaged and more stilted, is there any drawback to adding more students to the mix? Everyone would have fewer opportunities to participate and I would have to jump between classes. But am I wrong that it would be less overwhelming and more efficient when it is remote?

Update: Diane Klein, an experienced online teacher, raises two points with which I agree:

    1) It was "ridiculous and impossible" to believe everyone--including professors (like me) who had never taught remotely and rejected the very idea--would be able to transition to teaching online in one day or one week and be able to do so effectively. She likens it an order that everyone begin teaching using American Sign Language, effective tomorrow.

    2) "[C]lose observers of higher ed in America cannot help but wonder how many of the courses that "migrate" to these online platforms during this crisis may never come back. " I said the same earlier in the week: There will be pressure to make this the new normal.

Second Update: As to # 1, consider these points that have been passed around; they seem to have started on Facebook. No one is expecting anyone to speak ASL; the goal is to muddle through so there is some level of understanding.

2. Let’s acknowledge that the quality of education will not be as good in alternative formats as it is in the pedagogical model we’ve actually planned for. That’s OK as well—we’re just trying to survive.

3. Do not read on best practices for distance learning. That’s not the situation we’re in. We’re in triage. Distance learning, when planned, can be really excellent. That’s not what this is. Do what you absolutely have to and ditch what you can. Thinking you can manage best practices in a day or a week will lead to feeling like you’ve failed.

4. You will not recreate your classroom, and you cannot hold yourself to that standard. Moving a class to a distance learning model in a day’s time excludes the possibility of excellence. Give yourself a break.

5. Prioritize: what do students really need to know for the next few weeks? This is really difficult, and, once again, it means that the quality of teaching and learning will suffer. But these are not normal circumstances.

Continuity of Government in a time of Cholera

Norm Ornstein writes in The Atlantic about the need for Congress to create some contingency plans in case the bodies are unable to meet or, worse, if substantial numbers of members become sick or die in the current pandemic. I had the privilege of doing some work with Norm on continuity issues following 9/11, with the Continuity of Government Commission that he chaired and several congressional hearings, as well as writing about this in several of my early articles. Then, it was a single catastrophic bomb (such as Flight 93) destroying Congress as a body of people; now it is the slow burn of Covid-19. But the failure to act 20 years ago--to allow for remote sessions, action by emergency rump bodies, and temporary House appointments--looms large.

In addition, a maudlin conversation with a colleague suggests that congressional continuity may not be the only concern. The President (who, despite the Surgeon General's sycophancy, is old, overweight, and not in great health) and Vice President were exposed to the virus by one individual. Nancy Pelosi is third in line. And no way would the House confirm a new VP nominated by Pence or Trump "in an election year," citing the McConnell Rule. (House Democrats dragged their feet on Nelson Rockefeller, and those were relatively normal times).

I have said  that the West Wing is the Trump presidency--I guess this is the next season of the show.

Online teaching

FIU (and the rest of Florida's State University System) joined the parade of colleges and universities by moving to "remote instruction" (ah, euphemisms) effective tomorrow. It starts with my 9:30 a.m. Civ Pro course, for which Zoom has not been set-up. It should not be surprising that I am not happy about this development. Not only do I find online law teaching a horrible idea. Not only are we, by necessity, rushing into it without preparation or organization. But I fear that this is the camel's nose for people who want online education (legal and otherwise) to become the new normal--"see how well it worked, let's put everything online so we are ready for the next emergency and never again have to worry about rushed transitions."

This defense of online education (sorry, remote instruction takes the cake, especially the start of the fourth paragraph:

But teaching online wasn’t that different from the classroom experience I was accustomed to. It was often more fun than standing at a lectern working through a well-worn set of PowerPoint slides. The trick was making it as personal as possible and accepting that sometimes, the technology fails and you figure it out. 

Anything is more fun than standing at a lectern working through a well-work set of PowerPoint slides. But if all you were doing is standing at lectern working through well-worn slides, then you were not doing a good job of teaching in the first place. So a poor facsimile of the educational experience will not seem much worse.

JOTWELL: Effron on Zambrano on discovery as regulation

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Diego Zambrano, Discovery as Regulation (Mich. L. Rev., forthcoming 2020), which reframes discovery in private enforcement litigation not as a tool of litigation but as a form of public regulation.

