PrawfsBlawg

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.

More on UIC (no longer John Marshall)

I wrote last January about Jason Kilborn at UIC (not John Marshall--why they changed it . . .), who was in the middle of a firestorm that began over a reference to a racial slur on an exam and went badly sideways. Andy Koppelman (Northwestern) has a long essay in the CHE updating the story, which includes a seemingly inaccurate committee finding of harassing conduct, continued student protests (with appearances by Jesse Jackson), and settlement of a brewing lawsuit.

It is a mess of administrative overreach and the collision of speech, academic freedom, and DEI. A la Yale. And it again illustrates my repeated point about recent academic-freedom controversies--When it happens at Yale or at UF, it makes The Times and the Post; when it happens at UIC, it makes the Sun-Times and the Chronicle. Not the same level of attention and thus not the same level of public pressure.

One final point of speculation: Would this have played differently if it had happened at the Former JMLS--stand-alone private urban law school--than when happening at UIC--large, majority-minority public university. Does the large administrative apparatus that accompanies a large public university exacerbate these types of incidents? Does it suggest that the public takeover--which I predicted 20+ years ago and regarded as an unalloyed good for the law school--has a substantial downside?

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Resources for new and aspiring ad law profs

Christopher Walker (Ohio State) at Yale J. Reg's Notice and Comment, for the ad law scholar in your life.

RBG and patriotic symbolism

Josh Blackman writes about an attempt by Bryant Johnson, RBG's longtime trainer, to defend the Justice against Katie Couric's report about RBG's comments on Colin Kaepernick. According to Johnson, RBG knew nothing about the Kaepernick controversy at the time of the interview. He subsequently explained to RBG that Kaepernick was protesting racial injustice rather than the country and that he chose this method at the suggestion of a veteran as a more-respectful alternative; RBG responded that she did not know the whole story and should not have answered the question. Josh calls B.S.

I return to my prior question: Does this tell us anything about how Ginsburg would have voted in Eichman and Johnson? Johnson's defense of RBG rests on the premise of her not having the full story and changing her mind once she realized Kaepernick was showing respect. But that leaves RBG's line at patriotic symbolic counter-speech showing unquestioned contempt for government and not allowed in the places their families came from, for which flag-burning qualifies. So what would she have done with flag-burning?

Four-Jew World Series after all

I am ashamed to say I missed this when it happened--it turns out we had our four-Jew World Series. Garrett Stubbs of the Astros, the team's third-string catcher, was placed on the active roster for Games 4, 5, and 6 when the back-up went into COVID protocols. That made this the first World Series with four Jewish players on active rosters. And Game 6 was the first Series game to feature four Jewish players when Stubbs caught the ninth inning. Unfortunately, Joc Pederson had been lifted for defense in the eighth and Max Fried had been taken out in the seventh, so the four were not in the game at the same time.

My apologies for not being on top of these historic events.

Buchanan on events at UF

Neil Buchanan, who teaches at UF and blogs at Dorf, has two great posts on events at UF, from a unique insider perspective--a new faculty member (he joined UF from GW in 2019), recruited to a chair and directorship, and lured by the university's stated goals of becoming another "public Ivy." He can focus on how this hurts the school's reputation and how it hurts faculty recruiting. Worth a read.

Sartorial choices, on the sideline and in the classroom

Since the COVID bubble in spring/summer 2020, NBA coaches have moved from wearing suits during games to warm-up pants and 1/4-zip pullovers with team logos. Last week, Candace Buckner decries "pandemic chic. The haute couture of polyester and wrinkle-free pants" that makes her "long for the days when the NBA sidelines showed a touch of class." Buckner discussed the article on the Hang Up and Listen podcast (around the 48:00 mark).

I have been teaching this semester, masked, in shorts and a pullover (my favorite clothes matching my favorite weather), as a sop to what I perceived as the oddness of wearing a tie and a mask, combined with the habits of wearing comfortable clothes at all times. In explaining the change to my students on the first days of class, I used NBA coaches as my analogue--if they went all-casual, so would I. I assured them it did not mean I took their education or the class any less seriously. But others would say they long for the days when the front of the classroom showed a touch of class.

Incidentally, I recognize that dressing like this reflects male privilege. I can do this without, it appears, losing status or respect from students; an untenured colleague and (likely) a non-cis-male colleague may not have that luxury.

What the hell is this supposed to be?

Spray-painted on a the cinderblock wall around a commercial trash bin. (Since someone asked--it looks to me like a Klan hood. I did mention that in the initial post because I did not want to prejudice commenters and did not want to appear to jump to conclusions if this image was somehow a thing).

 

Academic freedom in Florida and the quiet parts out loud

Perhaps trying to prove my point that attacks on academic freedom are likely to spread throughout the Florida SUS, Florida Atlantic University (public university in Boca Raton) is considering a proposal to give the full Board of Trustees, not the Board president alone, final authority on tenure decisions.

One trustee, recently appointed by DeSantis, wants a complete file beyond the short bio. She also wants to be able to plumb that file for a lot of additional information to use in a nakedly content- or viewpoint-based decision. Money quote from the article:

One paragraph doesn’t tell us a lot about a professor, his viewpoints, his research, his political affiliations or potential donations,” among other factors, she said. “I’m concerned about tenure moving forward. I speak not just for myself but for the governor. I can’t think of any other position out there where people have a job for life."

This will be used as evidence by the first person denied tenure under this new system. It also demands to see and rely on information that goes beyond the tenure file reviewed in any department, college, or provost's office. My tenure file contained nothing about my affiliations or donations (I suppose people could guess, although they would be wrong based on some of my recent work). I would wonder how DeSantis feels about this person speaking for him, but he probably shares her views.

Also evincing my point about what this happening outside the national media eye when it happens at a place other than the flagship university, the story is from the South Florida Sun-Sentinal, not the Washington Post or even the Miami Herald.

More on academic freedom at UF (Updated)

Updated: The university backed down, at least for the moment. The president convened a task force (including Clay Calvert, an excellent First Amendment scholar who teaches in the journalism school, and law dean Laura Rosenbury) to develop policies for "how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." That framing is problematic, still conflating the university with the state of Florida, but we have to see. The president also ordered the university conflict's office to reverse recent decisions and allow faculty to testify, for compensation, in cases to which Florida is an adverse party.

