PrawfsBlawg

A Jewish show with a less-Jewish epilogue

We finished We Were the Lucky Ones on Hulu, based on a book by Georgia Hunter. It tells the (based-on-a-true) story of the Kurc family (parents and five grown children, plus spouses and small children), Jews from Radom, Poland, who survived the Holocaust. None was in a death or work camp. Among them, they endured multiple Jewish experiences of the time--deported to a Siberian work camp during the period of Soviet control; served in the Polish underground; hid with a non-Jewish family or in a Catholic orphanage; passed as non-Jews and worked in Nazi-occupied Poland; spent time in a Nazi prison; fought for the Polish Army in Italy; lived in the ghettos while working in German-controlled factories or other jobs. And one escaped Europe aboard the SS Alsina, a story I never knew--one of the last ships to leave Marseilles bound for Brazil, the Alina was rerouted to Dakar and then Casablanca, where the passengers were placed in a concentration camp; a small number of passengers were released and placed on different ships for South America, by which point their Brazilian visas had expired. The show depicts the information vacuum; as everyone tried to survive in their own small piece of a broader nightmare, they knew nothing of what happened to any of their family members.

This is a very Jewish show, even by standards of a Holocaust story. All but 1 1/2 major characters are Jewish. Those Jewish characters attempt to control their destinies; no "Gentile Savior" narratives here (a common complaint about many Holocaust stories). A Jewish actor plays every major Jewish character. The Jewish characters speak and pray in Hebrew. Jewish holy days, especially Passover, form a recurring motif in the story, each revealing the state of the family at that moment. It shows that Jews were unique targets--not only of the Germans, but also of Poles, French, Soviets, Ukrainians, and Brazilians--of hatred and discrimination that ranged from the violent to the banal (and mostly not overly cartoonish). It shows a bit of the Judenrat's role in governing and policing the ghetto.

But I cannot stop thinking of the aftermath. Hunter's grandfather was one of the grown children--he was aboard the Alsina, then managed to escape to Brazil; he anglicized his name, married a non-Jewish American woman, and moved to Massachusetts after the war. As Hunter tells the story, she did not know her grandfather was Jewish (and thus that she was part-Jewish) until he died when she was 15. He used to travel to see family in Brazil specifically for Passover, but never told the family why he was going. She obviously knew nothing of his or his family's experiences during the War. Hunter attended a family reunion a few years after her grandfather's death, which prompted her to research the family and tell the story (in fictionalized form). I came away curious how much of that extended family (we are now probably six generations down, maybe seven) continue to identify as Jewish and continue to practice the faith. Some relatives live in Israel, so at least some piece. It would seem a sad (from the standpoint of the Jewish people--any individual does as he sees fit) coda to such a uniquely Jewish story. It is somewhat ironic that the storyteller comes from the part that moved away from its Jewishness--or maybe that part of the family should best tell the story.

I highly recommend the show. I may need to read the book.

No standing in jawboning case (Updated)

Murthy v. Missouri--6-3, per Barrett, finding that any injuries were not fairly traceable to the government defendants; Alito dissents for Thomas and Gorsuch.

• The decision limits these massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims--a record of undifferentiated "stuff that looks bad" is not sufficient to get a broad injunction stopping the government from engaging in future conduct.  Instead, plaintiffs must show "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." These plaintiffs encountered two further problems--1) any (questionable) past injuries were merely evidentiary on claims for prospective relief but could not themselves establish standing; 2) they needed to link the government defendants' actions to those of the non-party social-media sites, a longer chain of causation. As Jonathan Adler puts it, the Court's message to litigants is "do the work" if you want to push aggressive legal claims.

• The decision will have cross-ideological effects, as liberal plaintiffs must similarly tailor their lawsuits. Of course, courts have hamstrung liberal plaintiffs for years, so this is nothing new for them.

• The case illustrates why standing makes no sense independent of the merits. Even for the one plaintiff (Jill Hines, a medical commentator) able to "eke[]" out a showing of traceability, the challenged conduct does not rise to the level of coercion that would violate the First Amendment. So talking about whether she is suffering an "injury" traceable to not-unlawful conduct as a basis to enjoin not-unlawful conduct seems like a waste of time. The essence of this decision is the plaintiffs sued the wrong people, which would be a merits decision in, for example, a tort claim. It should not be different in a constitutional action.

    Update: Michael Dorf argues that the majority hides within the standing analysis "a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side." But by framing this as standing, it leaves the Court room to find coercion in future jawboning efforts that go farther than this does.

    But this case and Michael's hypothetical future case both address the merits, distinguishable only by the facts and the constitutional line. Why is it not better for the Court to be honest about that, rather than disguising a determination that no rights were (or presently are) violated as the absence of jurisdiction.

    I wonder if the answer to the incoherence of standing is Thayerian judicial review. Courts will reach the merits more often, so review should be more deferential. Have to give that some thought.

• The Court recognized the standing of Louisiana and Missouri as nonsense. But here are the arguments the states tried to make: 1) States suffer an injury when sites moderated posts from state legislators; and 2) States suffer a sovereign injury when the federal government prevents their citizens from speaking to them and prevents them from hearing from their citizens. The latter is prohibited parens patriae in disguise. But it seems hard to square both arguments with the positions states and state officials took in Lindke and O'Connor-Ratcliff about the power of state officials to block citizens from social-media pages. Lindke made clear that officials do not want to hear from their citizens all that much. And under Lindke, which required the defendant to have the legal power and obligation to speak for the government, no legislator will be subject to suit because no individual legislator possesses that power or obligation. It seems hard to square the argument that states are injured if legislators cannot speak on social media with legislators are not sufficiently connected to the state when their blocking readers on social media.