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Judge Sutton hates Rooker and Feldman--So now what?

The Sixth Circuit reversed a Rooker-Feldman dismissal of a Fair Debt Collection Practices Act action, challenging the interest rate included in state writs of garnishment. (H/T: Volokh's Short Circuit round-up). Judge Sutton writes a concurrence begging district courts to stop applying RF except to cases in which the district court is asked to rule that a final state supreme court judgment violates the Constitution.

Sutton insists that RF cannot be used to stop federal actions seeking to second-guess all state court rulings, such as an unappealed state trial-court ruling (whether interlocutory or final-and-appealable). Some courts had justified RF not only on § 1257, but also on § 1331's grant of original (rather than appellate) jurisdiction to district courts. If that also explains RF, then limiting it to final state supreme court decisions is too narrow, at least where the federal plaintiff truly claims constitutional injury arising from a state judgment.*

[*] The majority supported its no-RF conclusion in part because a writ of garnishment is not a judgment.

Sutton argues that such a case be handled by issue and claim preclusion. So does that work? Take the paradigm case of a state trial-court judgment stripping a father of visitation rights. If the father does not appeal to the state intermediate appellate court but instead runs to federal court, Sutton would say RF does not apply. But would preclusion bar that claim, as it must if district courts are not to become reviewing courts for state trial-court judgments.

I also would be concerned that the doctrine that will rise up to replace RF is not preclusion but Younger. A number of lower courts have used that doctrine halt these sorts of challenges where the state proceeding is pending. Except Younger should be limited to challenges to the underlying state law being challenged rather than to complaints about the state court decision itself.

What if Keyser Soze were a Nazi?

We finished watching The Hunters, the Amazon Prime series about a rag-tag group of Nazi hunters in 1977 New York. They hunt and exact poetic justice (e.g., a propagandist, clearly meant to be Leni Riefenstahl, was made to eat manure) on Nazi war criminals allowed into the U.S. following World War II, as well as trying to stop them from establishing a Fourth Reich in the U.S. The show tries to be both a Tarrantino revenge fantasy a la Inglorious Bastards and a meditation on the ethics of vengeance--and misses the mark on both.

I wanted to like the show and I think I am part of its target audience. But I could not, especially following its big twist. Major spoilers ahead, so I placed the entire post after the jump.

The show mixes 1977 events with flashbacks to Auschwitz depicting fictional atrocities. One involved a guard who has a group of prisoners sing, then shoots one after another for getting a word wrong or for being off-key, until one "winner" remains. Another involved a camp doctor giving a prisoner a choice--shoot the female prisoner the man loves or shoot a series of random prisoners; he shoots 11 random prisoners. Another involved a game of human chess, in which taking a piece meant one prisoner killing another. The last drew outrage from the Auschwitz Memorial, which complained that inventing a piece of Nazi cruelty creates caricature (as if the real atrocities were not bad enough) and provides deniers with a weapon (if this chess game did not happen, maybe the whole thing is false). Showrunner David Weil, whose grandparents were survivors, defended the chess scene as "representationally truthful"--a fictionalized event that reflects similarly sadistic real events.

I had trouble staying in the story because of a number of nonsensical narrative moves. One involves the timeline. The year 1977 was 32 years after the end of WWII. The characters of Meyer Offerman (played by Al Pacino) and Ruth Heidelbaum (the grandmother of Jonah, the other main character) were shown in their early-to-mid-20s when they were sent to Auschwitz, so would have been in their mid-to-late-50s when the story takes place, a good decade or two younger than the actors portraying them (Pacino is 79, the actress playing Ruth is 71). They probably would seem older than their years given what they endured, but the image of people doing this late in life, as they are frail and about to take their memories with them, does not add up. And most of the Nazis they are hunting are cast and portrayed in the appropriate age range.

