PrawfsBlawg

An infield fly rule for fake fair catches?

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

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

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

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

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

FIU COL leads Florida Bar passage . . . again

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

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

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

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

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

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

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

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

The Deuce '77

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

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

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

Serena and the umpire

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

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

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

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

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

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

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

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

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

Mark up of Injunction Authority Clarification Act

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

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

Yet evading review

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

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

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

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

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

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

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

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

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

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

Injunction Authority Clarification Act of 2018

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

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

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

Bad TV presentation of law (a weekly series?)

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

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

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

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

 

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

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

Ministerial exemption as a mandatory merits defense

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

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

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

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

In search of Deep Throat

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

Judge Willett questions qualified immunity

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

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

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

Lawyering up in the Kavanaugh hearings

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

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

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

Note to PrawfsBlawg readers: Appearance of comments

A note to readers and commenters:

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

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

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

Damnatio memoriae

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

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

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

This prompted a two-paragraph concurrence from Judge Clay:

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

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

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

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

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

The Metrics Tide and the Law

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

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

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

Rotations

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

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

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

More on the ACLU's conflicting principles

The internal disputes over the ACLU's First Amendment activities is back, this time over the National Office's amicus brief in the NRA lawsuit challenging New York's practice of pressuring insurance companies, banks, and other regulated businesses not to do business with the organization. This Slate story describes some of the internal conversations responding to Legal Director David Cole's explanation for writing the brief, including a memorandum in response by three people in the New York affiliate. That memo made three points--this is not a novel case or a straight-forward free-speech issue; the NRA has the resources to litigate and the ACLU should consider whether to spend its limited resources helping litigants with "enormous resources at their disposal" as opposed to less-resourced groups, such as Black Lives Matter; and representing the NRA has negative effects on the ACLU's representation with "important allies." Several people objected to the National Office's argument that New York's tactics could be used against groups such as BLM, rejecting the use of BLM as a "shield" to justify representing groups that are causing the very problems, such as gun violence, in the African-American communities that BLM is trying to address. The article closes by suggesting that such disputes may cause the ACLU to "soon abandon its adherence to formal neutrality—and adopt a vision of liberty that openly favors the oppressed over the oppressors."

Regardless of the merits of whether BLM might be targeted, it is beside the point in this brief. A more salient and ongoing example, which the brief included, is states targeting Planned Parenthood, which stands for some in the same position the NRA does for others.

As to the article's final point, that vision of First Amendment liberty is no vision at all. A Muslim should not have less religious liberty than a Christian, nor should government be able to disadvantage powerful organizations but not powerless organizations in retaliation for their speech. And an organization committed to civil liberty should not approach liberty questions that way.

The resources argument (putting aside whether it has any merit) strikes me as inaposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU's brief, on which it did expend some of its limited resources, is to the NRA's legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party's constitutional position to the money in its bank account.

[*] This argument remains strange for another reasons--representation makes the ACLU eligible to recover attorney's fees if it prevails. So it should recover at least some of the resources.

Big Little Lies--Crim Law Question

GMy wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

First Mondays on First Year

With SCOTUS quiet, the folks at First Mondays devote an episode to 1L year. Topics include reading cases and prepping for class, study groups, study guides, different approaches to statutory courses, and studying for and taking exams. It is a great discussion and worth sharing with the 1Ls in your life.

Masterpiece Cakeshop redux

Jack Phillips of Masterpiece Cakeshop has filed a federal civil action against the members of the Colorado Civil Rights Commission, challenging the constitutionality of a new threatened enforcement of the state's public-accommodations law. This case arises from his refusal to sell a cake with a blue exterior and pink interior to a lawyer (clearly doing this as a test case) celebrating her birthday and her male-to-female transition. The lawyer complained to the Civil Rights Commission; the Director of the Commission found probable cause to believe a violation occurred (sex and transgender status) and order edthe parties to mediation, but Phillips instead filed suit. Some thoughts after the jump.

• The parade-of-horribles comparison I thought of was a person requesting a cake that was white on the inside and black on the outside to celebrate his biracial identity or the biracial identity of his child, which conflicted with a baker's belief that "the fact that God separated the races shows that he did not intend for the races to mix."

• There is language in the Complaint about Colorado ignoring SCOTUS's decision in Masterpiece. But here is where judicial departmentalism kicks in. The judgment in Masterpiece (if there was one--the Court was cryptic about this) was that the Commission's sanction for refusing to bake the wedding cake violated the First Amendment. At best, that should have meant a reversal of the injunction the Commission entered against Phillips for refusing to bake that cake. That judgment does not preclude the Commission from pursuing a new case based on a new refusal to bake a different cake with a different message for a different customer. A government entity does not violate the judgment in a prior case by attempting to enforce the law against the same person on a new set of facts arising from a new transaction or occurrence.

