Saturday, January 22, 2022

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Technology and sports officiating

I oppose and actively dislike replay and most other officiating technology in sports. So why am I happy about the expansion of  the automated strike zone?

The answer is that the ball-strike call is unique in sport. First, the call is difficult for human officials. The umpire must determine whether a ball traveling as extreme speed with outrageous spin passed in the air through an imaginary moving box, simultaneously judging the horizontal and vertical location within that box. And he must make that call between 250 and 300 times each game. Second, the call can be automated in a way other calls cannot be. The call occurs in a confined and stationary space, at which a few cameras can be aimed; it does not require no movement or following the play. Third, it is one of the few technological advances that does not require breaking the flow of the game.

Count me as hoping this works.

Posted by Howard Wasserman on January 21, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Legislative and Adjudicative Jurisdiction

Kudos to the First Circuit for getting it right in a case involving a federal prosecution for drug trafficking in international waters. The defendants argued, and the court agreed, that extending the Maritime Drug Law Enforcement Act to international waters infringed on international law and thus exceeded congressional authority. The defendants had moved to dismiss for lack of subject matter jurisdiction, but the First Circuit rightly recognized the issue as one of legislative jurisdiction--Congress' power to enact substantive legislation--rather than the subject-matter jurisdiction of the federal courts. Thus the prosecution fails on the merits because the law being enforced was unconstitutional; the prosecution does not fail for lack of judicial jurisdiction.

Posted by Howard Wasserman on January 21, 2022 at 08:32 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Wednesday, January 19, 2022

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 14, 2022

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

I am officially old (corrected, still old)

A 1L in my Civ Pro class this semester is the child of a woman who took Civ Pro from me in fall 2002 at Florida State, the first time I taught the course as a VAP.

Posted by Howard Wasserman on January 13, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.


A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

 

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, January 07, 2022

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

Posted by Howard Wasserman on January 7, 2022 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, January 06, 2022

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

Posted by Howard Wasserman on January 6, 2022 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 31, 2021

2021 Chief Justice Year-End Report

This ball still drops, even during a pandemic.

This year's theme is the Judicial Conference (which marks its centennial in the coming year) and the importance of the judiciary's "institutional independence," as the "power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government." The opening historical ditty is about Taft and the origins and development of the Conference. Roberts then analyzes three topics flagged by Congress and the press as requiring the Conference's attention: Recusal obligations (in light of the recent WSJ report), judicial misconduct (implementing the Working Group's recommendations), and venue in patent cases.

I have an article coming in early 2022 in Stetson Law Review on the history of the Year-End Reports and how the chiefs have used them to address and push for changes in civil procedure and civil litigation.

Posted by Howard Wasserman on December 31, 2021 at 06:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, December 28, 2021

What does it mean to have gone to law school?

New York State Senator Brad Hoylman (D) announced a bill defining as a public nuisance (subject to public and private litigation) the promotion of "harmful, false, or unlawful" speech. It targets social-media sites whose algorithms promote or prioritize such "hateful or violent" content, treating it as an affirmative act (compared with passive hosting of third-party speech) not subject to § 230 protection. The obviously problematic piece is making actionable "a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public," a rule that would 1) empower the government to determine medical truth and 2) lacks the required imminence.

First Amendment scholars, lawyers, and commenters jumped to identify the obvious problems with the law under existing precedent and the likelihood its enforcement would be enjoined shortly after it takes effect. They also have pointed out that Hoylman graduated from Harvard Law School, a shot at HLS ("what the hell are they teaching there?") or at Hoylman ("did he not take a First Amendment class or did he just not pay attention?") or at both.

But consider three other possibilities.

    1) One must know the law to ignore it. HLS did a good job of teaching the First Amendment and Hoylman learned it well. But in his new position he does not care, choosing to score political points rather than adhere to the constitutional law that he was taught and knows well.

    2) One must know the law to find ways around it to serve (what one believes are) greater societal goals. HLS did a good job of teaching the First Amendment and Hoylman learned it well. And Hoylman is using that knowledge to find ways around that law in pursuit of a higher purpose or social goal. Whether one shares that goal tells us nothing about how well the law is taught and learned at HLS.