• Although spread across two sittings, three cases--Murthy, NetChoice, and Vullo--danced around similar issues about the extent to which government can affect or influence one actor as it relates to the speech of others. We have two and await NetChoice. Alito's dissent linked them: He argued that the "censorship" (his word) here was as dangerous, if more subtle, than the action declared invalid in Vullo; and he argued that social media sites are more susceptible to government coercion because of their dependence on § 230 and susceptibility to antitrust suits. Might the latter point hint that the Court will declare the state laws in NetChoice invalid--with Alito placing his marker for a dissent arguing it is inconsistent to limit state power over site moderation to the detriment of particular speakers while leaving the federal government free to (indirectly) run roughshod over the same group of speakers.

• Will this bring the Fifth Circuit to heel--the second time in less than a month the Court has reversed, on standing grounds, an overbroad universal injunction in a conservative constitutional challenge to a Democratic administration, forum-shopped into the Fifth Circuit? I doubt it. (Note: Adler adds California v. Texas as another example of the Fifth Circuit ignoring traceability problems to pass on the invalidity of federal law).

Tea leaves on gender-affirming care? (Updated)

SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.

• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).

• Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?

• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.

• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.

I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.

The limits on judicial departmentalism

In response to Steve:

I agree it presents difficult line-drawing problems. There are prudential limitations--lawmakers should not do this lightly and perhaps requires some good-faith belief that the law should or might change. Two legal doctrines impose a drag on officials. A successful § 1983 plaintiff can recover attorney's fees under § 1988--this increases the cost of defending these laws by placing government on the hook for the plaintiff's legal fees if the courts ultimately declare the law constitutionally invalid. And state officials would lose on qualified immunity in a post-enforcement damages action--SCOTUS precedent clearly establishes most rights.* Elections and the electorate provide the ultimate check--a functioning polity (and yes, we do not have that in all respects now) might punish officials for wasting public money on performative legislation that loses in court and costs the state money in damages and funding litigation costs for both sides.

I take the point that those drags apply only where actual or threatened enforcement allows offensive § 1983 litigation, whether pre- or post-enforcement. This would be more difficult with Steve's example of a state reinstating capital punishment for minors. A defendant could not sue for damages over the decision to pursue the death penalty--prosecutors would enjoy absolute immunity for the litigation decision. An offensive EpY action also may be problematic, although this is a tricky question. A minor not yet subject to a capital prosecution would lack standing; someone facing an ongoing capital prosecution could be Younger barred from going to federal court ("could" because a capital prosecution contradicting binding precedent might fit within Younger's "flagrantly unconstitutional" exception). In any event, a truly brazen example such as this would be litigated to an immediate, potentially pre-trial answer in the first case in which the state sought the death penalty against a minor (assuming case fits, as I think it would, in Cox Broadcasting's fourth finality category of seriously eroding federal policy if SCOTUS must await final judgment).

The capital-punishment example raises concerns for injuries--minors pleading out or spending time on Death Row until SCOTUS resolves (again) the constitutional issue. This warrants a few responses.

    1) Those costs exist in every period before SCOTUS decides any constitutional issue. Not to minimize, but they are inherent in the system of constitutional litigation. Minors sat on death row before Roper; I doubt they were less injured than any minors placed on death row while the state attempts to relitigate Roper. Especially were SCOTUS to overrule Roper and affirm the propriety of those sentences.

    2) They assume lower courts will ignore Roper, allow capital prosecutions of minors, and sentence minors to death. I instead would expect lower courts to apply Roper, bar the capital portion of the prosecution, and force the state to appeal to SCOTUS for new precedent.

As for where it ends, it may not not have an "end," so long as we tie constitutional decisionmaking into adversarial litigation and require some mechanism for reconsidering precedent. The alternative is that rights-increasing constitutional precedent survives forever (unless overruled by constitutional amendment).

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Fifth Circuit overrules Ex parte Young

Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.

If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.

• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.

• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.

• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.

• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.

So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.

EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Trump & Capone

What is the prevailing view (among the public, lawyers, legal academics, whoever) of the "justice" of convicting and incarcerating Al Capone for tax evasion (which he did but which is far from his most serious crime) when circumstances made it impossible to convict him of those more serious crimes? It seems to me that is appropriate analogy to the New York case against Trump--he committed the underlying actions, New York renders those actions unlawful, it is not the most serious crime he committed, circumstances make it impossible to convict him (or even get a trial) on the more serious crimes.

That New York brought this case as a separate sovereign from the United States enhances this point. New York pursued the lone breach of its laws (since Trump has not, yet, shot someone on Fifth Avenue) that it could pursue. Thatt violation is less severe than the violations of federal law that the U.S. might pursue, but it is all New York has. This is different (and perhaps more legitimate) than Capone, where it was one sovereign--the U.S.--downshifting to a small offense because it could not get the larger offense.

To be clear, I am separating any possible legal defects in the Trump conviction--whether the judge erred on New York law or whether New York law violates due process. I also am separating the normative question of whether New York should have the laws it does. Assuming the legal and factual correctness of the New York verdict, is it unjust for a sovereign to get Trump on something so small?

