Saturday, June 23, 2018

When the Nazis became "The Nazis" (Updated)

That question occurs to me reading historian Deborah Lipstadt's argument against comparing family separation and the detention of children and families to Nazis and concentration camps. She argues that the analogy is historically inaccurate, rhetorically self-defeating, and unnecessary, because "something can be horrific without being a genocide or a Holocaust."

One problem with both Nazi comparisons and criticisms of Nazi comparisons is that they assume a singularity to what the Nazis did and were. But, as one Holocaust scholar argues, the Nazi campaign against the Jews did not begin with murder or even intend towards murder. Hitler and the Nazi Party came to power in 1933 seeking to strip Jews of civil rights rights, to "degrade, segregate, and diminish" Jews--precisely how Lipstadt describes the purpose of apartheid. The plan was to keep new Jews from entering Germany and expel those present. The turn to mass murder did not begin until 1941, when officials realized they had both the need and the means.* There were concentration camps for political and other prisoners (including Jews) from the beginning of the regime and conditions in the camps were poor. But gas chambers were not installed at the camps until 1941 and construction of "death camps" designed only for murder began the same year.

[*] Some scholars argue that the Nazi turn to murder grew from a conflict between two Nazi goals--conquering nations and creating a Greater Reich and getting rid of the Jews within the Reich. Millions of Jews lived in the areas Germany invaded, so as German territory grew, so did the number of Jews in German territory.

In other words, the Nazis had between five and eight years of harassing, intimidating, isolating, and dispossessing Jews, marked with dehumanizing metaphors and language, but without resort to genocide. That is, between five and eight years of pursuing discriminatory policies that are not, in degree or kind, so different from what many other regimes (South Africa, Jim Crow South) have pursued. So focused, the analogy between German policies and some aspects of U.S. treatment of  immigrants is not entirely inaccurate.

Lipstadt's assumption is that "The Nazis" is shorthand for what Nazi Germany became from 1941-45, not what they started out as or the discriminatory policies they implemented from the beginning. And that is probably true. The power of the analogy comes from what made the Nazis different--the ultimate horrors everyone knows.

[Update: Andrea Pitzer has written a book called One Long Night: A Global History of Concentration Camps, tracing their origins (and name) to Cuba during the revolt against Spanish rule and their acceptance through the early days of Nazi rule. In this interview and this op-ed, she explains how the term and its implications changed under the Nazis and argues how and why the term applies to the current situation in the U.S.]

Posted by Howard Wasserman on June 23, 2018 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, June 22, 2018

ACLU's competing values and principles (Multiple Updates)

On Thursday, a memo leaked showing the national* ACLU's new policies on undertaking representation where the litigated issue conflicts with the organization's other values and principles, notably equality and the rights of historically disadvantaged groups. The memo lists general case-selection criteria. It then identifies five considerations specific to free-speech cases--whether the speaker seeks to engage in or promote violence, whether the speaker seeks to carry weapons, the impact of the proposed speech and its suppression (including how the speech advances white supremacy or negatively affects oppressed communities or historic social inequalities), the extent to which the ACLU can represent the speaker while publicly denouncing the speech, and the extent to which it can mitigate the conflict (such as by earmarking recovered attorney's fees to groups the speaker attacks).

[*] The memo states that the policy binds the national office, but does not and cannot bind local affiliates.

The memo is being read and garnering attention as the ACLU backing away from its historic protection for free speech, especially its paradigmatic protection of Nazis marching past a village full of Shoah survivors. It seems to make unlikely (if not outright preclude) that the national office will represent Nazis or white supremacists in the future. The memo purports to demand a balance--how much the speech will attack certain groups compared with how much the speech restriction, left unchallenged, will harm free speech generally (presumably by also being used against pro-equality speakers). This tries to read as a balancing test, a "stop-and-think" policy that requires the group to "make every effort to consider the consequences of our actions" before taking or declining representation. But it is hard to envision a case in which that balance is going to weigh towards representing a racist, sexist, anti-Semitic, anti-whatever group, when that representation is certain in every case to anger those oppressed groups that the ACLU wants to maintain as allies.

Like any vesting of discretion, we must await application. But it does not bode well.

[Update: CoOp publishes remarks by ACLU President Legal Director David Cole responding to some criticisms of the policy, insisting these are guidelines and that the organization will continue to represent "even the most repugnant speakers."]

[Further Update: CoOp followed with statements from two former ACLU Presidents: One from Ira Glasser arguing that the ACLU has never before required that the content of speech be considered as part of the representation decision and two statement Nadine Strossen taking a more sanguine approach to the effect the guidelines are likely to have, arguing that the ACLU has always considered the potential harm of speech in deciding how to undertake representation, distinct from whether to undertake representation.]

Posted by Howard Wasserman on June 22, 2018 at 04:24 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

(SCOTUS Term): Marbury and appellate jurisdiction

Marbury v. Madison made quite the appearance in Friday's decision in Ortiz v. United States, where the Court held that there was no statutory or constitutional violation in having a military officer serve as a judge on a service's Court of Criminal Appeals (which reviews courts martial decisions) while also holding a position as a presidentially-appointed-Senate-confirmed judge on the Court of Military Commission Review.* But the Court split over whether it had Article III jurisdiction to review decisions from the non-Article III Court of Appeals for the Armed Forces (the top court in the military-justice system), an issue on which the Court granted argument time to Aditya Bamzai (U Va.) as amicus.

[*] Ortiz was consolidated with Cox v. United States and Dalmazzi v. United States the latter and argued by our own Steve Vladeck. The Court DIG'd both cases, which also raised statutory issues the Court believed were unnecessary to reach.

Justice Kagan wrote for seven that the Court had jurisdiction; Justice Thomas joined that opinion but added a typically idiosyncratic concurrence; and Justice Alito dissented for himself and Justice Gorsuch. And it was all about Marbury, which both the majority and dissent discuss at length (while dropping comments that, of course, everyone knows the details of that case). Marbury establishes that SCOTUS' original jurisdiction is limited to the cases enumerated in Article III and that its appellate jurisdiction is limited to reviewing, revising, and correcting proceedings initiated in a another court, not to creating a judicial case.  Everyone agreed this was not (and could not be) an exercise of original jurisdiction. The point of departure is whether SCOTUS could exercise appellate jurisdiction over a decision of CAAF and the military-justice system.

