Friday, October 22, 2021

SCOTUS grants review in SB8

SCOTUS granted cert before judgment in United States v. Texas and WWH v. Jackson, with argument on November 1. The grant in Texas is limited to whether Texas can sue. The Court declined to lift the Fifth Circuit's stay of the injunction in United States, so the law remains enforceable; Justice Sotomayor was the lone dissent on that point.

Our papers are about to change dramatically.

Posted by Howard Wasserman on October 22, 2021 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, October 19, 2021

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Posted by Howard Wasserman on October 19, 2021 at 08:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 18, 2021

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Posted by Howard Wasserman on October 18, 2021 at 07:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Posted by Howard Wasserman on October 18, 2021 at 03:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

Posted by Howard Wasserman on October 14, 2021 at 10:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

JUSTICE KAVANAUGH: Does the same kind
of rule apply in private litigation? So suppose
a private plaintiff sues a private defendant
under state tort law. The state -- the private
defendant argues that the state tort law is
unconstitutional, and the court on appeal rules
that the tort law is unconstitutional, okay?
And the state -- the private plaintiff, sorry,
chooses not to seek en banc or cert.

Can a state AG intervene in that
circumstance even though the private plaintiff
has chosen not to seek en banc or cert to argue
that the state tort law is, in fact,
constitutional?

MR. KUHN: I think this Court told us
in Hollingsworth that a private party defending
state law is just a different matter than a
state official who has sworn an oath to defend
Kentucky's constitution who is popularly
elected.

So I think the state in that
circumstance would -
-

JUSTICE KAVANAUGH: The state tort law
in that circumstance will be declared
unconstitutional. And I think, by saying it's
different, you're saying the state AG in that
case could not seek en banc or cert even though
the state tort law had been declared
unconstitutional?

MR. KUHN: Our position is not that he
could not do so but that it would not be as easy
of an argument in that circumstance. I think it
matters that we have a handoff from one state
official to another, both of whom are sworn to
defend Kentucky law.

I think a lot of the things I'm saying
today would be consistent with the -- with the
hypothetical that you're talking about. But I
think we're perhaps a half step beyond that and
this is a much easier case than the one you've
hypothesized.

I do not know if Kavanaugh asked the question with SB8 (or its many tort analogues) in mind, but it is relevant. When the state delegates enforcement power to private parties for the purpose of eliminating offensive (preemptive/anticipatory) litigation by rights-holders, it would be the height of chutzpah to claim the power to intervene as the law's primary defender if it does not like the private -party delegee's litigation decisions. Kentucky's SG seemed to recognize the crux of the issue as the difference between the state acting when it is defending a law challenged in offensive constitutional litigation and the issue is which executive officer can lead that defense and the state acting when a private person has enforced the law by initiating judicial proceedings and the question is how the law is being litigated.

Competing incentives and obligations create a unique twist on this exchange as to SB8. An anti-choice SB8 plaintiffs who loses in the trial court has less incentive to appeal the constitutional issue if they lose in the trial court. Given the obvious (for-the-moment) invalidity of SB8, anti-choice activists are better off with the threat of litigation and liability chilling providers than they are appealing an adverse judgment and establishing likely adverse binding precedent. But what about the state? Would it attempt to step-in if a private plaintiff gives up on litigation? Or does it have the same incentive to let sleeping dogs lie and leave the constitutional issue unresolved as binding precedent and allow the chilling effect to continue.

This reflects another difference between offensive and defensive litigation. Offensive litigation produces a  remedy for the rights-holder, such as injunction, that, depending on the plaintiff and the right at issue, protects against future enforcement. The state thus has an incentive to appeal to avoid those those prospective limitations. Defensive litigation does not grant a rights-holder a prospective remedy, only a favorable judgment in one attempted enforcement. Like the private SB8 plaintiff, the state may be willing to take the loss in that case but to leave the legal issues unresolved to allow future enforcement and future litigation.

Posted by Howard Wasserman on October 14, 2021 at 06:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Posted by Howard Wasserman on October 13, 2021 at 06:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

Sunday, October 10, 2021

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.

 

Posted by Howard Wasserman on October 10, 2021 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 06, 2021

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

Posted by Howard Wasserman on October 6, 2021 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Court enjoins enforcement of SB8 (Updated and moved to top)

Order here. I am beginning to go through it. I have already found some loose language about the US stopping states from enacting invalid laws, as opposed to enforcing. But it adopted the broad views of standing I expected.