The timeline gets worse when we consider Ruth's daughter and grandson. Meyer (not the U.S. soldier Ruth married after liberation) fathered the child when he and Ruth were reunited at the displaced person's camp following liberation--so she would have been born in late 1945 or early 1946. Jonah, Ruth's grandson, is 18 when the story takes place, meaning he was born in 1959-when his mother (who died in childbirth) was 13 or 14. Oops or yuck. Perhaps this was intentional--the daughter's pregnancy was the result of an assault and her young age contributed to her death (and no one mentioned Jonah's father); that could be revealed in a (unlikely?) Season 2. On the other hand , a scene from the first  20 minutes of the series suggests this was not intentional: At Ruth's shiva, a woman tells Jonah he is not a mourner and Jonah responds with a litany of the tragedies of Ruth's life (parents shot in the ghetto, sister killed in the camp, husband killed in Korea, and only child bleeding out giving birth); had the daughter also been the victim of an assault, he might have mentioned it.

The  second of the major spoilers makes even less timeline sense. At the end of the finale, we learn that Hitler is alive  in Argentina; his hair and mustache are gray and he moves slowly with a cane, but otherwise seems healthy. In fact, he seems more youthful than Meyer and Ruth. No. Hitler was 56 years old and in terrible health by the end of the War. Put aside that we know he killed himself in the bunker. The idea that had he escaped he would have survived three decades and remained alive at 89 is absurd.

There is a lot of anachronism in the show, an attempt to link this story to current Neo-Nazis. But having a Nazi chant "Jews will not replace us" in 1977 is cheesy. So, too, is having the good guys repeat phrases like "fascist fucks," the kind of modern Twitter-speak that did not fit the times. Someone speaks of Congress as an institution built for "white skin and blue blood"--no one spoke like that in 1977.

I may be wrong about this, but it seems as if the show conflated two things in explaining why all these Nazis were in the U.S.  One is "Operation Paperclip," the real secret plan that brought high-level Nazi scientists such as Wehrner Von Braun to the U.S. The other is some number of Nazis who escaped Europe and snuck into the U.S. (think John Demjanjuk). The story ties everything to the former--all the Nazis they are chasing were brought here as part of an official secret government program; Operation Paperclip (and thus the U.S. government) is the great evil in which the government intentionally brought into the fold thousands of people now trying to create a new Nazi regime and kill Blacks and Jews in America. But the two are distinct. There were numbers of war criminals who came to the U.S. but not as part of that government program--these are the people that the Office of Special Investigations, established in 1978, targeted for prosecution and deportation.*

[*] On the show, the hero FBI agent (who is African-American and lesbian) receives a visit from Rep. Elizabeth Handelman, a Jewish congresswoman from New York wearing oversized glasses. She is a not-remotely veiled Elizabeth Holtzman, who sponsored the legislation creating the OSI. Handelman celebrates a Black FBI agent and "Jewish broad" working together to create Nazi nightmares--we get it, diversity defeats the master race.

That brings me to the main twist, revealed midway through the final episode: "Meyer" is actually the Nazi doctor "The Wolf"--a camp doctor so sadistic, we are told, he made Mengele uncomfortable. The Wolf tortured Meyer and Ruth at Auschwitz (because he wanted Ruth for himself) and he is the main Nazi they have been hunting. Via Pacino exposition, we (along with Jonah) learn that The Wolf escaped Soviet custody, killed Meyer, assumed his identity, had plastic surgery, and sneaked into the United States; he had been living and working for 30+ years as a Jewish businessman, learning Hebrew, reading Torah, and working with Jewish organizations, as well as hunting and killing Nazis. By living as a Jew, he realized the evil of his actions (and the wonders of being Jewish?);** the "hunt" was his penance. Imagine if Keyser Soze were a Nazi rather than a Turkish criminal mastermind and you have a sense of how the scene played.

[**] It helped that his sadism at Auschwitz was not ideological. He did not abuse Jews because he believed them inferior; he abused Jews because absolute power corrupts absolutely. So he could turn around and live a Jewish life because he did not regard Jews as bad.

This changes the show's underlying theme; it is no longer about vengeance v. procedural justice, but something different. Could someone who perpetrated horrors against the Jewish people turn around and live a Jewish life to thereby discover and atone for his past evils? Can someone truly atone for those acts, in the overall balance? Can such a person by these acts add goodness to the world (which is the purpose behind living a Jewish life). Is there something offensive about such a person--without conversion or publicly acknowledging his true identity--living this life, reading Torah, etc.? This is an interesting philosophical germ. But the twist was so unearned and so incoherent given the narrative that led to it that these questions were lost (especially when we piled onto the Hitler twist at the end).

