Wednesday, December 09, 2020

Hungary and Germany arguments

Here is my SCOTUSBlog recap of Monday's arguments in Hungary, which focused on comity abstention; the Germany argument focused on FSIA jurisdiction.

My (usually wrong) quick take is that the judges were sympathetic to the plaintiffs' arguments that abstention is categorically unavailable where FSIA accords jurisdiction. But several justices wondered whether that issue is mooted if it holds that the expropriation exception does not apply in Germany. I need to re-listen to the Germany argument; initial reports suggest at least some justices were skeptical of allowing FSIA's expropriation exception to reach these sorts of foreign genocide claims.

The lawyer for the plaintiffs in Germany mentioned abstention in his opening and closing, including with an awful baseball metaphor.

Posted by Howard Wasserman on December 9, 2020 at 10:13 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, December 08, 2020

What a difference 160 years makes

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Posted by Howard Wasserman on December 8, 2020 at 07:41 PM in Howard Wasserman | Permalink | Comments (4)

Pardons and Mootness

Judge Sullivan has dismissed the prosecution of Michael Flynn in light of the President's pardon.

Interestingly, Sullivan dismisses the cases as moot and I do not understand why. The opinion discusses the understanding that acceptance of a pardon implies a confession of guilt, while exempting the individual from the punishment the law inflicts for a crime committed. Because the pardon does not render Flynn innocent of the crime charged, the appropriate course is to dismiss as moot.

I do not see why that follows. Dismissal on the ground of actual innocence is not appropriate. But saying the pardon "exempt[s]" the individual from the usual punishment for a crime suggests a dismissal of the prosecution because the pardon has placed Flynn beyond the reach of the law. That sounds in the merits--not actual innocence, but the scope and application of a law to an individual and an individual's conduct, which Morrison says is the merits. It sounds in an immunity, which is usually (and properly) seen as merits. It does not sound in an outside change of circumstances depriving the court of its power to accord meaningful relief or resolution to a dispute. (contra a defendant dying while the case is pending).

Consider it from the other direction. Imagine Trump grants himself a pardon for all conduct violating federal law prior to January 20, 2021. The U.S. prosecutes, Trump moves to dismiss the indictment based on the pardon, and the court decides that a self-pardon is valid. It seems to me the court would dismiss that indictment, finding the prosecution cannot proceed because Trump is, by virtue of the pardon, exempt from that law and its ordinary consequences. I do not think that court would dismiss as moot. So it should not be different because the pardon came before the prosecution was initiated as opposed to after.

Posted by Howard Wasserman on December 8, 2020 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink | Comments (5)

Monday, December 07, 2020

Kraken the 11th Amendment

Judge Parker of the Eastern District of Michigan denied a preliminary injunction in the Michigan Kraken suit. One basis for dismissal, which I had not seen in these suits, was 11th Amendment. The court held that Ex Parte Young did not allow the § 1983 claims against the individual officers because the requested injunction is retroactive rather than prospective. EPY requires that the plaintiff seek prospective relief to end a continuing violation of federal law. This is not the mine-run EPY action, in which the plaintiff seeks to stop continuing enforcement of a constitutionally invalid law; the plaintiffs seek to "undo what has already occurred"--the certification of the election and the slate of Michigan electors.

This does not seem quite right to me. This is not a completed past violation. Plaintiffs do feel the ongoing effects of the constitutionally defective election and certification--the wrong candidate was certified as winner and the wrong electors appointed, in violation of these plaintiffs' constitutional rights. The relief, if granted, would have prospective effect--they would be back in the place they would be had the violative certification not occurred and in a position to have their rights remedied prospectively by a proper future certification. The analogy is a reinstatement claim, which is allowed under EPY--the unlawful firing occurred in the past, the plaintiff continues to feel the ongoing effects of the firing, and the court order will restore the plaintiff to where she would have been had she not been unlawfully fired.

The plaintiffs cannot get the remedy sought for other reasons--I doubt the court could order decertification, not to mention that their rights were not violated to begin with. But that does not mean the remedy is not "prospective" or the violation not "ongoing." Another way that all of these doctrines conflate jurisdiction, merits, and remedies.

Posted by Howard Wasserman on December 7, 2020 at 01:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Thursday, December 03, 2020

Identify yourself as an academic

The New York Times questions Jenna Ellis' credentials as a lawyer (I am shocked, shocked to find they are not what she plays them to be), including how she came to call herself a "constitutional law attorney" and a "professor of constitutional law." Colorado Christian University, where she taught in an undergraduate legal-studies program as an adjunct and as full-time professor, says she never held the latter title.

But that got me wondering: How many of you use the subjects in which you write/teach in your title for purposes of self-identification, web sites, media, etc.? And how common is it for academics to do that? I identify myself as a professor of law, not a professor of civil procedure. Frankly, I become suspicious when I see "professor of [subject]" in a person's title on a web site or LinkedIn page, a sign that the person is trying too hard.

Am I being too harsh?

Posted by Howard Wasserman on December 3, 2020 at 05:37 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

How many cheers for the GOP? (Updated)

On one hand, officials such as Georgia's Brian Kemp and Brad Raffensperger have certified vote counts and denied claims of fraud or misconduct in the election. Republican legislative leaders in Michigan and Pennsylvania made it known early and clearly that the legislature would not (and in most cases could not) appoint a different slate of chosen electors.

On the other hand, Republican legislators (including committee chairs) in Michigan, Pennsylvania, Wisconsin, Arizona, and Georgia have provided official-seeming (and thus official for those who do not know any better) forums for Rudy Giuliani, Sydney Powell, Jenna Ellis, and their traveling show of rejected SNL-skit characters to spout nonsense. Pennsylvania State Sen. Doug Mastriano led the introduction of a formal resolution to appoint electors (he left the game when he contracted COVID). Republican members of canvassing boards in Michigan made noisy performance out of declining to perform (or considering declining to perform) ministerial functions.  Wisconsin Sen. Ron Johnson says Biden won but it would be political suicide to admit it--and Democrats do not love America. Alabama Rep. Mo Brooks announced that he will challenge electoral votes from the swing states, at least if he can find Senators to go along for the ride. And even those who have acknowledged Biden as the winner of the election and the president-elect have been couched--"I have not seen evidence so far." Obviously the President is being the President.

So, on one hand, a handful of Republicans in key positions who matter have made clear that nothing will be done to prevent Biden electors from voting in the College on December 14 and nothing will stop Biden's inauguration on January 20. The democratic process worked to install the properly elected official. On the other hand, they have amplified and lent credence to the stolen-election narrative. This will 1) undermine Biden's presidency before it begins in the eyes of a large swath of people (a much larger swath, officially sanctioned, than anything that happened in 2017) and 2) provide a pretext for Republican officials to enact sweeping changes to election laws to make it more difficult to vote, especially for certain constituencies in certain locations.