The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

First, when courts make the "federal courts apply federal procedural law" move, they mean federal courts apply the FRCP or other statutorily created procedural law. That is the lesson of Hanna--the Erie doctrine does not act as a "check" on the FRCP. But Hanna requires a different approach (and perhaps conclusion, although not in Hanna itself) when the federal rules--including procedural laws--derives from a source other than the FRCP. Courts have unfortunately (and inaccurately) short-handed the analysis. But I think that is the idea they are getting at.

Second, courts have not identified clear rules for determining when an atextual judicial gloss derives from sparse statutory text (and thus becomes part of the text) and when it reflects judge-made common law. That distinction determines whether the federal standard certainly applies under the REA (because no federal rule is invalid) or whether the court performs a far less certain "relatively unguided Erie" analysis that is more likely to require it to apply state law. This was the point of departure between Ginsburg's majority and Scalia's partial dissent in Gasperini--whether the judicially created "seriously erroneous result"/"miscarriage of justice" standard for new trials derived from an interpretation of FRCP 59(a) (Scalia) or whether the courts created it to fill statutory gaps (Ginsburg). But neither explained why their preferred understanding was correct. But it is not always obvious. Why is Twiqbal plausibility an interpretation of FRCP 8(a)(2) while the four-part Winter test for a preliminary injunction is a stand-alone test independent of FRCP 65? (the latter one is historical and predates the FRCP, but the point stands).

Although not explicit and not framed in these terms, courts seem to understand the multi-factor balance for pseudonymity as an interpretation and thus part of FRCP 10(a), which requires that the case caption include the party names. The Third Circuit explained: 1) "Rule 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings" and 2) "[w]hile not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." It follows (although the court did not say this much) that the balancing of nonexhsaustive competing interests for and against anonymity implements FRCP 10. Again, however, it is not obvious why this is the case.

So how should the District of New Mexico have resolved the plaintiff's argument for applying the more plaintiff-friendly pseudonymity rule, beyond "we must apply federal procedure." It should have said that under the Rules of Decision Act, FRCP 10(a), as interpreted through the multi-factor balancing, constitutes an Act of Congress that "otherwise requires or provides" and serves as the rule of decision; as interpreted, it is sufficiently broad to answer the question of when a plaintiff can proceed pseudonymously. The court then should have analyzed whether the rule was valid under § 2072--whether it really regulates procedure and whether it does not abridge, enlarge, or modify a substantive right. The answer would be "yes, it is valid," because every FRCP is valid. But the substantive policies underlying state law (protecting the privacy of sexual-assault victims and encouraging them to come forward) would have forced the court to either rely on "incidental effects" on substantive rights being permissible or adopt the Scalia view that a procedural rule never, in any meaningful sense, can AEM. Either way, that analysis is a lot more complicated than the footnote allows.

And what if the multi-factor test were not part of FRCP 10? The unguided Erie analysis must consider whether ignoring state law would cause the "character or result" to differ, whether a party might go to federal court to avoid less favorable state law, and whether the state law is "bound up" with substantive policy. That analysis usually points towards state law and probably would here--a defendant might remove to avoid automatic pseudonymity and the state law has underlying substantive concerns.

But this example shows why "apply federal procedure," without more, cannot be the extent of the analysis. A litigant-name rule is unquestionably "procedural"--it relates to the manner and means through which rights are enforced in court. But if the conflict with state law comes from a federal legal rule unmoored from the FRCP, the federal court may be required to apply that state law.

Infield fly interference double play (Updated Twice)

A wild ending to last night's Orioles-White Sox game. It offers a new entry in the Berman/Friedman "jurisprudence of sports" canon and a nice example of all the problems when the public (including "the media") discusses law.

The White Sox have 1st/2d-one out in the bottom of the ninth. The batter hits a fly ball on the infield grass. Orioles shorstop Gunnar Henderson, stationed behind second base, moves to the ball. He momentarily stops and goes around Andrew Vaughn, the runner on 2d, as he retreats (slowly) to the bag; Henderson gets under and catches the ball. The second-base ump calls infield fly, putting the batter out. The third-base umpire calls Vaughn out for interference, ending the game on a double play. Chaos and nonsensical indignation from the Sox announcers ensue and continues onto the interwebs.

From the 2024 Rulebook: Interference includes a runner who "fails to avoid a fielder who is attempting to field a batted ball." § 6.01(a)(10).  The runner is out and the ball is dead. § 6.01 PENALTY. A comment to § 6.01(a) adds a "runner who is adjudged to have hindered a fielder who is attempting to make a play on a batted ball is out whether it was intentional or not." A separate rule defining fielder right of way imposes an obligation on all members of the batting team to vacate any space a fielder needs to field a batted ball. § 6.02.

The text of the rules undermines the immediate reaction of the Sox announcers and many online commentators screaming about how Vaughn did not intend to interfere, did not know where the ball or fielder were, did not try to interfere, etc. But intent not matter. The rule prohibits the batter not from affirmatively interfering with the fielder. It prohibits the runner from "fail[ing] to avoid" the fielder--it imposes an affirmative obligation to avoid the fielder and to clear the space for the play to be made. Vaughn failed to avoid--he stopped, located the ball, and walked back towards second as the shortstop runs from behind, but in a way that, even unintentionally, blocked Henderson's direct path to the ball. That is enough under the rule. White Sox manager Pedro Grifol recognized that the umps got it right but criticized the rule's lack of intent requirement. Similarly, that Henderson caught the ball with ease does not matter--the rule does not require successful hindrance or apply only if the interference prevented the fielder from making a play.