As for the precedent of Masterpiece, I do not believe control the Commission' s actions, other than to the extent it does not want to lose in a court that is bound. Even than, that precedent does not squarely answer this case. The problem in the previous case was the purportedly anti-religious remarks by Commission members, which may not be present here; a majority of the Court did not hold that a baker enjoys a First Amendment opt-out from public accommodations laws.

• There is a Younger problem here. A government-initiated administrative enforcement action is an ongoing proceeding that triggers abstention. The question is whether a finding of probable cause commences that proceeding. It triggers a statutory conciliation process, including compulsory mediation, leading to an adversary proceeding if unsuccessful. It may depend on what the court defines as the proceeding--the conciliation element or the entire thing. In any event, the Complaint recognizes this, including allegations of bad faith by the Director in finding probable cause and a "rigged" process, given the make-up of the Commission. These seem designed to move the case into the Younger exceptions for bad faith or unusual circumstances, such as biased decisionmakers.

On the bad-faith point, this presents an additional way that judicial departmentalism pushes towards judicial supremacy. Bad faith for Younger purposes is defined as a prosecution undertaken without hope or expectation of securing a valid conviction. If a government official initiates an action to enforce a law in the face of SCOTUS precedent declaring that law constitutionally invalid, he has no realistic hope of securing a conviction--he knows he will lose the prosecution. So an attempt to pursue that prosecution, while consistent with his oath, may mean the target of the prosecution could seek to enjoin the prosecution even though pending and argue the bad-faith exception. I had not considered that possibility.

An interesting pedagogical observation

I have an an opportunity for an interesting pedagogical experiment this semester. My 15-person Fed Courts class has 4 men and 11 women, an unusual imbalance even for a school like FIU that has more women than men. I am curious to see whether men nevertheless dominate the conversation. The four men seemed quicker to volunteer during the first class. It will be interesting to see how it plays out over the semester. I also must be conscious of waiting for hands to go up and ensuring some balance between raw numbers and hesitancy. There are panels in the class, so that will mix things up somewhat. Still, it will be interesting to watch a strange balance play out.

JOTWELL: Vladeck on Caruco on CAAF as court of last resort

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Rodrigo M. Caruco (Maj., USAF), In Order to Form a More Perfect Court: Quantitative Measure of the Military's Highest Court's Success as a Court of Last Resort (Vt. L. Rev.), which considers how the Court of Appeals for the Armed Forces operates as a court of last resort and what can be done to improve its functioning.

Every snowflake is different

How is this complaint about NFL player protests from the head of the Broward County PBA different from the complaints from liberals (on- and off-campus) who are derided as "snowflakes" for objecting to Richard Spencer, Milo Yiannapoulos, Chick Fil-A, et al. The PBA is calling on members to boycott and not do business with the team. It is demanding that the Dolphins no-platform the players, calling on an entity to deny a speaker the opportunity to present his message. And the complaint is that the speaker's message is a "slap in the face" to the complainer, who is offended by the speech. There is no practical difference between the two situations.

Flag protests and public employees

The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:

The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?

There are several doctrinal paths competing for attention here.

1) Barnette says students cannot be made to participate in the flag salute. By extension, it should mean other people cannot be compelled to participate in other patriotic rituals. Certainly Jackson's rhetoric speaks of patriotic rituals, not only the Pledge in schools. There also is a nice question of how far the Barnette protection extends--to speaking the words of the Pledge or anthem or to all engagement in the ritual. In other words, does Barnette mean you can opt-out entirely by kneeling or sitting or leaving the room? Or does it only mean you cannot be compelled to utter the word, but can be made to stand there, even at attention?

2) Employee speech rights within the workplace are limited, under the Garcetti/Connick/Pickering line of cases. Workplace speech that is part of the job is per se unprotected, while Connick/Pickering ask whether speech (whether in or out of the workplace) is on a matter of public concern and whether the employer's interests outweigh the employee's expressive interests. But on-the-job core political speech, however offensive, that does not affect government operations is protected. Thus a deputy sheriff could not be fired for stating, in a conversation with co-workers, her hope that a second assassination attempt on President Reagan would succeed.

3) Janus can be read to accord public employees greater protection against compelled speech than they enjoy against restrictions on their own speech, a criticism Justice Kagan leveled in her dissent. Kagan also predicted that Janus was about limiting public unions, not compelled speech generally, so a rule compelling employees to speak in a way other than donating money to a union.