The majority held that it could. The military-justice system, including CAAF, was judicial in character, even though located in the executive branch not Article III. Each level in that system decides cases in accordance with the Constitution and a body of federal law, wields jurisdiction that overlaps with that of state and federal courts, accords procedural protections, and produces judgments that read the same as a judgment from any tribunal. SCOTUS was not limited to reviewing decisions of Article III courts, as shown by its appellate jurisdiction over decisions of state courts, territorial courts, and District of Columbia courts; the latter two judicial systems have been grouped with military tribunals, all as resting on unique congressional powers. And CAAF's location in Article II did not make it executive, because a decision by a judicial tribunal located in the executive branch was different than the individual executive decision of James Madison not to serve Marbury's commission.

Justice Alito, largely adopting Bamzai's position, begins by arguing that the executive (non-judicial) nature of Madison's actions would not have changed if he had held a formal hearing or established procedural protections prior to deciding not to issue the commission. A decision by an executive is an executive decision, no matter its form. Only an Article III body with Article III judges can exercise federal judicial power; executive-branch officers cannot do so, so they cannot create and decide cases that can be reviewed in an exercise of SCOTUS' appellate jurisdiction. Alito distinguished territorial and D.C. courts, because they exercise the judicial authority of that territory or D.C.; this is different than exercising the judicial authority of the United States, which only can be done by an Article III court.

The dispute leaves open whether SCOTUS could review decisions by modern administrative agencies (something Congress has never purported to do). The majority disclaimed this decision speaking in any way to that issue, emphasizing its foundation on the unique constitutional and historic foundations of courts martial and of the connection to territorial and D.C. courts. Alito rejects this as "halfhearted," insisting there is no relevant distinction  for purposes of SCOTUS' appellate jurisdiction between the military-justice system and civilian agencies. In Alito's view, all are executive and cannot exercise judicial power. But if one can somehow be judicial to allow for SCOTUS review, so can the other.

All the opinions are good reads; Kagan is her breezy self, with references to General Burnside's "notorious facial hair." I am going to add this discussion to Fed Courts--I just have to decide whether to include it at the top with my discussion of SCOTUS jurisdiction or later with discussion of non-Article III jurisdiction.

Posted by Howard Wasserman on June 22, 2018 at 02:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 21, 2018

(SCOTUS Term): Trusting adjudicators on remand

The Court on Thursday decided in Lucia v. SEC (link corrected) that SEC ALJs were officers of the United States rather than employees and that the appointment of ALJ's by SEC staff (rather than the SEC itself) violated the Appointments Clause. Justice Kagan wrote for herself, the Chief, Kennedy, Thomas, Alito, and Gorsuch. Thomas concurred, with Gorsuch. Breyer concurred in the judgment in part, agreeing that the ALJ in this case was not properly appointed, but for statutory rather than constitutional reasons. Sotomayor dissented on the constitutional question, joined by Ginsburg.

I want to focus on the issue of remedy in the case. The Court remands for a new hearing on the charges against Lucia (involving alleged deception of prospective clients). But it insists that the new hearing cannot be before the same ALJ; it must be before a different (properly appointed) ALJ or the SEC itself. The original ALJ "has already both heard Lucia's case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before." Appointments Clause remedies are intended to incentivize parties to bring Appointments Clause challenges; a party has no incentive to bring the challenge if the remedy is a new hearing before the same adjudicator, properly appointed. Because there was no suggestion the ALJ erred on the merits, he can be expected to reach the same result from hearing the same case. Breyer dissented on this point (and Ginsburg and Sotomayor joined that portion of his opinion). He compared reversal on appeal, where the same judge typically rehears the case on remand. And because this reversal was on a "technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings," neither due process nor the structural purposes of the Appointments Clause would be violated by the same ALJ rehearing the case.

The competing approaches reflect a paradox. For Kagan, the fact that the judge was not criticized or corrected on the merits shows that he cannot be trusted to hear the case anew, because his views on the merits will not have changed and no new or different evidence or arguments on the merits cause him to change those views. Implicitly, a decision criticizing the original decision or requiring something new forces him to reconsider those merits, whether to correct the original error or because the new information is convincing. Breyer's approach, on the other hand, presumes that a judge criticized on the merits might be put-off by the reversal (lower-court judges do not believe they were "wrong" even though a reviewing court disagreed with their decision) and more dug-in to his original position. If we trust that judge rehear that case on remand, we should trust a judge in this situation.*

[*] Marcus, Redish, Sherman, and Pfander, the Civ Pro book I previously used, included in the Discovery chapter a defamation action against Diana Ross by a former employee. The district court had dismissed the case on 12(b)(6), but the Second Circuit had reversed. The case back before the same district judge in discovery, every discovery decision went against the plaintiff and in favor of Ross, which can be seen as at least influenced by the judge's previously established views on the merits.

Kagan's approach raises the question of what other "structural" errors might be similar to an appointments problem as to require rehearing by a different judge. Denial of counsel comes to mind, although the assumption is that proper counsel will present evidence and arguments that the pro se party failed to present, changing what is available on the merits and requiring the judge to think about the merits differently. Another possibility is routine shackling in Sanchez-Gomez; if the reviewing court says this defendant should not have been shackled, it does not criticize the trial judge on the merits of any decision she made against the defendant, so that judge would be expected to reach all the same judgments.

Posted by Howard Wasserman on June 21, 2018 at 12:11 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, June 20, 2018

Mootness, enforcement, and particularized injunctions

The mootness analysis in this Eleventh Circuit decision illustrates the importance of focusing on the particularized nature of litigation and remedies, including injunctions. This was an action against Hooter's by Haynes, a visually impaired plaintiff, alleging that the incompatibility of its website with certain software violated the ADA. Hooter's settled a separate lawsuit brought by Gomez and raising similar claims, agreeing to place an accessibility notice on its site and to improve access to the site.