Some open issues.

1) I cannot tell from the video whether there was contact between fielder and runner or whether the problem was that the runner hindered the fielder by making him change direction in going towards the ball. It does not matter to the rule. But the third-base umpire who called interference and the crew chief conflicted on this--the crew chief said the runner made contact, while the ump who made the call said it did not matter whether he made contact, only that Henderson had to move around him. The call is correct either way, but it helps to have the facts right.

2) Update: I completely revised this point because I got it so wrong. I initially wondered whether the order of the calls (interference and infield fly) matters--if the ump called interference first, the ball would be dead and the batter cannot be out on the infield fly. The answer is no, because of the IFR--and shame on me, having literally written the book on this, for getting it wrong. A comment to the definition of IFR provides:

If interference is called during an Infield Fly, the ball remains alive until it is determined whether the ball is fair or foul. If fair, both the runner who interfered with the fielder and the batter are out. If foul, even if caught, the runner is out and the batter returns to bat.

So interference operates differently on a potential infield fly play than it would on another play. The order of the calls does not matter. The runner is always out. And the IFR overrides the ordinary interference rule and puts the batter out, at least if the ball is fair (this ball was in the middle of the infield and unquestionably fair). Again, shame on me for not remembering that piece of the IFR. Thanks to Mike Dimino for setting me straight. And for further proof the umps got the call right.

3) The Sporting News published an article purporting to explain the play and the intersecting rules. It says the following about interference:

There are different levels of interference when it comes to baserunners.

Per MLB rules, players on the batting team, including coaches, cannot get in the way of a player trying to field a batted ball. However, the rule states that if interference takes place on a batted ball, only the batter is declared out. All other runners must return to their previous bases.

The only time a runner is declared out is when a player or coach interferes with the fielder's right of way to throw a ball. If so, the player for whom the throw was intended to get out will be ruled out.

The article links to a glossary on MLB's web site. Based on the information the article relies on, the call was wrong--the batter should have been out and the runners returned to their bases. But the definition in the glossary does not match the "fielder right of way" rule in § 6.01(b). Under that rule, the ball-is-dead/batter-is-out/runners-return provision applies to "a member of the team at bat (other than a runner)." Section 6.01(a) controls a runner who fails to vacate the right of way and calls the runner out. The Sporting News story never mentions § 6.01, nor does MLB's web site. And the web site does not accurately state the actual rule.

Reporters often do not go to the primary source of law (in this case, MLB Rules); they rely on shortcuts, such as summaries on a web site. This is sunderstandable, as most reporters are not trained in reading and parsing statutes. But MLB does not do itself any favors and fails to protect its umpires from inaccurate and unfair criticism by providing incorrect shortcuts.

Finally, some points about the jurisprudence of sports and how conversations about sports rules match conversations about the law.

1) We have the usual complaints about the game ending on the interference call, Berman's "temporal variance" in enforcing sports rules.

2) I cannot find the video, but at one point the Sox announcer demands that the crew chief step in and overrule the call. This wrongly accords the crew chief some power to overrule other umps' calls and to control what they do. We see the same thing in the demands that John Roberts "do something" about justices' ethical misbehavior--an erroneous assumption that the Chief is somehow the boss of the Court and of the other justices.

Further Update: MLB reportedly defenestrated the umps in a private communication with the White Sox, suggesting the umps were wrong in insisting they had no discretion and had to call interference as soon as they saw contact or a hindrance.

Further Further Update: A reader emails wondering why interference ever arises on an IFR--can the runner interfere with a fielder who need not catch the ball for the out. Recall that the runners can advance at their own risk on the play, which means the fielder usually wants to catch or at least control the ball to prevent runners from advancing. Absent thenterference rule, a runner has an incentive to keep the fielder from getting to the ball, giving his teammates an opportunity to advance if the ball is not caught, even if the batter is out.

Further Further Update: Another reader suggests that, if the ump had discretion, a non-call would have been appropriate here. The runner was in an impossible situation--he had to determination the location of the ball and the fielders, determine their path to the ball, and get to a spot that is out of their path and does not subject him to being doubled-off. That is a lot to ask of a runner.

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Recruiting activists

Tyler Austin Harper, a professor of environmental studies at Bates College, argues that colleges promoted themselves to activist students as places that encouraged and celebrated activism and protest, making recent university actions a greater betrayal. Orin Kerr offers thoughts, grounded in his prior view that university views about protest changed when the topic of protest shifted to non-consensus issues (as Orin puts it, when "one person's protest for justice is another person's collective attack on their identity").

Harper assumes any commitment to activism and protest includes the right to civil disobedience without consequence--including occupying and camping in campus buildings and public spaces. There is no difference in permissibility between Columbia students barricading themselves in a campus building (without food) and UT students milling on the quad shouting stuff. By promoting their histories of activism and selling themselves as places students could engage in activism and protest ("trad[ing] on the legacy," Harper says), schools gave students permission to engage in all forms of protest--lawful and unlawful, including occupying buildings--when they believe the cause worthy. And schools reneged on their commitment by stopping the occupations and expelling or sanctioning students for conduct that violates otherwise-neutral school regulations.

