PrawfsBlawg

Don't be a lawyer

We are big fans of Crazy Ex Girlfriend, especially the music. Tonight, the show takes on law school and practicing law. Enjoy.

Update: Having seen the episode, the main plot development is the lead character deciding she does not want to be a lawyer anymore (although she is shown as being good at it). I must admit to expecting her to decide midway through the episode that she instead would become a law professor.

On the Georgia voting case

A district judge in the Northern District of Georgia on Wednesday preliminarily enjoined enforcement of certain regulations, specifically the "exact match" requirements for absentee ballots. Plaintiffs were three voting-rights organizations and a number of individual voters. A few thoughts:

• This is the type of case that Amanda Frost highlights as appropriate for universal* injunctions--time-sensitive and on a large scale. But this case also shows ways to extend the scope of the injunction by extending the scope of litigation. The court found that the voting-rights organizations had direct standing, given the burdens the regulations placed on them in having to notify the public of this problem. The organizations also argued associational standing on behalf of their members, although the court did not address that. The case also would have been perfect for a 23(b)(2) class and the court could have entered a classwide preliminary injunction prior to certification.

[*] Another reason "universal" works better as a term--an injunction halting enforcement of state law can be universal in extending beyond the parties, but not nationwide in any sense. And to then have nationwide and statewide injunctions would add a layer of nomenclature to the identical problem.

• It is interesting that no political party or campaign sued and attempted to assert third-party standing on behalf of voters (the typical path to broad injunctive relief against voting restrictions). This illustrates the way in which the franchise has become a partisan issue--one party wants to make voting more demanding (put aside whether the reasons are valid or not), the other party wants to make voting easier and available for more people (again, put aside whether for valid reasons or not). So a party jumping into a lawsuit, even to protect a neutral principle such as the right to vote, will appear to be acting for partisan advantage. This is especially true in Georgia, where the person making and enforcing the restrictions is a candidate for governor.

Two worth reading

Light week, but I wanted to link to two pieces worth reading.

The first is by Brooke Coleman (Seattle) on the unrepresentative composition of the Rules Committees (as appointed by the Chief). The second compares the linguistic paternalism and authoritarianism of the LGBTQ+ movement to the anti-porn feminist movement of the 1980s.

JOTWELL: Lahav on Frost on nationwide injunctions

The new Courts Law essay comes from Alexandra Lahav (UConn), reviewing Amanda Frost, In Defense of Nationwide Injunctions (N.Y.U. L. Rev., forthcoming). My views on this subject are well-known here. Amanda visited FIU last week to present her paper and to debate  injunctions for several student organizations.

70 Years of the International Law Commission

This Friday and Saturday, FIU Law Review will host 70 Years of the International Law Commission: The Role and Contributions of the ILC to the Development of International Law. It is organuzed by Charles Jalloh, my colleague at FIU and a member of the ILC. The roster includes judges, scholars, and ILC members from around the world. Friday schedule is here, Saturday schedule is here. It will be live-streamed, so plan to check it out.

Infield Fly Rule as Mitzvah

On last week's edition of Tablet Magazine's Unorthodox podcast, a listener letter (read at the 1:07 mark) argues that baseball is the most Jewish sport, because it has "long tradition, weird and obscure rules that are subject to interpretation and doesn't change on a whim."

I like it, but it got me thinking: Which of the 613 Mitzvot is analogous to the Infield Fly Rule?

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Historical baseball note

This may prove premature; if so, I apologize. The Red Sox and Dodgers, two of MLB's historic franchises, are each one game away from the World Series, so I had to look up whether they had ever met in the World Series in those long histories. The answer is in 1916, when Babe Ruth was the Red Sox star pitcher and the team from Brooklyn was known as the Robins. The broadcasters could have fun with this one.

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Catch-up rule in baseball

I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Might progressives adopt judicial departmentalism?

Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.

Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.

But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).

I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Back-to-back Jewish World Series

Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.

Truly baseball's new gildene elter. 

JOTWELL: Walsh on Hickman on severability

The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.