    3) Stop being judicial supremacist. HLS taught and Hoylman learned the First Amendment as interpreted by the courts. As a legislator, he is not bound by judicial precedent or that judicial interpretation and can proceed on his own understanding in drafting, introducing, and pushing legislation. His position may lose in court, but he has the departmentalist authority and discretion to pursue his competing vision within the legislative process. On this last point, perhaps we test the "HLS taught and Hoylman learned the First Amendment" hypothesis by whether Hoylman knows that his position will lose and chooses to pursue it anyway (a defensible position in a judicial-departmentalist world) or whether he believes what he proposes is consistent with prevailing judicial precedent.

Posted by Howard Wasserman on December 28, 2021 at 03:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

An inexplicable lawsuit

A class of of state med mal plaintiffs sued a bunch of doctors, hospitals, professional associations, health networks, the Attorney General, and several state judges; the plaintiffs want a DJ and injunction declaring that the Seventh Amendment is incorporated and that Texas' cap on non-economic damages violates the Seventh Amendment. Bloomberg reported on the order dismissing claims against the judges in light of WWH (because everything comes back to SB8). Otherwise, the case seems to be moving towards a hearing on the request for injunctive relief. But I am baffled by how this case is moving forward. Other than the AG arguing that plaintiffs lack standing because their federal claims depend on winning their cases and showing entitlement to non-economic damages that would be limited by the cap, the remaining defendants' briefing has focused on the merits of whether the Seventh Amendment should be incorporated and whether the damages cap is constitutionally invalid.

But this case should never go near the merits. That the parties and the court are steaming headlong towards that reveals how litigants and courts have disconnected constitutional litigation from, well, litigation.

First, we should be clear about context. This is not SB8--potential state-court defendants run to federal court with their potential federal defense to liability, seeking a remedy that would prevent state litigation. Here, the federal plaintiffs are the state plaintiffs and most of the federal defendants are state defendants; the plaintiffs have lopped off one piece of the state litigation that they initiated--their constitutional challenge to their anticipated defense--and turned that into a federal case, the resolution of which would control the state litigation. Let us count the ways that this is not permissible.

No Cause of Action. Both § 1983 and Ex parte Young require a defendant who acts under-color. Private litigants do not act under color when they avail themselves of ordinary laws and rules within litigation--especially when they are defendants in that litigation, dragged into court by the plaintiffs. So the state-court defendants (doctors, hospitals, and providers) should not be subject to this suit.

Eleventh Amendment/Lack of Standing. The AG did not argue, relying on WWH, that it does not enforce the damages cap, which arises in private tort litigation, not through any governmental enforcement. Maybe the AG has some "residual" enforcement power that has not been disclaimed. But it seems odd not to raise it.

Lack of Subject Matter Jurisdiction. Standing aside, I do not see how this action arises under federal law. Mottley provides the analogue--plaintiffs have state-law claim, defendants have a statutory defense (federal in Mottle, state here, but the point is the same), plaintiffs argue that the statute on which the defense will rely is constitutionally invalid. Mottley held that the defense and response to the defense does not provide federal jurisdiction under the Well Pleaded Complaint Rule; instead, the state court adjudicates the defense and federal response and the Supreme Court can review that judgment. But imagine that after filing their breach-of-contract claim, the Mottleys sued the railroad in federal court for a DJ that the free-pass law (which they expected the railroad to raise in defense) was constitutionally invalid--that is this case. But allowing that claim would undermine the WPC, by allowing the federal response to a defense to provide the basis for a federal forum, rather than leaving the entire case in state court subject to SCOTUS review.

If the medical defendants do not act under color and § 1983/EPY cannot provide the cause of action, the cause of action must be the DJA. But then we have a version of a Skelly Oil problem--a party impermissibly basing federal jurisdiction off an issue that would not arise on the face of the WPC in the enforcement claim in state court. And, again, this case is a step removed from Skelly because this is not the state defendant trying to beat the state plaintiff into court, but the state plaintiff trying to forum-shop by breaking up the case.

Now there is an argument, with which I would agree, that the WPC is wrong--cases such as the underlying med mal actions, in which a federal issue is certain to play a major role, should be deemed to arise under. But that is not the world in which we live. And plaintiffs should not be able to subvert the rule that we are stuck with.

Abstention. No one has raised Colorado River abstention, although it would seem to fit. The state actions were filed first (by the same people filing the federal action), it creates piecemeal litigation by breaking a key issue in the state case into separate federal litigation, and there is no reason to believe the state court cannot adjudicate the federal issues.