OK, I am back. Nothing in here is too surprising. A few comments, mostly as it affects my interests in the procedure of the case. My overall conclusion is that the result is defensible in the unique context of a suit by the United States. But it is wrong in a number of points along the way, reflecting the common mistakes in the overall discussion of SB8.

• The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.

• The court ignores the distinction between enforcement of a law and the creation and existence of a law, treating both as a source of a constitutional violation and something to be enjoined. This is wrong, as stated in Massachusetts v. Mellon, a case the court relies on in according the U.S. parens patriae  standing. The court compares this case to Cooper v. Aaron. But Cooper was about enforcement--the local officials sued were members of the executive branch who were executing the laws surrounding school admissions and thus were proper subjects for an injunction. The legislators who enact a law do not enforce it and the executive officers do not do anything here. The court ignores that distinction.

• Both of the above are unfortunate, because there is another way. The court points out that the state delegated enforcement authority to private individuals--that is, the act of delegation is state action. Delegation makes the private actor part of the state, so the "state" should include those private actors exercising delegated state power, separate from judges and clerks. An injunction against the state reaches everyone acting for the state, including all authorized private individuals. I think that is justifiable and consistent with the idea that courts enjoin executives from enforcing laws, no one else.

Update: I should clarify the above. A  court enjoins actors from doing certain things. It enjoins the executive from executing, but cannot enjoin the legislature from legislating and cannot enjoin judges from judging. If one enjoined party does all three things, then the order must be limited to enjoining that executive function, but not the other functions. The rough analogy is Supreme Court of Virginia v. Consumers Union, an action against the state supreme court and its chief justice over bar disciplinary rules. The court performed three functions--it legislated in enacting the rules, executed in initiating disciplinary proceedings, and adjudicated in ruling on those proceedings. The Court allowed the injunction, but only as initiating disciplinary proceedings. Similarly, the court could enjoin Texas from enforcing, capturing everything and everyone under Texas law authorized to enforce, including deputized private individuals.

• The court buys the United States argument that meaningful judicial review means federal judicial review that begins in a federal district court. Anything else--including SCOTUS review of state-court judgments in which constitutional rights are raised defensively--is constitutionally deficient, precludes individuals from vindicating their rights, and warrants federal judicial intervention before anything can happen in state court.. The court emphasizes how state procedure limits providers' ability to defend SB8 actions in state court through (the court implies) invalid restrictions, without considering that the validity of those restrictions can be challenged in state court and can form the basis for SCOTUS review. Everyone on the left is lauding this is "indisputable," as calling Texas out on a cynical and invalid ploy to avoid judicial review.

But this position means that state tort law is invalid, to the extent a tort is defined in an unconstitutional manner. To use the example we include in our papers: Imagine a state anticipates the overruling of New York Times and redefines its defamation law to not require actual malice. Since tort law can only be enforced in private litigation, would that procedure also be improper, justifying an injunction against state judges? And if not, what is the difference between this case and my hypothetical new tort law? The implicit answer is SB8 is not tort law, because the authorized plaintiffs have not been injured. But that begs the question of what "tort law" is and whether a state can adopt a broader understanding of what injuries are or should be sufficient for suit. The court never addresses this.  This case is different from ordinary tort law, but those differences go to why SB8 plaintiffs act under color when ordinary tort plaintiffs do not. But it should not change anything about the routine and proper nature of private civil litigation and of raising constitutional rights in a defensive posture.

• The court addresses Texas' concern that this opens the door to the United States suing states, insisting the U.S. will limit itself to the exceptional case. I have described this as the U.S. suing when it can get "more bang for the buck" through a single big case. The court identifies some features that make this a big case.

• I agree with the broad take on U.S. injury and an equitable cause of action even absent congressional authorization. And I agree that there is causation and redressability, but not for the reasons the court identifies.

• Texas filed a Notice of Appeal to the Fifth Circuit (PIs are immediately reviewable) and stated it as related to the pending appeal in the WWH case. The question is whether the Fifth Circuit or SCOTUS stays the injunction pending review. They should not stay it. This is a blatantly invalid law. Once a court finds the correct procedure to enjoin enforcement, the irreparable harm from actual or threatened enforcement means the injunction should be in effect until resolution of the litigation.

More to come, almost certainly.