The University of Florida Chapter of United Faculty of Florida issued a list of demands. After the jump, I summarize and comment.

1) Allow the three faculty members to provide paid expert testimony in the voting-rights litigation, as well as allowing other faculty to do the same in other cases. They also want the university to issue a formal apology. Makes sense. This is what started this whole thing, which has brought to light other academic-freedom concerns at the university, such as state laws requiring schools to conduct "intellectual environment" surveys and limiting what faculty can speak to students about.

2) Affirm the right of faculty to "conscience, academic freedom, free speech rights, and expertise in an expert witness context, regardless of whether they receive payment for their expertise." Obviously.

3) Affirm its support for voting rights and commit to opposing ongoing efforts to suppress voting rights in the state of Florida. This is stupid, over-grasping, and unnecessary. There are good arguments (from scholars across the political spectrum) that academic institutions should not take institutional positions on public issues, no matter how obvious the issues. This demand says "it is not enough that we be able to express our preferred position, you also must tell us that we are right in our position." It also plays into the narrative of liberal academics controlling the university and silencing those who oppose their messages by insisting that their views be the institution's views.

4) Formally declare that the University's mission to serve the public good is independent of the transitory political interests of state officeholders. Instead, UF should uphold its mission statement as the prime directive for all University activities. Good.

5) Donors should withhold donations unless UF complies with the four main demands, including explaining why they are withholding. Interesting, but unlikely to do much. One of the faculty members at the press conference announcing these demands said he had donated to the school in the past and would stop doing so. But I doubt that the donors the university cares about--those who build buildings and endow centers and chairs--would follow suit.

6) Officials at other schools should tank UF in their US News and other assessments, because of this, as well as its response to COVID, its "poor commitment to environmental sustainability," and broader attacks on employees' speech, academic freedom, and labor rights. This is trying to hit UF where it hurts. The university made a big deal about becoming the #5 public university in the 2021 US News (trailing UCLA, Berkeley, Michigan, and Virginia and tied with UNC and UC-Santa Barbara)--there is a photo circulating of DeSantis with university officials, holding a # 5 Gators jersey. Again, though, why drag an unrelated political issue such as the environment into this?

7) Professional associations should call out UF.

8) Accrediting agencies should investigate, since failing to protect academic freedom undermines its ability to provide a world-class education.

9) Artists, scholars, and intellectuals who are invited to perform at the University of Florida should decline these invitations until the University complies with our academic freedom demands. When declining an invitation to appear at the University, invitees should clearly specify why they are declining the invitation and, if they are active on social media, should use the hashtag #NotAtUF.

I asked Steve Lubet (Northwestern) for his thoughts, as he criticizes calls for academic boycotts. He writes:

Academic boycotts are bad in principle because they undermine the free exchange of ideas. I understand the impulse here, which is to exert maximum pressure on the administration, but it would be performative and counter-productive. Desantis and his acolytes don’t care much about artists or visiting scholars appearing at UF, so only the students and faculty will be hurt. They should try demanding that other universities drop UF from their sports schedules, which might actually have an impact.

I would add that it would create a political imbalance in the exchange of idea, because conservative speakers will be happy to speak at UF, not only for the opportunity to speak but also to own the libs.

10) Call for a UF Faculty Senate resolution affirming these demands.

11) Employees should refuse to disclose outside activities and conflicts of interest via the UFOLIO system. Until the University can be trusted to use this information responsibly, it should not be trusted with this information at all. Nothing like some civil disobedience as a topper. But they might consider Tracy v. Florida Atlantic University, a different conflict between an SUS entity and faculty speech. Tracy, a professor of communications and media studies, ran a blog that questioned Sandy Hook; the university asked him to disclose the blog as an outside activity, Tracy refused, and the university fired him for insubordination. The Eleventh Circuit affirmed summary judgment in favor of the university, concluding that the disclosure policy was not constitutionally invalid and thus firing him was not inappropriate. That one does not trust the university to use information responsibility, divorced from any apparent constitutional violation in the disclosure rules, does not excuse the obligation to comply with the disclosure obligations. I suppose if enough people stop complying the university cannot fire everyone for non-compliance, so maybe it works in the short term.

I presume the university will back down on this; it does not want this to remain a national story. I remain focused on how this trickles down to my school.

JOTWELL: Pfander on Bray & Miller on equity

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022), including a shout-out to the SB8 litigation on everyone's mind.

Academic freedom in the Florida State University System

I have been watching the situation at University of Florida closely, especially now that it appears this has implicated three law professors who sought to put their names on amicus briefs. This could spread to other schools in the State University System. It is front page of the Washington Post because it is UF, a flagship public university in a large state that purports to be a top public research institution; I would worry about stuff like this sliding under the radar at a smaller institution in a smaller state. Keith Whittington has been covering this at Volokh in his role with the Academic Freedom Alliance.

Meanwhile, the FIU Faculty Senate entered the fray. Interesting to see how FIU and the state respond.

Courthouse Steps on SB8 arguments

As mentioned, I will be on the Fed Soc's Courthouse Steps to discuss the SB8 arguments with Stephen Sachs. Noon EST today, register here.

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.

 

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

A solution in WWH (Updated)

That did not go as I expected. If I had to read tea leaves, the Justices seemed inclined to let WWH go forward while allowing US to die on the vine, whether by rejecting the US's theory of the suit or counting on the US to voluntarily go away in deference to the private action. Some thoughts after the jump. I had predicted the opposite, thinking that the "this is a unique law" would justify a unique case by the US, whereas allowing WWH to go forward opens up a new realm of federal constitutional litigation that the Justices are not anticipating.

My theory has been that WWH cannot work because there is no one to sue--no executive enforces and Mark Dickson has not shown an intent to sue. WWH's theory--sue the judges and clerks--does not work because they are not responsible executive officers and they are not adverse to WWH and other providers. But Justice Sotomayor, with Kagan and Breyer weighing, offered something that works (which I had not thought of) without the slippery-slope concerns.

Part of the EPY fiction is that enjoining the attorney general (or whomever the responsible executive officer is) reaches everyone below the AG who enforces the law; an injunction barring the AG from enforcing a criminal law would prohibit a DA from initiating an individual prosecution.* So apply that idea to the deputized private SB8 plaintiffs who act as the equivalent to DAs--enjoin the AG based on his residual enforcement authority and the injunction applies to every individual private enforcer beneath him. The theory requires the additional step (which never came up during argument) of whether and why SB8 plaintiffs act under color of state law, which would have cut through Stone's resistance to the idea that private individuals were agents or deputized. They are not agents or deputies, but they are performing a traditional-and-exclusive public function in enforcing law for the public benefit. Under SB8, private individuals serve the role of individual DAs or other enforcing officers captured in an injunction against the highest responsible state officer.