I do not understand the point of this strategy--what do they gain by pursuing the issues in this posture? They must want a federal forum, but they are not legally entitled to it. They must want one injunction and judgment stopping defendants from raising the damages cap. But not every doctor or (I presume) every hospital, clinic, and health-care provider is a defendant and thus not every doctor and provider can be subject to the injunction. No single person or entity can be enjoined in a way that protects the entire class. They are proceeding on the understanding that the law itself can be declared or enjoined, but that is not how this works--remedies run against persons ("any interested party" in the language of § 2201).

This action should be rejected on procedural grounds. But neither the defendants nor the court seem to recognize the many problems with this suit.

Posted by Howard Wasserman on December 28, 2021 at 02:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, December 27, 2021

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Sunday, December 26, 2021

Is "When Harry Met Sally . . ." a Christmas movie? Is it a Jewish movie? Is it both?

We watched When Harry Met Sally . . . with our 15-year-old last night. They enjoyed it and now understand the source of many cultural references (low maintenance, singing in front of Ira, not fucking with Mr. Zero, "because of God," etc.) that have bounced through our house for years. Next up, I guess, is Casablanca. Until then, two questions:

First, is this a "Jewish" movie? I saw an academic talk years ago that argued this is another version of the "Jewish man's opposites-attract relationship with the strange non-Jewish woman" story. I have never bought it. The movie is "Jewish" in that the writer (Nora Ephron), director (Rob Reiner), and male lead (Billy Crystal) are Jewish--but that is true of many movies (running Hollywood has its benefits). The story is loosely based on Reiner's experiences reentering the dating scene following his divorce. Sally is not Jewish (we twice see her buying a Christmas tree--more on that below). But is Harry meant to be Jewish? The story never makes that explicit. He is based on Reiner and played by a Jewish actor presenting "typically Jewish" mannerisms and personality. Harry Burns is a Jewish name, I guess, but it is no Isaac Herschkopf. Perhaps it does tell the Jewish-man-chases-shiksa story, sanitized for a mainstream audience. On the other hand, if you kept everything the same as the original movie and put Tom Hanks in the male lead (i.e., if you made Sleepless in Seattle or You've Got Mail*), would we think of this as a "Jewish" movie?**

[*]  In You've Got Mail, the Hanks character is Joe Fox and the mammoth chain bookseller is Fox Books. The irony for people watching that movie in Philadelphia was that Fox Books is a multi-generational independent bookshop around the corner from a Barnes & Noble, and its founder was Joseph Fox, who was Jewish.

[**] On a third hand: Ephron claimed that she based Sally on on herself and her friends. So you could tell a different Jewish story by remaking the movie with Jesse Eisenberg and Lizzy Caplan.

Second and more controversially: Is it a Christmas movie? The current-day (non-flashback) story appears to cover roughly 16 months--they reunite in late summer/early fall and the story ends on New Year's one year later. They pass through two Christmas seasons--captured in two winter-and-Christmas-in-New-York musical montages set to Christmas standards and buying Christmas trees (for Sally, not for Harry, of course). The different tenor of the Christmas montages evokes the different stages and states of their relationship, although with limited dialogue. The "action" of the seasonal scenes occurs not on Christmas but at two New Year's Eve parties--is New Year's part of Christmas for Christmas MovieTM purposes and should it be?

Posted by Howard Wasserman on December 26, 2021 at 03:02 PM in Culture, Howard Wasserman | Permalink | Comments (11)

Project Veritas injunction remains against New York Times

From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.

The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.

Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, December 22, 2021

It's not just baseball

A New York Magazine story on Yeshiva men's basketball, which is ranked # 1 in the nation in D-III, has won 50 straight games dating back three seasons, and is blowing teams out. The undefeated Maccabees reached the D-III Sweet 16 when the tournament shut down in March 2020. They played only seven games last year before the season shut down. It is a great what-if for the school that COVID upended what could have been an historic run.

Ryan Turrell is the team's star, a mid-to-mid-major D-I talent who went to Yeshiva because he did not believe he could reconcile his Jewish practices with playing D-I basketball. Turrell hopes to be the first Orthodox Jewish player in the NBA and the counterpart to two young Orthodox baseball players (one in the minors, one playing at Wake). Lost in the story is perspective on whether Turrell's talents translate to the next level. There are no D-III grads in the NBA; the closest is Miami Heat guard Duncan Robinson, who began his career at D-III Williams, but transferred to Michigan after a freshman season in which he earned All-America honors. Turrell's lone D-I commitment was to Army, which is not a typical path to the NBA (David Robinson does not count--he grew six inches between 12th grade and 2d year at Navy). The likely make-or-break for Turrell is whether he is a good enough shooter.