Better Call Saul does legal-academic fundraising

In the Better Call Saul season finale, Jimmy donates $23,000 to an area law school to name the library Reading Room after his brother. Just how unrealistic was that? What is the going rate for naming rights for a room in a law school?

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Ford has clearly libeled Kavanaugh. Libel is a published false statement that is damaging to a person’s reputation. Ford gave uncorroborated information to the Washington Post, which published it and damaged Kavanaugh’s reputation.

Uncorroborated does not mean false. Perhaps Ford's allegations are false; that they are uncorroborated has nothing to do with their falsity.

This has been a recurring theme. There is no requirement in the legal system (putting aside whether a confirmation process should be treated as a legal proceeding) that a claim be corroborated; the plaintiff's testimony is evidence. Whether it is sufficient to prove a case depends on the type of proceeding and the standard of persuasion. Perhaps a victim's statement is not alone enough to satisfy beyond a reasonable doubt, but this never was a criminal procedure. On a lesser standard such as what governs whether a person should receive a lifetime appointment to a powerful job (whatever that standard may be), uncorroborated testimony may be sufficient, depending on whether the factfinder believes that uncorroborated statement.

In a court of law, . . . the burden of proving the truth of a derogatory statement is on the defendant.

No. Kavanaugh is a public official and Ford's speech was a on a matter of public concern, whether that public figure engaged in criminal or inappropriate conduct. The burden of persuasion is on the plaintiff to prove the statement was false. And he must do so by clear and convincing evidence.

New York Times Company v. Sullivan is ripe for being overruled. Yes, the Supreme Court can overturn prior cases. See Plessy vs. Ferguson.

Justice Antonin Scalia said he abhorred the New York Times case:

NYT is not going anywhere. Not least because Justice Scalia no longer is on the Court--the event that has pushed us down the current hole. Justice Kavanaugh certainly would never vote to overrule NYT because, as Sen. Collins reminds us, he reveres precedent. So does Justice Gorsuch, who wrote a book about it. Unless NYT is not "settled law." Anyway, NYT is a cornerstone of the modern First Amendment and exists precisely so public officials cannot use civil suits to silence critics.

This belief/assumption/preference that NYT be overruled might explain the above error about the burden of persuasion as to truth. NYT shifts the burden from common law (where statements are presumed false and truth is a defense); if NYT is overruled, that shift goes with it. Which is why NYT will not be overruled.

A court should hold that Ford, dredging up a 36-year-old uncorroborated claim, is guilty of constructive malice — reckless disregard of the truth.

Reckless disregard of the truth is the NYT actual-malice standard that the author just said should be (and will be) overruled. So what he is really saying is that Ford is liable even under NYT. Maybe she is, but this contradicts the prior paragraph. And, again, I am not sure why the age of the claim or its lack of corroboration say anything about Ford's statement of mind.

(There is an interesting question whether actual malice has any place with respect to the first-person source of information talking about her own experience, as opposed to the media republishing it. Ford either believed her statement true or knew it false; I doubt there is an in-between.)

It would be poetic justice if Justice Kavanaugh could be the deciding vote — on his own case!

It would be the height of irony, actually. The author begins the piece decrying the Democrats' abandonment of the presumption of innocence, "a hallmark of Anglo-American jurisprudence and of Western Civilization." Putting aside whether the presumption of innocence (which is merely about the allocation of burden of production) has a meaningful role in a job interview, I doubt it is more of a jurisprudential hallmark than nemo iudex in sua causa--no one should be a judge in his own case.

Anyway, the real reason Kavanaugh will not sue (and that perhaps Ford,WaPo, or others might wish he would) is not that it would be "unseemly for a judge to sue." It is unseemly for a judge to spew conspiratorial Fox News talking points, but that did not stop Kavanaugh from writing and giving that prepared statement. Kavanaugh will not sue because a lawsuit will trigger a meaningful discovery process designed to get at the truth of Ford's statements. Kavanaugh would be subject to a sworn deposition taken by a competent questioner. Discovery would include depositions and interviews of numerous witnesses, not limited by the preferences of the White House or an artificial one-week deadline. The author assumes Ford is lying (and WaPo knowingly reprinted a lie). I do not know, because I have not seen anything resembling a fact-finding process. Kavanaugh suing would create that very process.