    [*] Texas SG Judd Stone pushed back on Texas DA's independent authority. Kagan attempted to get at this by asking what would happen if a state enacted a heartbeat ban with ordinary criminal punishment. She never got a good answer. But she (and I) cannot believe that if Texas enacted a law criminalizing all abortions that an injunction prohibiting Greg Abbott from enforcing that law would not be read to prohibit every DA from enforcing the law).

WWH narrowed its theory in its Reply and in the argument, focusing clerks as the real target of the suit and remedy. My guess is they ran from language in EPY saying federal courts cannot enjoin judges from adjudicating, as well as the argument that judges do not enforce and are not adverse to the litigants. Docketing a case is "administrative" in a sense, so it fits better with the idea of stopping enforcement. The problem remains that clerks are no more adverse to the litigants than the judge is. The clerk is a neutral recipient and processor of the lawsuit enabling the (neutral, non-adverse) judge to adjudicate. [Update: Stephen Sachs explains why suing clerks makes no sense, including why the shift from enjoining enforcement of the law to enjoining "commencement" of the suit does not work, because the enforcer and commerncer remains the party bringing suit, not the clerk who puts it in the system).

Sotomayor's new theory works because it does not eviscerate private civil litigation or the state power to decide what laws to enact and how to enforce them. It applies to unique circumstance in which the delegation of exclusive enforcement authority for the benefit of the public renders private state-law plaintiffs state actors/persons acting under color of state law It would not apply to ordinary civil litigation to remedy a personal injury that will be met with a federal constitutional defense. This theory works because the expansion of the injunctive power under  fits the elements of the law being challenged. "Sue the AG to reach the deputized enforcers" can be limited to the extraordinary law that deputizes private plaintiffs to enforce state law--absent deputized enforcers, the theory does not work and so does not affect other lawsuits.

On the other hand, thereis no logical way to limit "sue-the-clerks" to the extraordinary case than by fiat--declaring SB8 (and presumably its imitators) as unique (based on several elements the Court and WWH identified) and creating a Bush v. Gore-good-for-this-trip-only process. Otherwise, the option of suing clerks to avoid the chilling effect of having to litigate defensively in state court logically must be available to any state-court defendant with a constitutional defense. Suing clerks also has serious administrability problems. Clerks ordinarily do not (and cannot) review or analyze lawsuits before docketing them, so an injunction would require them to do something they typically do not do. Moreover, Alito offered the hypothetical of a plaintiff who brings an SB8 claim along with a malpractice or IIED claim; lawyers for WWH said that the clerk could not accept that suit, although it would be under ordinary tort law, with none of the special problems of SB8. This suggests that "sue the clerks" cannot be limited to SB8 claims.

Update: Consider a real-life example, courtesy of Eugene Volokh: There is ongoing debate about whether the right of publicity can exist in light of the First Amendment and the constitutional limits on the scope of that tort. The First Amendment battle is fought defensively--plaintiffs suing for violations of the right of publicity and speakers defending on First Amendment grounds. If the Court allows suits against clerks, any speaker fearing a right-of-publicity claim would take that option rather than waiting for a suit and a defensive posture. The only way to avoid that is for a court to say "SB8 is different," although those differences have nothing to do with the choice between offensive and defensive litigation.

Now we wait, I expect for a few weeks--I believe the Court will decide this before argument in Dobbs on December 1. The question whether the Court takes the smart way to resolve this without blowing up the ordinary rules of constitutional litigation. Sototmayor's question offers a way that is less destructive than allowing EPY actions against clerks and judges.

The most-Jewish World Series has not been good for the Jews (at least so far) (Update)

As we head back to Houston with the Braves leading 3-2, it has not been a good series for The Tribe.

• Alex Bregman has two hits in 18 at-bats and has struck out five times. He was moved from third to seventh in the line-up for Game 5. He drove in the Astros first run in Game 5 with a second-inning double, although he failed to come through with the bases loaded and with a runner on second later in the game.

• Joc Pederson has one hit in 11 at-bats and has struck out three times. He did not start two of three games in Atlanta (played without a DH). He pinch-hit as they tying run in the bottom of the sixth, but popped out in foul territory to third. The defense was shifted, so the play required a long running catch--by Bregman.

• Max Fried took the loss for the Braves in Game 2, giving up six runs on seven hits in five innings. Reports on the game say he did not get hit hard, but everything the Astros hit found a hole. He has a chance to redeem the Series for Am Yisrael when he starts a potentially clinching Game 6 on Tuesday. Here's hoping.

Update, Nov. 3: The Brave won the Series in six games. Fried was the star of Game 6. He pitched six shutout innings, giving up four hits (none particularly hard hit) and striking out six on 74 pitches. He got Bregman (again batting seventh) twice--a strikeout in the fifth (a bad call-the pitch was low) and a foul fly to right in the first that was caught by Pederson on a nice play. Pederson was 0-for-4 and Bregman 0-for-3, making them a combined 3-for-36 for the Series. Pederson did become the ninth player--and first Jewish player, obviously--to win consecutive World Series with different teams.

Two more historic points. First, Fried became the fourth Jewish pitcher to win a Series-clincing game, after Larry Sherry ('59 Dodgers), Koufax ('63 and '65 Dodgers), and Holtzman ('73). Second, people are calling Bregman's flyout the most Jewish play in World Series history--Jewish pitcher, Jewish hitter, Jewish fielder credited with the putout.

The solution cannot be worse than the problem

In advance of this morning's arguments in the SB8 cases ( US v. Texas and WWH v. Jackson), Ilya Somin endorses the amicus brief of the Firearms Policy Coalition against the validity of SB8 (it is concerned that a Blue state will enact a similar law targeting firearms owners). The gist is that the enactment and existence of a constitutionally violative law that chills the exercise of constitutional rights violates those rights and the courts can enjoin whoever "adopts and implements" the law, including judges and private individuals who have not revealed themselves.