I think this has two problems. It effectively means universities ceded control of campus spaces if and when students want to occupy them. By offering students the opportunity protest and engage in activism as the carrot to get them to enroll, they offered preferred access of campus spaces for their expressive use. And if the universities did not surrender all control, they limited their ability to regain control when activist students took over--no cops, no academic consequences, you can have it back if you put us on the committee that decides university investments. Second, it continues to treat civil disobedience as creating a free-speech immunity from sanction for violating content-neutral conduct regulations, rather than either: 1) a drag on how quickly or forcefully universities should act (urging some "leeway") or 2) students willing to risk sanction to highlight an injustice and effect change.

A possible response to what I just said: By celebrating past civil disobedience, universities confess error for cracking down on those protests. They thus promised to do better, to not repeat past administrations' mistakes, and to allow occupations because--as 1968 showed--they change history. I like Orin's reply: Administrators assumed "students hold the protest, break a rule here or there for a bit, and then go back to the status quo," whereas recent events appear more aggressive, more interfering, and more permanent--and schools did not know how to react. I think this jibes with my idea above--universities give students leeway to break small rules for a short time to shout themselves out, unless the occupation never stops.

Judge sanctioned for handcuffing teenager

In March 2023, Steve and I had an exchange about Judge Benitez (S.D. Cal.), who probationee's daughter handcuffed and placed in the jury box during a revocation hearing, purportedly to teach the girl a life lesson. Steve and I debated whether judicial immunity would protect Benitez in a damages action and Steve worried that he would suffer no real consequences.

Fourteen months later, we have something: The Judicial Council of the Ninth Circuit reprimanded Benitez; prohibited Benitez from taking new criminal cases for three years;* and allowed defendants in pending or future probation-revocation hearings to move to recuse Benitez, with the motion going to the Chief District Judge.

[*] Relatively meaningless, because Benitez took senior status in 2017 and no longer takes new criminal cases.

I leave it to those who study judicial ethics to opine on whether any of this constitutes "real consequences."

A bunch of random stuff about campus protests

Some random thoughts, partly reacting to what other people have said:

• Orin Kerr said on Twitter that the current protest wave reflects the first time that campus protests have targeted issues about which there is sharp disagreement. Some consensus surrounded the issues at heart of prior protests--anti-war(s), nukes, apartheid, climate change. No large pro-nuke or pro-apartheid constituency sought to oppose or counter-protest, even if not everyone shared protesters' passion or engagement on the issues. But the rules of campus protest--including allowing protesters leeway in occupying campus spaces and otherwise allowing violations of neutral regulations--developed around those prior issues. Those rules do not work when that consensus disappears.

    Expanding on Orin's thought: Not only is the topic divisive and disputed, but the protest target is intertwined with the identity of a significant campus group. All criticism of Israel and anti-Zionism is not antisemitic. But the former can (and has and does) bleed into the latter. At the very least, there is an affiliation--however strong or weak--between the target and a student group. And a  blockade that forces "Zionists" to use a different entrance to the library will disparately force Jewish student to use that different entrance. And even non-antisemitic anti-Zionism speaks to a segment of the campus--it appears that the protesters are protesting their colleagues, not the university as the "government" of that community. Of course, pro-Palestine students would say the same about pro-Israel speech--supporting the Israeli government is intertwined with the identity of Palestinian students with family in Gaza. All of which proves Orin's point (or my expansion of it). The expression (and counter-expression) at the heart of the current occupations cannot avoid appearing targeted at and critical of a segment of fellow students, rather than at the university or some outside-the-university problem.* I wonder if the rhetorical shift from demanding a ceasefire to demanding divestment (and at Northwestern, university representation for Palestinian students and teachers) reflects that realization--an attempt to make the university the protest target. It only goes so far, as the subject of divestment still targets a segment of the university community--"divest from the Jews." But I think they are trying.

[*] The Sympathizer is an excellent new show on Max, about a North Vietnamese double agent after the fall of Saigon. In the second episode, "The Captain" (the unnamed main character) meets an American who speaks with pride about protesting "in support" of The Captain and others; The Captain asks which Vietnamese people the guy believed he was supporting; the guy had no answer.

    Everything flows from that--congressional grandstanding, congressional arm-twisting, and the disproportionate university reactions in both directions, from Columbia's massive shows of force to UCLA essentially delegating access to protesters control of access to certain campus spaces. Universities could resist criticisms that they are "un-American" in allowing anti-war protests. They cannot resist criticisms (right or wrong) that they are antisemitic.

• Khymani James is the Columbia student who was barred from campus for making antisemitic statements (e.g., "Zionists don't deserve to live" and "Be grateful that I’m not just going out and murdering Zionists" “I’ve never hurt anyone in my life, and I hope to keep it that way") and alternating between doubling down and apologizing. There are some questions about his academic standing and whether he has, despite the ban, been back on campus. Columbia is private. But does this rise to a true threat or harassment? Maybe the middle one, although it seems too general and non-directed. Not unlike the UC-Davis prof's comments about Zionist journalists. As always, Columbia is private so it can have a quicker disciplinary trigger than a public school might.

• Several law profs have noted the unique (if undeveloped) property theory at work: Protesters claim the right to camp and control spaces such as the quad because they are common spaces but then assert a right to exclude on ideological grounds. I wonder how the demand for food for those who paid for a meal plan fits into that property theory.