So what might be the answer to my hypo? There are a couple of threshold question. First is how we should understand what the protesting employee (or an NFL player) is doing. Is he seeking to opt out of having to utter the government's message? Or is he trying to make his own affirmative statement about something (e.g., police violence)? This makes a difference between whether we are in Barnette/Janus or Garcetti/Pickering. Second is how much deference the court owes the government in defining what speech is part of the job. So will the court buy the government argument that the pre-opening patriotic ritual is designed to remind employees of their public duties and obligations and thus part of their public jobs.  And, if not and we are in Connick/Pickering, how disruptive of the workplace the court deems non-participation to be. Third, if this is compelled speech, can it really be that children in school enjoy greater protection against compelled speech than adults in the workplace?

Again, I do not know the answers, although I know I believe it should come out. Thoughts?

Now returning: NFL games, player protests, and presidential tweets

As if on cue, Thursday's NFL preseason games included several players kneeling, standing with a raised fist, or remaining in the locker room during the national anthem. The President responded on Friday with a tweet 1) criticizing the players for being unable to define what they are outraged about, 2) urging them"be happy, be cool" because they make millions doing what they love, 3) urging them to find another way to protest, and 4) commanding "stand proudly or be suspended without pay." (capitalization, etc., corrected).

The first point is untrue because the small handful of players who protest have been very clear and explicit that they are protesting police violence and the criminal-justice system. As this piece points out, the President recognized that in a June statement asking players to talk to him about people they believe were treated unfairly by the criminal justice system so he could pardon them. I derided that statement as incoherent; I should have added not serious.

The second point skates close to the line of saying that rich people should not be allowed to complain. This is ironic coming from a rich man who ascended to the presidency by complaining. So what is it about these wealthy people that should cause them to lose the right to complain? I cannot put my finger on it.

The fourth point brings us back to that state action argument: When a public official continually talks about a specific private dispute and urges a private actor to take some action, do we get to some point where that encouragement becomes overwhelming or coercive? Is it a question of quantity and specificity--how often and how specific? Does it change when it is the President doing the urging? (By the way, hat tip to Rishi Batra (Texas Tech) for suggesting that specificity might matter during our SEALS discussion).

The third point is interesting and touches on something we discussed in the Thursday panel. During pregame warm-ups on Thursday, several Eagles players  wore t-shirts displaying various statistics about people of color and children in prison, one of the issues about which players have been protesting. Throughout this protest debacle, the NFL has been compared unfavorably with the NBA in terms of support for player protests, although the NBA has and enforces a rule requiring players to be on the court and standing at attention during the anthem. So why is the NBA not criticized, by the press or its players, for doing what the NFL is trying to do? Some of it is the perception of incompetence of NFL Commissioner Roger Goodell and the expressly plantation mentality of some owners.

But one possible reason (H/T to dre cummings of Arkansas-Little Rock for this point) is that NBA players have worn message t-shirts and otherwise expressed themselves during their highly visible pre-game warm-ups.* NBA players have an at-the-game, high-profile, many-people-watching forum to express their political messages, therefore less need to use the anthem as a protest vehicle. NFL warm-ups are not watched in the same way and not as intimate, and players have not tried to take extensive advantage of the alternative forum. Perhaps if they do and can, it will remove pressure on the anthem as a necessary expressive moment.**

[*] Prominent examples include LeBron James and others wearing t-shirts reading "I Can't Breathe." WNBA players have made extensive use of this forum.

[**] Or, the NFL being what it is, the league will shoot itself in the foot by issuing a diktat about players having to wear team gear during all on-field warm-ups.

Boardroom scene in "Succession"

A question for the Corp/Bus Orgs folks out there: What did people think of the boardroom scene in Episode 6 of Succession, showing a motion for a vote of no confidence against the CEO* and the rules of order and machinations going before and after it. Worth showing in class as an example of corporate governance and democracy?

[*] Purportedly based on the real-life move against Michael Eisner at Disney.

State action and NFL protests

This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).

1) Close Nexus: Private actors act under color if they act under compulsion, coercion, or "overwhelming encouragement" of state officials. There is evidence that the league and the owners have acted out of fear of President Trump's tweets and general demagoguery and a desire to appease the President. Is that sufficient coercion or encouragement? Does it matter that the tweets are targeted specifically at the NFL and even particular players? I doubt this works, but the outline of the argument is there.

2) Symbiotic Relationship. A powerful (if questionably valid) basis is when there is an exchange of mutual benefits between the government and private actor, including where the government benefits from the unconstitutional conduct. The key here is the militarization of the NFL. The military and Department of Defense have paid the NFL millions of dollars to have the league promote patriotism and the military and player participation in the ritual is part of that.* The NFL gets a lot of money, the military and government is promoted and uses this as recruiting opportunities. To the extent those arrangements depend on a clean patriotic presentation and player protests interfere with that, perhaps limiting player protests could be seen as a way to maintain its arrangement with the military. We probably need to learn more about the deals between the NFL and DOD--what each party gets and what the league is expected to do as part of the deal. Again, this is tough, especially because some lower courts do not accept this as a valid test.