President Trump is famous for threatening to sue critics (even thought it would appear equally unseemly for the President to sue) and never following through. Even after some outlets egged him on. Apparently some members of conservative media have decided to make the same move on behalf of Justice Kavanaugh.

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Barnette at 75

I am happy to say that FIU Law Review's symposium Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" was a great success, with three terrific panels and a wonderful keynote speech by John Q. Barrett (St. John's) on Justice Jackson's particular approach towards a series of contemporaneous disputes involving Jehovah's Witnesses.

Video of the entire event can be found here.

One other shout-out: At the same time as our program, Georgia State hosted a conference on Anthony Kennedy's jurisprudence, including one panel on Kennedy's prose. At perhaps the same moment as that panel, several of us were having a conversation, sparked by one speaker noting the unformulaic nature of Jackson's Barnette opinion--was Kennedy, in opinions such as Obergefell, trying to be Justice Jackson?

Barnette at 75 (Move to top)

Beginning at 9 a.m. Friday (tomorrow) is the FIU Law Review Symposium, Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." The link includes the video for the livestream. The livestream and recording also are available here. The issue of the Law Review (which will include published transcripts of the Q&A sessions) will be published later this academic year.

The full schedule is after the jump.

Panel 1: Barnette in Historical Context

 

Chair and Moderator

Dean Joëlle Moreno, FIU College of Law

Comments

Ronald K.L. Collins, Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship

John Inazu, Barnette and the Four Freedoms

Genevieve Lakier, Barnette, Compelled Speech, and the Regulatory State

Brad Snyder, Frankfurter and the Flag Salute Cases

 

Panel 2: Reading Barnette

Chair and Moderator

Prof. Tawia Ansah, FIU College of Law

Comments

Paul Horwitz, Barnette: A Close Reading (for Vince Blasi)

Aaron Saiger, The pedagogy of Barnette

Steven Smith, “Fixed Star” or Twin Star? The Ambiguity of Barnette

 

Keynote Address

Prof. John Q. Barrett, St. John's University School of Law

 

Panel 3: Barnette in Modern Context

Chair and Moderator

Prof. Howard M. Wasserman, FIU College of Law

Comments

Erica Goldberg, “Good Orthodoxy”and the Legacy of Barnette

Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions

Leslie Kendrick, A Fixed Star in New Skies: The Evolution of Barnette

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Data Science and Law (and Farewell)

In my last post I want to briefly discuss the experience of Bar-Ilan Law Faculty (where I serve as Dean) in a new joint research initiative with the Bar-Ilan Data Science Institute. This joint project builds on Bar-Ilan strength in data science (DS), especially in the fields of natural language processing (NLP) and network analysis. The project is motivated by idea that the law rich textual and web structure makes it a great medium for analysis using the methods of NLP and network science (see, e.g., my recent paper, Transnational Networked Constitutionalism, co-authored with Ofir Stegmann). We currently have more than 20 on-going research projects using DS methods in various stages.  

Our experience in these joint studies has raised several challenges and questions and I will be happy to hear from others who have been involved in similar projects about their experience. We will also be very happy to cooperate with other institutions.

Probably the most critical issue for the success of such projects concerns the need to move into a team based work. Almost all our projects are based on joint teams that include, DS and law profs, graduate students and supporting stuff. This mode of work brings legal research closer to empirical social sciences and research in the natural sciences. It requires willingness and openness from both the DS and law side.

Another challenge we had to cope with from the start is how to think about the roles of the DS and law profs in such joint project. A naïve way to think about such cooperation is that the law side should be responsible for collecting the data and the DS side should be responsible for analyzing it. We think that this is a mistaken paradigm. A good interdisciplinary DS-law joint-project must involve the two sides across the whole life-cycle of the project. It is important that the DS people will be involved at the data collection phase (which involves critical questions about what data to collect and how to structure it) and in the hypothesis framing phase. It is also necessary for the law side to be involved in the analysis phase (even if the technical analysis will be led by the DS people). This requires ‘each side’ to develop some understanding of the ‘other’ knowledge domain.