Fun times.

Posted by Howard Wasserman on December 22, 2021 at 11:40 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Monday, December 20, 2021

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Friday, December 17, 2021

Dorf on limiting bounty hunters

In (properly, IMHO) rejecting what he called the courts-and-clerks theory in WWH, Justice Gorsuch argued that this litigation theory lacks a limiting principle--every defamation defendant with a First Amendment defense would sue the clerk to stop the filing of the threatened lawsuit. Michael Dorf offers a limiting principle; Rick responded on Twitter to question the idea that the federal Constitution prohibits states from selectively weakening their standing rules; pointed to my post arguing that the Florida law allowing parents to sue schools for teaching that slavery and Jim Crow were bad things is not like SB8; and urged me to respond to Mike's column. So here goes.

I think this is the money graf from Mike's column:

Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.

I will respond with three points.

I do not think there are any circumstances in which clerks and judges can be sued as the mechanism for enjoining enforcement of a law for which they are not the enforcing officials. Ex Parte Young nor § 1983 are designed to allow suits against those who enforce the laws--in § 1983 terms, those who "subject or cause to be subjected" the plaintiff to a violation. Judges and clerks do not do that.

Mike may be correct that there are federal constitutional limits on state standing or procedural rules, including equal protection limits to selectively altered standing or venue rules. But those constitutional defects do not create the predicate for offensive federal litigation where none existed; instead, they are further federal defenses to be raised in the state proceeding and that might provide a basis for SCOTUS review.

There is something to Mike's distinct between bounty hunters and ordinary plaintiffs. What flows from that is not an overhaul of the process. Instead, it is to convert the bounty hunters--who are the enforcers of the law--into state actors subject to pre-enforcement suit or to a post-enforcement § 1983 action for damages.

Posted by Howard Wasserman on December 17, 2021 at 12:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fed Soc Courthouse Steps on SB8

Stephen Sachs and I did an episode of the Fed Soc Courthouse Steps podcast on the SB8 cases and what happens next. We were wrong about one thing--the Court remanded not to the district court (the expected move after cert before judgment and the partial affirmance of the district court) but to the Fifth Circuit, where Texas now asks for certification to the Texas Supreme Court of the state-law question of whether the licensing boards can use SB8 violations as the predicate for administrative action.

These steps slow the already-limited effect of any pre-enforcement offensive injunction. The focus must shift to defending the three pending state-court actions.

Posted by Howard Wasserman on December 17, 2021 at 11:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

Anthony Colangelo (SMU) warned that people seem "hypnotized" by the admitted strangeness of SB8, at the risk of throwing away established procedure, much of which benefits left positions.

Case-in-point: Florida Governor Ron DeSantis announced Wednesday a new proposal giving parents a cause of action to sue schools for teaching Critical Race Theory (which a different law enacted earlier this year prohibits). This is a stupid proposal, which, given the source, is redundant. But the use of private civil litigation sparked immediate, and inaccurate, comparisons to SB8. Ed Kilgore in New York Magazine complained about "pernicious vigilante enforcement"  that allows parents who do not want their children to learn accurate history to "[s]trike a blow against wokeness and get paid!" It "create[s] a witch-hunt atmosphere complete with financial incentives for nuisance lawsuits."

This overeaction--again, to a stupid, pernicious, anti-intellectual, ahistorical proposal that should be opposed on its merits--threatens to throw away essential private civil rights enforcement in a way I doubt the author wants to intends.

An action under this bill is indistinguishable from a § 1983 action challenging the removal of a book from the library or the a school conducting a Mass as part of its Christmas play. The school has legal obligations (do not remove books in a way that violates the First Amendment, do not endorse religion), students (and their parents) have rights (not to lose access to a book, not to be compelled to engage in religious practice), § 1983 authorizes a person to sue the school and school officials for remedies for those practices, and § 1988 allows them to recover attorney's fees. This stupid bill imposes on schools an obligation (do not teach CRT), gives students (and parents) a right (not to be subject to learning CRT), and authorizes the students and their parents to sue for remedies for those practices, including attorney's fees. The rights at issue in the § 1983 action are constitutional while this is a state statutory right, but that distinction does not matter. (Imagine a federal statute requiring schools to "maintain age-appropriate literature in the library" and a private right of action and we would be in the same place).