So how many cheers? They did not destroy democracy now. They are teeing up the possibility for destruction next time.

Update: How about both hands in one person? On one hand, Gabe Sterling, Georgia's Republican voting systems implementation manager, called out  the people making these false claims and inciting violence, including the Republican candidates in the two Senate run-offs. On the other hand, Sterling said he still would vote for both "because some things are bigger than this." What could be bigger than undermining democracy through calls for violence and false claims of voter fraud? How can calls for violence and false claims of voter fraud, if they are "not right," not be disqualifying for public office? In the balance of structural principles, partisanship prevails over democracy, even when the express goal of partisanship is undermining democracy.

Updated Again: Deduct at least part of a cheer. Republican House members, including the Speaker and Majority leader, sent a letter to the state's congressional delegation urging them to object to the state's electoral votes. it will not work now, for many reasons.* But the effort undermines Biden's presidency. And it puts in place the framework, narrative, and precedent to work in the future.

[*] As Steve notes, the House will not go along even if the Senate tries this and the safe harbor controls, requiring a divided Congress to accept the governor-certified slate. Biden has a 36-vote cushion, so losing Pennsylvania's 20 votes does not push him below 270. And if it did (or if other Republican-controlled legislatures join this circus, a distinct possibility), I am persuaded by the Dorf-Tribe argument that rejecting a state's slate of electoral votes lowers the number of electors appointed, lowering the denominator needed for a majority. So if Republicans pulled this for the four swing states (worth 52 electoral votes), Biden wins with 254 out of 486 votes, ten more than he needs.

Posted by Howard Wasserman on December 3, 2020 at 05:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Lethal religion

The Third Circuit held in an unpublished opinion that a Delaware prison did not violate RLUIPA or the First Amendment in denying a Jewish prisoner the use of teffilin (leather boxes connected by long leather straps). The maximum-security prisoner has a history of mental illness, being violent, threatening suicide, and smuggling contraband. Teffilin might allow him to smuggle contraband in the boxes or to harm himself or others with the straps and the prison could not divert the resources and manpower necessary to monitor his use. A dissenting opinion argued that RLUIPA requires the state to show more than inconvenience, including that it would be impossible (not merely inconvenient) to authorize the additional overtime and work hours necessary to supervise the plaintiff while he prays.

Posted by Howard Wasserman on December 3, 2020 at 08:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Wednesday, December 02, 2020

Botching jurisdiction and merits, Ex. No. 613

Here is an awful jurisdiction/merits decision from the Fifth Circuit, involving the treatment of state action/under color in a § 1983 action. (H/T: Jack Preis).

A public-school educational aide sues a contract sheriff's deputy assigned to the school, claiming excessive force from the deputy punching him. The district court denies qualified immunity, while noting in passing some doubt about state action but that the defendant conceded the issue. The deputy appeals the Q/I denial under the collateral order doctrine. The Fifth Circuit remands, on the ground that by failing to determine action under color, the district court failed to establish its subject matter jurisdiction before ruling on the merits.

This is many shades of wrong. State action/action under color is an element of a § 1983 action and has nothing to do with the court's subject matter jurisdiction. This is true as a logical matter--merits ask who can sue whom and for what conduct, which is what state action determines in a constitutional case (whether this defendant can be sued for this conduct because it was under color). But it is especially true after Arbaugh and Morrison, which labels as merits issues those affecting the "reach" of a law, meaning what the law "prohibits"--what conduct (under color or not under color) can form the basis for liability in a § 1983 constitutional claim. It has nothing to do with subject-matter jurisdiction, which is established because federal law "creates" the rights plaintiff is asserting (Fourth Amendment) and his right of action (§ 1983).

The court may have found itself bound by a 1980 circuit precedent saying state action was required to "invoke the district court's jurisdiction." But that case (both the majority and dissent) uses the term jurisdiction in the thoughtless way the Court (particularly Justice Ginsburg) has tried to rein in the past twenty years. And it is inconsistent with how Morrison and Arbaugh framed the definition of merits issues. A Third Circuit panel was willing to overrule circuit precedent that could not stand in light of those recent cases. Perhaps this panel was unwilling to do the same. But then perhaps tee this for en banc review.

One other note: This decision is a stew of bad Fed Courts doctrine. The only reason the court was in position to consider the issue at this point is the immediate appealability of qualified-immunity denials, which some have argued contribute to the over-protection of police. Immediate review is designed to speed litigation. Instead, the court avoided immunity to create a new round of district-court (and probably appellate) litigation of an issue that should not have been before the court of appeals.

Posted by Howard Wasserman on December 2, 2020 at 04:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Federal Rules of Trumpist Procedure

I started to add this to my earlier post about Trumpist Procedure (great article title), but decided it needs to stand alone.

Powell's Wisconsin lawsuit, which includes a plaintiff who never agreed to the lawsuit, included a "Motion for Declaratory, Emergency, and Permanent Injunctive Relief." It had to be filed twice because the lawyers filed a draft. They filed both without saying whether they had provided notice to the defendants or otherwise complied with FRCP 65(b) and local rules or whether they wanted a hearing. The court issued an order refusing to do anything, which is the best kind of order. Brad Heath of Reuters put it well:

Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President's lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.

Courts are going to have to figure this out. But I am not sure demanding that the Trumpist lawyers adhere to the rules, refusing to act if they do not is the solution, and issuing (rightfully) annoyed orders is the answer. First, doing so ignores that their point is to make official-sounding noise in any forum; a court with "rules" is no different than a Courtyard-by-Marriott without rules. Second, orders such as this one make the court, especially an Obama appointee, part of the expanding conspiracy.

Posted by Howard Wasserman on December 2, 2020 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Judges, procedure, and Trumpist litigators (Updated Again and Again and Moved to Top)

We have seen some strangeness the past two days over one of Sydney Powell's Kraken lawsuits in Georgia. That lawsuit seeks, among other things, an order seizing and impounding voting machines in the state and allowing plaintiffs to perform a forensic inspection. On Sunday afternoon, the court issued a scheduling order that included a TRO prohibiting the state from scrubbing data from the machines. Later, the court issued a second order, rescinding the TRO, apparently because the state does not control the machines; counties do and the counties were not sued. On Sunday evening, the court issued a third order following a Zoom conference, reinstating the TRO prohibiting defendants from scrubbing or allowing scrubbing of the machines, limited to three counties, apparently on the understanding that plaintiffs will amend the complaint to add them as defendants. This morning came a fourth order, certifying the third order for immediate review under § 1292(b).