Another question concerns the publication and evaluation of the results of such interdisciplinary projects. In most cases the main contribution of the project would be in the legal domain and not in computer science or in mathematics. It will commonly use existing methods to study law-related questions (although law could also trigger innovation in the DS domain). However, a significant work may need to be done in order to adapt and apply such methods to specific research questions and environments. This means that the venues in which such work could be published would probably be in legal journals that accept empirical work. This could create a motivation problem for the DS people. Solving this problem requires university authorities to explicitly support interdisciplinary work and to recognize the contribution of DS people even when the work is published in journals outside the DS domain. Equally law profs should be ready to venture beyond traditional legal publications toward DS journals (where the focus could be on the more technical aspects of a project). Such extension of the publication spectrum is important for the feasibility of such joint-projects.

Let me close by thanking Howard Wasserman and the forum again for having me as a guest this month. Thanks also to all those who responded and commented on my posts.   

"Nationwide" Injunctions Are Really "Universal" Injunctions and they are Never Appropriate (Final)

I am pleased that the final version of my article on universal injunctions has been published in Lewis & Clark Law Review. The editing process over the summer was quite adventurous. I added four or five different updates and sets of changes to account for new developments, including resolution of the travel ban (and Justice Thomas' concurring opinion), the court of appeals decisions on scope-of-injunction in both sanctuary-city cases, and the class action in the unaccompanied-minor abortion litigation.

Arguing about the right issue

Bloomberg reports on oral argument in Hargan v. Garza, the challenge to HHS policy surrounding pregnant unaccompanied immigrant teens seeking abortions. (Marty Lederman analyzes the arguments). The district court certified a class of all pregnant immigrant teens in HHS detention, then issued a class-wide injunction. According to the report, the plaintiffs' attorney received some pushback on the scope of that class, because it includes pregnant teens who are not seeking abortions (counsel responded that the issue also was access to abortion counseling).

The point is that the plaintiffs in this action followed the right procedures--define and redefine the class, then have the injunction match the class. Universal injunctions in individual cases allow plaintiffs to skip that step--no one would take on the difficult work of defining and certifying a class if the court is willing to leap to an injunction that protects the universe based on a complaint by one person.

Can you say "Speech or Debate"?

I am a Democrat. But this may be the dumbest thing I have seen. Even if a court could enjoin executive branch officials to turn over documents (questionable on political question grounds), the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote. As one commentator put it, that's just not how any of this works. I also doubt Merkley has standing to sue the executive, but there is no reason to even reach that issue.

Barnette at 75

I have mentioned this previously, but FIU Law Review and FIU College of Law will host Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" next Friday, October 5, at FIU College of Law. We have a great slate of speakers, including our own Paul Horwitz.

The program is open to the public, so please attend if you are in the Miami area.

JOTWELL: Effron on Manta on Tinder lies

The new Courts Law essay is from Robin Effron (Brookyln), reviewing Irina Manta, Tinder Lies (Wake Forest L. Rev., forthcoming), which proposes a small-claims court vehicle for remedying lies and fraud on dating apps.

Kavanaugh and the burden of proof

In The Atllantic, Benjamin Wittes addresses the issues of burden and standard of proof with respect to Brett Kavanaugh, the allegations against him, and his confirmation. A lot of people have been talking about these issues (often under the catchphrase "presumption of innocence") in the abstract, without diving into what they mean or how they apply.

Wittes argues that Kavanaugh bears the burden of persuasion because he wants the factfinder (50 Senators) to do something--confirm him to the Court; he is not entitled to that unless he can affirmatively convince them that he should be on the Court. The burden of persuasion is understood as the risk of non-persuasion--who bears the risk of losing and of not getting something if the factfinder is not persuaded. In other words, what is the status quo, who must change the status quo to prevail, and who loses if the status quo remains the same. If Kavanaugh were being prosecuted for sexual assault or sued by Ford for sexual assault, the burden would be on the state or Ford to change the status quo and show that he did what is alleged. If Kavanaugh was impeached and facing a Senate trial to remove him from the D.C. Circuit, the burden would be on the impeachers to show that he should be removed from the bench because he committed the disqualifying act. In each of those, the status quo is that Kavanaugh is free, not liable, and on the court of appeals. Here, the status quo is that he is not on the Supreme Court, so he bears the burden of showing that he should be, including whatever relevance the incident in 1982 may have to his qualifications.