The court held that the settlement in Gomez did not moot Haynes' action, for three reasons. First, whatever Hooters agreed to do had not been done, so Haynes still was suffering a remediable injury. Second, while compliance with the Gomez settlement would provide some of what Haynes sought, it did not provide everything and Haynes sought some unique remedies. Third, and this should be most important, Haynes is not a party to Gomez and so lacks the power or right to enforce that order if Hooters fails to comply or if it should reach a different agreement with Gomez.

That control over enforcement of the judgmentt is essential to party status and to injunctive relief. It is why injunctions are particularized to the parties--binding the defendant as to the plaintiff and allowing the plaintiff to enforce if the defendant fails to comply.

Posted by Howard Wasserman on June 20, 2018 at 10:57 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, June 18, 2018

(SCOTUS Term): Deciding little, deciding few, and competing judicial functions

I had thoughts similar to what Dahlia Lithwick and Eugene Volokh argue. This Court does not want to decide substantive constitutional issues--to make constitutional law--that can guide lower court, other branches and governments, and the public. In addition to the standing punt in Gill (which retains the gerrymandered status quo, so it is not a neutral result), Volokh points to Tuesday's decision in Lozman and last week's decision in Masterpiece as examples of the Court failing to resolve the tricky substantive issues presented in the cases. The acid test will be whether the Court does something similar with the travel ban. (Eugene also mentions Janus, although the outcome in that case is so over-determined, it feels like waiting for the inevitable).

The wisdom of so-called minimalism or reliance on "passive virtues" or what Dahlia derides as the Chief fearing political criticism must be measured against the Court's shrinking docket. The Court will decide fewer than 70 cases this Term. And the cases it decides will not have the long-term prospective effects that we expect from a Court of last resort working with an almost-entirely discretionary docket. The nature of that docket focuses the Court on its rulemaking, as opposed to its error correction, function. So what is the Court doing and how does it see its role?

On the rulemaking/error-correction line: We might think of Lozman and Masterpiece as failures of discretionary case selection, creating confusion between those competing roles of the Court. In both cases, the Court realized it had the wrong vehicle for resolving the core constitutional issue. Neither case presented the paradigm case for the supposed legal issue. And both had unique features that allowed for narrow resolution of the case at hand (in other words, correcting lower-court error) while providing little general guidance (rulemaking).

Posted by Howard Wasserman on June 18, 2018 at 09:59 PM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Behold the passive virtues

The Court had not one but two shots at partisan gerrymandering this term. And those chances included limiting (if not avoiding) charges of political bias, because both sides oxen were being gored--one case was Republican gerrymandering to screw Democrats and one case was Democratic gerrymandering to screw Republicans. Alas, the Court punted in both.

Gill v. Whitford, the Republicans-screwing-Democrats case from Wisconsin, was the higher-profile. The Court unanimously rejected the case on standing grounds. The Chief's opinion (joined by everyone at least in part) emphasized the individual nature of the standing inquiry in a vote-dilution case--each plaintiff must show the injury she suffered to her vote in her gerrymandered district, without regard to the makeup of any other district or the statewide balance of partisan power. The Court remanded to give the plaintiffs an opportunity to plead and offer evidence of standing, although Justices Thomas and Gorsuch did not join this part. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor (but not Kennedy), concurred to provide a roadmap for how plaintiffs can establish standing on a vote-dilution theory. This may include statewide evidence of harm to plaintiffs in districts throughout the state warranting a statewide remedy to relieve the injury to plaintiffs in multiple districts (on the assumption that the case include plaintiffs from all or most districts). Kagan also mapped how plaintiffs, including a political party, could establish standing on a First Amendment association theory, which by definition focuses on statewide harms.

Benisek v. Lamone was the Democrats-screwing-Republicans case from Maryland and was framed as lower stakes, focusing only on vote dilution in one district and not seeking to combat systemic statewide gerrymandering. Standing was not an issue. But the Court in a per curiam held that the  non-merits elements of the preliminary-injunction analysis were not satisfied, including the public interest and balance of equities.  The Court emphasized plaintiffs' delay in seeking an injunction and the impossibility, if the current map cannot be used, of drawing a new map that could be used in 2018.

Hasen points out that a third partisan gerrymandering case awaits the Court decision on whether to assert jurisdiction that includes a free-association challenge to explicit statewide partisan districting. But the case has similar standing concerns. We will see on remand how much mileage plaintiffs can get from Kagan's concurrence.

The analysis in Gill shows how inextricable standing is from the merits in constitutional litigation, especially seeking systemic mandatory injunctive relief. So inextricable that it confirms William Fletcher's view that standing is merits and lack of standing the failure of a claim. Gill shows this in two respects. First, it shows that the separation of injury and right makes no sense, because the injury depends on the right and the theory of right asserted. Second, the problem as to several plaintiffs was not the early allegations of injury but the failure to provide evidence at trial of that injury. But standing is supposed to be a jurisdictional threshold issue. If we are still arguing about it at trial, we are passed the threshold, so we should consider this as part of the substantive merits at trial.

The other point of note is the Chief's efforts to limit the prospective effect of Kagan's concurrence. On p. 17, he writes: "[T]he opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others . . . The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other."

 

Posted by Howard Wasserman on June 18, 2018 at 02:47 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.

Posted by Howard Wasserman on June 18, 2018 at 11:52 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, June 14, 2018

Legal ethics in Hulk Hogan v. Gawker

Steve Lubet reviewed the new book by Ryan Holiday, Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue. Lubet focuses on the book's revelation that neither Hogan nor his lawyers knew until after the verdict that Thiel was funding the litigation (communications and payments were anonymous and through an anonymous intermediary), which violates Florida ethics rules in several respects. This also sheds a different light on Hogan declining a $ 10 million settlement offer. I argued that Hogan's decision not to settle was beside the point to any free-speech concerns, regardless of Thiel's funding efforts. Lubet offers a legal-ethics twist on this. Whilee it is not clear whether or how much Thiel influenced the decision not to settle, it is not clear Hogan's lawyers counter-offered with Hogan's drop-dead figure of $ 20 million or shared with Hogan the risks of declining the offer and proceeding to trial (namely more of the video, including Hogan's racist comments, becoming public).

Steve's review is worth a read and Holiday's book sounds interesting and detailed. I still need to watch the Netflix documentary on the case.