Why the insanity? I agree with several online lawyer-commenters. The judge issued a routine, non-adversary scheduling order that sought to preserve the status quo. And Powell, Lin Wood, etc. reacted by taking to Twitter to crow about a giant initial step towards exposing the massive international voter-fraud conspiracy, a substantive victory. Then the defendants pointed out the problems with the litigation and thus with even that routine order--the plaintiffs sued the wrong people and the machines probably cannot be subject to a plaintiff-run forensic audit, at least without more allegations and proof of wrongdoing. And the court sought a middle ground by allowing someone (not clear who) to appeal an otherwise-unappealable order. And questions remain about what the controlling question of law could--whether it was proper to issue a TRO before the amended complaint was filed? whether a forensic audit is available? It might be that the 11th Circuit could reject any appeal (the court of appeals must agree with the district court's certification that appeal is appropriate).

The lesson is that courts must be as cautious as everyone else in these waters. Routine litigation is not routine litigation with these lawyers or with their public followers, because they are not here for judicial resolution. The most innocuous order or statement by the court will be seized upon and trumpeted either further evidence of the vast international conspiracy of which the judge is a part or as a heroic step by a heroic judge to stopping the greatest evil in human history. (Recall Jenna Ellis's insistence that Giuliani had won the argument in the MDPa case, as evidenced by the judge recommending places for the lawyers to get a drink). But unless courts begin to use the tools at their disposal to stop these abuses, they must think twice about even the smallest procedural step or statement.

Updated on Tuesday: Politico has the full story based on the transcript of the Sunday conference, with commentary. The first two orders were proposed drafts circulated among the court and parties that were publicly disclosed and promoted by plaintiff counsel, thus far without consequence. The judge seems less unreceptive to these allegations than others; while stating that the allegations are backed by "precious little proof," he appears to take them as sufficiently plausible to warrant ordering limited preservation. The § 1292(b) order was entered in response to the state's desire to appeal, although still no word on the controlling question of law. No appeal has been filed.

My basis point in this post stands: Trumpist litigators are going to abuse the system. And judges have to be ready for it.

Updated on Wednesday: Instead, the plaintiffs appealed the TRO granting them narrow relief (no clearing machines in three counties). And they did not rely on the § 1292(b) certification, which appears to have been at the state's request. Instead, plaintiffs argue that this is an appeal as of right of an injunction under § 1292(a), based on Eleventh Circuit precedent from the Terri Schiavo litigation treating a TRO as an appealable preliminary injunction where the grant or denial "might have a serious, perhaps irreparable, consequence, and can be effectually challenged only by immediate appeal." In Schiavo, the consequence was that Schiavo would die; I doubt the consequences here are so grave.

Meanwhile, the notice of appeal argued that the appeal divests the district court of jurisdiction. This caused the district court to stay its scheduling order, including the briefing schedule (state briefs were due today) and a Friday hearing, both of which are off. This was unnecessary and probably unwise, because the district court must begin anew when the case returns (probably quickly) from the court of appeals. The district court was was not pleased, stating in the order that any delay in briefing and holding a hearing upon remand would be attributable to the plaintiffs and not the court.

Mike Dunford has more on how bad the lawyering has been in this case. Again, my basic point: This is about using the system to put on a show for a segment of the public. 

Posted by Howard Wasserman on December 2, 2020 at 08:32 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Tuesday, December 01, 2020

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.

Posted by Howard Wasserman on December 1, 2020 at 03:12 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Defending Trump's lawyers on hearsay (Updated Twice)

The Trump Campaign is attempting to appeal an early defeat in Michigan state court. A core piece of evidence was an affidavit by Trump poll watcher Jessica Connarn, testifying that an unknown poll worker had come to hear, in tears, and told her that another unknown poll worker had told her to change the dates on ballots. The trial court rejected this as hearsay-within-hearsay. The brief argues that Connarn's affidavit is not hearsay, because she was describing her first-hand impressions (that the unknown poll worker spoke, that she was crying, that other people yelled at her). The arguments have drawn the scorn of law Twitter.

I want to offer an argument that some of this is not necessarily inadmissible hearsay, although not for the reasons the Campaign argues in its brief.

There are two layers of hearsay--Unknown poll worker # 1 to Connarn and Unknown Poll Worker # 2 to Unknown Poll Worker # 1. Connarn can describe what she saw UPW #1 do. But the Campaign wants her to testify to what UPW #1 said UPW #2 said. That is the additional layer the Campaign seems to ignore.

As I like to map these problems for class:

    Connarn---UPW # 1 ("Someone told me to change the dates")---UPW # 2 ("Change the dates")

In a case with multiple declarants, each layer must be admissible under the rules. Working from the outside in until we get to the witness:

    # 2 to # 1: We do not know what was said. But it seems that #2's words to #1 are a command ("change the dates"), which is not a statement. Alternatively, and more powerfully, the command to change the dates is the unlawful conduct--manipulating ballots--alleged in the case. So what # 2 said to # 1 is a verbal act (the wrongdoing of commanding the change of dates requires words) which is not treated as a statement offered T/M/A. If # 1 testified, I do not think hearsay would bar her from testifying to what # 2 told her to do.

    #1 to Connarn: This is a statement (# 1 asserts that # 2 told # 1 to do this) and it is offered T/M/A (it must be true that # 2 told #1 to do this). But if # 1 was crying, does that make this an excited utterance--she is describing the event (being ordered to change the dates) while under the stress of excitement (shown by her crying) caused by being order to change the dates. Perhaps not, but that is the argument the Campaign could make; that it is not making it shows how bad the lawyering is.

To be sure, there are reliability concerns with Connarn's testimony, since both declarants are unknown and she probably has serious credibility problems. Perhaps that undermines the relevancy. Or perhaps it triggers a solid 403 objection. Or perhaps a court decides that the second statement (# 1 to Connarn) is not admissible as an excited utterance because the specific circumstances of the particular statement (unknown people reporting something to an unreliable witness) indicate untrustworthiness--some courts add this element to the 803(2) analysis. But I do not  think it is as simple as saying "this is hearsay."

Please tell me why I am wrong.

Update: The commenter below says there is an additional layer of hearsay--Connarn did not speak to the crying poll worker, but was told by an unknown Republican poll challenger about what the crying UPW #1 said. Looking at the Affidavit, this is right. The affidavit says: "I was approached by a Republican Party poll challenger, who stated that a hired poll worker of the TCF Center, in Wayne County, Michigan, was nearly in tears because she was being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer."

So, as the commenter says, on my model we have:

    Connaran--GOP--UPW #1---UPW #2.

There is no argument to get that new innermost leg (GOP to Connaran) in under the rules. Even if the GOP person was crying or speaking right after it happened, she is describing/upset by what she was told by UPW #1 and Connaran is repeating that for T/M/A. I give a similar example in class to distinguish a declarant excited by and describing an event and a declarant excited by and repeating what someone else says about an event.