[*] On the radio program I did last month, former NFL player Joselio Hanson pointed out that the players remained in the locker room during the anthem prior to 2009. That change suggests a connection between player participation and the business deal between the league and the government.

The state action arguments work better as against the Indiana proposal, which will not become law in Indiana, nor will anything similar become law elsewhere.

3) The Indiana bill creates a close nexus, as the threat of monetary liability to the objecting fans compels or coerces the team to prohibit the players from protesting. Although the trigger for the monetary loss is a private complaint rather than a government-imposed find, the obligation of the teams to respond to the private complaint is government-imposed. In the same way that tort liability and a government fine are the same for state-action purposes, a compelled refund and government fine should be the same.

4) The Indiana bill resembles landlord ordinances. Landlords are threatened with fines or loss of license for having too many tenant 911 calls for disturbing the peace (including calls seeking help from domestic violence); the solution for landlords is to evict these tenants, prompting the tenants to refrain from calling 911, thereby increasing their vulnerability to violence. Although the eviction or threat of eviction comes from the private landlord, it is prompted by the threat of fines or loss of license if they do not evict. The same is going on here--the team is threatened with financial loss to the complaining fan, so it restricts the players' (constitutionally protected) conduct that might cause the team that loss. There is an extra player in the mix compared with the landlord situation; the latter has the government, the landlord, and the tenant, while this has the government, the team, the players, and the complaining fan. But again, there should be no difference between a fine and private liability when both are compelled by the government.

Two items on teaching law

Classes at FIU begin next Monday, so here are two items on what we teach.

Here are remarks by Max Stearns (Maryland, blogging at Blindspot) at a welcome event for incoming 1Ls at Maryland law. I pretty much agree with everything he suggests, with the small exception that study groups are not for everyone and I am more circumspect in recommending them.

Here is a summary (with video) of an interview by Justice Ginsburg for a Duke Law School event. One of her topics was recommending moot courts as part of legal education, both as a way to promote public understanding of the Court and a way to teach students to sharpen their arguments and positions. I do this as the end-of-semester projects in Civil Rights and Fed Courts, so I am glad to see recognition of its value.

Ninth Circuit affirms less-than-universal injunction as to sanctuary-city funding

The Ninth Circuit on Thursday affirmed the injunction prohibiting DOJ from enforcing an executive order and regulations stripping federal law-enforcement funds from sanctuary cities, in an action brought by San Francisco and Santa Clara.

1) The case was justiciable, considering both standing and ripeness. The plaintiffs had standing because they had policies in place that, under the executive order, would be a basis for withholding funds. That the regs might not be enforced did not eliminate the injury; it was enough that the plaintiffs' interpretation of the regs was correct and could subject them to consequences or to having to change their policies. The action also was ripe. The court pointed to statements by various Trump Administration officials warning about enforcement, with California and its municipalities as an express target, as well as a history of federal grants conditioned on compliance with certain immigration laws. The ripeness point prompted a dissent. Focusing on the order's requirement that any federal action be "consistent with law," the dissent argued that the counties do not face any imminent threat of loss of funds because they have not shown an intent to violate § 1373 and the EO did not order DOJ to enforce the funding regulations in a manner inconsistent with the law.

2) The court affirmed the injunction, but limited it to prohibiting enforcement against the plaintiffs and the State of California. While rejecting DOJ's argument that universal injunctions are per se improper, the court found that the plaintiffs did not offer sufficient evidence of an effect beyond themselves and the State. The court's analysis was inexact but it did hit on a situation in which an injunction should protect beyond the named plaintiffs. Santa Clara and San Francisco offered evidence that their law-enforcement budgets depend on money from the State, which gets some of its money from the DOJ grant program; complete relief for the plaintiff counties thus depended on the regs not being enforced against California.

But while appropriate, this should be a narrow and unique exception to particularity. And the court showed it did not recognize that narrowness when it remanded for the district court to allow the plaintiffs to offer evidence of a universal effect. Although not a party, California was a unique non-party because some of the money it would get from DOJ (and which it would lose under the regs) would be passed to the plaintiffs. No other sanctuary jurisdiction would, if stripped of funds, have the same effect on the plaintiffs' budgets; therefore, stripping funds from no other jurisdiction could render their relief less than complete. For example, if San Francisco does not get money from the State of Oregon or the City of Boston, then enforcement of the funding regs against those cities does not deny San Francisco complete relief.