This position has broad implications. It rejects a number of established principles, especially with respect to suing judges and with the question of what constitutes a constitutional violation. It would be least appealing to Justice Thomas, the staunchest advocate of gun rights. It also places a centrality on offensive/preemptive federal-court adjudication, resting on the belief that defensive state-court litigation is per se insufficient to protect constitutional rights. That undermines among other things, Younger and perhaps the well-pleaded complaint rule as applied to constitutional defenses (which is the best solution to this). It shifts massive amount of litigation into federal court--any tort defendant with a First amendment defense would be entitled to a federal forum and adjudication of the federal issues in federal district court.

The beauty of resolving this case through United States rather than through WWH is that it does the least damage to the ordinary flow of constitutional litigation. The federal government will sue only in the extraordinary case, so a broad take on its powers to seek anticipatory relief will be be more limited than one that says any rights-holder facing enforcement of state law in a way that might violate their rights is gauaranteed a federal forum by suing the state-court judge.

The Myths of SB8

Rocky and I have a post at Balkinization previewing Monday's arguments in the SB8 cases. Short answer: United States v. Texas should proceed on either standing theory with an equitable cause of action, while WWH should fail for lack of a proper defendant to sue or enjoin at this time (whether they call it standing, sovereign immunity, or no violation on the merits).

I will write something about the argument on Monday. And I am doing an argument post-mortem for the Federalist Society (with Stephen Sachs of Harvard) on Tuesday. Yes, my views on this align with Fed Soc rather than ACS--we live in strange times.

Conversion and Jews in sports

Those of us who care about Jews in sports wield a broad definition of Jewish--basically anyone with a Jewish parent, maybe even a Jewish grandparent, and anyone who converted before or during his playing career (e.g., 1970s outfielder Elliot Maddox). But what about players who convert in retirement? Should we regard them as retroactively Jewish, so that their sports achievements and records become part of the record for "Jews in Sports?" Can we count a player's statistics and records accrued when he was not Jewish when accruing them? Can a player who was not when playing be named to the All-Time Jewish team after the fact?

I wrote recently that this is the second three-Jew World Series and that Max Fried pitching to Alex Bregman in the first inning of Game 2 was the first time a Jewish pitcher faced a Jewish hitter in the Series. Readers have challenged both points. On the first, a reader pointed out that the A's had three Jewish players in the 1972 Series--Ken Holtzman, Mike Epstein, and pitcher Joe Horlen. On the second, a reader said (which I had known) that Holtzman faced Dodgers catcher Steve Yeager in the 1974 Series, Yeager going 1-for-3 with a double and a strikeout.

Horlen and Yeager converted in retirement when each married a Jewish woman. So neither qualified as a Jewish player at the time. Anyone looking at A's roster during the '72 Series would have identified two Jewish players--who went by the nicknames of "Ordinary Jew" and "Super Jew," respectively. Holtzman pitching to Steve Yeager in 1974 was no different from a Jewish standpoint than Holtzman pitching to Steve Garvey.*

[*] I have danced around the question with Yeager in wondering whether to count his four home runs and Series MVP in 1981 and in not including him in my Yom Kippur study because he would have had no reason or impulse not to play on those days.

But should it be? Judaism speaks of conversion as the person "coming home." The person did not change, in that her soul or spirit has always been Jewish and one of the Jewish people who received Torah at Sinai. He is the same person, returning to the fold. The Talmud also discusses retroactivity in designation or impurity of items. How should that apply in who we recognize as Jewish and how we honor and recognize individual achievements? Maybe I will come back to this next Shavuot.

Nikolai Yezhov, the Chicago Blackhawks, and the historical record (Updated)

Update, Nov. 3: The Hall removed Aldrich's name. An utterly cheap move that makes the Blackhawks feel good about themselves while doing absolutely nothing for anyone.

I have not written about the ongoing fallout in the NHL from the Chicago Blackhawks' failure to punish an assistant coach, Brad Aldrich, who sexually assaulted and harassed one player (who has identified himself as former prospect Kyle Beach) and harassed another during the team's 2010 Stanley Cup run. This offers a great summary. I am not  a hockey fan and have not had anything to add, other than that Reid Schar, the Jenner & Block partner who led the investigation, is a law school classmate.

But I had to respond to this morally bankrupt attempt to "make amends:" Blackhawks owner Rocky Wirtz wants the Hockey Hall of Fame to remove Aldrich's name from the Stanley Cup (the names of every player and other person from a champion is engraved on the Cup). Here are the major points of Wirtz's argument:

    • "[I]t was a mistake to submit his name. We are sorry we allowed it to happen."

    • "While nothing can undo what he did, leaving his name on the most prestigious trophy in sports seems profoundly wrong."

    • Citing precedent: The Hall removing from the 1983-84 champion Edmonton Oilers the name Basil Pocklington, father of team owner Pete Pocklington, because Basil played no role on the team (other than, I suppose, siring Pete decades earlier).

    • "Principle and our moral belief that a convicted sex offender does not belong on the Stanley Cup."

I will be outraged if the Hall grants Wirtz's request. Frankly, Wirtz should be ashamed for making the request (although he will not be, just as I question how ashamed he is of this entire mess, beyond how it affects his hockey team).

As a starting point, I do not like ex post punishments that excise the historical record. I do not like it when the NCAA strips wins, records, and championships from programs, coaches, and players. Regardless of whether they broke some rules (e.g., Michigan's Fab Five or Pete Rose), ignored predatory off-field behavior (e.g., Joe Paterno), or were generally bad people during or after their careers (e.g., Curt Schilling but probably many others), they built a real-life historical record and retaining that record matters. Sanctions for misconduct should not entail falsifying what happened in real-life events. I oppose putting Pete Rose in the Hall of Fame and am mostly agnostic about putting Barry Bonds, Roger Clemens, etc. in the Hall; I would object to MLB removing Rose's name from atop the list for career hits or Bonds's name from atop the list of home runs in a season. Each accomplished something in the real world that we record; we cannot eliminate a previously acknowledged role in documented real-world events, like erasing Nikolai Yezhov from a photograph.