But if this is correct, Thor may be in some trouble. Here is how the brief summarizes Connaran's affidavit:

    p.4: Jessica Connarn testified in her affidavit that she personally witnessed a poll worker’s distress because that poll worker was instructed to count ineligible ballots being tallied as lawful votes at the Detroit central counting board.

    p.17: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

    p.22: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

The brief three times states that  crying UPW # 1 told Connarn personally, not the "Republican poll challenger," about the date-change command. Unless Connarn submitted a second affidavit at some point. Which then puts her to the task of explaining away the contradictory sworn testimony.

Updated Again: Unless (I know, I am spending too much time on this): One could read the original affidavit (not the situation described in the brief) a bit differently: Not as the GOP challenger being told by # 1 what # 2 had told her to do, but as the GOP challenger having witnessed first-hand the exchange between #1 and #2 and reported it to Connarn. The affidavit does not make clear how GOP found out what # 2 told # 1. So perhaps we have:

    Connarn---GOP ("2 told # 1 to change dates and # 1 was crying")---#2 ("change dates")

#2's statement remains a verbal act, witnessed by GOP and about which GOP could testify without hearsay objection. What about that inner leg from GOP to Connarn? I think it could be a present sense impression, depending on when GOP spoke to Connarn, or an excited utterance, if GOP was somehow upset by what she witnessed and is describing; we need some foundation. Either way, GOP is describing an event or condition (#2's verbal act) to the person who will take the stand.

Posted by Howard Wasserman on December 1, 2020 at 02:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Sunday, November 29, 2020

The 20-day coup (and counting)

Everyone is sharing the Washington Post story on Trump's 20-day attempted coup, so here it is. It does not change my overall pessimism about how close we came or where we now stand. A few notable things:

• While the story describes the fringiest of the fringe taking control in the White House and the campaign, no one (other than some lawyers) walked away or spoke out against what he was doing. Most at least humored or appeased him. No one went on the record for this story. All of which enabled the narrative about fraud and a stolen election as much as Rudy's direct insanity.

• In her letter releasing transition funds, GSA head Emily Murphy insisted she delayed her decision and released funds "independently," without direct or indirect pressure from anyone, including the White House. The Post states that it happened only when Trump, after "prodding," "agreed to permit the General Services Administration to formally initiate the Biden transition." Someone is not telling the truth.

• The article's narrative is that this was a 20-day thing, running from Election Day until GSA acknowledged the transition on November 23. But Trump's effort to undo the election did not end on the 23d. Or now. The efforts continue--through his interviews on Fox News, his GOP allies in Pennsylvania seeking to change state law to override the popular vote, and the constant din of allegations of fraud, stolen elections, and illegitimate successors that have undermined Biden, likely irrevocably.

• Even with this new information, no one in the GOP establishment has spoken out. The story as they see it is "he just didn't have the facts to make the argument," rather than "he is genuinely trying to pull down democracy."

Posted by Howard Wasserman on November 29, 2020 at 03:12 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Updating the Standing section on my Fed Courts syllabus

1) Constitutional and Statutory Considerations                         

2) Taxpayer Standing                                                                

3) Third-Party and Other Standing

4) Presidential Standing                                  

5) Legislative Standing to Sue                                            

I am ready for the new semester. I also have another source for the section on SCOTUS jurisdiction and how hard it is to get a case to the Court.

Posted by Howard Wasserman on November 29, 2020 at 02:46 PM in Howard Wasserman | Permalink | Comments (0)

Saturday, November 28, 2020

More state universality (Updated)

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs. Update: The Sixth Circuit reversed.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Evidentiary problems (Updated Again)

Election-law attorney Marc Elias has kept a running tally of the Trump Campaign's litigation record, which stands at 1-38 and has a chance of getting to 50 losses. As his litigation efforts flail, however, his political efforts have succeeded--not in keeping him in the White House (which may not even be the point), but in destroying public confidence in electoral and political processes, undermining the Biden presidency before it begins, and in creating space for an army of state-level mini-Trumps to make noise (even if unsuccessful) about overriding the results of the election.

The difference is evidence.

Trump has lost in court because courts have strict rules about what constitutes valid allegations and evidence (under oath, reliable, credible, based on actual understanding of things such as how elections work, and subject to testing) and they are bound by the allegations and evidence in making decisions. As Judge Bibas wrote, "calling an election unfair does not make it so. Charges require specific allegations and then proof." On the other hand, Trump has won in hotel ballrooms and porn-shop-adjacent parking lots because evidence is whatever nonsense, however fantastical, can be spouted at the highest volume with the straightest face. And decisionmakers (the voters who believe the election was stolen) can base their beliefs on whatever they want.

Whither legislative bodies? They have rules about what constitutes valid evidence--witnesses are under oath and cannot lie. But no external rules limit what legislators can hear or use in reaching their decisions. Which leaves room for people like Pennsylvania Sen. Doug Mastriano, who is leading a legislative move to appoint the state's electors. And he can base his efforts on "findings" of "substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing" based on "facts and evidence presented and our own Board of Elections data" that the presidential election (although, miraculously, no other elections within Commonwealth), was "irredeemably corrupted."

But where is the evidence of this irredeemable corruption? There is none, at least nothing that any court has taken seriously or could rely upon. So it must be that legislatures, or at least some legislators, believe they can and should base decisions not on what suffices in court, but on what suffices in ballrooms and parking lots. In a legislature, unlike in court, it is enough to call an election unfair and act on that call. And that is the problem.

This is not new. Legislators often make bad policy off bad evidence and bad findings. Policy can be undone. The votes of almost 7 million people cannot. And neither can a widespread belief that the system is corrupt whenever your preferred candidate loses. That Mastriano's effort will fail is beside the point. That he is making it and that it will be taken seriously suggests we have crossed some lines.

Updated: Phillip Bump at the Washington Post calls for the Republicans to release the evidence or shut up, then defines what is and is not evidence. But there is no agreement on what constitutes valid evidence, at least outside of court. So Trumpists will reject the premise of Bump's argument.

Second Update: Will Cain on Fox says it aloud: "There may not be enough evidence for a court system, but there should be enough evidence for state legislators to change their electors." Because Republican legislators do not need any evidence beyond "because it's true."

Posted by Howard Wasserman on November 28, 2020 at 12:09 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

We have not pulled back from the edge

Molly McKew argues that we did, if barely. But evidence suggests we still are heading off the cliff.

The election was close, no massive repudiation of the person who history will show as a worse president than the guy who started the Civil War and the guy who allowed the South to win. Jeff Greenfield argues that the past month has revealed the vulnerabilities in the political and electoral systems; it is a blueprint for a future authoritarian who is more competent, represented by better attorneys, able to come up with better facts, able to influence more state and local officials, and working with a marginally closer election. Trump has succeeded, aided by state and local officials, in convincing majorities of Republican voters that the election was stolen, through repetition and oathless hotel-ballroom show "hearings"* at which fanciful allegations are presented and accepted as true (unlike in court, where there are penalties for lying). Republicans--the same Republicans who have enabled, supported, and never abandoned the President through his antics, no matter how fanciful and dangerous to the democratic process--gained in the House and Senate, giving them a stronger position come January. The ongoing national political sorting reflects badly on Democrats' long-term prospects in Congress.