The distinction lies in how critics of this law such as Kilgore feel about the substantive rights at issue. He (like most liberals) does not want school to pull Beloved or Slaughterhouse Five from the school library and does not want schools to impose on students participation in a Catholic Mass; he does not want schools barred from teaching CRT (which we all know is code for teaching the historical truth about slavery, Jim Crow, segregation, redlining, police abuse, etc.). But then frame the objection in those terms; focus on the inanity of saying that stopping the teaching of Jim Crow is necessary to stop the U.S. from becoming Cuba in 1961. The problem with this bill is its substance, not the enforcement procedures.

Kilgore's complaints about the private cause of action could have come from any conservative critic of students and parents who file civil rights lawsuits against schools: "Section 1983 allows parents to '[s]trike a blow against [Christianity, good morals, age-appropriate education, simple patriotism] and get paid!'" "Section 1983 and § 1988 create a witch-hunt atmosphere giving financial incentives to file nuisance lawsuits."  Framing the objection in procedural terms and treating all private attorneys general as the equivalent of SB8 undermines essential civil rights enforcement. And the point becomes more obvious if we take it out of schools and think about anti-discrimination laws or environmental laws. Conservatives have been complaining about these frivolous lawsuits against government for years. Making that the crux of the debate over this stupid Florida bill plays into their hands and will have harmful consequences for civil rights enforcement.

There is interesting potential for dueling claims that put schools in a bind. Can a parent bring a claim because Beloved is in the school library? And what happens if removing the book to appease that parent subjects the school to a First Amendment suit by someone who wants the book in the library? Fun times.

Posted by Howard Wasserman on December 16, 2021 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, December 14, 2021

Fake slides and the infield fly rule (Updated and Moved to top) (Twice)

I defend the infield fly rule as a response to sporting situations defined by four features: 1) A player acts contrary to athletic expectations; 2) that player gains an extraordinary, unique, and inequitable benefit; 3) that player exercises exclusive control over the play; and 4) the combination of ## 2 and 3 gives a player the perverse incentive to try # 1. The IFR responds by limiting # 1 to avoid the overwhelming cost-benefit advantage. (The IFR achieves this by calling the batter out and eliminating the force on the runners, thereby eliminating the cost-benefit advantage and thus the perverse incentive). A key to the defense is showing that the IFR situation is not unique--that similar problems arise in baseball and other sports and those sports respond to the problem with limiting rules similar to the IFR.

A new example comes from Saturday's ACC Championship between Pitt and Wake Forest. Pitt QB Kenny Pickett scrambled out of the pocket and ran upfield. After almost 20 yards and with two defenders closing in, Pickett slowed and begin to slide to the ground, only to stutter step, remain upright, and continue running for a 58-yard touchdown (video embedded in link). When a QB slides to the ground feet-first, defenders cannot touch him; the rule--instituted in the NFL in 1985 and the NCAA in 2016--is designed to protect quarterbacks.

How does this break out:

    1) Pickett acted contrary to the game's expectations, which are that quarterbacks slide in that situation. The health and safety considerations are built into the game's rules and expectations.

    2) Pickett gained an extraordinary benefit. When he pretended to start his slide, the defenders had to stop; when he continued running, it was too late for them to react.

    3) Pickett controlled the players and the defenders can do nothing to stop it. Pickett knew what he was going to do, but the defenders did not. The defenders had to stop chasing when they saw him begin sliding. If they continued moving, he actually slid, and they hit him, it would have been an unnecessary-roughness penalty (and perhaps a targeting ejection, if one of them unintentionally hit the sliding Pickett in the head). But once they stopped, it was impossible to start again when Pickett continued running. And Pickett knew this--he took advantage of a rule that prohibits defenders from hitting him.

    4) Quarterbacks have a perverse incentive to try this move, at least if willing to take a hit. At worst, they actually slide and get hit, gaining an extra 15 yards. At best, they can run upfield without fear of getting hit. Wake Forest Coach Dave Clawson suggested he would tell his QB to "fake knee" all the way down the field.