Wittes also considers the standard of persuasion as the more-interesting question, because there is no agreed-upon or meaningful standard for this proceeding. One possibility is there is none, that the standard is ideological and nothing more. Wittes suggests two standards from Kavanaugh's standpoint--"minimally convincing" (enough to convince the few Republican stragglers to join the already-declared Republicans to confirm him) or "no asterisks," meaning enough evidence that a reasonable person will not doubt Kavanaugh's integrity or fitness for the position. Wittes argues that meeting something somewhere in the middle will not be sufficient for Kavanaugh to not only serve on the the Court, but to serve meaningfully or effectively.

An infield fly rule for fake fair catches?

Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.

The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.

The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal.  North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.

So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.

My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.

FIU COL leads Florida Bar passage . . . again

A bit of shameless school self-promotion. I am happy to say that FIU College of Law again led Florida law schools in bar passage, at 88.1 %. By my count, this is the sixth time in the past seventh Bar administrations that we have led the state (on the seventh, we finished second, missing by one). We remain a well-kept secret in legal ed.

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

1. Regulation and Governance (10)
2. Law and Human Behavior (13)
3. Stanford Law Review (1)
4. Harvard Law Review (2)
5. Psychology, Public Policy, and Law (18)
6. Yale Law Journal (3)
7. Texas Law Review (4)
8. Common Market Law Review (22)
9. Columbia Law Review (5)
10.  The Journal of Law, Medicine & Ethics (29)
11. University of Pennsylvania Law Review (8)
12. Journal of Legal Studies (15)
13. Harvard Environmental Law Review (14)
14. California Law Review (6)
15. American Journal of International Law (19)
16. Cornell Law Review (7)
17. Michigan Law Review (9)
18. UCLA Law Review (12)
19. American Journal of Law & Medicine (36)
20. Georgetown Law Journal (11)
21. International Environmental Agreements-Politics Law and Economics (41)
22. American Journal of Comparative Law (25)
23. Journal of Law, Economics, & Organization (37)
24. Journal of Law and Economics (35)
25. International Journal of Transitional Justice (42)
26. Law & Policy (44)
27. Harvard International Law Journal (26)
28. Chinese Journal of International Law (47)
29. Journal of International Economic Law (48)
30. Law and Society Review (46)
31. Antitrust Law Journal (27)
32. Indiana Law Journal (24)
33. Behavioral Sciences & the Law (51)
34. Virginia Law Review (16)
35. New York University Law Review (17)
36. Journal of Empirical Legal Studies (39)
37. Leiden Journal of International Law (54)
38. University of Chicago Law Review (20)
39. Social & Legal Studies (58)
40. World Trade Review (61)
41. Vanderbilt Law Review (23)
42. Harvard Civil Rights-Civil Liberties Law Review (32)
43. Modern Law Review (63)
44. Annual Review of Law and Social Science (49)
45. European Constitutional Law Review (64)
46. Oxford Journal of Legal Studies (59)
47. Journal of Environmental Law (65)
48. European Journal of International Law (57)
49. Law & Social Inquiry (62)
50. George Washington Law Review (31)

Australian politicians as bad as U.S. politicians . . .

in their reaction to a nine-year-old girl refusing to stand and sing the Australian national anthem (as a show of support for Australia's indigenous people). (H/T: A student looking ahead to our Law Review Symposium on Barnette's 75th anniversary).

The CNN story says "the school had tried to be respectful of her wishes by providing alternatives, such as not singing along." There remains a nice question as to precisely what Barnette protects as a First Amendment matter (which obviously has nothing to do with the Australia story. Is it all participation in patriotic rituals or only having to recite the words while otherwise participating in the ritual. That is, could the proposed alternative (stand at attention, don't speak) be imposed on a student?