[*] A new one has been announced for Arizona for Monday.

The Biden Presidency is DOA. Some percentage of voters, egged on by Trump and Republican officials at all levels of government, do not believe Biden legitimately won the presidency (or won it at all), because the election was irretrievably tainted by overwhelming (if unpresented or unreliable) evidence of fraud. Large numbers of people, including those holding the levers of political power, will wield this "lost cause" narrative y to oppose everything he attempts for the next four years.* There will be no legislative action, as McConnell has no incentive to work with Biden to actually govern for the benefit of the public. Has any president appointed zero judges?** Might McConnell attempt to reinstate the filibuster for appointments, neutering the few Republican Senators (Collins, Murkowski, Romney) who might vote to confirm Biden nominees? Federal courts and ex-officials (hi, Bill Barr) will discover previously unknown limits on unilateral executive power, including the use of acting cabinet members. Universal injunctions are looking good again. And suspicions and aspersions will be cast on every future election.

[*] Any comments comparing the lonely tilting at windmills by John Lewis and a handful of other will be deleted. Save us both the time.

[**] There are no current appellate vacancies. But Marin Levy has shown that approximately 60 active Democratic-appointed circuit judges are eligible for senior status. A critical mass of this group taking senior status could reshift the court balance. But any vacancies will remain unfilled until a Democratic Senate or a Republican President. Which do we think is more likely to happen first?

McKew recognizes that the answer to her question is not clear, presenting two options.

The election of Joe Biden is still, in a way, a condemnation of America — a defeat of Trump, but not Trumpism, a small-minded, self-centric view of the world that is anti-system rather than collaborative, brittle rather than resilient, hollow rather than vital, and fundamentally defined by the idea that others must suffer for you to do well.

With any luck, this particular red-hatted cult madness will wane, its power less effective when it is viewed in the rear view mirror, a neon-lit road-side mirage that seemed so marvelous in the night, but now garish and rusted and cheap in the light of another day. A realization that the identification of problems is not enough to solve them, that if dehumanization and cruelty are the “policies” you like, maybe you need to have a look at what that says about you.

But Trumpism could also become sharper with smarter, less lazy champions of its dark and anti-democratic ideals. Personalities who are more acceptable, and better able to hide the intention behind cruel policies. While many were drowned by the surging tide of Trump, and others seemed to ride with him a while only to be smashed into the rocks when he crashed into the shore — there were a small number who rode the wave, never at the crest, never subsumed, but surfing, surfing the edges, carried along by the madness, now alighting unscathed, and waiting, waiting to fight for the crown that Donald Trump never attained but made real for too many who should know better and want more.

Other than Biden's comfortable-but-closer-than-expected-and-hoped-for victory, the answer, to me, is the latter rather than former. The results of this election and the post-election madness, aided-and-abetted by most Republicans, supports that answer. And the early 2024 contenders (Cotton, Cruz, Hawley, Rubio) are practicing their mini-Trumps, as is Trump himself, all convinced that this is the path to political victory.

Posted by Howard Wasserman on November 28, 2020 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, November 27, 2020

Making students thirsty for Civ Pro

The Third Circuit unanimously rejected the Trump Campaign's appeal seeking leave to amend and to enjoin Pennsylvania certification pending appeal. Other commenters have described this vivisection of an opinion. I will add a few random thoughts.

• Trump attorney Jenna Ellis says the quiet parts out loud by complaining that the "activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," before cheering that it is "on to SCOTUS." Never mind that the complaint pointedly does not allege fraud, which is part of the problem. The "activist judicial machinery" is three Republican appointees, including a Trump appointee as the opinion author. Under what possible definition is this decision--declining to undo the results of the majoritarian process--activist? Unless, as we all suspect, activist is a decision that rules against us.

• I was glad to see the court reject the argument that due process or other federal law requires partisan poll watchers, let alone that poll watchers be given particular access or vantage. This has been creeping into the political arguments, including during Trump's press conference at the Irresolute Desk when he extolled poll watchers as "sacred in our country."* They are not, never have been, and need not be, as a matter of federal constitutional law.

[*] He surrounded this with an unusual use of his "a lot of people don't know this" verbal tic. Usually that tic accompanies something true that everyone (except Trump, presumably) has always known, such as that Abraham Lincoln was a Republican. Here, he is using it with a statement that no one knows because it is not true.

• The opinion throws Twiqbal and FRCP 15(a) into the public eye, which should make my students long for Civ Pro next semester. The case offers a somewhat different example of undue delay. The paradigm case is "we're 15 months into litigation, discovery is closed, we are three months from trial, why did you wait so long." Here, the delay is undue because of the plaintiff's litigation posture--a motion on your original pleading is fully briefed and amending now requires us to start over, contra your particular request to the court to rule quickly on time-sensitive injunctive relief.

• I agree with those who have said that Judge Bibas is a wonderful writer--crisp and able to turn a phrase, without being showy or obnoxious. A good example of legal writing.

Posted by Howard Wasserman on November 27, 2020 at 04:57 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Reshuffling the Court? (Updated)

Josh Blackman offers an interesting proposal/prediction/speculation: Chief Justice Roberts should retire, allowing soon-to-be-President Biden to elevate Justice Kagan to chief and to fill a seat on the Court. Josh originated this proposal in September as the new way to save nine, when polls suggested a Biden presidency and Democratic Senate that would expand the Court. While Court-expansion is off the table, Josh renews the speculation in light of the Court's new shape and the Chief's role, as revealed in this week's decision enjoining New York gathering regulations, in which he dissented for himself. With the appointment of Justice Barrett, Roberts no longer is the median Justice and may be in the minority more often. At the same time, Justices Breyer, Sotomayor, and Kagan have less incentive to join his opinions, because they cannot produce a majority. The result is a Chief Justice consistently voting alone.

In December 2016, I wrote that Roberts won and Kagan lost the Merrick Garland debacle. Roberts avoided being a Chief Justice consistently in the minority thereby retaining the power to assign and cultivate majorities, while Kagan lost the opportunity to be the Brennan-esque intellectual heart of a liberal majority. Josh argues that this moment passed with Trump's appointment of three solid conserbatives. This proposal would somewhat reverse what I described--Roberts leaves before his power wanes, while Kagan gets a promotion. Of course, Kagan would find herself where Roberts would have been had Garland been confirmed--a Chief Justice regularly in the minority (unless she proves even better than advertised at bringing the Court together in the middle). And the real winner of the exchange would be Justice Thomas, who regularly becomes senior Associate Justice in the majority with the power to assign opinions.