Greenberg, Koufax, and Carew

Rod Carew occupies a strange place in the discussion of Jewish athletes. He was famously named as a Jew in Adam Sandler's Chanukkah Song I, based on stories from the late -'70s and early-'80s reporting that he converted or intended to convert. And there was this 1977 Time Magazine cover, in which he wears a chai around his neck (he wore it during games. But although he was married to a Jewish woman during his playing career and raised three Jewish daughters, Carew never converted. And he is divorced from the woman to whom he was married during his career; his current wife is Christian.

Nevertheless, based on early research I have been conducting into old box scores, it appears Carew avoided playing on Yom Kippur. He did not play on Yom Kippur 1971 (5732), Kol Nidre 1977 (5738), Kol Nidre 1980 (5741) (and he did not enter the following evening game until the 9th inning), Kol Nidre 1983 (5744), or Kol Nidre 1985 (5746).

I found several newspaper stories discussing this. In 1982, he played in a late-afternoon game before Kol Nidre, reportedly with plans to leave early if the game ran past 8 p.m. In 1977 (when Carew hit .388 and flirted with .400), newspaper stories conflicted about whether he missed a Kol Nidre road game to return home for treatment on his arm, whether it was planned for the Holy Day, or whether he planned it but used the arm as an excuse; either way, he did not play.

While not playing because of the Holy Day was discussed in wire-service stories in several seasons, this did not make national news. What could or did make national news 40 years ago was different. These seem to have been low-leverage games--never in the World Series or playoffs, never games in the heat of a close pennant race.

We may need to begin speaking of Carew in the same breath as Greenberg, Koufax, and (more recently) Shawn Green.

Criticizing basketball ref is protected speech

The Sixth Circuit on Thursday issued the opinion (by Judge Sutton) in Higgins v. Kentucky Sports Radio, holding that talking about sports, including criticizing officials, constitutes speech on a matter of public concern and thus could not be the basis for liability in the absence of the intent necessary to constitute incitement. (I wrote about an exchange during oral argument).

It is a great opinion by Sutton. It includes quotation from Gen MacArthur about protecting American freedoms such as "the freedom to boo the umpire." Saying that talking about sports represents speech on a matter of public concern is important to my ongoing project about fan expression. If talking about the game, including the refs, is protected on radio and the internet, it should be protected in the bleachers.

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.

Scope of the felon-enfranchisement injunction

The Eleventh Circuit last week affirmed a district court judgment declaring invalid a Florida law that required released felons to pay restitution and other "legal financial obligations" before their voting rights can be reinstated.

For my purposes, the injunction is limited to the 17 named plaintiffs in several consolidated cases. The Eleventh Circuit describes the district court preliminary injunction as "requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote." And it ends the opinion as affirming "the district court’s preliminary injunction enjoining the defendants . . . from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations." No matter how some sources have read the order, the court of appeals is clear that this is a non-universal/particularized injunction, entitling the seventeen plaintiffs, but no one else, to vote.

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

More on Dane on law clerks

Inspired by Paul's post, I read Perry Dane's piece on law clerks and their role in drafting opinions. And it seems to me that Dane's discussion meshes with Suzanna Sherry's argument for eliminating signed opinions (all majority opinions must be per curiam, no concurrences or dissents).

Both worry about the judge's-name-as-icon; the no-signed-opinions solution addresses their common worries. For Dane, the attachment between opinion and name is "why the contributions of law clerks to that work product raises such deep and uncomfortable questions."  For Sherry, the attachment between opinion and name creates the judge-as-celebrity culture that, she argues, has broken the Court. Eliminating signed opinions (which are neither required, inevitable, nor essential outside the U.S.) reduces the opportunities for judges to trade on their celebrity and play to their base. And it renders clerk ghost-writing less problematic because readers no longer read and interpret the opinion--the law--as the work of a named judge with an iconic identity.

Elam Ending and the NBA

The Elam Ending is an alternative format for the end of basketball games, designed to eliminate late-game fouling by the trailing team. The basic idea is that the game clock stops in the final 3 minutes, then the teams play to a target score (+ some number from the leading team's score at the 3:00 mark).