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Question: Does anyone know if actor Luke Kirby is Jewish? I have seen him in three shows--Rectify, in which he played Jewish lawyer Jon Stern; Fabulous Mrs. Maisel, in which he plays Lenny Bruce; and now the new season of The Deuce, in which he plays a Koch aide named Gene Goodman. Just curious.

Thought: One character on the show is a porn producer named Harvey Wasserman. Early in the episode, during a disagreement between Harvey and Maggie Gyllenhall's Eileen about a movie clip, Eileen says "Fuck you, Wasserman." While perhaps many a student thinks it, I don't hear that said on TV very often.

Serena and the umpire

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

• The first called violation and warning, for coaching, was correct, as even her coach, Patrick Mouratoglou, admitted he was coaching. And however common coaching is,* it does get called, against men and women, black and white. And this chair umpire is known to call it more than others. This perhaps could have been an instance in which Mitch Berman's temporal variance was appropriate and it should not have been called midway through the second set of a Grand Slam final.  And race and sex might have had something (not everything, but something) to do with the umpire's willingness to call a ticky-tack violation at that key time.** On the other hand, Drum points out that the coaching was not subtle, so an easy target for this call.

[*] Or should be. I recognize the argument, that Mouratoglou made when interviewed after the match, that the rule should be eliminated. That has no role to play here. Civil disobedience is still a crime and still punishable until the unjust law is repealed.

[**] Berman's temporal variance argument begins with one of Williams' previous officiating meltdowns, in the 2009 Open semi-finals.Williams was called for a foot fault on a second serve when she was down 15-30 and serving to stay in the match. The call pushed her to 15-40 and match point. That prompted Williams to threaten the line judge, resulting in a code violation. And because Williams had received a violation for--wait for it--smashing her racket, the violation resulted in a point penalty and the end of the match. Pattern of behavior? Pattern of targeting the African-American woman with ticky-tack calls at key moments? Bit of both?

• The interesting thing about this call--and the thing that caused many of the subsequent problems--was that Williams took it as a personal affront to her, an accusation that she was cheating. She protested the call by talking about her daughter and how she would rather lose than cheat; her later demand for an apology was premised on this understanding, that the ump had accused her of cheating. But any "cheating" was by the coach, not Williams. Coaching is "communication, advice or instruction of any kind and by any means to a player," which Mouratoglou was blatantly and not subtly doing via hand signals; the rule does not require that the player see, hear, or respond to the coaching, only that the coach engage in communication. So her taking this as an affront to her honesty or sportsmanship misunderstands the nature of the rule. The player is punished for the coach's misconduct (presumably so the player will tell the coach to knock it off). But the player need not do anything wrong for the infraction to be called.

• Williams somewhat undermined her own cause here. She insisted that she had not seen any coaching, but that is beside the point. But Williams also said she had looked up and seen Mouratoglou, but he only was giving her the thumb's-up. This suggests that she saw something and there was some communuication. Unfortunately for Serena, the cameras were following Mouratoglou and it appeared he was doing much more than giving the thumb's-up.

• The second violation, for breaking the racket, which resulted in a point penalty as a second infraction, is a no-brainer--she did, in fact, destroy her equiment. And, again, the argument that the rule is stupid and made for a game that was played by delicate white men and not strong, athletic, competitive African-American women is beside the point. Again, if the rule is bad, change the rule; otherwise, follow it. A game before Osaka had slammed her racket after a mistake, but the racket did not break, so there was no violation.

• My point of departure from Drum is whether sex (and race) had anything to do with the third violation, for umpire abuse (which resulted in the game penalty). This was a judgment call and Williams was ranting. But we see men's players, especially the top men's players, given a lot more leeway in arguing with officials; it is difficult to imagine any of the top-three men's players getting called for saying the same things Williams did, especially at that point in a championship match. This infraction was not called solely because Williams is an African-American woman. But it is not an unreasonable inference that the umpire's fuse was shorter with her than it would have been with a white man, especially accounting for her position as the GOAT and the idea that the GOAT gets away with more.