But context makes Wirtz's request worse than the usual effort to purge history. The Blackhawks' misdeed was that team leadership failed to take action against Aldrich for more than three week after receiving what they deemed a credible and confirmed report of the assault and harassment; they did nothing against Aldrich for almost four weeks, until after they won the championship (during the celebration of which Aldrich reportedly made a sexual advance on a team intern). The reason team officials did nothing was because they did not want the dreaded "distraction" and harm to "team chemistry" in the midst of a Cup run. Michael Baumann at The Ringer exposes the idiocy of believing the team would have descended into chaos had it suspended its video coordinator. That aside, the Blackhawks' official position, borne by the actions of its top officials, was that Aldrich was essential to their championship and the team could not succeed without him. It therefore cannot rewrite history by erasing contributions that the team believed at the time were so essential to its success that leaders no choice but to overlook credible allegations of sexual assault for a month.

The team's position at the time makes the lone cited instance of erasing a name worthless as support. The Oilers should not have included Basil Pocklington in the first instance, because he played no role in the team or its championship. That is not the case with Aldrich, or so the team's actions in 2010 would have us believe. The argument that removing his name remedies an original mistake also fails. The Blackhawks won the Cup on June 10 and notified H.R. about the accusation on June 14; on June 16, H.R. gave Aldrich a choice of resigning or submitting to an investigation and he chose the latter. From the Blackhawks' standpoint, the situation was resolved--the wrongdoer was no longer with the team. I do not know when the team provided the list of names to the Cup engravers, but either undermines the "it was a mistake to submit his name" narrative. If they sent the list prior to Aldrich resigning on June 16, it was not a mistake, because Aldrich was still a team employee and still part of the championship. If they sent the list after Aldrich resigned on June 16, the immediate inference is that it was not a mistake, but was intended not to continue to avoid calling attention to Aldrich's (and the team's) misconduct by including his name on the cup but being rid of him going forward.

Wirtz's argument is immoral on its own terms. He cites his moral belief that a "convicted sex offender" does not belong on the Cup. But the Blackhawks' wrongdoing--for which this move is supposed to be penance--has nothing to do with the criminal conviction. Aldrich was convicted three years later of sexual assault involving a minor in a subsequent coaching job, having nothing to do with the Blackhawks or the assault of Beach in 2010. (The attenuated connection is that the Blackhawks' failure to sanction Aldrich and to attempt to stop him from getting other coaching jobs allowed him to get the high-school coaching job that gave him access to that later victim). But then Wirtz is not making this request because of Kyle Beach. Imagine everything unfolded as it did except Aldrich was never convicted on that later, unrelated offense. There would be no "convicted sex offender" with his name on the Stanley Cup; Wirtz's principle and moral belief would not apply to this situation or require Aldrich's name be removed solely for the assault on Kyle Beach for which he was not convicted. Maybe that is not what Wirtz intended to say. But that is the logical conclusion from his words.

Finally, Wirtz's request is, at bottom, selfish. Removing the name does not sanction Aldrich in any meaningful sense--he has larger concerns than whether his name is one of thousands on a metal cup in a museum. It does not benefit Beach. Accepting that Beach is injured by Aldrich reaping the rewards of being associate with a championship team, he watched Aldrich reap those immediate rewards in 2010--celebrating with the team in the moment, spending a day with the trophy (the greatest tradition in sports), and receiving a playoff bonus as part of his severance.

This move benefits the Blackhawks, but no one else. It allows them to erase from the historical record any connection between Aldrich and that championship team. Future generations who look at the piece of the Stanley Cup dedicated to the 2010 Blackhawks will not see the name "Brad Aldrich," so no one will ask who Brad Aldrich is and no one from the Blackhawks will have to explain that he was an assistant coach who was allowed to continue coaching after the team learned and believed he had sexually assaulted a player. The opposite should occur--the historical record should capture Brad Aldrich's connection to the Blackhawks and it should remain a written stain on the team and that season.

Jewish showdown in the World Series

I was unable to watch Game 2 on Wednesday (ironically enough because of a Temple meeting). The Astros rocked Max Fried for five runs in the first two innings and six overall (Fried's second straight poor outing after being unhittable since August) in a 7-2 win to even the Series.

As predicted, the first Jewish pitcher v. Jewish hitter showdown in a World Series came when Alex Bregman came to bat with one out and a runner on third in the bottom of the first. He hit a sacrifice fly, which is kind of Solomonic in terms of which Jewish player prevailed in the showdown--Fried got Bregman out, but Bregman drove in a run to give the Astros an early lead. Fried retired Bregman two more times, including a fifth-inning strikeout.

Overall for the Series, Bregman is 0-for-7 with three strikeouts, while Joc Pederson is 1-for-8 and struck out three times in Game 2. With Fried's Game 2 loss, this is not going well so far. But, hey, it took 40 years to reach the Promised Land.

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

SCOTUS grants review in SB8

SCOTUS granted cert before judgment in United States v. Texas and WWH v. Jackson, with argument on November 1. The grant in Texas is limited to whether Texas can sue. The Court declined to lift the Fifth Circuit's stay of the injunction in United States, so the law remains enforceable; Justice Sotomayor was the lone dissent on that point.

Our papers are about to change dramatically.

JOTWELL: Mullenix on Norris on neoliberal procedure

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Luke Norris, Neoliberal Civil Procedure, 12 UC Irvine L. Rev. (forthcoming 2022).

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Misapplying the thin-skulled plaintiff

I agree with most of Ruth Marcus' takedown of Yale Law School's attempt to extort an apology from a student over an obnoxious email.*

[*] The student surreptitiously recorded his conversations with two deans--is Connecticut a one-party state?--and it is really hard to listen to those recordings in which the deans remind him of applying to the Bar and not laugh when the school says "No student is investigated or sanctioned for protected speech." No sanction, but a not-subtle "nice Bar Exam you have to take, shame if you get dinged by not apologizing."

I take issue with this:

Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation.

The eggshell plaintiff is a go-to move in discussions (critical or supportive) of attempts to restrict offensive speech. Feminist anti-porn arguments rested on this theory--the eggshelliest person might decide to emulate porn and commit crimes against women, so this rule justifies banning porn. Marcus tries to argue that everyone is acting like an eggshell plaintiff as to offensive speech and that law-school administrators are allowing.

Both arguments rest on a misapplication of the eggshell-plaintiff concept. Marcus defines it correctly--a wrongdoer takes the injured person as he finds her and must pay a uniquely great compensation for a uniquely great injury. But this is a compensation rule, not a liability rule. A person is not liable for conduct that would not injure an ordinary person, and thus is not wrongful, even if it injures the eggshell plaintiff. The rule kicks in when the defendant has engaged in wrongful conduct and we have to determine how much he pays--compensation is tailored to the injured plaintiff, even if her injuries, and thus the compensation, are unusually great. We do not establish our liability rules according to the weakest, most sensitive, most easily persuaded, or the most easily offended. The eggshell rule cannot be used to justify greater restrictions on speech or conduct and should not be used to explain them.