In fairness, I believe it is safe to say that Josh is no fan of the Chief and would shed no tears if he left the Court while leaving a secure, and young, conservative majority.

Update: One point I forgot: If this were to happen, it would give Biden three appointments in one term, as I expect Breyer to retire by spring 2022.

Posted by Howard Wasserman on November 27, 2020 at 04:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (11)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Wednesday, November 18, 2020

Procedure matters

Civ Pro is a spring class at FIU, so I do not get them until January. But I hope they are paying some attention to the Trump litigation campaign, particularly the case in MDPa. That mess shows how much procedure matters, if only to getting the court to take you seriously as a competent advocate and thus your claims seriously as presented. But Giuliani (and other's) complete lack of understanding of how litigation operates at the level of a basic Civ Pro class--when leave to amend must be sought, what claims and allegations are or not in a case, the meaning of pleading standards--has been stunning. Grasp of procedure also marks the difference between legal and political activities, which supports news reports that Giulian's gambit is entirely the latter and none of the former.

Posted by Howard Wasserman on November 18, 2020 at 08:38 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 13, 2020

Retaliation or Evidence?

A weird case from MD Fla: The owner of an indoor farmer's market, a vocal opponent of masks, sues over enactment and enforcement of a county mask ordinance, in which the market was twice cited for having maskless customers. Among the claims was First Amendment retaliation--that the county singled the business out because the owner has spoken out against masks.

But this seems an odd retaliation case because his speech would appear to justify the county in enforcing against him because it provides evidence of a possible violation. Garden-variety retaliation is the owner of a business criticizes the mayor about something, so the county singles him out for enforcement of general code provisions, unrelated to the speech (e.g., the owner criticizes the mayor's redevelopment plans, so the county sends in the health inspector). But here, the speech that was retaliated against seems to provide cause, or at least evidence, for the enforcement decision. If county officials are trying to determine where to direct enforcement efforts and what businesses might not comply with the mandate, it is is reasonable to infer that the business owned by the outspoken critic of masks might violate the ordinance. It becomes problematic if his is the only business cited. But it is a stretch to claim retaliation that his is one, or even the first one, to be cited.

The case is at the 12(b)(6) stage, so more will be fleshed out later in the case.

Posted by Howard Wasserman on November 13, 2020 at 09:38 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Thursday, November 12, 2020

JOTWELL: Levy on Garder and McAlister on nonbinding authority

The new Courts Law essay comes from Marin Levy (Duke), reviewing Maggie Gardner, Dangerous Citations (forthcoming N.Y.U. L. Rev.) and Merritt E. McAlister, Missing Decisions (forthcoming U. Pa. L. Rev.), each addressing different problems related to the use of nonbinding authority.

Posted by Howard Wasserman on November 12, 2020 at 02:23 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 11, 2020

Repeating other's thoughts

As I wrote yesterday, I have not been able to organize my thoughts on everything going on. Fortunately, I agree with everything Benjamin Wittes says at Lawfare.

Meanwhile, we can have fun with hearsay and those who did not pay attention in class:

The Trump campaign also sought to temporarily stop counting some ballots in Detroit. It cited a GOP poll watcher who had said she had been told by an unidentified person that late mail ballots were being predated to before Election Day, so they would be considered valid.

The judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor Hearne sought to argue that it wasn’t — despite it having been someone who said they heard about something they weren’t personally involved in. He pointed to a vague note the poll watcher produced — which said “entered receive date as 11/2/20 on 11/4/20” — as evidence:

STEPHENS: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?
HEARNE: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.
STEPHENS: Okay, which is generally known as hearsay, right?
HEARNE: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

The two later returned to the point, after Stephens reviewed the note, and Stephens echoed Judge Diamond’s exasperation:

STEPHENS: I’m still trying to understand why this isn’t hearsay.
HEARNE: Well, it’s, it, I –
STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.
HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge --
STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.
HEARNE: Well it’s a firsthand statement of her physical –
STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?

Posted by Howard Wasserman on November 11, 2020 at 04:47 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, November 10, 2020

Annual sports election predictors

I have thoughts on the election, but too jumbled to and disorganized to write in detail. I began with mixed feelings--thrilled that Biden had won, crushed that he will face a GOP Senate that will undermine his presidency at every turn (has any President gone a full term without appointing one judge?). I am concerned and (mostly) surprised that so many GOP officials have gotten on board and are amplifying Trump's nonsense. This allows the Senate to bolster its planned obstruction with a "stolen election" narrative--Biden is an illegitimate president not because people voted against Trump rather than for Biden, but because Biden "won" only because of fraud. The Senate thus does its patriotic duty by not cooperating with this illegitimate official until he can be voted out of office.

So let's look at something lighter: How sports predicted the election.

World Series Was Right: The NL's Dodgers won the World Series, which has meant a Democratic President in 18 of the past 29 elections, 13 of the 19 since the end of World War II, and 5 out of 6 since 2000.

Washington NFL Team Was Wrong: The Washington Professional Football team won its final home game before the election, beating the Dallas Cowboys 25-3 on Sunday, which has predicted the incumbent party retaining the White House in 17 of 21 elections (although wrong the last three). Ironically, Washington beat the team owned by Jerry Jones, Trump's closest friend and political ally among NFL owners and, stories suggest, a big reason why the league reacted as it did to Colin Kaepernick.

Harvard-Yale Will Not Play: The other presidential-election year they did not play was 1944, when a Democrat won.

Ending Sports Droughts: I wrote that this tends to favor Republicans. I am not sure how to categorize this year's election. The Dodgers won their first World Series in 32 years, but I am not sure if that qualifies as historically long when we have almost 120 years of World Series and this is an historic franchise winning its six World championship.

One City/Multiple Champions: The Series had one unique piece of intrigue--the winner would give its city a second 2020 championship. The Dodgers gave Los Angeles its second title, following the Lakers winning the NBA championship. Had the Rays won, they would have given Tampa its second title, following the Lightning winning the Stanley Cup. So this got me thinking about correlations between presidential elections and single-city/multiple-champions. Prior to this year, this had happened in seven presidential elections dating to 1927. The Republican prevailed in six (Hoover in 1928, Eisenhower in 1952, Eisenhower in 1956, H.W. Bush in 1988, W. in 2000,* and W. in 2004), the Democrat in one (Truman in 1948). Biden makes it GOP in 6 out of 8.

[*] The  Yankees won the World Series while the Jersey Devils won the Stanley Cup. Whether to count this depends on how we regard New Jersey sports teams. I leave that question for others.

Posted by Howard Wasserman on November 10, 2020 at 08:58 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Thursday, October 29, 2020

JOTWELL: Smith on Davis on public standing

The new Courts Law essay comes from Fred Smith (Emory), reviewing Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019), analyzing state and local governments as plaintiffs.