• The one reason the call makes sense, apart from race and sex, is that Williams personalized it--she said, "You're  a thief." Baseball umpires, asked about the magic word that will prompt them to eject a player, say "You"--in other words, players can say a lot of words, as long as they do not personalize those words to the umpire. (To use the famous example in the movie Bull Durham, Crash does not get ejected when he screams cocksucker at the umpire, only when he says to the umpire "you're a cocksucker."). I am not sure if it is the same in tennis, but that could set her comments apart.

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

But that assumes the court would have found standing and ripeness on November 8, which is not certain. The plaintiff would have argued then that he intended to vote for Sanders and that the faithless-elector law would disqualify his vote. But courts are so inconsistent about standing that it is hard to know whether that would work. Moreover, the evading-review applies when the time is too short to litigate the issue fully, which must included SCOTUS review. So while the "district court plainly was prepared to resolve the matter with dispatch (it convened a hearing within three days and ruled on the fourth), and this court has demonstrated that it can expedite appeals in time-sensitive cases," that does not account for SCOTUS, which may have wanted a crack at a case declaring invalid a faithless-elector law. The notion that two months would have been enough time to fully litigate this issue, had the plaintiff only not sat on his rights, seems dubious.

It also is unnecessary, because the better argument is that this is not reasonably capable of repetition as to this person. The plaintiff could not show a "reasonable expectation" that he would be subject to this law again. It is doubtful the Minnesota Democratic Party will appoint him as an elector. And he cannot show that he plans to vote for someone other than the popular-vote winner so as to have the law enforced against him; that is too unknown to constitute a remediable injury at this point.

Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence

In my previous posts, which draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber)  I described how the metrics tide is penetrating the legal domain and also described the findings of our analysis of the Web of Science Journal Citation Reports of law reviews. We studied a sample of 90 journals, 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals and found that SE generalist journals, direct and receive most of their citations to and from SE journals. We argued that this citation pattern is a product of tacit citation cartel between U.S. SE law reviews. Most of the comments focused on the following valid point: how can we distinguish between a tacit citation cartel and epistemically-driven scientific community (generated by common scientific interests). We argue, generally, that in tacit citation cartels, the clustering observed should extend beyond what can be explained by epistemic considerations, reflecting some deep-seated cultural and institutional biases.

In the paper we provide several arguments (both quantitative and qualitative) in support of our tacit cartel thesis. While none of them is conclusive in itself we think that jointly they provide a robust support for our thesis. First, we considered whether the clustering of U.S. SE journals could be explained by geographic proximity. Our sample included 57 U.S. journals consisting of all 45 SE journals and 12 PR ones. Statistical analysis reveals however that US PR journals do not receive more citations than non U.S. ones. Second, we also analyzed separately the sub-sample of generalist (PR & SE) journals but the citation pattern remained the same. Third, we considered the hypothesis that U.S. SE journals constitute a separate epistemic field – maybe due to their emphasis on U.S. law. We rejected this explanation on qualitative grounds, primarily because U.S. SE journals have become increasingly more theoretical and interdisciplinary over the past few years (Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’; George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas). This trend should make PR journals very relevant to U.S. legal scholarship. Fourth, one may try to explain the citation pattern by assuming a deep difference in the quality of the papers published in the two journal groups. We do not think this argument stands up to scrutiny.  First, the selection practices of SE journals were subject to strong critique (e.g., Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995)). This critique casts doubts on the thesis that there is a strong and systemic difference in quality of papers published in the two categories. We also examined this claim empirically by looking into the citations received by the 10 top-cited articles published in PR journals in our dataset. We found that even these highly cited papers received only a small percentage of their citations from SE journals.

Finally, we also considered the accessibility of PR journals in Lexis, Westlaw and Hein. We found indeed that these databases only offer access to approximately half of the PR journals (See Table F, technical appendix.) However, we do not think that this fact provides a convincing explanation to the phenomenon we observed. We believe that most U.S. law schools have access to digital depositories that allow access to the PR journals in our sample. A quick search in 3 US libraries demonstrates that (https://www.law.pitt.edu/research-scholarly-journals; https://library.columbia.edu/find/eresources.html ; http://moritzlaw.osu.libguides.com/legalresearchdatabases ). Rather than providing an explanation to the citation pattern we found, this claim constitutes a manifestation of the institutional culture that facilitates the citation bias we identify. The comment we received from an AnonymousLawLibrarian (suggesting that U.S. legal academics, unlike equivalent scholars in the social science disciplines, only use Westlaw/Lexis/Hein or in-discipline journal research) seems to support our interpretation.