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

The final version of the story, which meant to promote a compilation of Ginsburg’s writings called, My Own Words, included her criticism of ‘stupid’ and ‘arrogant’ protesters.

But what was left out was arguably more inflammatory.

Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'

She said: ‘Which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly. And that’s why education is important.’

Couric claims that she ‘lost a lot of sleep over this one’ and still wrestles with the decision she made.

I will leave criticism of Couric's journalistic practices and the cult of RBG to others.

 

I want to pose a different question: Given these views of disrespect for the flag, how would RBG have voted in the flag-burning cases? Burning a flag shows greater "contempt for government" and is more a thing someone could not do "in the place they came from" compared with kneeling during a flag-centered ceremony. Ginsburg generally followed the left-liberal view of free speech. But perhaps, like Justice Stevens, she believed the flag and its surroundings demand a unique First Amendment carve-out.

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

JUSTICE KAVANAUGH: Does the same kind
of rule apply in private litigation? So suppose
a private plaintiff sues a private defendant
under state tort law. The state -- the private
defendant argues that the state tort law is
unconstitutional, and the court on appeal rules
that the tort law is unconstitutional, okay?
And the state -- the private plaintiff, sorry,
chooses not to seek en banc or cert.

Can a state AG intervene in that
circumstance even though the private plaintiff
has chosen not to seek en banc or cert to argue
that the state tort law is, in fact,
constitutional?

MR. KUHN: I think this Court told us
in Hollingsworth that a private party defending
state law is just a different matter than a
state official who has sworn an oath to defend
Kentucky's constitution who is popularly
elected.

So I think the state in that
circumstance would --

JUSTICE KAVANAUGH: The state tort law
in that circumstance will be declared
unconstitutional. And I think, by saying it's
different, you're saying the state AG in that
case could not seek en banc or cert even though
the state tort law had been declared
unconstitutional?

MR. KUHN: Our position is not that he
could not do so but that it would not be as easy
of an argument in that circumstance. I think it
matters that we have a handoff from one state
official to another, both of whom are sworn to
defend Kentucky law.

I think a lot of the things I'm saying
today would be consistent with the -- with the
hypothetical that you're talking about. But I
think we're perhaps a half step beyond that and
this is a much easier case than the one you've
hypothesized.

I do not know if Kavanaugh asked the question with SB8 (or its many tort analogues) in mind, but it is relevant. When the state delegates enforcement power to private parties for the purpose of eliminating offensive (preemptive/anticipatory) litigation by rights-holders, it would be the height of chutzpah to claim the power to intervene as the law's primary defender if it does not like the private -party delegee's litigation decisions. Kentucky's SG seemed to recognize the crux of the issue as the difference between the state acting when it is defending a law challenged in offensive constitutional litigation and the issue is which executive officer can lead that defense and the state acting when a private person has enforced the law by initiating judicial proceedings and the question is how the law is being litigated.

Competing incentives and obligations create a unique twist on this exchange as to SB8. An anti-choice SB8 plaintiffs who loses in the trial court has less incentive to appeal the constitutional issue if they lose in the trial court. Given the obvious (for-the-moment) invalidity of SB8, anti-choice activists are better off with the threat of litigation and liability chilling providers than they are appealing an adverse judgment and establishing likely adverse binding precedent. But what about the state? Would it attempt to step-in if a private plaintiff gives up on litigation? Or does it have the same incentive to let sleeping dogs lie and leave the constitutional issue unresolved as binding precedent and allow the chilling effect to continue.

This reflects another difference between offensive and defensive litigation. Offensive litigation produces a  remedy for the rights-holder, such as injunction, that, depending on the plaintiff and the right at issue, protects against future enforcement. The state thus has an incentive to appeal to avoid those those prospective limitations. Defensive litigation does not grant a rights-holder a prospective remedy, only a favorable judgment in one attempted enforcement. Like the private SB8 plaintiff, the state may be willing to take the loss in that case but to leave the legal issues unresolved to allow future enforcement and future litigation.

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.

 

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

Court enjoins enforcement of SB8 (Updated and moved to top)

Order here. I am beginning to go through it. I have already found some loose language about the US stopping states from enacting invalid laws, as opposed to enforcing. But it adopted the broad views of standing I expected.

OK, I am back. Nothing in here is too surprising. A few comments, mostly as it affects my interests in the procedure of the case. My overall conclusion is that the result is defensible in the unique context of a suit by the United States. But it is wrong in a number of points along the way, reflecting the common mistakes in the overall discussion of SB8.

• The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.

• The court ignores the distinction between enforcement of a law and the creation and existence of a law, treating both as a source of a constitutional violation and something to be enjoined. This is wrong, as stated in Massachusetts v. Mellon, a case the court relies on in according the U.S. parens patriae  standing. The court compares this case to Cooper v. Aaron. But Cooper was about enforcement--the local officials sued were members of the executive branch who were executing the laws surrounding school admissions and thus were proper subjects for an injunction. The legislators who enact a law do not enforce it and the executive officers do not do anything here. The court ignores that distinction.

• Both of the above are unfortunate, because there is another way. The court points out that the state delegated enforcement authority to private individuals--that is, the act of delegation is state action. Delegation makes the private actor part of the state, so the "state" should include those private actors exercising delegated state power, separate from judges and clerks. An injunction against the state reaches everyone acting for the state, including all authorized private individuals. I think that is justifiable and consistent with the idea that courts enjoin executives from enforcing laws, no one else.

Update: I should clarify the above. A  court enjoins actors from doing certain things. It enjoins the executive from executing, but cannot enjoin the legislature from legislating and cannot enjoin judges from judging. If one enjoined party does all three things, then the order must be limited to enjoining that executive function, but not the other functions. The rough analogy is Supreme Court of Virginia v. Consumers Union, an action against the state supreme court and its chief justice over bar disciplinary rules. The court performed three functions--it legislated in enacting the rules, executed in initiating disciplinary proceedings, and adjudicated in ruling on those proceedings. The Court allowed the injunction, but only as initiating disciplinary proceedings. Similarly, the court could enjoin Texas from enforcing, capturing everything and everyone under Texas law authorized to enforce, including deputized private individuals.