Posted by Howard Wasserman on October 6, 2021 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, October 05, 2021

SB8 and SCOTUS politics

SB8 is getting caught up in debates over SCOTUS politics, whether the justices are partisan hacks, and the shadow docket. This is skewing some of the discussion of the validity of the law and how providers and advocates should navigate it.


The Court was right to deny emergency relief. The WWH lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.


SB8 critics--in the media, in academia, and in the WWH dissent offer three basic arguments. The first is that the Court can enjoin SB8 itslef (and keep it from taking effect) because it is so clearly invalid and it hid intended to avoid preenforcement reveiw, so it does not matter who the defendants were. That, of course, is not how constitutional litigation works. Court enjoin enforcement, not laws. The Constitution does not dictate that states adopt any enforcement mechanism or that offensive litigation be an option in challenging a law.

The second is that the usual target (AG or governor) was unavailable, so WWH sued everyone it could think of (true), therefore the Court should have enjoined enforcement because someone in that mix must be a proper defendant. That would have given some court time to dig through and find that proper defendant. But that is not how this works. It is on the plaintiffs to identify proper defendants. And there may not have been a proper target for offensive litigation at this moment. Dickson or another individual could be subject to a federal suit, but he must make some move towards bringing an SB8 suit that he has not yet made. Sometimes (e.g., defamation) state law is enforced only through private litigation and challenged only defensively.

The third argument is that the outcome in SCOTUS would have been different if the political valence of the law had been different--that five-Justice majority would have granted relief, despite the glaring procedural problems, if California banned gun purchases and allowed private suits against gun owners. This assertion is neither provable nor disprovable. But accept it as true (it probably is). So what? Granting emergency relief in that situation would be wrong and it would expose the Justices as the results-oriented partisans they insist they are not. But the solution to that problem is not that the Court should have granted relief here --that it should have been wrong when the case carried a different political valence.

Posted by Howard Wasserman on October 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, October 02, 2021

Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.

Posted by Howard Wasserman on October 2, 2021 at 11:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, September 24, 2021

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

Posted by Howard Wasserman on September 24, 2021 at 01:31 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, September 22, 2021

Florida sinks to Texas' level

Florida Rep. Webster Barnaby (besides vying for most Southern name imaginable) has introduced the Florida Heartbeat Act, a carbon copy of SB8--ban on post-heartbeat abortions, no public enforcement, private civil action by "a person" against providers. No surprise, either that there is a copycat or that Florida would be the first copycat. Given how quickly this is going to fall apart, one wonders if it is worth the bother. But Ron DeSantis needs something else to run on. And maybe a few months of stopped abortions, until the wheels fall off, is sufficient.

It will pass next year, take effect in July 1, 2022, and we will be back where we are. My guess is that rather than wasting time on offensive litigation, providers will be quicker to set-up the defensive test case: Perform the abortion on July 2, find a friendly plaintiff on July 3, and off we go.

Posted by Howard Wasserman on September 22, 2021 at 07:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The truth of SB8

The Times reports on the two SB8 lawsuits, including a quotation from Supreme Court litigator Paul Smith that defensive litigation is the "nicest, cleanest way" to get to SCOTUS, which is what we have been arguing from the start. This is not speedy or comprehensive. But no litigation is, in fact, comprehensive in the sense of one case prohibiting all enforcement. And defensive litigation avoids having to endure the Fed Courts seminar that offensive litigation requires.

I was struck by this bit of honesty from anti-choice activists in Texas:

These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

The complaints about the lawsuits being "plants" or about Braid inviting the lawsuits is nonsense. Activists do not get to control who avails themselves of a legal right they advocated for. They drafted the statute to allow "any person," without limiting "any person" to those that share their policy goals or positions.

I do wonder what to make of the idea of enacting a law with no intention of enforcing it, hoping that the chilling effect of the risk of enforcement will be sufficient to stop the disfavored conduct, without actual enforcement. Is that a legitimate use to make of law? On the other hand, it suggests that the fears of crippling litigation and judgments might have been overblown. There was no real threat of overwhelming liability because no one wanted to enforce. But the possibility of a lawsuit by "friendly" plaintiff who will bring the claim and allow for litigation means the law does not, in fact, insulate the law or thwart judicial review.