Posted by Howard Wasserman on June 14, 2018 at 06:49 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

(SCOTUS Term): Court rejects ban on political apparel in polling places

Although it did not deal with compelled speech on the anniversary of Barnette, the Court did knock out one of its free-speech cases--Minnesota Voters Alliance v. Mansky. The Chief wrote for seven Justices, declaring invalid a state law prohibiting "political badge, political button, or other political insignia" being worn "at or about the polling place."

The polling place is a nonpublic forum and the statute was viewpoint neutral. But it was not reasonable. The word "political" is undefined. It is broader than "campaign" (a category dealt with in a different, unchallenged provision), but its scope remains uncertain and is not clarified by various administrative-guidance policies, which offer examples that appear contradictory. Roberts argued this "poses riddles that even the State's top lawyers struggle to solve," citing to the extensive, inconsistent hypotheticals the Court peppered counsel with during argument. That uncertainty also vested too much discretion in the election-day judges, who cannot know all the "issues" that might be reflected by a piece of apparel.

The sort of parsing for over- or under-inclusiveness that the Court does here typically is part of strict or intermediate scrutiny, rather than reasonableness. But the result makes sense, as a word like political is seemingly boundless. And the Court remained at least nominally deferential of the state's interest in making the polling place a space of calm reflection and cited approvingly to narrower laws in other states (Red and Blue) aimed at the same goal.

Justice Sotomayor dissented for herself and Justice Breyer, arguing that the Court should certify to the question of the statute's precise meaning to the Minnesota Supreme Court. The Chief dropped a footnote to reject certification, emphasizing the discretionary nature of certification, the lateness of the state's suggestion of certification in the litigation, that the state had offered an interpretation for the Court to use in the case, and that there is no obvious alternative interpretation that the state court might adopt.

This is the second time in two Terms that Sotomayor has argued for certification to avoid a First Amendment decision (Justice Alito joined her prior attempt). It is interesting that Court has stated that certification (like Pullman abstention, the doctrine it arguably supersedes) should be used sparingly in First Amendment cases, given the chilling effect caused by delays in the certification process.

Posted by Howard Wasserman on June 14, 2018 at 11:00 AM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Barnette at 75

Today marks the 75th anniversary of W. Va. Bd. of Educ. v. Barnette, which John Q. Barrett commemorates at his blog on all things Justice Jackson. Barnette must be among the Top 5 most important SCOTUS First Amendment decisions and one of the first to combine soaring free-speech rhetoric with a victory for the free-speech claimants. The decision remains relevant to modern free-speech controversies, between controversies over flag-related speech and new concerns over compelled expression. Two cases from OT17 implicated Barnette and compelled speech--Masterpiece Cakeshop although only Justice Thomas, citing Barnette, took the free speech route, and NIFLA v. Becerra, a pure compelled speech case that will certainly rely on Barntte. NIFLA is still out, although it would be ironic if the Court issued that case today.

The anniversary also gives me a chance to publicize the FIU Law Review Symposium, Barnette at 75, hosted at FIU on October 5, 2018. Panelists include John Q. Barrett (St. Johns), Ronald Collins (Washington), Erica Goldberg (Dayton), Abner Greene (Fordham), Paul Horwitz (Alabama), John Inazu (Wash U.), Leslie Kendrick (Virginia), Genevieve Lakier (Chicago), Aaron Saiger (Fordham), Seana Shiffrin (UCLA), Steven Smith (San Diego), and Brad Snyder (Georgetown).

Posted by Howard Wasserman on June 14, 2018 at 06:08 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, June 11, 2018

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, June 08, 2018

Ali/Trump

Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.

• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?

• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.

• All politics is personal. The NFL players must be speaking out about injustices done to their friends or specific people they know and want to help, just as the President uses the pardon power to help his friends or individuals he knows and wants to help. He does not conceive of systemic problems that affect thousands of people, who need help not by the individual remedy of a pardon but by systemic reform. Nor does he appear to understand why players would protest for a cause disconnected to individuals that they know and care about.

• The players are protesting systemic racism, violence, and differential treatment in the criminal-justice system This includes police killing unarmed or non-threatening persons of color with impunity. How does a pardon affect that? Walter Scott is dead, so a pardon does not do him much good. Of course, one of the President's pardons was granted to Joe Arpaio, who was convicted of contempt of court for refusing court orders to stop discriminating and using unjustified violence in his role as a police officer.This President is more likely to pardon Michael Slager, the officer who shot and killed Scott and is serving a federal prison sentence on a civil rights charge.

• Most law enforcement, and so most of what the players are protesting, involves state and local police and the state criminal-justice system. The President can pardon federal crimes, not state crimes. So even if Colin Kaepernick had ten friends wrongfully convicted, Trump could not do a thing about it. So this is demagoguery--an empty and impossible gesture, used to fool the unaware into siding with him against a group and message to which he is opposed. Or the President is unaware of the limits of his pardon power.

Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15)

Wednesday, June 06, 2018

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Tuesday, June 05, 2018

Another voice against replay

I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.

Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Another day, another NFL protest

Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.

On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.

The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.

By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.

Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Monday, June 04, 2018

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Friday, June 01, 2018

Professors and political correctness

Neil Buchanan has an excellent post at Dorf on Law on how changing expectations around matters of race, sex, etc., affect how we teach, drawing connection to comedians on campus and on Roseanne's self-immolation. I will add a few points.

As professors, our focus is not on what we discuss in class but how we discuss it. While changing expectations require us to alter the tone we adopt on some subjects, addressing a touchy subject is unavoidable, either because students must learn the touchy material or because students must be able to see the material within sensitive or disturbing contexts. Neil's example is a 1991 tax case from the Seventh Circuit, involving tax-evasion charges against twin sisters who accepted gifts from a wealthy older man with whom both were romantically and sexually involved. (I used the case as my Evidence final several years ago). The opinion delights in the salaciousness of the underlying facts and gets punny at times ("the relative scantiness of the record"). And Neil says that over the years he has pulled back from the sniggering tone the case allows, giving our better understanding of the possibly exploitative nature of the relationship involved in the case.

Importantly and appropriately, Neil does not argue that it is improper to teach the case (for the distinction between gift and income). Nor would I agree that it is improper to use the facts for an exam (for hearsay and the distinction between statements of intent and non-hearsay statements allowing the inference of intent).  This is the what, as opposed to the how. It is a good teaching case  and a good set of facts, even if dealt with in a sophomoric tone. It remains important for students to learn to deal with general issues and principles in troubling factual contexts.