• The court buys the United States argument that meaningful judicial review means federal judicial review that begins in a federal district court. Anything else--including SCOTUS review of state-court judgments in which constitutional rights are raised defensively--is constitutionally deficient, precludes individuals from vindicating their rights, and warrants federal judicial intervention before anything can happen in state court.. The court emphasizes how state procedure limits providers' ability to defend SB8 actions in state court through (the court implies) invalid restrictions, without considering that the validity of those restrictions can be challenged in state court and can form the basis for SCOTUS review. Everyone on the left is lauding this is "indisputable," as calling Texas out on a cynical and invalid ploy to avoid judicial review.

But this position means that state tort law is invalid, to the extent a tort is defined in an unconstitutional manner. To use the example we include in our papers: Imagine a state anticipates the overruling of New York Times and redefines its defamation law to not require actual malice. Since tort law can only be enforced in private litigation, would that procedure also be improper, justifying an injunction against state judges? And if not, what is the difference between this case and my hypothetical new tort law? The implicit answer is SB8 is not tort law, because the authorized plaintiffs have not been injured. But that begs the question of what "tort law" is and whether a state can adopt a broader understanding of what injuries are or should be sufficient for suit. The court never addresses this.  This case is different from ordinary tort law, but those differences go to why SB8 plaintiffs act under color when ordinary tort plaintiffs do not. But it should not change anything about the routine and proper nature of private civil litigation and of raising constitutional rights in a defensive posture.

• The court addresses Texas' concern that this opens the door to the United States suing states, insisting the U.S. will limit itself to the exceptional case. I have described this as the U.S. suing when it can get "more bang for the buck" through a single big case. The court identifies some features that make this a big case.

• I agree with the broad take on U.S. injury and an equitable cause of action even absent congressional authorization. And I agree that there is causation and redressability, but not for the reasons the court identifies.

• Texas filed a Notice of Appeal to the Fifth Circuit (PIs are immediately reviewable) and stated it as related to the pending appeal in the WWH case. The question is whether the Fifth Circuit or SCOTUS stays the injunction pending review. They should not stay it. This is a blatantly invalid law. Once a court finds the correct procedure to enjoin enforcement, the irreparable harm from actual or threatened enforcement means the injunction should be in effect until resolution of the litigation.

More to come, almost certainly.

SB8 and SCOTUS politics

SB8 is getting caught up in debates over SCOTUS politics, whether the justices are partisan hacks, and the shadow docket. This is skewing some of the discussion of the validity of the law and how providers and advocates should navigate it.

The Court was right to deny emergency relief. The WWH lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.

SB8 critics--in the media, in academia, and in the WWH dissent offer three basic arguments. The first is that the Court can enjoin SB8 itslef (and keep it from taking effect) because it is so clearly invalid and it hid intended to avoid preenforcement reveiw, so it does not matter who the defendants were. That, of course, is not how constitutional litigation works. Court enjoin enforcement, not laws. The Constitution does not dictate that states adopt any enforcement mechanism or that offensive litigation be an option in challenging a law.

The second is that the usual target (AG or governor) was unavailable, so WWH sued everyone it could think of (true), therefore the Court should have enjoined enforcement because someone in that mix must be a proper defendant. That would have given some court time to dig through and find that proper defendant. But that is not how this works. It is on the plaintiffs to identify proper defendants. And there may not have been a proper target for offensive litigation at this moment. Dickson or another individual could be subject to a federal suit, but he must make some move towards bringing an SB8 suit that he has not yet made. Sometimes (e.g., defamation) state law is enforced only through private litigation and challenged only defensively.

The third argument is that the outcome in SCOTUS would have been different if the political valence of the law had been different--that five-Justice majority would have granted relief, despite the glaring procedural problems, if California banned gun purchases and allowed private suits against gun owners. This assertion is neither provable nor disprovable. But accept it as true (it probably is). So what? Granting emergency relief in that situation would be wrong and it would expose the Justices as the results-oriented partisans they insist they are not. But the solution to that problem is not that the Court should have granted relief here --that it should have been wrong when the case carried a different political valence.

Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.

Newell's Law Review Meta-Rankings 2021

Since we are ranking things, here is Bryce Newell's 2021 Law Review Meta-Rankings.

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

Florida sinks to Texas' level

Florida Rep. Webster Barnaby (besides vying for most Southern name imaginable) has introduced the Florida Heartbeat Act, a carbon copy of SB8--ban on post-heartbeat abortions, no public enforcement, private civil action by "a person" against providers. No surprise, either that there is a copycat or that Florida would be the first copycat. Given how quickly this is going to fall apart, one wonders if it is worth the bother. But Ron DeSantis needs something else to run on. And maybe a few months of stopped abortions, until the wheels fall off, is sufficient.

It will pass next year, take effect in July 1, 2022, and we will be back where we are. My guess is that rather than wasting time on offensive litigation, providers will be quicker to set-up the defensive test case: Perform the abortion on July 2, find a friendly plaintiff on July 3, and off we go.

The truth of SB8

The Times reports on the two SB8 lawsuits, including a quotation from Supreme Court litigator Paul Smith that defensive litigation is the "nicest, cleanest way" to get to SCOTUS, which is what we have been arguing from the start. This is not speedy or comprehensive. But no litigation is, in fact, comprehensive in the sense of one case prohibiting all enforcement. And defensive litigation avoids having to endure the Fed Courts seminar that offensive litigation requires.

I was struck by this bit of honesty from anti-choice activists in Texas:

These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

The complaints about the lawsuits being "plants" or about Braid inviting the lawsuits is nonsense. Activists do not get to control who avails themselves of a legal right they advocated for. They drafted the statute to allow "any person," without limiting "any person" to those that share their policy goals or positions.

I do wonder what to make of the idea of enacting a law with no intention of enforcing it, hoping that the chilling effect of the risk of enforcement will be sufficient to stop the disfavored conduct, without actual enforcement. Is that a legitimate use to make of law? On the other hand, it suggests that the fears of crippling litigation and judgments might have been overblown. There was no real threat of overwhelming liability because no one wanted to enforce. But the possibility of a lawsuit by "friendly" plaintiff who will bring the claim and allow for litigation means the law does not, in fact, insulate the law or thwart judicial review.