Posted by Howard Wasserman on September 22, 2021 at 03:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 21, 2021

These are not very bright guys, and things got out of hand

Operation Rescue has asked the Texas Medical Board to investigate Dr. Braid and to suspend and permanently revoke his license, based on his admitted performance of a post-heartbeat abortion. (H/T: David Cohen of Drexel). The letter is a sight to behold, explaining that Dr. Braid wants to be sued for his "defiant attitude and unlawful act," so OE went to the Board to seek a sanction without giving him what he wants. It also is stupid, if the goal of this and other anti-choice activists is to make it difficult to get a judicial ruling on the constitutional validity of the heartbeat ban.

The lone viable theory to get into federal district court is an action by medical providers (doctors, nurses, clinics) against the regulatory boards to stop "indirect enforcement"--licensed professionals must adhere to health laws, including SB8, so the licensing bodies can be enjoined from using an SB8 violation as the predicate for a licensure action because SB8 is constitutionally invalid. The original WWH complaint (the one sitting in the Fifth Circuit and in which SCOTUS refused to enjoin enforcement pending review) included claims against the medical, nursing, and pharmacy boards on this theory. In denying the motion to dismiss the appeal and staying the district court proceedings, the Fifth Circuit stated that SB8’s prohibition on public enforcement includes this sort of indirect enforcement.

Operation Rescue’s letter argues the opposite of that position. If the medical board moves on this, it is going to have a harder time arguing in the ongoing WWH suit that it does not and will not yield indirect enforcement authority. That means WWH has at least one claim against one defendant for which there is standing and no sovereign immunity and that can move forward in federal court and allow for resolution of the law’s constitutional validity. Alternatively, Braid has a state actor against whom to bring a new lawsuit in federal court. There is standing and no sovereign immunity, because possible enforcement is imminent based on the complaint, unless the Board again conclusively disclaims this enforcement authority. Any injunction will not stop any private individuals from pursuing claims and will not protect advocates from aiding-and-abetting claims; it would protect only providers from licensure actions. But this creates a path to (limited) federal litigation and quicker path to SCOTUS and binding precedent that the heartbeat ban is invalid, which will govern future private actions.

If the Board moves forward on this complaint, it creates some tricky abstention issues. The now-pending state administrative proceeding may require the federal court to abstain under Younger, at least as to any claims Braid brings himself or in the WWH case. Braid then has the same anti-abstention arguments that could lie against private SB8 plaintiffs--no adequate opportunity to raise the constitutional issue in the state proceeding, bad faith, flagrantly unconstitutional law. Also, the question of indirect enforcement is a state-law issue that might require certification or Pullman abstention. As I said, this law is a Fed Courts/Civil Rights class.

But here is a larger point. SB8 was drafted by a smart lawyer and legal scholar with a particular understanding of constitutional law and litigation (that I happen to share). The law contains moving pieces and requires collective patience to achieve its desired result--stopping abortion through actual or threatened civil liability while eliminating any governmental targets for immediate offensive litigation in federal court. But operatives on the ground seem to lack that sophisticated understanding or patience and, without realizing it, may undermine the law's complex scheme. OE's letter illustrates that impatience and apparent lack of understanding of what the law is designed to do. Whether it undermines the grand plan depends on what happens next.

Update: An additional thought. As Mary Ziegler has argued, this is not the first time states have attempted to use private civil litigation. In the 1990s, activists tried to sue providers for medical malpractice, failure to give informed consent, and other misdeeds. But interest in this slow, bel0w-the radar process died out in favor of direct and high-profile attacks on Roe itself. The OE letter reflects that.

Posted by Howard Wasserman on September 21, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 20, 2021

We have our SB8 test case (Udpated)

We have our SB8 test case(s). On Saturday, Texas doctor Alan Braid wrote an op-ed in the Washington Post announcing/confessing to performing a first-trimester-post-heartbeat abortion. On Monday, Oscar Stilley filed suit in state court in Bexar County. Stilley is a disbarred lawyer and tax protester, under home confinement serving a 15-year sentence on tax charges. Expect to read a lot more about his brand of insanity, some of which appears in the complaint--he alleges that he called Braid and asked him to "repent of his ideology as well as his deeds" and filed suit only when "such respectful efforts" failed to secure an agreement.

Update: A second suit was filed by a "pro choice plaintiff" from Illinois, also in Bexar County. Further Update: This plaintiff also is a lawyer who has encountered some disciplinary problems.