Radio discussion of NFL anthem policies (Updated)

Last week, I appeared on Gurvey's Law at KABC to discuss the NFL's national anthem policies; that discussion is in the first half-hour. I got pretty strident at points, although I am not especially strident in my position on this issue--as a matter of law, I accept that the NFL  can stop the players from kneeling (subject perhaps to CBA limitation). But one of the hosts insisted that anyone who refuses to stand for the anthem or God Bless America should leave the country, so I could not let that one go.

Update: Slate's Hang Up and Listen Podcast did a supplement (it starts around the 1:03 mark, although you may have to be a Slate-Plus member) to its prior discussion of US Soccer player Jalene Hinkle, apparently after numerous listeners wrote to ask how Hinkle differs from Colin Karpernick and other NFL players kneeling for the anthem. The hosts tried very hard to distinguish the situations, but basically landed on some version of: 1) Stop creating false equivalence between non-controversial messages against police brutality and messages of exclusion of historically disadvantaged groups; 2) teams and leagues can create their own messages, such as LGBT Pride, and compel players to go along with it. Number 1 is naked viewpoint discrimination--teams and leagues must allow player speech I agree with but not speech I disagree with. Number 2 swallows both situations--if teams can compel players to promote its preferred message, it always can do that, regardless of the message (pro-LGBT, pro-law-and-order, whatever).

Judge Leinenweber loves him some universal injunctions

Judge Leinenweber of the Northern District of Illinois made permanent his injunction in City of Chicago v. Sessions, prohibiting DOJ from enforcing regulations stripping federal law-enforcement funds from sanctuary jurisdictions. The new opinion mostly makes permanent the preliminary injunction entered last year and affirmed on the merits on appeal. The new element, as Ilya Somin explains, is the declaration of invalidity of a rule prohibiting jurisdictions from restricting communications with DHS and ICE, relying on Murphy v. NCAA (the NJ gambling case) for the proposition that federal law cannot restrict state or local lawmaking in this way.

The other issue is the scope of the injunction. The preliminary injunction was universal and accompanied by the most detailed judicial justification for universal injunction, but the question of scope is pending before the en banc Seventh Circuit.* Leinenweber made the permanent injunction universal (he continues to use "nationwide"), but stayed the universal scope pending the Seventh Circuit decision (so, for the moment, the injunction prohibits enforcement of the regs only as to Chicago). He recognized the conflict over universal injunctions, pointing to Justice Thomas' opinion in Trump v. Hawaii, as well as the scholarly work of Samuel Bray against universality and Amanda Frost in defense of it. The novelty of the question and the fact of the Seventh Circuit stay of the scope of the preliminary injunction satisfied the first prong (likelihood of success) of the stay analysis and none of the other prongs outweighed that.

[*] The Seventh Circuit panel affirmed the scope of the injunction, over a strong dissent on the scope question from Judge Manion. The court granted en banc review on universality.

Supporters of universal injunctions, including Judge Leinenweber and Prof. Frost, recognize that they should be rare and the exception rather than the rule. Even accepting (as I do not) that universal injunctions are sometimes proper, they should be limited to cases in which enforcement of a particularized injunction would be difficult--it could be easily circumvented,* individual plaintiffs face barriers to bringing individual cases, a particularized injunction leaves the plaintiff with less-than-complete relief, other mechanisms (class certification, organizational standing) would be ineffective. The paradigm would be Hawaii and the travel ban, which presented some unique problems, in that affected persons were all over the world and the plaintiff states could not identify all affected potential students or scholars.

[*] Think Texas and the DAPA injunction, because DAPA recipients could move to Texas.

But Chicago and sanctuary-city funding does not provide the appropriate case, something even Frost seems to recognize. An injunction particularized to Chicago remedies the constitutional violation as to Chicago (the invalid withdrawal of funds) and leaves Chicago with complete relief (it gets its money). Nothing that DOJ might do as to another city violates Chicago's rights or limits its relief, so there is no need for the injunction to go beyond Chicago.

This case shows why efforts to limit universality to unique cases fall flat. If a universal injunction is appropriate here, it is appropriate in every case challenging the constitutional validity of every federal law; there is no reason not to make all injunctions universal, something Leinenweber acknowledges is improper.

More on the "Elam Ending" in Basketball (Updated)

I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.

1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.

2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how  to play in this odd situation.

3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.

Update: The Ringer considers NBA games with historically famous endings (including Michael Jordan's end-of-Bulls-career-game-winner) that would have been changed, while The Big Lead does the same with college games.

Three items for light reading and listening

Two unconnected items I found interesting.