• Crim Law Folks: The linked-arm rings or lines that protesters use to move people out of spaces--is that assault and/or battery?

Except when they're not really questions

Gerard should be right. The problem is that many questions in oral argument are not really questions. They are statements of the justice's views or thoughts or arguments about the case. And many of those views and thoughts are so off the wall as to look less like devil's advocate and more like justices flirting with (what the panicking folks regard as) troubling ideas. Or it reflects their willingness (if not intention) muck up the timing of the prosecution to do more than is necessary in the case. And while it has always been thus, it seems to be getting worse. Or the presumption of good faith surrounding the Court has so disappeared that we cannot come back--everyone assumes the justices have made up their minds and their questions are designed to further and defend their determined positions.

And this is non-partisan. Consider the EMTALA argument. Some people highlighted the eight pages of exchange (beginning on p.104) between Justice Alito and Elizabeth Prelogar, in which Alito suggested that EMTALA does not protect abortions because the unborn child is identified in the statute. It is a textually awful argument and Prelogar explained how it misreads the text and the logical end of the underlying premise. But at least Alito gave Prelogar a chance to answer, at length, pushing back when he did not like what she said. Contrast that with the five-ish pages (beginning on p.14) between Justice Sotomayor and Joshua Turner. Sotomayor began with a long hypothetical about a state prohibiting the use of insulin to treat diabetes, complete with details about the medical problems that would result, then never gave Turner a chance to offer more than a sentence in response--the colloquy ended when the Chief jumped in to get Turner to complete his answer.

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

More zombie laws

Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Blaming the courts for everything (Updated)

A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.

No one is happy with the decision, but for interesting reasons.

The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.

The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.

But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.

Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.

Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:

Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Ken Holtzman Z"L

Ken Holtzman, the winningest Jewish pitcher in MLB history, died Sunday. Holtzman won 174 games in a 14-year career with the Cubs, Oakland, and individual seasons with the Orioles and Yankees. Holtzman pitched two no-hitters with the Cubs and won three World Series with the A's, including the Series-clinching win in Game 7 of the 1973 World Series. He was the # 3 started on that staff (behind Hall of Famer Catfish Hunter and Vida Blue), but the A's relied on him as much as the other two in big games. Among Jewish pitchers, he is first in wins, sixth in ERA, second in strikeouts, fourth in appearances, and first in innings pitched. He also homered in the 1974 World Series, the last then-acknowledged-as-Jewish player to homer in a World Series until Alex Bregman and Joc Pederson traded homers in 2017.

As I described, Holtzman plays a big role in the Jewish-players-on-Yom-Kippur story. He never pitched on the holy day. In 1966, his first full season in the Majors, Holtzman opposed Koufax the day after Yom Kippur when both pushed their starts back to avoid the holy day; Holtzman pitched a two-hit complete game, in a game he said his mother hope he would get a no-decision. Holtzman attended Yom Kippur services in Baltimore in 1973 when the holy day coincided with Game One of the ALCS. Another story is less uplifting. In 1977, the Yankees petitioned MLB to move a 1977 game from Yom Kippur day to the evening. They cited Holtzman's unavailability, although Holtzman appeared in 18 games that season (which some stories attribute to manager Billy Martin's antisemitism) and would not have pitched even if was at the park; Holtzman was not pleased at being used in that way.

Zichrono livracha.

Update: Howie Megdal's Baseball Talmud ranks Holtzman as # 2 lefty starter, # 3 starting pitcher, # 10 All-Time (after Koufax and a bunch of non-pitchers), and falling out of the top-ten if, by 2035, Alex Bregman and Max Fried continue the careers they have been having.

National Lawyers' Guild (Updated)

I am curious how the National Lawyers' Guild feels about being dragged into the Erwin Chemerinsky mess, cited as legal authority and counsel to tell Erin Chemerinsky that she had a First Amendment right to give her speech at Chemerinsky's home. Did someone from NLG give the advice? And how do they feel about being ridiculed nationwide for how wrong they are about the First Amendment?

Update: David Schraub (Lewis & Clark) shares the answer. NLG acknowledges that the student said it had advised her that she had a First Amendment right to pull this stunt, it does not confirm doing so or the content of the advice. It says a person's First Amendment rights may extend into non-public forums and that the government actors' suppression of speech in those spaces may violate rights. While true as a legal principle, most commentators agree it does not apply to this situation.

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

How old is too old?

Josh Barro argues that Justice Sotomayor, aged 70, should retire following the end of the Term so Biden can appoint a younger successor. The merits of urging timed retirements aside, the question becomes how old is too old and how long Justices should serve.

Barros believed that the organized campaign to urge Breyer to retire in 2021 shows that Democrats learned the lesson of Ginsburg's 2014 non-retirement. He expresses disappointment that the resistance to Sotomayor retiring--some frame the resistance to Sotomayor being Latina, which pisses Barro off--shows they have have not learned that lesson.

But Ginsburg was 81 and a cancer survivor in 2014, whereas Sotomayor is 70. Barro downshifts to Scalia--he was 70 when he failed to retire in 2006 in the same circumstance as Ginsburg 8 years later (same-party President, party about to lose Senate) and Republicans avoided a similar fate because of Mitch McConnell and an inside-straight presidential victory. Barro also points to Thurgood Marshall not retiring in 1980, at 72, so Carter could appoint his successor and Obama could have appointed that successor, leaving the Court with a liberal majority through the '90s and '00s.