I agree with the comment someone made on the ConLawProf listserv: This is the plaintiff Texas deserves for enacting this nonsense. I would be curious about what the anti-choice community thinks of this suit. This is not who they want as the face of the movement nor is he likely to offer the best defense of the law. In the same way the reproductive-rights community wants an appealing person to violate the law, those seeking to defend the law want an appealing plaintiff. I imagine activists were happy with the current state of affairs--no lawsuits, no abortions in the state, running out the clock until (they hope) a favorable decision in Dobbs. (Further Update: The head of Texas right to life is not happy, calling the suits "self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes." This is a long way of saying "Fuck, we have been hoisted on our own petards.")

Braid's first move in state court should be a motion to dismiss on constitutional grounds and a request for expedited briefing. The more interesting question is whether Braid brings a § 1983 action against Stilley on a public-function theory (in enforcing state law under an exclusive delegation, Stilley is performing a traditional-and-exclusive public function) and seeks to enjoin him from pursuing the state-court litigation. This might be the path into federal court. We are off and running.

The second, "pro choice plaintiff" complaint is its own form of nonsense that undermines its own strategy. One paragraph moves the court to declare the act unconstitutional and another alleges that Braid did not violate Roe (whatever that means) and that the act is unlawful. This is not the way to do this. There is room for what Rocky labels "arranged" litigation, in which a plaintiff who supports reproductive freedom brings the lawsuit and is willing to lose, giving the doctor the opportunity to challenge SB8's constitutional validity, including on appeal. The statute allows "any person" to sue, so there is no basis for the court to look for either injury or adverseness; a person can say he is suing because he needs the money. But the sympathetic plaintiff must act like a plaintiff by alleging that the defendant violated the law; it is on the defendant to make the arguments against the law. But given the pervasive misunderstanding of procedure in this mess, it should not be surprising that the first moves come from people who cannot get the procedure right.

Posted by Howard Wasserman on September 20, 2021 at 07:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 15, 2021

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, September 14, 2021

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 13, 2021

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, September 11, 2021

Universal injunctions are back, baby

I predicted that, with the change of presidential administrations, Republicans and conservative activists would discover that universal injunctions are permissible and essential to the rule of law. I did not know what would trigger the new arguments. Now we do.

Litigation is on the horizon challenging the coming OSHA vaccine mandate. I can hear it now.: "It is not enough to stop the government from requiring the plaintiff to get vaccinated. The mandate applies to all employees across the country. If it is unconstitutional to make A get vaccinated, how can it be constitutional to make B get vaccinated. That violates the rule of law. Federal law must be uniform."

Posted by Howard Wasserman on September 11, 2021 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 10, 2021

5th Circuit allows appeal in SB8 case

The 5th Circuit denied motions to dismiss the appeals and stayed the district court proceedings in the WWH SB8 case. The court of appeals had jurisdiction under the collateral order doctrine over the state officials'  claims because all were denied 11th Amendment immunity when the district court found that Ex Parte Young claims could proceed against them despite their not being proper defendants. The court had pendent appeallate jurisdiction over the appeal by Mark Lee Dickson, because the claims against him are inextricably intertwined with the claims against the judges and clerks. A stay was proper because the defendants were likely to succeed on their appeal, because they are not proper defendants under SB8.

On the likelihood of success, there is some language in the order that will help with the paper. The court labeled the claims against judges as "specious," citing Ex Parte Young and cases from the Fifth Circuit and other courts to make the argument we have been making--judges acting in an adjudicatory capacity are not proper defendants in lawsuits challenging the constitutional validity of a law, as the judges (and the clerks who accept pleadings) are "disinterested neutrals" engaging in adjudication rather than enforcement. The court cast doubt on the "indirect enforcement" claims against executive officials. Rocky and I argue that this could work, although the remedy would be limited to providers and licensing proceedings, doing nothing to stop private lawsuits. But the court read SB8's no-enforcement provision to bar any enforcement based on any SB8 violations.

I think the court was wrong about the Dickson. Pendent appellate jurisdiction is supposed to be limited to situations in which resolution of the COD issue resolves the PAJ issue. For example, the first prong of qualified immunity (violation of a right) is inextricably intertwined with the violation prong of municipal liability. But that is not true of the claims against the judges/clerks and Dickson. The issue as to the judges is whether they are proper Ex Parte Young defendants; the issue as to Dickson is whether he intends to bring suit. I guess if the judges are proper defendants and can be enjoined then Dickson cannot pursue his claims. But the propriety of the injunction is not on this appeal, only whether they can be defendants. Pendent appellate jurisdiction is problematic in extending COD beyond a "narrow class of cases." This proves the point.