1) David Sims of The Atlantic on the 20th anniversary of Saving Private Ryan and the sense of bitterness and pointlessness reflected in that and other of Spielberg's later movies. One of my early Prawfs post asks whether Private Ryan "earned" the sacrifices made for him and this ties into that.

2) Howard Bryant on the objections by some veterans to the commercialized faux patriotism and militarization of sports. (Bryant is the author of The Heritage: Black Athletes, A Divided America, and the Politics of Patriotism and the article is outgrowth of some of the interviews he did for the book). Bryant is the guest in the first segment of this week's Hang Up and Listen podcast.

3) Slate's Christina Cauterucci criticizes the decision of the US Women's Soccer team to call up Jaelene Hinkle for an upcoming tournament. Two years ago, Hinkle declined a spot on the team for "personal reasons," which this spring she revealed to be objections to wearing a kit with rainbow-colored numbers to mark Pride Month, consistent with Hinkle's opposition to LGBT rights. Cauterucci argues that US Soccer "sold out" its LGBT players and fan base. Cauterucci is in the second segment of the podcast. Unfortunately left unsaid in this article and in the podcast segment is that it is impossible to adopt Cauterucci's argument and argue that NFL players should not have to stand for the anthem, without engaging in some pretty blatant viewpoint discrimination.

Infield shifts and limiting rules

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.

So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

Pine Tar at 35

Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.

 

I am shocked, shocked to find that Court-packing is going on in here

I do not want Brett Kavanaugh on the Supreme Court, just as I did not want Neil Gorsuch on the Supreme Court. But some of the complaining from my ideological compatriots is embarrassing. 

It starts with Charles Schumer's suggestion that Trump should have nominated Merrick Garland, which Sen. Sheldon Whitehouse endorsed as an example of a "really legitimate nominee," in contrast with whoever Trump is inclined to nominate. Now Dahlia Lithwick cannot believe that Kavanaugh believes that it is OK to pack the Supreme Court with justices who will not turn out to be ideological disappointments, as Warren, Souter, and O'Connor were. (Poor Justice Brennan has been forgotten on this list). She writes of Kavanaugh that "now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the 'predictable' nominee who won’t let the party be Soutered or O’Connored again."

Well, yes. Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that. And imagine that Hillary Clinton had won and gotten a Democratic Senate, then renominated Garland and been handed Kennedy's retirement. I doubt Lithwick and other liberals would complain that Clinton had nominated Patricia Millett or Goodwin Liu, who would pack the Court with a six-Justice liberal majority inclined to protect and expand constitutional protection for abortion rights, racial minorities, etc. And liberals would be running around to ensure that either nominee would be predictable in their decisionmaking on key constitutional issues and that Democrats would not be "Whited" or "Frankfurtered" on major issues.

It is time to change the discussion around SCOTUS appointments by rethinking several things:

1) There are not going to be any more Warrens or Souters and we really need to stop talking about the possibility. Both appointments are, in political terms, ancient history. Republicans care too much about judicial appointments and the Federalist Society (which was in its infancy when Souter was appointed) is the incubator through which most conservative lawyers and judges come up; both guarantee that serious nominees will have a clear and obvious legal and constitutional vision. The polarization in the political parties now maps onto judges likely to be serious candidates under those parties. Republicans like David Souter or William Brennan do not exist anymore and neither to Democrats like Felix Frankfurter. As Mike Dorf puts it, a "mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant." So a Republican President will appoint consistent judicial conservatives. As I Democrat, I hope the next Democratic President will appoint consistent judicial liberals.

2) Because of that polarization, new legal issues or regimes are unlikely to arise that shake-up the constitutional order or split constitutional allies. FDR packed Court with New Dealers because that is what mattered to him. In the late '40s and early '50s, the legal landscape shifted to a focus on civil liberties and individual rights. FDR appointees such as Black, Douglas, and Murphy went one way, Frankfurter another. I cannot envision any new, unthought-of issues that are going to become salient that will not have an obvious preexisting Federalist/Non-Federalist (or Democratic/Republican) alignment. No high-profile constitutional issues are suddenly going to unite Kagan and Kavanaugh.