Sunday's NBA All-Star Game used a modified version--playing the Fourth Quarter without a game clock with a target score of +24 from the leading team (the 24 in honor of Kobe Bryant). The format was a huge hit, drawing raves from players, NBA officials, and the media. ESPN's Zach Lowe interviews Elam (now a professor of educational leadership at Ball State) about the game, the system, and what happens next.

I have never minded intentional fouling and I do not believe it makes the game unwatchable. But Elam's argument focuses not on aesthetics but on strategic success-fouling generally does not work, both because leading teams make enough free throws and the lapsing game clock forces trailing teams to rush shots. This format, in theory, allows both teams to run their regular offenses without the game-clock pressure. Elam said his format enables more comebacks (as seen in its use in The Basketball Tournament in 2017, '18, and '19).

Caminker & Chemerinsky on Pete Rose, MLB, and the Hall of Fame

Evan Caminker and Erwin Chemerinsky argue in The Times that Major League Baseball should reinstate Pete Rose, making him eligible for election and induction into the Hall of Fame.

Steve Lubet (Faculty Lounge) hits the glaring defect in their argument--they minimize the severity of Rose's misdeeds and their effects on the game by emphasizing that Rose never bet against the Reds, without acknowledging the downstream effects of his gambling choices. I do not have much to add to his argument.

Caminker and Chemerinsky also minimize Rose's misdeeds by comparing them with revelations about sign-stealing and PED use, maximizing the evils of those practice. But reasonable minds differ about sign-stealing and PED use. Many (including many who played the game) believe sign-stealing to be a well-worn part of the game and the ongoing search for a competitive advance and PED use to be the same as other scientific advances that improve performance. No one (I do not think) argues that gambling on baseball is OK.

The timing is interesting because President Trump last week called for TrumpRose* to be in the Hall, for many of the reasons Caminker & Chemerinsky present. Although they do not mention Trump, they agree on something.

[*] Freudian slip. Trump probably does believe he should be in the Hall of Fame.

It might be tempting to view this question through the controversy over Trump's many actual and threatened pardons, which C&C (especially Chemerinsky) have criticized. But that is not the right way to look at this. Rose was punished with a lifetime ban that included the opportunity to petition for reinstatement, with a presumption that any petition would be considered in good faith, if not with a presumption in favor reinstatement (and likely the opposite). Rose accepted the same punishment imposed on Shoeless Joe Jackson, Buck Weaver, and the rest of the Black Sox, several of whom petitioned (unsuccessfully) over the years. Caminker and Chemerinksy thus do not call for a pardon, but for the exercise of the discretion built into the sanction. They make arguments similar to those of  several Hall of Famers (including, I believe, Ted Williams) in the late-'80s/early '90s in favor of Jackson's reinstatement, following release of Field of Dreams.

Unsurprisingly, C&C do get the procedure right. They do not argue for Rose to be placed in the Hall. They urge MLB Commissioner Rob Manfred to reinstate Rose on the grounds that Rose has served the time for his crime against the game. Reinstatement would allow Hall voters to elect him, without requiring it; voters could decline to elect him as they have with Barry Bonds, Roger Clemens, and Mark McGwire, believing that the shadow of misconduct precludes election. Ironically, the rule that formally prevents Rose's (but not the others') election was codified in 1990, in response to the tide of pro-Jackson sentiment.  On the other hand, as a commenter on Steve's post points out, the Hall could repeal its rule and elect Rose even if he remains banned by MLB. 

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Uh, oh

Following the 2016 election, I identified breaking championship droughts as a random sports predictor that foretold Republican electoral success. If so, Democrats (including me) should be nervous this morning, as the Kansas City (Missouri) Chiefs won their first Super Bowl in 50 years--which I think qualifies as a long, if not quite as legendary, sports drought. This follows a number of other droughts that ended in 2019--St. Louis Blues win first Stanley Cup in 52-year history; Washington Mystics win first WNBA title; Washington Nationals win first World Series for D.C. since 1924 and first World Series in the 50-year history of the Expos/Nationals franchise.

Of course, we do have one counter-example in which end-of-drought coincided with Democratic success--the 2018 mid-terms followed the Washington Capitols' first Stanley Cup in a then-44-year history.

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.