Pickett's play was not against the rules, but Clawson called for a rule change to prevent such fake slides. This would be a limiting rule a la the IFR. The question is what the rule would look like. The official could whistle the play dead when the QB looks like he is giving himself up. Or the move could be penalized, depriving the QB of the benefit of the fake and eliminating any yardage gained prior to the fake. Only the second deters the effort. Under the first, a QB might hope he can fool the official into not blowing the play dead, knowing that it is costless to try. Under the second, the QB loses something if he tries it and fails.  A new rule may not be necessary. Football has a foul for "palpably unfair acts," a discretionary catch-all unsportsmanlike penalty. Examples include players running off the sideline to make tackles and intentional blatant holding penalties to waste time on the clock. Perhaps it covers this sort of deception of a helpless defender.

Update, 12/11: The NCAA came through, ruling: "[A]ny time a ball carrier begins, simulates, or fakes a feet-first slide, the ball should be declared dead by on the field officials at that point."

Second Update, 12/14: A friend asks how the fake slide differs from Dan Marino's 1994 fake spike, when Marino faked that he was spiking the ball at the goal line with time running out, then pull the ball back and threw a touchdown pass. A good question. The difference goes to the defense's ability to counter the fake. The rules allow the defense to keep playing when the QB spikes (or appears to spike) the ball--if a player could move that far that fast, a lineman could sack a QB trying to spike the ball. The Jets defense infamously was fooled and gave up on the play, allowing the TD. But the rules did not require them to do that--they could have avoided that fake by not falling for the fake. By contrast, the fake slide forces the defenders to stop playing because they cannot hit the QB who appears to be giving himself up and cannot even come close; when Pickett continued running, the defenders could not respond quickly enough to the play unexpectedly continuing.

There is, as my friend argued, a "family resemblance" between the plays. But this shows the importance of the four features of the play, all of which must be present for the play to raise problems. Eliminating one eliminates the extraordinary cost-benefit imbalance that requires limiting rules. Rulemakers still may not like and seek to eliminate the play. They are not facing a fundamentally unfair situation.

Third Update, 12/15: Another reader makes the point that Marino did not really fake the spike. Everyone assumed he was going to spike it and the defense stopped playing, but he did not really try very hard to sell the fake. Which reenforces my original point--the defense could control this play and failed to do so. No need for special rules to protect them.

Posted by Howard Wasserman on December 14, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, December 13, 2021

Succession finale does Bus Orgs--please explain

Succession's Season 3 finale aired Sunday. The big story development involves Bus Orgs stuff about which I know nothing and that I hope someone can explain. (After the jump to avoid spoilers)

First, a preliminary shout out to Mog. Mog is a cat in a series of children's picture books. The episode opens with Logan reading  Goodbye Mog to his too-old-for-this-book grandson. In the book, the cat dies but hangs around as a ghost to guide the family's new cat. Using this as the episode opening references the cliffhanger of Episode 8, which left people wondering whether Kendall had died. We got a kick out of the scene because someone gave us this book (and only this book--nothing else from the Mog series) when our kid was a baby and we all found it a bit freaky for a children's book. We joke about our four former pets "mogging" our new dog to help her become part of the family.

OK, here is the bus orgs part.

The episode centers around Logan selling the family company to a larger company, a move that likely would push Kendall, Shiv, and Roman out of positions of power. They attempt to stop it through the following move: The articles governing the holding company (which owns the family company) provide that no move can cause loss of family control without support of a super-majority of the owners of the holding company. The owners include at least Logan and his four children. It is not clear if there are others, if the requirement is a super-majority of shares or shareholders, and how many shares each person knows; what is clear is that without their support the deal cannot go through. We also learn that the super-majority provision was established as part of Logan's divorce settlement with his second ex-wife, Caroline (Kendall/Shiv/Roman's mother), to protect her then-minor children.

The plan fails when Caroline screws the kids over by doing something that enables Logan to move forward without his kids' approval. The question is what, exactly, she does.

• Caroline tells the kids that she renegotiated the divorce settlement (in exchange for something, likely Logan's help getting her skeezy new husband a peerage) to eliminate the super-majority requirement. But its that possible? Can the divorce settlement legally create (and then eliminate) the super-majority requirement in the company's organizing documents and rules? It seems to me the settlement would have required Logan to put that requirement in the company regulations, where it now remains. Changing the divorce settlement cannot change the company regs; the company must do that. And presumably Logan cannot change those regs unilaterally without some notice and approval of the three kids who now enjoy legal rights as adult owners.

• Maybe the regulation requires a super-majority of shares, Caroline remains an owner of the holding company, and she threw her shares behind Logan's share to create a super-majority of shares that can outvote those of the kids? That would make a bit more sense, although it has nothing to do with renegotiating the divorce settlement.