3) Republicans are better at this and, polls from 2016 suggest, care more about it. But why is that? Perhaps because it is easier to create fervor to fight against something than to fight for it. The Federalist Society formed as a response to the perceived excesses of the Warren Court and liberal constitutionalism and the need to fight back against it. Republicans harvested support from religious activists over the need to push back against Roe and doctrines limiting religion in schools (and, soon, other places in society). There is a fear of attack and loss; control of the courts is essential to defending against that attack. By contrast, liberals view liberal constitutionalism as a failure, a Hollow Hope that did not and cannot achieve social change, at least not alone. But disappointment at not achieving full social change through the courts seems to have metastasized into apathy about the courts and the need to elect Democrats to the Senate and White House so they aggressively fill judicial vacancies.*

4) Much is being made of Trump filling vacancies at a record pace in the first two years of an Administration. This could represent GOP concern (represented by the roles of Leonard Leo, Don McGahn, and Senate Republicans more than Trump himself) in contrast to the apathy of Obama (who had a Senate majority for six years) and Bill Clinton (who had a Senate majority for two years). But the rules of Senate engagement are different than they were even four years ago. So we can wonder what the next Dem President with a Senate majority will try to do.

5) That Republicans are better at this should not be grounds for liberals and Democrats to say stupid things, such as suggesting that a Republican President appoint a Democrat to the Court or complaining that a Republican President is packing the Courts. I would hope that President Hillary Clinton would have laughed at a suggestion from Mitch McConnell. And I would hope that liberal journalists would laugh if someone in the National Review complained about Clinton packing the courts.

NFL and NFLPA enter standstill agreement on anthem policy (Updates)

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.

University of Illinois-Chicago to acquire John Marshall

Brian Leiter reports. The idea of UIC taking over John Marshall has been in the air for years. My experience clerking in Philadelphia and teaching at FIU suggested the advantages enjoyed by an urban public law school attached to a non-flagship university. FIU is a lot like UIC--urban, majority-minority, many first-generation students. And there is an opportunity to attract good students  who want to pay lower public tuition while staying in the city rather than moving to the non-urban flagship state university.

This could be interesting to watch.

Lindgren and Stolzenberg on SCOTUS term limits

In the L.A. Times. They suggest a constitutional amendment is required, while recognizing that not everyone agrees. But they suggest the states would support an amendment, given that 49 of 50 states have term limits or maximum judicial ages. The problem, they suggest, is that members of Congress may not want to do this for fear that it would cause the public to demand legislative term limits, as well.

Massachusetts fears Justice Kavanaugh

Following on this post: Josh Blackman writes that Massachusetts is moving to repeal its criminal prohibitions on abortion, adultery, and fornication. Democratic legislators explained that the move anticipated the Court overruling Roe and other cases, after which those laws would become enforceable.

Clopton on universal injunctions

At the Take Care Blog, Zachary Clopton (Cornell) argues that history, structure, and precedent "do not provide a once-size-fits-all answer" to the question of the propriety of universal injunction. Clopton's basic argument is that other doctrines, notably nonmutual issue preclusion and full faith and credit (and, I would add, precedent), protect non-parties. There is thus no blanket reason not to allow injunctions to do the same work, especially since all are grounded in policy concerns.

The difference is how hard we make non-parties work to gain those protections. Precedent and preclusion requires affirmative steps by the new party--file her own lawsuit and ask the second court to make use of the prior judgment or precedent. A universal injunction requires the non-party to do nothing more than request the first court to enforce the injunction and, perhaps, to hold the government in contempt. For reasons linked to Article III and the scope of constitutional claims, I favor requiring those non-parties to take those extra steps.

The return of Skelly Oil and the Well Pleaded Complaint

MGM Resorts and affiliated companies, owner of the Mandalay Bay Resort and the adjacent fairgrounds at which Stephen Paddock killed 58 people and injured 500 others in 2017, has filed two federal declaratory judgment actions (one in California, one in Nevada), arguing that they are not liable to the victims of the shooting. The basis for the D/J action is the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002, a post-9/11 law designed to protect businesses from liability for acts of terrorism. Hundreds of injured or dead are named as individual defendants (the list of parties takes up the bulk of both complaints). The Nevada action is against Nevada citizens and asserts federal-question jurisdiction; the California action is against California citizens and asserts federal-question and diversity jurisdiction (MGM and its affiliates are Nevada and Delaware citizens). One lawyer for many  victims was typically calm and measured in describing this tactic as a "blatant display of judge shopping," verging on unethical, outrageous, and "really sad."

My thoughts, naturally, turned to federal jurisdiction. The news reports read as if MGM sought a declaration of non-liability based on federal law as against state negligence claims. If so, there would not have been federal-question jurisdiction under Skelly Oil, which provides that an anticipatory D/J action does not arise under when the underlying enforcement action would be a state-law claim with a federal defense that would not satisfy the Well Pleaded Complaint Rule. A D/J action arises under only if the hypothetical enforcement action would arise under, because the well-pleaded complaint asserts a claim in which the right of action and rule of decision are created by federal law. This means the California action could go forward based only on diversity jurisdiction but not federal-question jurisdiction, and the Nevada action must be dismissed..