To use another example. Several years ago, one assigned essay in Civ Pro involved an employment-discrimination case in which the plaintiff sought to compel the defendant to submit to having his genitals photographed to compare with the sext he allegedly sent the plaintiff. One student, who wanted to go into employment work, said she appreciated how the question pushed her out of her comfort zone. I did criticize one student for using the phrase "dick pic" in what was supposed to be a judicial opinion, which I thought reflected a lack of seriousness.

Even if we as professors change our presentation, the question remains whether the presentation in the assigned case becomes problematic over time and thus no loner usable. Is the relationship described in that Seventh Circuit case so toxic or presented in such a sniggering way that it should not be used, if some other vehicle is available to teach the gift/income distinction? This can be about a court's tone or language. Plyler v. Doe uses the phrase "illegal alien," which has drawn complaints in Con Law.

Posted by Howard Wasserman on June 1, 2018 at 05:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

JOTWELL: Kalajdzic on several authors on funding and compensating class actions

The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.

Posted by Howard Wasserman on June 1, 2018 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 30, 2018

When does encouragement become overwhelming or coercive?

Depositions in Colin Kaepernick's collusion grievance reveal that President Trump spoke to at least one owner about halting the protests lest Trump make a political meal out of it. And fear of criticism by Trump, and the public being worked into a froth by that criticism, influenced other owners.

A private person or entity acts under color of law of law when there is a "close nexus" between the constitutionally violative private conduct and the government or government officials coercing, compelling, or overwhelmingly encouraging that conduct. So could we see constitutional challenges* either to the league's new protest policy or to the blackballing of protesting players?**

[*] Because the close nexus would be with a federal official, this would be a Bivens rather than § 1983 action against the NFL or individual owners. That presents two questions I leave aside for now: 1) Would the Court reject this as an improper "extension" of Bivens and 2) Whether and how the "under color" tests from § 1983 translate to Bivens, a point on which lower courts divide.

[**] This one faces the additional problem that the NLRA grievance process would qualify as an alternative statutory scheme.

The key is what coercion, compulsion, or overwhelming encouragement means. Trump wants the owners to stop the protests and he wants to make political hay out it. Do those efforts to influence the NFL and its owners qualify as overwhelming encouragement, by threatening to create a public backlash that would hurt the league and its business? Can we see Trump as coercing (through threat of harm to the league's business)  the owners to silence the players, something Trump himself cannot do? While Trump's speech is protected as government speech, can it form the link for NFL liability?

I doubt this would work. But it is worth considering.

Posted by Howard Wasserman on May 30, 2018 at 05:47 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, May 29, 2018

NFL protests in African-American historical perspective

Chad Williams, a professor of African Studies at Brandeis, places the NFL's efforts to halt player protests in the historical context of patri0tism during World War I, particularly W.E.B. DuBois' 1918 call for African-Americans to "close ranks" during the War and not to air African-Americans' "special grievances." DuBois' efforts backfired, as the period during and after WW I was marked by an increase in racial violence and lynchings. Williams argues that the NFL is attempt to enforce the same form of "love-it-or-leave-it" patriotism on its players.

I wonder if staying in the locker room, which the new league rules allow, could become an effective form of protest. There are many ways to counter-speak to a symbol or ritual, including by absenting oneself from the ritual; players can be conspicuous by their absence from the sideline, with that absence expressing something.   The key will be the media--do the broadcast cameras, reporters, or some other sources report on who is absent so it becomes known and public? Or is the protest hidden and unknown, protesters pushed to dark corners?

Posted by Howard Wasserman on May 29, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Rotations

June will host our second End of SCOTUS Term Symposium. Guests this year are Will Baude (Chicago), Daniel Epps (Wash U. and the First Mondays Podcast), Charlotte Garden (Seattle), Erica Goldberg (Dayton), Leah Litman (UC-Irvine), Andra Robertson (Case-Western) Stephen Sachs (Duke), Ian Samuel (Climenko headed to Indiana-Bloomington and the First Mondays Podcast), and Andrew Siegel (Seattle). If the last month of this Term is like last Term, it should be a rich month of posts. The Court issued two opinions (and DIG'd a third case) this morning, so some of the symposium guests may begin a few days early.

Thanks to our April/May visitors, who will be finishing this week.

Posted by Howard Wasserman on May 29, 2018 at 10:33 AM in 2018 End of Term, Howard Wasserman | Permalink | Comments (0)

Monday, May 28, 2018

RBG

I took my daughter and two of her friends to see RBG. It was pretty good, if not groundbreaking, and the girls (especially my daughter) enjoyed it. A few thoughts:

• The audience for the sold-out show appeared to be a mix of  families with tween girls and elderly Jewish women.

• The movie is less angry or snide in tone than the Notorious RBG. There was less of the "she's so cool, she's such a rockstar" that defines the book, although some of it remains. Because Ginsburg is interviewed extensively, the movie adopts a more serious tone. The movie depicts the positions opposite Ginsburg's (in cases such as Ledbetter, Bush, or Shelby County) as diverging from hers and incorrect. The  book ridicules those positions.

• The movie draws an explicit line between Thurgood Marshall and Ginsburg. Both made their reputations litigating civil rights cases and turned that into positions on the Court. And both spent part of their time on the Court writing dissents, particularly on the civil rights issues they had litigated. Posner argued that Marshall was a more influential lawyer than justice. I think we will remember Ginsburg as a more influential justice, given the more ideologically divided Court on which she has served and her leadership position on the Court since 2010, whereas Marshall worked in tandem with the more-senior and more-influential Justice Brennan for all but about one year on the Court.

• Speaking of ideology. The movie flashes two graphics showing the Court's ideological spectrum in 1993 (Ginsburg's first term) and 2005 (the first term with Roberts and Alito). In 1993, Ginsburg was fourth-most liberal Justice, with Stevens, Blackmun, and Souter to her left and Kennedy as the median Justice. In 2005, Ginsburg was second-most liberal, with only Stevens to her left. But that means she leapfrogged Souter ideologically. I wonder how they measured that.