Sotomayor has been on the Court for 15 years, less than the 18 she would serve under most term-limits proposals (Ginsburg has been on the Court 21 years as of 2014). Marshall had been on the Court for 13 years in 1980. In the name of avoiding judges getting old and dying when the wrong party controls the political branches or being unable to "hold on" until an aligned President returns to office,* we force judges into ever-shorter terms--too short to figure out the job. Or we compel Presidents to appoint ever-younger judges--Barrett will have served 22 years by the time she reaches 70.

[*] For Marshall, the black swan event in terms of modern politics was Republicans getting 12 years in the White House from 1981-93, which Democrats could not pull off after Clinton and Obama. Here is a counter-factual--what if President Dukakis had been able to appoint successors for Brennan and Marshall in 1990?

If we are going to play this game, why stop with Sotomayor? Kagan turns 64 this month--why not urge her to retire so Biden can rewind the clock by an extra 10-15 years? Does 6 years make that big a difference? Sotomayor has some health problems (Kagan does not, as far as we know) but Barro limits them to a passing mention. He argues from age, not health. Maybe we should research justices' family and geneological histories.

JOTWELL: Effron on Bookman on default judgments

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming 2025), on the rules for default judgments and how they harm defendants.

Final Four(s) (Updated)

Interrupting law for some sports, specifically the basketball Final Fours (Finals Four?) and a bunch of interesting story lines:

• First time that two schools have men's and women's teams in the Final Four--UConn and NC State.

• Two teams vying for historic standing--undefeated South Carolina women and UConn men vying for consecutive championships and taking a wrecking ball to their opponents (how did they lose 3 games during the season?).

• A major-conference Cinderella in NC State--would have missed the NCAA, went on an unbelievable run to win the Conference tourney and get the automatic bid, and continued a hot streak. It rhymes with (if it does not repeat) the school's run to the 1983 championship. The only thing missing was playing Houston, which they would have done in the Elite Eight had Houston's best player not been hurt.

• Alabama men make the Final Four for the first time in program history. And they do it the year after one of the program's historically best regular seasons led by one its historically best players, who left for the NBA after one season.

• Paige Bueckers (UConn) and Caitlyn Clark (Iowa) entered college the same year and both became instant stars on the court and off, raking in massive NIL money (far more than they will make in WNBA salary). Bueckers won all major national player of the year awards as a freshman and UConn beat Iowa on the way to the Final Four. But Bueckers missed most of the next two seasons with injuries, while Clark became the all-time scorer in Division I and all women's basketball history. I find the story of these players and how their stories and historical places have flipped interesting.

• On the court: A prospective UConn-Purdue finales between two huge, skilled-but-not-very-athletic back-to-the-basket centers--Purdue's 7'4" 300-lb Zach Edey and UConn's 7'2" 280-lb Donovan Clingan. Basketball isn't supposed to be played that way anymore.

Update: One more, on what these Final Fours lack: The lightning rod of LSU and coach Kim Mulkey and all the off-court controversy she carries.

Briefplaints, press releases, and long-shot lawsuits

A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.

There is a lot here related to what I teach.

• Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.

• Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.

• Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.

    This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.

Northwestern v. UConn

Northwestern, appearing in its third NCAA Tournament and second in a row, beat FAU 77-65 in OT in the first round. I was teaching during most of the game. I tuned in with a minute left and NU down two (I later found out we had gagged away a nine-point lead); saw us tie the game on a lay-up with 3 seconds left; then watched us blow FAU away in OT by making our first 9 shots (5 baskets and four FTs). The prize for the win is playing UConn--the defending national champion and # 1 overall seed. This is the first time Northwestern and UConn have ever played in basketball.

That brought me back to the spring of 1986, when I was a Northwestern-bound HS senior, planning to work as a student manager for the basketball team. Northwestern and UConn had coaching openings. Northwestern offered the job to Jim Calhoun, then at Northeastern. Calhoun declined, saying that while he is willing to build a program, good movement for Northwestern would be from 10th to 7th, which would not be good movement for Jim Calhoun. Calhoun took the job at UConn, coming off four seasons near the bottom of the (original) Big East. UConn went 9-19/3-13 (compared with Northwestern's 7-21/2-16) his first year. They won the NIT his second year (when the tournament, while no longer prestigious, did not have major-conference schools routinely decline invitations). And they lost on a buzzer-beater in the Elite Eight his fourth year. Meanwhile, Northwestern won 32 games (8 conference) in my four years, although I loved working for Bill Foster and his staff.

Calhoun also had NCAA problems, graduation-rate problems, and a big personality, so query how well he would have played at NU or whether he could have done there what he did at UConn. Still, my bit of personal history in anticipation of tomorrow's game.

JOTWELL: Carroll on Gluck, Burch, and Zimmerman on bankruptcy and mass tort

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Abbe R. Gluck, Elizabeth Chamblee Burch, & Adam S. Zimmerman, Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation, 133 Yale L.J.F. 525 (2024), questioning the "turn to bankruptcy" to resolve mass tort cases.

Winning the nomenclature war

In Murthy v. Missouri, Deputy S.G. Brian Fletcher and Justice Gorsuch both referred to these "enjoin everyone from doing everything everywhere" orders as "universal injunctions" rather than "nationwide." So proud.