Looking at the pleadings and the SAFETY Act, however, I think there is jurisdiction. MGM's argument seems to be as follows. Section 442 provides a federal cause action, with exclusive federal jurisdiction, "for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act." The law of the state in which the acts occurred provides the rule of decision, unless inconsistent or preempted by federal law. MGM's argument, based on the statute and implementing regulations, is that this was an act of terrorism and because MGM hired a vendor to provide security services, any claim based on failure of those security efforts can be brought only under federal law and in federal court,  and can only be brought against the seller of services and not against it as the buyer. I think that solves the jurisdictional problem. The enforcement action would arise under federal law in federal court because federal law provides the right of action in § 442(a)(1) and federalized state law as rule of decision, so the mirror D/J action also arises under. I do not know whether the argument works under the statute, but that is a matter of merits, not jurisdiction.

One more jurisdictional puzzle in the California complaint. The pleading asserts supplemental jurisdiction with respect to claims against any victim/defendants whose claims would be for less than the jurisdictional minimum. But § 1367(b) should preclude supplemental jurisdiction over claims between multiple plaintiffs and multiple defendants, because the first clause of (b) precludes supplemental jurisdiction over claims by plaintiffs against persons made party under Rule 20. Even accounting for the upside-down posture of the case, the D/J action involves claims against multiple defendants, all joined under Rule 20, which should prohibit aggregating amount in controversy this way.

Fourth Circuit on prosecutorial immunity

Prosecutorial immunity presents a problem. Immunity applies to all functions intimately associated with the judicial phase of the criminal-justice process, broadly defined. And it includes general office-wide policies relating to the judicial process, even if not to a specific prosecution. Courts have sought to draw a line between immune prosecutorial functions and non-immune administrative functions, namely employment decisions. But that distinction could collapse, because employment decisions may have some connection to a judicial proceeding or to judicial proceedings generally--for example, how to staff a case is an employment decision that implicates a prosecution and involves discretionary legal judgment. One way to avoid that collapse is to ask whether the § 1983 action requires that court to reconsider an underlying investigation or prosecution, a question that functionally turns on the identity of the plaintiff--immunity applies when the suit is brought by the target of the underlying prosecution, but it does not apply when the suit is brought by a non-target, such as an employee.

To take a simple example: Imagine the DA refuses to assign an African-American line prosecutor to a case because he believes the white prosecutor will be tougher on the African-American criminal defendant and push for a harsher sentence. If the defendant brings some sort of wrongful prosecution claim, immunity applies. If the passed-over line prosecutor brings a race-discrimination claim, immunity does not apply.

But the Fourth Circuit declined to accept that distinction. The plaintiff was a police officer who alleged that the state's attorney 1) subjected him to racial harassment by (gratuitously) reading aloud at a trial-preparation meeting letters and statements (that would be used as evidence) containing racial epithets and 2) retaliated against him for complaining about that conduct by refusing to call that officer as a witness at any future proceedings. The court held that trial prep and decisions about who to call as witness are immune prosecutorial functions, as they are intimately connected to the judicial phase of the criminal process, done while the attorney was acting as an advocate for the state. That this occurred in the employment context was irrelevant--"[t]hat a judgment about witness credibility or which cases to try has negative employment consequences - even readily foreseeable ones - does not change the underlying nature of that judgment."

This reasoning could broaden prosecutorial immunity in a way that swallows many employment claims. If discussing evidence and deciding what witnesses to call is prosecutorial, then it seems that an attorney could: sprinkle his trial-prep discussions with racial epithets; decide never to call any African-American police officer as a witness; decide never to prosecute a case in which the arresting officer is African-American; decide never to have an African-American police officer in the trial-prep meeting; decide never to assign a female attorney to work his cases or agree to work with a female attorney on his cases. There is no difference between creating a racially hostile environment and treating someone more poorly because of race or sex or whatever; all (if proved) violate Title VII and the Fourteenth Amendment. If they occur in the judicial phase, immunity should apply.

The court tried to avoid that end, insisting "it is only 'a certain kind of administrative obligation - a kind that itself is directly connected with the conduct of a trial.'" And "even in that context, if a prosecutor's alleged conduct cannot be connected to discretionary judgments about which witnesses to call and which cases to prosecute, then absolute immunity will not apply." But it is easy to connect employment acts to those immune discretionary judgments. The state's attorney can decide not to prosecute a case because the complaining officer is African-American or because the line prosecutor working the case is a woman. Either involves protected discretionary judgments. And the point of absolute immunity is that courts cannot look beneath the function and examine motive--if it is a prosecutorial decision (reviewing evidence, calling witnesses, pursuing cases), it is immune, even if the function is performed for no reason other than racial animus.

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.