Posted by Howard Wasserman on October 29, 2020 at 12:22 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (2)

Wednesday, October 28, 2020

Panel: The Jurisprudence and Legacy of Justice Ginsburg (Moved to Top)

This is a reminder that FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30. Register here. The event is open to the public; please join us for what should be a great conversation.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Posted by Howard Wasserman on October 28, 2020 at 12:32 PM in Howard Wasserman | Permalink | Comments (0)

Sunday, October 25, 2020

"Zombie statutes," non-universality, and judicial departmentalism

The opening paragraph of this Fifth Circuit opinion by Judge Costa accurately describes judicial review (H/T: Josh Blackman):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

The opinion deals with what Costa calls "zombie statutes"--laws in one state that remain on the books but are unenforceable (at least judicially, more on that below) in light of SCOTUS precedent declaring an identical law from a different state invalid. The challenge here was to a Houston ordinance requiring initiative/petition circulators to be registered voters; SCOTUS in Buckley v. American Constitutional Law Foundation declared an identical Colorado law to violate the First Amendment. The Fifth Circuit held that the plaintiffs had standing and that the case was not moot--there was sufficient threat of enforcement despite Buckley and the city's addition of an Editor's Note to its code--stating that it would accept petitions from non-registered voters and provided a form for such petitions--was not sufficient to moot the case.

This "zombie law" concept is interesting. I wish I had it in front of me (or had thought of the term myself) when writing about the link between non-universality and judicial departmentalism. Because those concepts inform what makes a zombie law.

Because of non-universality, the concept should not be limited to the situation at hand--State B's law is a zombie because of a decision involving State A's law. State B's law can be a zombie because of a decision involving that law as to non-parties to the prior litigation. It also means we could have federal zombie laws. The point is the same in all--the prior judgment spoke to the challenged law and the involved party, not to any other law or any other party.

Because of judicial departmentalism, it is arguably unfair to call any law a zombie law. Because if the government believes, in its independent judgment, that the law is constitutionally valid, it acts within the full scope of its constitutional power in enacting or enforcing it, regardless of contrary precedent. In that sense, the law is alive and enforceable. On the other hand, maybe zombie is the right term because the laws are undead--they are alive in remaining on the books and in remaining enforceable by a departmentalism government, but the actual or threatened enforcement is DOA in court, where SCOTUS precedent binds and determines the outcome. On a third hand, maybe we need distinct terms to capture distinct concepts--law on the books but no intention to enforce v. law on the books with intention to enforce--rather than lumping everything as a zombie.

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Saturday, October 24, 2020

Update on Jewish World Series

I erroneously wrote that this year's Rays-Dodgers World Series had one Jewish player--Dodgers OF/DH Joc Pederson. But I forgot about Rays lefty reliever Ryan Sherriff, the grandson of Shoah survivors. Sherriff saw his first action in Friday evening's Game 3, pitching one scoreless inning, walking one and striking out one. This is the seventh World Series in which both teams have at least one Jewish player, the third in the last four.

We came close to a different first--a Jewish pitcher facing a Jewish batter.* Sherriff pitched the seventh and went to the mound to begin the eighth, with Pederson leading off. But Pederson does not bat against lefties, so he was pulled for a righty pinch-hitter in the Dodgers' regular platoon. At which point Sherriff was pulled for a righty pitcher.

[*] The linked article notes that Ken Holtzman of the A's faced Steve Yeager of the Dodgers in Games One and Four of the 1974 World Series, with Yeager getting two hits in five at-bats. But Yeager converted to Judaism after his baseball career, so this did not count at the time.

Posted by Howard Wasserman on October 24, 2020 at 02:41 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, October 23, 2020

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, October 20, 2020

Panel: The Jurisprudence and Legacy of Justice Ginsburg

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., Friday, October 30. Register here. The event is open to the public.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Posted by Howard Wasserman on October 20, 2020 at 11:09 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, October 18, 2020

Breyer as assigning justice

A fun one-off thing to watch for this Term--will  Justice Breyer have an opportunity to assign a majority opinion as senior-most associate justice in the majority? It would take an odd line-up: TheChief and Thomas in dissent and Breyer leading a majority of himself and four of Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Trying to imagine the case that would produce that lineup with the Chief.

Posted by Howard Wasserman on October 18, 2020 at 08:02 PM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, October 16, 2020

Prawfs' moment in the sun

One drawback to paying zero attention to the Barrett confirmation hearings: I missed that Barrett did a guest stint here in March 2008 (I was doing a semester-long guest stint at that time that led to Dan inviting me here permanently). Her six posts are listed among her "Opinion, Editorals, and Letters" section in her CRS bio. One post, about potential retroactivity problems in eliminating the crack/powder distinction, was the subject of an exchange with Sen. Booker; Booker asked why she did not discuss the injustice of the distinction--a stupid question justifying the amount of attention I devoted to the hearing. (H/T: Josh Blackman, who pays more attention than I do). (If you want to subject yourself to it, it is around the 7:17:00 mark).

Booker described us as a "well-known legal academic" blog, which is nice. Barrett called us "LawPrawfsBlawg." Oh, well.

Posted by Howard Wasserman on October 16, 2020 at 08:16 AM in Blogging, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, October 09, 2020

Ford arguments

Here is the transcript from Wednesday's argument in Ford and here is my SCOTUSBlog story. A few additional thoughts:

The Justices do not seem to understand or recognize that the prevailing analytical approach has 3 parts (at least as it has developed): 1) Purposeful availment; 2) Relatedness; 3) Unreasonableness. A lot of the hypos conflated the three. The Chief's hypo about the small manufacturer in Maine could be resolved on the third prong (much like Justice Breyer's hypos about Egyptian shirts and Brazilian coffee in his Nicastro concurrence). Other hypos were about purposeful availment rather than relatedness. Justice Kavanaugh tried to disaggregate them in his colloquy with plaintiff counsel, giving him a chance to describe the differences between the first two steps and why they do not run together. But I do not know whether it will take. (There is an argument that the three-step approach is wrong and inconsistent with Shoe, but this is where we are until the Court changes it. So it would be helpful if they recognized their analysis).

Justice Kavanaugh explored the World Wide connections with both sides, including quoting specific language from the case. Counsel for Ford argued that the issue is open because Audi and VWA did not challenge jurisdiction. Counsel for plaintiffs argued that there is a reason for that--jurisdiction over a nationwide manufacturer for defects in its products forms the "core" of specific jurisdiction.

I am bad at predictions, so I will not make one. But the Justices were less hostile to the plaintiffs' position than I anticipated. I do not know what that means for the outcome.

