PrawfsBlawg

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Amar on exam-writing

Vik Amar at Above the Law offers some thoughts about writing good exam/assessment questions. He hits on four ideas: Offering more and different assessment opportunities; having a balance of open- and closed-book assessments (the latter to account for the need to prep for the Bar); using real cases or events (good idea, but be careful how you write it); and proper notice of the rules. Interestingly, on the third point, Amar does not warn about students being upset, offended, or traumatized by the real-world situations.

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Florida supports free speech in universities . . . sometimes

I wrote last month about the free-expression statement adopted by the Florida State University System. I described it as a good statement, emphasizing  the importance of not stifling ideas because some find them offensive or abhorrent and of not allowing stated concerns for civility or respect be a cover for stifling expression.

Yesterday, the state took a giant step backward when the governor, at a cabinet meeting in Israel (which may be unlawful under state sunshine laws) signed into law a broad prohibition on anti-Semitism at public educational institutions. It defines as anti-Semitism a broad range of protected (if heinous) speech about Jewish people and about Israel. The law does include a clause that it shall not be construed to "diminish or infringe" upon protected constitutional rights. But the point of the April statement was to emphasize the special role of free expression on college campuses. It said not that the First Amendment applies there (because, duh), but that free speech plays a special role there and members of those communities must be especially tolerant of even repugnant ideas. Unless those ideas are anti-Semitic. FIRE is not happy.

This law does tie back to the discussion over that New York Times cartoon from April. The law defines as anti-Semitism certain criticism of Israel, while allowing "criticism of Israel that is similar to criticism toward any other country." But comments to my post and Steve Lubet's separate Faculty Lounge post argue that criticism of Israel may be anti-Semitic even if it is similar as that leveled at other countries, if the criticism plays on historic anti-Semitic stereotypes.

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:

Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.

“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”

First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily  deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.

Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.

Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate  her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.

[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?

Read more here: https://www.fresnobee.com/news/local/article230903884.html#storylink=cpy//www.fresnobee.com/news/local/article230903884.html#storylink=cpy

Mitch McConnell and neutral principles

Over the weekend, Senate Majority Leader Mitch McConnell told a Chamber of Commerce luncheon that the Senate would fill a Supreme Court vacancy that should arise in 2020, contra his arguments in 2016 that the Senate should not fill Justice Scalia's seat in an election year but should let the people decide who should fill the vacancy. Asked to explain the seeming inconsistency, McConnell spokesman David Popp said the difference is that in 2016, the President was a Democrat and the Senate was controlled by Republicans, while now the Republicans control both.

Obviously that is nowhere close to what McConnell argued three years ago. But what would McConnell say about the converse of 2016--would not filling the seat be similarly proper when the President was a Republican and the Senate controlled by Democrats? That is, was Popp's point about split partisan control (a nonsense argument, but at least neutral) or was it specifically Democratic President and Republican Senate that made it ok, while the converse would not be?

I would have expected a different disingenuous argument, one that would sound slightly more neutral: The difference is that in 2020 the incumbent is seeking reelection and so is in the prime of his executive power, whereas the Democrat presented to the voters was not the current President. Again, a stupid argument. But it at least pretends to rest on some principle besides "now my party has the White House."

We have Nieves (finally)--now what?

After six months, the Court finally decided Nieves v. Bartlett. My SCOTUSBlog analysis is here.

I am guessing the long delay owed to five opinions flying around with different combinations of ideas. Eight Justices agreed that the plaintiffs should lose here on summary; only Sotomayor would affirm, because the defendants did not challenge the way the Ninth Circuit applied the standard. Eight Justices agreed that that the presence of probable cause does not automatically defeat all retaliatory-arrest claims; only Justice Thomas made that argument. Two Justices (Ginsburg and Sotomayor) argued that the Mt. Healthy burden-shifting framework should apply; two Justices (Sotomayor and Gorsuch) argued that any direct evidence of improper motive, not only comparison of similarly situated persons, should be sufficient to show improper motive. A five-Justice majority (the Chief for Breyer, Alito, Kagan, and Kavanaugh) said probable cause is required unless the plaintiff can show objective evidence that he was arrested when similarly situated persons who did not engage in his speech were not. Both Sotomayor and Gorsuch feared this standard was insufficiently protective of First Amendment interests--Sotomayor's solution was to challenge the standard as wrong, while Gorsuch's was to work the lower-court refs and convince them that the majority's approach is broader than its language would suggest.

I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument. Second, no one emphasized proposed limitations as between serious and petty crimes or as between probable cause for the immediate charge at the time of arrest or probable cause based on a months-long scouring of the statute book.

Also, note the way Sotomayor's dissent engages with recent scholarship exposing the reality of police/public interactions and the litigation that results. This includes noting that any defendant police officers likely were indemnified and that most encounters are recorded by both police and members of the public, producing more evidence to prove (or disprove) improper motive.

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)

I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.

I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.

Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).

Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.

Waiting for Nieves v. Bartlett

SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five six months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28). It was obvious from the argument that the Court was divided and searching for a middle ground that would leave officers free to handle disorderly conduct situations while not leaving police free to arrest government critics for minor violations, while also not having lots of cases going to trial. The long drafting time suggests a divided court and multiple opinions.

The Court heard ten cases in this sitting; seven have been decided and three remain--Gamble (Fifth Amendment separate sovereign), Carpenter (how much of eastern Oklahoma remains Indian reservation), and Nieves. Roberts and Alito have not written anything from this sitting. Both seemed inclined towards the officer in Nieves.

What's Roe got to do with it?

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

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

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

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

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

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

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

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

The new abortion laws and judicial departmentalism (Updated)

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

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

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

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

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

Ballparks as public spaces and free speech

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

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

The end of the Warren Court (Reposted and Updated)

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

But it is more than just the appointing party.

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

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

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

Fun with evidence

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

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

Anyway, something to share next semester.

Ginsburg wields the assignment power

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

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

SCOTUS overrules more precedent, no textual support to be found

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

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

Predicting SCOTUS on universal injunctions (Updated)

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

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

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

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

* * *

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

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

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

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

Empathy, LGBT rights, and employment discrimination

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

More on Kavanaugh and empathy

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

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

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

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

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

It is the empathy, stupid

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

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

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

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

Bodycams and police discretion

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

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

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

Taking universality seriously (Updated)

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

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

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

The correct answers should be as follows:

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

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

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

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

Electing women

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

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

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

About that New York Times cartoon

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

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

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

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

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

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

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

More fast-food justice

The "Hash Brown Defense" worked.

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

Two thoughts, one frivolous, one serious.

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

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

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

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

President Trump meets the Speech or Debate Clause

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

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

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

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

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

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

SCOTUS argument recap: Too many metaphors

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

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

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

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

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

Judicial departmentalism and the rule of law

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

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

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

SCOTUSBlog preview: Accrual § 1983 actions

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

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

Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions

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

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

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

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

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

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

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

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

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

Your [Office holder]

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

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

27th Annual Rothgerber Constitutional Law Conference: National Injunctions

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

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

Free speech petards

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

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

Constantineau returns again

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

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

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

Theme warning.

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

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

Inclusive forests and racist-insult trees

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

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

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

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

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

Football or basketball? Boise State or Gonzaga?

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

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

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

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

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

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

Personal jurisdiction problems in Nunes v. Twitter (Updated)

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

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

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

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

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

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

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

Racial bias and diversity jurisdiction

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

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

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

Nunes v. Devin Nunes' Cow

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

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

More right-wing snowflakes are outraged

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

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

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

Another right is clearly established--flipping cops the bird

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