These are not very bright guys, and things got out of hand

Operation Rescue has asked the Texas Medical Board to investigate Dr. Braid and to suspend and permanently revoke his license, based on his admitted performance of a post-heartbeat abortion. (H/T: David Cohen of Drexel). The letter is a sight to behold, explaining that Dr. Braid wants to be sued for his "defiant attitude and unlawful act," so OE went to the Board to seek a sanction without giving him what he wants. It also is stupid, if the goal of this and other anti-choice activists is to make it difficult to get a judicial ruling on the constitutional validity of the heartbeat ban.

The lone viable theory to get into federal district court is an action by medical providers (doctors, nurses, clinics) against the regulatory boards to stop "indirect enforcement"--licensed professionals must adhere to health laws, including SB8, so the licensing bodies can be enjoined from using an SB8 violation as the predicate for a licensure action because SB8 is constitutionally invalid. The original WWH complaint (the one sitting in the Fifth Circuit and in which SCOTUS refused to enjoin enforcement pending review) included claims against the medical, nursing, and pharmacy boards on this theory. In denying the motion to dismiss the appeal and staying the district court proceedings, the Fifth Circuit stated that SB8’s prohibition on public enforcement includes this sort of indirect enforcement.

Operation Rescue’s letter argues the opposite of that position. If the medical board moves on this, it is going to have a harder time arguing in the ongoing WWH suit that it does not and will not yield indirect enforcement authority. That means WWH has at least one claim against one defendant for which there is standing and no sovereign immunity and that can move forward in federal court and allow for resolution of the law’s constitutional validity. Alternatively, Braid has a state actor against whom to bring a new lawsuit in federal court. There is standing and no sovereign immunity, because possible enforcement is imminent based on the complaint, unless the Board again conclusively disclaims this enforcement authority. Any injunction will not stop any private individuals from pursuing claims and will not protect advocates from aiding-and-abetting claims; it would protect only providers from licensure actions. But this creates a path to (limited) federal litigation and quicker path to SCOTUS and binding precedent that the heartbeat ban is invalid, which will govern future private actions.

If the Board moves forward on this complaint, it creates some tricky abstention issues. The now-pending state administrative proceeding may require the federal court to abstain under Younger, at least as to any claims Braid brings himself or in the WWH case. Braid then has the same anti-abstention arguments that could lie against private SB8 plaintiffs--no adequate opportunity to raise the constitutional issue in the state proceeding, bad faith, flagrantly unconstitutional law. Also, the question of indirect enforcement is a state-law issue that might require certification or Pullman abstention. As I said, this law is a Fed Courts/Civil Rights class.

But here is a larger point. SB8 was drafted by a smart lawyer and legal scholar with a particular understanding of constitutional law and litigation (that I happen to share). The law contains moving pieces and requires collective patience to achieve its desired result--stopping abortion through actual or threatened civil liability while eliminating any governmental targets for immediate offensive litigation in federal court. But operatives on the ground seem to lack that sophisticated understanding or patience and, without realizing it, may undermine the law's complex scheme. OE's letter illustrates that impatience and apparent lack of understanding of what the law is designed to do. Whether it undermines the grand plan depends on what happens next.

Update: An additional thought. As Mary Ziegler has argued, this is not the first time states have attempted to use private civil litigation. In the 1990s, activists tried to sue providers for medical malpractice, failure to give informed consent, and other misdeeds. But interest in this slow, bel0w-the radar process died out in favor of direct and high-profile attacks on Roe itself. The OE letter reflects that.

We have our SB8 test case (Udpated)

We have our SB8 test case(s). On Saturday, Texas doctor Alan Braid wrote an op-ed in the Washington Post announcing/confessing to performing a first-trimester-post-heartbeat abortion. On Monday, Oscar Stilley filed suit in state court in Bexar County. Stilley is a disbarred lawyer and tax protester, under home confinement serving a 15-year sentence on tax charges. Expect to read a lot more about his brand of insanity, some of which appears in the complaint--he alleges that he called Braid and asked him to "repent of his ideology as well as his deeds" and filed suit only when "such respectful efforts" failed to secure an agreement.

Update: A second suit was filed by a "pro choice plaintiff" from Illinois, also in Bexar County. Further Update: This plaintiff also is a lawyer who has encountered some disciplinary problems.

I agree with the comment someone made on the ConLawProf listserv: This is the plaintiff Texas deserves for enacting this nonsense. I would be curious about what the anti-choice community thinks of this suit. This is not who they want as the face of the movement nor is he likely to offer the best defense of the law. In the same way the reproductive-rights community wants an appealing person to violate the law, those seeking to defend the law want an appealing plaintiff. I imagine activists were happy with the current state of affairs--no lawsuits, no abortions in the state, running out the clock until (they hope) a favorable decision in Dobbs. (Further Update: The head of Texas right to life is not happy, calling the suits "self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes." This is a long way of saying "Fuck, we have been hoisted on our own petards.")

Braid's first move in state court should be a motion to dismiss on constitutional grounds and a request for expedited briefing. The more interesting question is whether Braid brings a § 1983 action against Stilley on a public-function theory (in enforcing state law under an exclusive delegation, Stilley is performing a traditional-and-exclusive public function) and seeks to enjoin him from pursuing the state-court litigation. This might be the path into federal court. We are off and running.

The second, "pro choice plaintiff" complaint is its own form of nonsense that undermines its own strategy. One paragraph moves the court to declare the act unconstitutional and another alleges that Braid did not violate Roe (whatever that means) and that the act is unlawful. This is not the way to do this. There is room for what Rocky labels "arranged" litigation, in which a plaintiff who supports reproductive freedom brings the lawsuit and is willing to lose, giving the doctor the opportunity to challenge SB8's constitutional validity, including on appeal. The statute allows "any person" to sue, so there is no basis for the court to look for either injury or adverseness; a person can say he is suing because he needs the money. But the sympathetic plaintiff must act like a plaintiff by alleging that the defendant violated the law; it is on the defendant to make the arguments against the law. But given the pervasive misunderstanding of procedure in this mess, it should not be surprising that the first moves come from people who cannot get the procedure right.

JOTWELL: Steinman on Bayefsky on respect and Article III

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021). This is a great article (and great review), although I unsurprisingly do not believe the model, however valid, gets us to universal injunctions.