Posted by Howard Wasserman on May 28, 2018 at 05:36 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 24, 2018

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Antony Page appoined dean at FIU

I am delighted that Antony Page (Indiana-Indianapolis/McKinney School of Law) is the new dean at FIU. Antony had been Vice Dean at IU for the past six years. His job here is going to be continuing recruiting great students while helping get the word out about what we are doing here.

The FIU press release is below.

MIAMI (May 23, 2018) — Antony Page has been named dean of the Florida International University College of Law. Page joins FIU Law from the Indiana University Robert H. McKinney School of Law in Indianapolis, where he was vice dean and a professor of law.
 
“Today marks a significant moment in FIU’s history,” said Provost Kenneth G. Furton. “FIU Law is already a leader among Florida law schools, and Dean Page shares our enthusiasm for continuing its rise in the national rankings as well.”
 
Page is distinctively qualified to lead FIU Law into its next era of ascent among top American law schools. His tenure at McKinney followed years of public service, including as a diplomat in the Canadian Foreign Service. As vice dean, he played a key role leading McKinney, from launching new graduate interdisciplinary programs to developing initiatives that improve access to legal education. He is also an acclaimed teacher and scholar in corporate law and related subject areas, with publications in high impact journals like the Michigan Law Review, Emory Law Journal, and Boston University Law Review.  His previous legal experience includes private practice as a transactional attorney in the London and Los Angeles offices of New York-based law firm Sullivan & Cromwell and clerking for Judge Harry Lindley Hupp of the Central District of California and Judge Arthur Lawrence Alarcón of the U.S. Court of Appeals for the Ninth Circuit.
 
“I’m honored to be entrusted with leading FIU Law at this most important juncture for legal education,” said Page. “Significant transformations are taking place in the legal profession and FIU Law is developing a reputation as one of the country’s most forward-thinking law schools.”
 
Page will bring his ambitious vision to a law school that quickly is earning national acclaim. FIU Law graduates have finished number one on four of the past five Florida Bar Examinations. The College’s acceptance rate ranks 30th in the nation – and number one in Florida – according to U.S. News & World Report, and it was recently named the nation’s 17th Best Value Law School by The National Jurist
 
“We will maintain our student-centered focus, while also exploring new avenues to ensure that our students are prepared to thrive in a rapidly evolving profession,” said Page. “FIU is one of the world’s most globally minded universities, and it’s located in one of the nation’s most entrepreneurial and innovative cities.  We are ideally positioned to serve the legal profession and the community in Florida, the United States, and internationally.” 
 
Page’s term formally begins on July 30, 2018, but he is already beginning his first order of business: getting to know FIU Law’s students, faculty, alumni, and other stakeholders. “Our people are our greatest asset,” he said. “We’ll go as far as they will propel us.

Posted by Howard Wasserman on May 23, 2018 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, May 21, 2018

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

We, the undersigned, write to protest the refusal of the State of Israel to permit entry to Professor Katherine Franke of Columbia University Law School, along with Vincent Warren, executive director of the Center for Constitutional Rights. Franke and Warren arrived to meet with Israeli and Palestinian colleagues. They were questioned for 14 hours before being sent back home without entry. As colleagues of Professor Franke, we know her as a serious scholar of gender, sexuality, civil rights, and human rights and as the author of one book, numerous well-regarded law review articles, and a second forthcoming book. She holds a chaired professorship at Columbia Law School, where she has also served as vice dean, and she has testified before congress and contributed to several edited volumes.

While much of her work has focused on gender equality and civil rights for African Americans, Professor Franke has been deeply engaged in and concerned about the status of Palestinians both within Israel and under the Israeli occupation. She has worked as a mentor to colleagues in human rights at Al Quds University in Jerusalem. Professor Franke had travelled to Israel as part of a civil rights delegation with the Center for Constitutional Rights and as an academic to meet with Columbia graduate students in Haifa and Ramallah and to meet with faculty at An-Najah University about a possible master’s program in human rights. She previously served as a member of the academic advisory council of Jewish Voice for Peace, an organization that supports elements of the Boycott, Divestment, Sanctions (BDS) movement.

Presumably, it is Professor Franke’s former affiliation with Jewish Voice for Peace and its position on BDS that led to her exclusion. The Knesset has passed a series of laws, most recently in 2017, directed against those who support a boycott, including those who support a boycott of settlement products in the occupied territories. In addition, and with the support of Prime Minister Netanyahu, the Knesset has passed several bills in recent years limiting the right to open and free expression. While some of us agree with Professor Franke’s substantive views, and some of us do not, we are united in our serious concern at her recent exclusion from the country, and the growing trend to exclude visitors based on their viewpoint and beliefs. Denying entry to those with dissenting views is a worrying sign of the erosion of democratic foundations in Israel.

A critical measure of a society’s commitment to democracy lies in its willingness to tolerate political views at odds with those of the ruling regime. We have seen examples around the world, from Turkey to Hungary to Venezuela, of increasing intolerance for dissenting views—and for the very principles of liberal democracy. By its latest action against Katherine Franke and Vincent Warren, the Israeli government has registered its own indifference to the core values of democracy and a deeply concerning unwillingness to tolerate dissenting viewpoints. As Jewish law professors dedicated to democratic values and academic freedom, we call on our academic communities and our academic institutions to stand in support of Professor Franke and the principles which were violated by the denial of entry. We also call on the Israeli government to reconsider its recent steps and permit Katherine Franke and all those who support peaceful political dialogue and engagement to enter the country.