Is there some other explanation? Is this another instance of the show (in the eyes of some profs) playing fast-and-loose with how corporate governance operates in the interest of the drama of how badly Logan and Caroline treat their children (as Shiv says, "we just walked in on Mom and Dad fucking us")? The story obviously defies reality in that they negotiate and complete a major corporate acquisition in less than a day, from a temporary villa in Italy. But I am wondering if anyone understands the mechanism that made the plot work.

Posted by Howard Wasserman on December 13, 2021 at 09:03 AM in Culture, Howard Wasserman, Television | Permalink | Comments (2)

Sunday, December 12, 2021

California threatens to follow Texas

California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.

I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.

The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.

Posted by Howard Wasserman on December 12, 2021 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

1) The sheriff and the litigation loser are not adverse, independent of the judgment. The adverseness remains between the defendant and the plaintiff who successfully sued him for violating the law. The sheriff and the clerk operate the state machinery in which the party's adverseness plays out (machinery that allows assertion of constitutional issues), at opposite ends of the process. But both are neutral between the parties and the rights, claims, and defenses asserted, other than as they are found by the court. The sheriff has no interest other than in enforcing a presumptively valid judgment.

2) It similarly interferes with the state judicial process by depriving courts of the opportunity to hear and decide cases within their jurisdiction. It rests on the same erroneous premise that having to litigate (as opposed to being held liable on the claim) violates rights. The state judge may rule in favor of the provider (in fact must, if she follows binding prededent), in which no constitutional violation occurs. A losing party cannot challenge an unfavorable state judgment by enjoining the sheriff from enforcing that judgment; the loser is expected to appeal. It makes no sense to allow a party who has not yet lost (or even been sued) to preemptively challenge the judgment before it is entered. Along those lines, note that no federal claim lies against the sheriff if the judgment is enforced and later reversed; the defending party goes through the state proceedings to disgorge whatever he lost.

3) The sheriff's task in enforcing the judgment is ministerial. The sheriff has no discretion whether to enforce the judgment, as the clerk has no discretion whether to accept the order. The sheriff likely does not know or review the substance or merits of the underlying judgment. Sheriffs would have to review and evaluate every judgment, perhaps having to parse a judgment on multiple claims, some of which can be enforced and others of which cannot.

4) The theory is boundless and without limiting principle. It cannot be limited to SB8, so every defendant would avail itself of this strategy.

5) The claim is too speculative. The sheriff violates rights by enforcing the judgment; that violation requires an intervening act by a separate actor--the judge must enter judgment against the provider. But that may not happen, if the judge acts as she should in following precedent to reject liability under SB8. The court will not presume the state judge will do this. The sheriff theory goes a step beyond the clerk theory. The latter required one presumption--that someone would file the suit they are authorized to file. The latter requires that presumption, plus the additional presumption that the judge will get it wrong.

My guess is the WWH plaintiffs and their lawyers recognized this. They threw every defendant they could think of into that lawsuit. That they did not include sheriffs must mean they knew that was a longer shot than the unprecedented theories they attempted.

Posted by Howard Wasserman on December 11, 2021 at 11:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 10, 2021

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

Posted by Howard Wasserman on December 10, 2021 at 11:05 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

7th Annual Civil Procedure Workshop

Seventh Annual Civil Procedure Workshop
Cardozo Law School
May 19-20, 2022

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2020 include Pamela Bookman, Maureen Carroll, Zachary Clopton, Brooke Coleman, Myriam Gilles, David Marcus, Elizabeth Porter, Alexander Reinert, and Diego Zambrano.

We welcome all civil procedure scholars to attend. Please register for the conference here (if the link does not work please use the following address: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop). Those wishing to present a paper for discussion should submit a two-page abstract by February 11, 2022, using the same registration site: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 18, 2022.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. If you have any questions, please feel free to contact Alex Reinert ([email protected]) or Myriam Gilles ([email protected]).

Posted by Howard Wasserman on December 10, 2021 at 10:08 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, December 09, 2021

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Posted by Howard Wasserman on December 9, 2021 at 08:20 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 06, 2021

It is a medium-sized university, and yet there are those who love it

Monday's argument in Hughes v. Northwestern University, on stating claims under ERISA.