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

303 Creative, Exclusive Private Enforcement, and Blue-State Revenge

(Finally; it only took 7 hours) available on SSRN. If you or someone you love operates a law review, it is available.

Here is the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

AI screws up SSRN (Update)

I uploaded a new paper to SSRN, the latest in Rocky and my series on exclusive private enforcement. I would share the SSRN link, but the medical team at SSRN flagged it as having a "medical and/or health term that has initiated a medical screening process;" they removed removed the paper from public view pending further review. According to an SSRN person, the "medical and/or health term" triggering review is "patient"--as in "this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right."

I assume this is because of an AI filter and not because some human being was stupid enough to make this mistake. But I wonder what would happen if someone wrote a sentence such as "Justice Kagan believes the Court is not patient in seeking constitutional change."

I find it distressing that circulation and publicity of our work is in their hands.

Update: An emailer says this was a simple algorithm rather than "AI." Fair enough and I stand corrected. SSRN still screwed this up. How much? Well, here is the email I got in response to asking to speak to someone with some ability to resolve things:

Your paper or analysis may be framed around a legal, economic or other topic question; however, if the data that is used in the analysis is medical or health related, we must use caution around both patient and health information.

 
The SSRN system performs an initial automated scan of the submission to identify medical and/or health terms. Depending on the scope of the medical content, SSRN's Medical Team will conduct a deeper medical screening on any such papers that include medical or health data in order to provide complete transparency and to follow best practices around any health data. Due to the caution that is required around health care or medical preprints for prevention of harm and to meet required reporting standards, SSRN screens these papers to ensure they have appropriate declarations around competing interests and funding as well as ethical approval and trial registration, where appropriate.

Your paper is now available on your "My Papers" page and has been expedited.  It is also publicly available on SSRN's website.

Again, we used the word as a noun to describe someone who, seeking a medical procedure, sues to challenge the validity of a law. The word patient(s) appears 7 times, once in the title of a source. Oh, and the paper is not available on SSRN's website or "My Papers;" the link says "This paper has been removed from SSRN at the request of the author, SSRN, or the rights holder." Since I am the co-author and co-rights holder (and I am quite sure Rocky did not remove it), the cause is obvious.

After all this, the article better attract some readers.

Amendment gaps

Gerard's post about near amendments and search for sources reminded me of my similar request to a listserv a few months ago. I had been thinking about the 61-year gap between the 12th (1804) and 13th (1864) Amendments, the longest period between amendments in history. More recently, I was thinking that we are closing in on that record, at 53 years and counting since the 26th Amendment and no amendment likely to be ratified any time soon. But I forgot about the 27th Amendment, ratified in 1992, although proposed in 1789. Resetting the clock, we are at 32 years--about half the record and a decade short of the 43-year gap (to the day--February 3) between the 15th and 16th.

Students at faculty workshops?

I gave a talk at another law school yesterday and the audience included five students. The faculty invites students to attend all talks--they send a school-wide, first-come email and make space for the first 10-or-so students. Two of the students asked very good questions.

Do other schools do this and what are people's thoughts on it? That students generally are not included in faculty workshops reflects the difference between law students and PhD students, who often attend department workshops and often are treated more as colleagues than as students. One point against it is that it changes the tenor of the talk by adding to the audience listeners who lack the expertise to engage in the presentation. On the other hand, a 1L is as competent to discuss a bankruptcy paper as I am. And I see some benefits, such as community building and filling the room (harder in the era of work-from-home). And I realized that the audience in most law school symposia, beside the other symposium speakers, consists of students (journal members, etc.). So why not for individual talks?

Would like to hear what other schools do. Comments left open.

Equality of Silence

Thorough discussion in the Chronicle of Higher Ed (paywalled) about private universities enacting (mostly*) content-neutral restrictions on the time, place, and manner of campus speech in the interest of keeping the peace. The piece includes comments from Brian Soucek (Davis) and Genevieve Lakier (Chicago). Brian captures the problem with these peace-keeping policies--"It really takes some commitment to decide no, we’re going to stand by our First Amendment principles even when they mean that campus will be a little more unruly and disruptive than we’re used to."

[*] Some--American's requirement that fliers be "welcoming and build community" or regs limiting fliers to advertising campus events--are content-based.

In fairness to the universities, they do not act solely out of an institutional desire avoid unruliness and disruption. The threat of Title VI liability--imposed regardless of the protected nature of the speech at issue--drives them to "stop" antisemitism by stopping antisemitic speech. And the only way to do that is to stop all speech. So here we are.

JOTWELL: Bartholomew on Rapallo on attorney-client privilege in Congress

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 1oo Wash U. L. Rev. 455 (2022).

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

3rd Annual Law vs. Antisemitism Conference, Feb. 25-26 at FIU College of Law

The 3rd Annual Law vs. Antisemitism Conference begins tomorrow and runs through Monday at FIU College of Law. We have more than 100 registrants from all disciplines and all over the country.

The program includes keynote speeches by Marc Stern of the AJC and Rabbi David Saperstein, formerly of the Union for Reform Judaism; a screening of the film Recipe for Change: Standing up to Antisemitism with producer Todd Shotz; and a Sunday evening reception at the Jewish Museum of Florida-FIU. And, of course, good food.

All panels and presentations will be livestreamed, for those who cannot make it to FIU. There is a link listed for each panel.

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?