  1. Richard L. Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA Law School
  2. David Abraham, Professor of Law, University of Miami Law School
  3. Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, UC Berkeley School of Law
  4. Libby Adler, Professor of Law and Women's, Gender, & Sexuality Studies, Northeastern University
  5. Erez Aloni, Assistant Professor, Allard School of Law at the University of British Columbia
  6. Scott Altman, Virginia S. and Fred H. Bice Professor of Law, University of Southern California
  7. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  8. Jon Bauer, Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law
  9. Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University Law School
  10. Susanna Blumenthal, William Prosser Professor of Law and Professor of History, University of Minnesota Law School
  11. Linda Bosniak, Distinguished Professor, Rutgers Law School
  12. Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley Law School
  13. Brenda Cossman, Professor of Law, University of Toronto
  14. Anne C. Dailey, Evangeline Starr Professor of Law, University of Connecticut Law School
  15. Joshua Foa Dienstag, Professor of Political Science and Law, UCLA School of Law
  16. David R. Dow, Cullen Professor, University of Houston Law Center
  17. Peter Edelman, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  18. Sam Erman, Associate Professor, USC Gould School of Law
  19. Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, UC Berkeley Law School
  20. Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  21. Ariela Gross, John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
  22. Bruce Hay, Professor of Law, Harvard University
  23. Deborah Rosenfield Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School
  24. Morton Horwitz, Professor, Emeritus, Harvard Law School
  25. Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School
  26. Hila Keren, Professor of Law, Southwestern Law School
  27. Jeremy Kessler, Associate Professor of Law, Columbia Law School
  28. Karl Klare, George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law
  29. Diane Klein, Professor of Law, University of La Verne College of Law
  30. Pnina Lahav, Professor of Law and Law Alumni Scholar, Boston University School of Law
  31. Sanford Levinson, W. St. John Garwood and W. St. Garwood, Jr. Centennial Chair in Law, University of Texas Law School
  32. David Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center
  33. Michael Meltsner, Northeastern University School of Law
  34. Naomi Mezey, Professor of Law, Georgetown University Law Center
  35. Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School
  36. Jennifer L. Mnookin, Dean and David G. Price and Dallas P. Price Professor of Law, UCLA School of Law
  37. Samuel Moyn, Professor, Yale Law School
  38. Judith Resnik, Arthur Liman Professor of Law, Yale Law School
  39. Darren Rosenblum, Professor, Pace Law School
  40. Tanina Rostain, Professor Georgetown Law Center
  41. Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair of Law, University of Texas
  42. Susan R. Schmeiser, Professor of Law, University of Connecticut School of Law
  43. Hilary Schor, Professor of English, Comparative Literature, & Law, USC Gould School of Law
  44. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  45. Amy Sepinwall, Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania
  46. Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
  47. Jed Shugerman, Professor of Law, Fordham Law School
  48. Dan Simon, Richard L. and Maria B. Crutcher Professor of Law and Psychology, USC Gould School of Law
  49. Jonathan Simon, Professor of Law, UC Berkeley School of Law
  50. Joseph William Singer, Bussey Professor of Law, Harvard Law School
  51. Abbe Smith, Professor of Law, Georgetown University Law Center
  52. Brad Snyder, Professor of Law, Georgetown University Law Center
  53. Clyde S. Spillenger, Professor of Law, UCLA School of Law
  54. Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School
  55. Beth Stephens, Distinguished Professor, Rutgers Law School
  56. Simon Stern, Associate Professor of Law, University of Toronto
  57. Nomi Stolzenberg, Nathan and Lilly Shapell Chair in Law, USC Gould School of Law
  58. Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
  59. Adam Winkler, Professor of Law, UCLA School of Law
  60. Gideon Yaffe, Professor of Law & Professor of Philosophy and Psychology, Yale Law School
  61. Jonathan Zasloff, Professor of Law, UCLA School of Law
  62. Noah Zatz, Professor of Law, UCLA School of Law

Institutional affiliations listed for identification purposes only.

Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (15)

Monday, May 14, 2018

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, May 11, 2018

On mixing academic and journalistic writing (Updated)

Olga Khazan at The Atlantic summarizes a new article by Austin Frakt, Aaron Carroll, Harold Pollack, and Keith Humphreys--all academics who write for newspapers, blogs, and other popular outlets--discussing the rewards and challenges of writing for popular journalistic outlets and audiences as an academic.

From my limited experience writing regularly here and at SCOTUSBlog and dabbling with op-eds in newspapers or magazines, it seems to me there are two issues--one is style/tone, the other is level of detail and support. The latter obviously decreases in these formats--writing 500-1000 words on a germinating idea that will get 20,000 in a full article means less detail and support. A blog post or opinion recap is not meant to be a full scholarly analysis. I find style/tone to be trickier--I assume readers here are law-trained, which I sometimes forget when writing for a different audience that is law-interested but not law-trained.

Update: I also agree with Frakt, et al. about speed, which is unnecessary for academic projects. I am a slow reader and processor, so the process of quickly turning around a report on an argument or opinion is painful for me. I also tend to rush when pressed for time and make bad grammatical mistakes or fail to provide the right links (as happened in this post--the link to Khazan's piece is fixed).

Posted by Howard Wasserman on May 11, 2018 at 02:20 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Thursday, May 10, 2018

Because it's International *Shoe*

For the third straight year, most of my Civ Pro students completed extra-credit "creative projects," including video skits, parody songs, board games, poems, and crossword puzzles. I stole this idea from former GuestPrawf Josh Douglas and I love how it has caught on. Students know about it from year to year and they seem to have a good time with it.

Among my favorites this year was a series of buttons that one student made. One button read "Certain Minimum Contacts," then the rest contained a drawing of a different type of shoe bearing the name of one of the tests for purposeful availment ("stream of commerce," "Effects," "Seek to Serve," etc.). Pretty cool-I can wear the appropriate one to class when we cover each of the tests.

But until someone pointed it out to me today, I did not understand why the student drew shoes.

I need a vacation.

Posted by Howard Wasserman on May 10, 2018 at 05:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (1)

To Dismiss or Transfer a Mockingbird

My recently-administered-but-still-to-be-graded  Civ Pro exam was built around the lawsuit over the Aaron Sorkin-penned stage adaptation of To Kill a Mockingbird, including questions on personal jurisdiction. On Monday, as my students were taking the exam, the district court denied Rudin's motion to dismiss for lack of personal jurisdiction. The court concluded that there was purposeful availment given the contract with Lee (an Alabaman) and her ongoing influence over the script, along with the fact (downplayed in Rudin's brief) that Rudin pursued Lee in Alabama (through emails to Lee and her Alabama attorney) for some time to get her to enter into negotiations. But the court transferred the action to the Southern District of New York under § 1404, finding that the private interest factors (mainly the location of witnesses) favored New York and that Lee's choice of forum received less deference because of her inequitable action in suing rather than meeting with Rudin to discuss concerns with the script.