Posted by Howard Wasserman on December 6, 2021 at 03:48 PM in Howard Wasserman | Permalink | Comments (1)

Sunday, December 05, 2021

What we mean by "let the states decide"

Neil Buchanan is taking bets on how quickly after Dobbs overrules Roe/Casey congressional Republicans propose a federal prohibition on abortion. Buchanan sets the over/under at two days after the start of the next Congress with Republican majorities. I will take the under--a bill will be introduced in this Congress the day after Dobbs, although the first bill with a chance will be when Buchanan suggests.

But is it fair to label this Republican hypocrisy? Yes, the anti-choice mantra has been "let the states decide," a phrase repeated during the Dobbs argument. But the mantra has not been about states v. federal government; it has been about popular/democratic branches (at whatever level) against the court. The objection to Roe and Casey is that it removed the decision from political debate and lawmaking; it did not mean to identify the level of government at which that debate and lawmaking will take place. What they mean by "let the states decide" is "let the majority (as reflected in representation) decide."

I believe a potential ban is a bad idea. I do not necessarily see it as hypocritical.

Posted by Howard Wasserman on December 5, 2021 at 07:58 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, December 04, 2021

Tushnet on pet peeves in legal scholarship

Co-sign. Some colleagues were having a discussion about the practice in non-law disciplines of reading one's paper.

 

Posted by Howard Wasserman on December 4, 2021 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, December 03, 2021

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 02, 2021

Graded assignments

In Fed Courts and Civil Rights, most grading is based on a written assignment and oral arguments as SCOTUS reviewing lower courts. Each student argues one case, serves as justice for one case, and writes an opinion on one case. From a list of cases, I assign each student the case to argue and the case to judge; they choose their third case from the remainder of the list.

First problem: More than 1/3 of the class--13/30--wrote on the same case (standing to challenge North Carolina's 20-week abortion ban).  Part of the reason for doing it this way (rather than giving an exam) is not having to read multiple versions of the same answer; this undermines that. Is this a problem and is there anything I can or should do about it?

Second problem: Two students reversed the lower court; everyone else affirmed. Even when the political valence of the lower court went against what I imagine would be students' preferences (e.g., finding moot a challenge to a limit on absentee voting). And even when the lower court included a strong dissent. Part of me thinks it is easier to affirm (the starting point for the analysis is there). The alternative is to require the authors to reverse, but that makes the assignment too difficult (and gives an edge to those working with cases that have dissents). Again, is this a problem and is there anything I can or should do about it?

Posted by Howard Wasserman on December 2, 2021 at 02:10 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Tuesday, November 30, 2021

Random law stuff

Nothing hold these together other than law and personal interest:

• Pennsylvania is seeking cert in the Cosby case. I wrote in July that the case offered some nice independent-and-adequate issues. The state court cited both state and federal cases and it is not entirely clear whether the grounds for decision was the 14th Amendment or its state counterparts. I still do not think the Court will touch it, but I expect some briefing on the I-and-A issues.

• NBA player Enes Kanter Freedom, who has run into problems for his opposition to the current Turkish government, appeared on Tucker Carlson to tell Americans to "keep their mouth shut and stop criticizing the greatest nation in the world and they should focus on their freedoms and their human rights and democracy." So two bits of irony, if not chutzpah. First, is the difficulty of focusing on freedoms and democracy by declining to exercise the most basic freedom and the one most central to democracy. Popehat compared this to the view that freedom is like your grandmother's slip-covered  sofa--not actually to be used. Second, it appears Carlson does not believe all basketball players should shut-up and dribble--some are allowed to speak out on public issues; guess which athletes and which issues.

• Any journalist not named Chris Cuomo would at least be suspended, if not summarily fired. If, as I expect, he screams "cancel culture," we will know that the term has lost whatever minimal meaning it had (and it already had none). Because it will be wielded to defend professional misconduct--breaking the ethical rules and employment agreements that guide the profession.

Posted by Howard Wasserman on November 30, 2021 at 09:06 AM in Howard Wasserman | Permalink | Comments (0)

Monday, November 29, 2021

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 28, 2021

More on the preferred first speaker and the futility of "conversations"

The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.

Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches), there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."

This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.

(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).

Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 19, 2021

The Times plays defense and no one cares

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

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

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

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

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

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

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

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

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

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

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 18, 2021

JOTWELL: Michalski on Burch & Williams on voices of MDL

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

Posted by Howard Wasserman on November 18, 2021 at 03:49 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)