On a different note, it was easier writing the argument recap (what I have found the hardest of the three SCOTUSBlog pieces for each case) under the new argument format because it was easier to take notes and to organize the piece--Intro and nine mini colloquies per side, with less need to scour many pages for common themes. Although I was raised in the Scalia-led free-for-all that also is reflected in law-school moot court, this format is growing on me and I am curious if they will maintain some version of this when the Court returns to face-to-face. And if Court membership expands.

Posted by Howard Wasserman on October 9, 2020 at 01:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

Posted by Howard Wasserman on October 9, 2020 at 10:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 07, 2020

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

"Relatedness" in personal jurisdiction--Ford and World Wide Volkswagen

SCOTUS on Wednesday hears arguments in Ford v. Montana Eighth Judicial District and Ford v. Bandemer, considering whether there can be specific jurisdiction over a defendant who sells and ships products into the forum state but not the specific unit involved in the events at issue. The Court must decide whether "give rise or relate to" reflects one concept or whether "relate to" is a distinct and broader concept and how much broader. I am covering the case for SCOTUSBlog. Larry Solum offers some thoughts.

This case is the spiritual successor to World Wide Volkswagen, answering questions that were unnecessary 40 years ago and reflecting recent doctrinal shifts. Audi and Volkswagen of America did not challenge personal jurisdiction, recognizing that they were subject to jurisdiction based on the large number of cars that they sold, marketed, serviced, and shipped to the state, although they did not sell or ship the Robinson's car to Oklahoma (they shipped that to NY). Whether this was general "doing business" jurisdiction or some broader conception of specific jurisdiction was unresolved, although it was the topic of academic debate between Mary Twitchell and Lea Brilmayer.

The Court's recent decisions (several authored by Justice Ginsburg) narrowing general jurisdiction to "home" (meaning principal place of business and state of incorporation for corporations) changes the calculus for Ford, which stands in the same position as Audi and VWA. There is no general jurisdiction, because Ford is not incorporated or headquartered in Montana or Minnesota, just as Audi and VWA were not incorporated or headquartered in Oklahoma. So this squarely presents how far (or not far) relatedness extends, including whether it reaches cases in which the defendant has contacts with the forum that are "identical" or "similar to" the out-of-state contacts that caused the accident.

This could be the most significant of the recent wave of P/J cases. If the Court narrows the relatedness standard and finds no specific jurisdiction, it could make it difficult for plaintiffs to sue manufacturers in the locus of the accident, which usually is the plaintiff's home. Instead, often-less-resourced plaintiffs will have to travel to the better-resourced defendant's home (having to sue Ford in Michigan) or to some third state where the defendant did have contacts (such as where Ford manufactured or made first sale of the car at issue). Either is less convenient and more burdensome for the plaintiff. Waiting to hear arguments, but I expect the Court to be more divided on this case than in most of the other recent PJ cases.

Finally, on a teaching point. I use World Wide to show the intersection between subject matter and personal jurisdiction and the strategic choices that parties must make. Depending on the outcome in Ford, everything about WW would be different if the case arose now.

The Robinsons sued Audi, VWA, World Wide (the regional distributor), and Seaway (the dealer) in Oklahoma state court in 1975. Audi and VWA recognized they were stuck in Oklahoma, but wanted to be in federal court. WW and Seaway, both from New York, destroyed complete diversity because the Robinsons were from New York (the accident in Oklahoma prevented them from reaching Arizona and establishing the new residence so as to change their domiciles). So Audi and VWA financed WW and Seaway to challenge personal jurisdiction through the OK courts and to SCOTUS. Following the SCOTUS decision and the dismissal of WW and Seaway in 1980, Audi and VWA removed. But that strategy is unavailable under current law. In 1988, Congress amended what is now § 1446(c)(1) to prohibit renoving later-becomes-removeablae diversity cases more than one year after filling. So Audi and VWA now gain nothing from financing WW and Seaway to get out of the case. Given the cost of litigation, would WW and Seaway thus decline to challenge personal jurisdiction, litigate in Oklahoma, and hope to shift the blame onto the manufacturers?

On the other hand, if the Court rejects jurisdiction in Ford, Audi and VWA would have a different strategy--join WW and Seaway in getting the case dismissed from Oklahoma.

Posted by Howard Wasserman on October 6, 2020 at 09:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, October 03, 2020

MLB MVP cancels Landis

The Baseball Writers Association of America (BBWAA), which awards the MLB leage MVP awards, has removed the name of former commissioner Kennesaw Mountain Landis from the award, citing his history of racism and his actions in keeping baseball segregated.

As I wrote in my prior post, the narrative of Landis as affirmatively racist active opponent of integration has carried the day. A scholarly counter-narrative sprouted in the '00s that he was a man of his time who did not push the owners to sign African American players, but has been largely forgotten in this discussion--whether because it has been historically discredited or because it has lost the day.

Posted by Howard Wasserman on October 3, 2020 at 08:30 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, September 29, 2020

A Jewish MLB post-season

No baseball on Yom Kippur 5781. But this is shaping up as one of the great Jewish MLB post-seasons. Ten of the 13 Jewish MLB players are in the post-season spread across eight teams (five NL, three AL). This includes four starting position players (Alex Bregman of Houston, Ryan Braun of Milwaukee, Joc Pederson of the Dodgers, and Rowdy Tellez of Toronto, who will miss the opening round with an injury); one starting pitcher (Max Fried of Atlanta); and three workhorse relief pitchers who can be expected to log some big innings in a format with no travel and thus no off-days.

Posted by Howard Wasserman on September 29, 2020 at 11:35 AM in Howard Wasserman, Sports | Permalink | Comments (17)

Bad legal reporting yields bad legal takes

Over the weekend, media outlets reported that a federal judge had removed or ousted William Pendley Perry as acting director or as person functioning as director of BLM. This prompted ALittleRebellion to make Bad Legal Takes for insisting that "no judge has the power to remove any executive appointee." In fairness, he may have made it more for further insisting that Perry "must ignore any such diktats," a screed about constitutional determinations under Article V, and a later insistence that "advice and consent" does not mean approval, just informal consultation.

But this tweeter's basic point--judges cannot remove executive appointees--is correct. Fortunately, the judge did not remove an executive appointee. The court declared that Perry was serving in the role in violation of federal law, enjoined him from continuing to act in that capacity because any conduct in the office is unlawful, and asked the parties to identify actions that may be invalid because enacted by someone unlawfully serving a role. All of which is what judges have the power to do and are expected to do in resoling cases and controversies. The problem--that long predates the rise of Twitter Law--is that much of the mainstream media does an awful job of covering courts and judicial processes, resulting in in fundamentally inaccurate reporting and information such as this. Which the uninformed of Twitter Law can run with as proof of an out-of-control judiciary with power-abusing judges who must be stopped.

Posted by Howard Wasserman on September 29, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (27)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 25, 2020

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Posted by Howard Wasserman on September 25, 2020 at 11:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)