We think that this citation pattern is epistemically problematic because it hinders the flow of ideas. Further (and independently of the question of whether or not we are right in describing it as a tacit cartel) it can also influence the journals’ ranking. I will discuss this latter question in my next post.  

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Bad TV presentation of law (a weekly series?)

This is my weekly post on how some TV show messed up something law-related.This week: Ozark.

A character is arrested after getting into a car accident while under the influence of drugs She is arrested and charged with DUI, possession, and reckless endangerment. An officer trying to get the character to become a CI tells her that she is subject the three-strikes law because she was charged with three crimes and will go to jail for life.

That is not how three-strikes laws works. If it were, every defendant would be subject to a life sentence, because a prosecutor can always find three criminal statutes violated in one conduct, transaction, or occurrence.

It was  throwaway, but it reflected uninformed, lazy writing. Of course, I thought the entire character arc was lazy, having out-of-character behavior to serve the needs of the plot. Getting a bit of law wrong in service of a stupid character development is the lesser-included offense.

 

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

In search of Deep Throat

The greatest disappointment about the anonymous NYT op-ed? We have a corrupt and scandal-plagued administration and an anonymous source talking publicly, but no good porn movies after which to name that anonymous source. Perhaps something off Stormy Daniels' IMDB page.

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Lawyering up in the Kavanaugh hearings

I have no intention of watching the national travesty of the Kavanaugh hearings, because nothing he says or does this week will make any difference to his confirmation. (I have in the past employed the common description of this as Kabuki, but I was told by a Japanese scholar that Kabuki, while stylized, is not empty or devoid of meaning, which is what the term is used to describe with respect to hearing).

I am, however, intrigued by this idea of hiring counsel to handle questioning, getting a lawyer with the skill and expertise to ask meaningful questions of witnesses and force them to give answers, rather than the word salad that passes for dialogue between Senators who lack the knowledge, training, and skill to perform the task and witnesses with no desire (or practical obligation) to answer. The historical examples the article provides (Watergate, Iran-Contra, Army-McCarthy) were investigatory hearings rather than confirmation hearings, so the need for cross examination and adverseness was clear. But the point remains--hired counsel would be much better able to perform the task. How much better might the exchange be if the Democrats hired Marty Lederman or Seth Waxman or Republicans in the future were to hire David Bernstein or Paul Clement to have a genuine constitutional dialogue?

Update: The author of the article is David A. Kaplan, author of the new book The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution and a guest on this week's First Mondays podcast. Kaplan argues that the Court should be less interventionist (he interviewed several Justices, who referred to him as "Felix"), including urging the argument that the public should understood SCOTUS decisions as resolving a case for past parties but not necessarily for future parties. I like the second part of that.

Note to PrawfsBlawg readers: Appearance of comments

A note to readers and commenters:

Comments to posts now appear newest to oldest. We did this to accommodate our annual faculty hiring post and our semi-annual submission post. Both posts generate hundreds of comments, requiring readers to scroll through multiple pages to read new comments. The old hack for this problem--a jump link--no longer works and Typepad recommended this as the solution. So this is the workable solution--new comments appear immediately below the post.

Unfortunately, we only could make the change globally, so comments must appear this way for all posts.

This format is necessary while the hiring and submission threads are alive and active, which should be another few months. After that, we will evaluate the appearance and decide whether to keep it or switch back. We already have heard from one reader who describes it as "crazy and moronic," so we will take that under advisement.

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Rotations

Thank you to our summer-long visitors, who joined us for July and August.

With September upon us, welcome back to Jennifer Bard (visiting at Georgetown's O'Neill Institute and Harvard's Petrie Flom Institute), Oren Perez (Dean at Bar Ilan), and Margaret Ryznar (Indiana-Indianpolis).