All of which became moot today, when the Estate and Rudin "amicably settled" the litigation.

Posted by Howard Wasserman on May 10, 2018 at 05:28 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 08, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Two Native-American high schoolers from New Mexico were part of a CSU tour group. A woman on the tour became nervous around the two and called university police, complaining that the students' dress, manner, and quietness showed that they were definitely not part of the tour. Police questioned the boys (the body cam video is linked in the President's letter) for about five minutes before letting them go, at which point the campus group had moved on, so the two left campus. Watching the video, the officers are polite and never aggressive, although the questioning ("why didn't you answer the questions of others in the tour group when they asked") reflect a baseline of suspicion. The President expressed regret for the events and related how the school was using social media to reach out to the family because other attempts to contact them have been unsuccessful (read "we are publicly demagogueing them into responding to us and accepting our apology"--the weakest part of the letter).

The President uses his letter to call attention to the "battle with hate within our communities," to insist that "[t]here is no place for hate at Colorado State University," and to urge people to return from summer break "with a commitment to be a little kinder, a little better, to work a little harder at seeing each other’s point of view, and to use our voice." This emphasis on stopping private bigotry among members of the CSU community ignores  the role of government, particularly police, conduct. Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys. By shifting the emphasis on what everyone else can do to battle prejudice, Frank's letter exonerates his own governmental entity.

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Step One: The President, his lawyers, and the executive-branch lawyers can decide, in their own best constitutional judgment, that a President is not subject to a testimonial subpoena (which is not precisely covered by United States v. Nixon) or even that Nixon was wrong. They also can give controlling weight to non-judicial sources of advice, such as OLC opinions. And they can act on their constitutional understanding by refusing to comply with the subpoena, without being said to be "disobeying" or "ignoring" the courts or acting contrary to law or to their oaths.

Step Two: Faced with that response, the special counsel will move in federal court to enforce the subpoena. All federal courts will be bound to follow Nixon and other judicial precedent and will order the President to testify. All levels of the federal judicial hierarchy are similarly bound, unless SCOTUS wants to overrule Nixon, which I doubt, or the document subpoena/testimonial subpoena distinction is a meaningful one. Now Trump is compelled to obey. And his refusal constitutes disregard for the courts and to his oath.

A wise lawyer at Step One will be aware and will advise his client as to what will happen at Step Two, perhaps prompting different behavior at Step One. A wise political adviser might do the same. The point of judicial departmentalism is that compliance with precedent is a matter of prudence, choice, and political incentives, not legal compulsion. Legal compulsion comes only from Step Two.

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Friday, May 04, 2018

Elites and elitists

This piece by Elizabeth Drew of TNR makes no sense. Drew attempts to rebut President Trump's criticism of reporters, especially the D.C. press corp, as "elitists" or "snooty elites." But there are so many problems with the argument.

Drew conflates elitist with elite--one represents a position in society, while the other reflects an attitude. One can be part of society's (or sub-parts of society's) elite without being elitist. I have heard the President and others use both terms, so it is not clear which she is responding to.

Drew cites "numerous indicators" showing journalists are not elite. These include not inheriting jobs (although a family name "might get you in a door" she concedes understadedly); not making a lot of money; not becoming famous (except for a few); working long hours; and not enjoying job security. But she never explains why those indicators define elite status. I can think of many careers that we regard as elite on some level that lack all or most of those indicators. Drew also ignores other indicators or enablers of elite status. One is education, which most D.C. journalists have. Another is some modicum of power or influence, which journalists unquestionably have, because their spoken or written words are going to be seen and read by thousands or millions of people.

There are good reasons to fight back against Trump's rants against the media. Denying the elite status of political journalists within U.S. society seems, well, elitist.

Posted by Howard Wasserman on May 4, 2018 at 02:37 PM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, May 02, 2018

Lewis & Clark faculty statement on free expression

Jeff Schmitt argues that speech norms should be different in law schools, given the style and manner of legal education in compelling students to engage with disagreeable ideas. Jeff's argument is similar to Heather Gerken's argument, last summer, explaining why we had seen fewer disruptions and counter-protests in law schools. That was before Josh Blackman at CUNY and the protest/disruption of Christina Sommers at Lewis & Clark.

Last month, the L&C law faculty issued a unanimous statement that "pluralism, professionalism, and First Amendment values are all essential to our mission, and we as a faculty reaffirm our commitment to each." Worth a read.

Posted by Howard Wasserman on May 2, 2018 at 08:49 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Rotations

May is upon us, and so is the start of visits from returning guest David Orentlicher (UNLV) and newcomer Justin Murray (Climenko Fellow). In addition, Adam Kolber and Derek Muller will continue their late-starting  April stint into May.

Posted by Administrators on May 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, April 30, 2018

Exclusive Submission: Dickinson Law Review, Volume 123

The Dickinson Law Review is now accepting exclusive submissions for Issue 1 of Volume 123. All articles submitted to the Law Review between now and May 11, 2018, at 11:59 PM Eastern Time will be evaluated and considered for publication by May 18, 2018. If you have previously submitted an article to the Dickinson Law Review, you must resubmit the article for consideration in this review.

By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in Issue 1 of Volume 123.

To submit, please email your article manuscript in Microsoft Word format, along with your CV, to [email protected] Please title the subject line “2018 Exclusive Submission Track.”

Posted by Administrators on April 30, 2018 at 05:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, April 26, 2018

Adler on same-day audio

Jonathan Adler argues that nothing bad happened after the Court released the Trump v. Hawaii audio the same day and there is no reason not to make same-day audio the regular practice.

Posted by Howard Wasserman on April 26, 2018 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Stand in the place where you work

I began using a standing desk about five years ago, when my colleague Eric Carpenter joined the faculty from the military, where he used a standing desk. About 5-10 people now use standing desks, including one who bought herself a treadmill desk. I bought StandStand, a portable standing desk invented and crowd-funded by Luke Leafgren, a professor at Harvard.

This story reports on recent studies suggesting that the cognitive benefits gained from walking (which might explain why I pace when teaching) are gained by standing while at your desk. Maybe while keeping my classroom laptop-free, I should give students the option of standing in class.

Posted by Howard Wasserman on April 26, 2018 at 04:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)