I know this is bad for abortion rights and for women needing reproductive-health services in Texas. And I accept Andy Koppelman's argument that it would be bad for constitutional rights if this type of law proliferates. But, for better or worse, procedurally the court is correct.

Posted by Howard Wasserman on September 10, 2021 at 09:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Guest stint at Volokh Conspiracy

Rocky and I will be guest-blogging about our SB8 article (now forthcoming in American University Law Review but very much a work in progress) at the Volokh Conspiracy over the next week. Our first post is here.

Posted by Howard Wasserman on September 10, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 09, 2021

Demanding Ivermectin--what legal right?

Several state trial courts have entered TROs compelling hospitals to give patients Ivermectin, despite the view of the hospitals and staff doctors that it is in inappropriate treatment.

These suits have bothered me because I could not figure out the cause of action or legal right being asserted. What legal right did a patient have to a particular treatment from a doctor contrary to the doctor's best judgment, to say nothing of a right that would allow the court to compel that treatment. A doctor who refused a particular treatment, involving an unapproved use of a drug, could not be liable for malpractice so long as his treatment was otherwise within the ordinary standard of care. So how could the court order treatment that a doctor would not be liable for failing to provide. It turns out, none, according to an attorney at Reed Smith.

My guess is that something like the following happened: The court focused entirely on the irreparable harm to an ill patient who might die without what some regard (wrongly, but well . . .) as a life-saving treatment and the high burden on the plaintiff in the balance of equities. That overcame what should have been an incredibly small likelihood of success on the merits, since there was no legal right to enforce and thus no right on which to succeed.

Posted by Howard Wasserman on September 9, 2021 at 07:52 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

US v. Texas

Filed in the Western District of Texas. I have no idea whether this overcomes the problems that, in my mind, plague individual suits--no state official or person working for the state enforces this law. Therefore there is neither traceability nor redressability in standing terms and no constitutional violation in merits terms (since the law, apart from enforcement, does not violate rights). Paragraph 8 defines Texas as including "all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8," contemplating every person who might sue, even if not imminent. Will that work?

There has been so much scrambling at the expense of the simple (if not ideal) solution--violate the law, get sued, defend in state court, appeal to SCOTUS. The prevailing theme is that this is insufficient. Paragraph 4 of the complaint insists that the law has thwarted "traditional mechanisms of federal judicial review," while ¶ 15 describes Texas attempting "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights," But how is defending in state court and appealing to SCOTUS not a traditional mechanism of federal judicial review According to a study by Arthur Hellman, prior to the mid-'70s most judicial review occurred this way; the shift to more offensive litigation happened towards the end of that decade. And if having to litigate federal issues in state court strips citizens of the ability to invoke federal courts, then the Well Pleaded Complaint Rule and Younger are constitutionally invalid. I don't think the government meant to say that.  My guess is that if this gambit fails, someone will violate the law and get sued, realizing that is the only way.

On the issue of whether the U.S. can, on behalf of its citizens, bring a broader lawsuit and obtain broader relief: I might be comfortable with that fact. The idea between having a combination of private and public enforcement of federal rights (especially civil rights) is that the federal government can pursue a broader suit (including by naming a sovereign) and get broader relief. But the inherent limits on government enforcement--resources, political will, competing demands--mean that the federal government will not and cannot puruse every case. They only go after the big ones--"more bang for the buck." And this is that singular huge issue that prompts government action.

Update: Will Baude offers a version of what my co-author calls a special standing solicitude for the United States. Unlike individuals, the U.S. can sue all of Texas and everyone who does anything with respect to a law--enacting, enforcing, adjudicating. So the U.S. can do more in that rare, big case it decides to pursue. I still believe this is a simple case in which simple defensive litigation is an option. But maybe this is the huge outlier case in which unusual government action is appropriate.

Another Update: I forgot to mention the strategic forum choice: This could have been filed in SCOTUS on original jurisdiction as a controversy between the United States and a state. At least Justices Thomas and Alito would have accepted the bill of complaint, as both are on record that SCOTUS' original jurisdiction is not discretionary. And like a suit challenging the validity of voting-age rules under the VRA, this would seem to be the type of uniquely huge national controversy involving state-law perogatives demanding speedy and original review by SCOTUS.

Posted by Howard Wasserman on September 9, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 07, 2021

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.

 

Posted by Howard Wasserman on September 7, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (3)

Monday, September 06, 2021

Searching for Estelle Griswold and more SB8 developments

Two items on SB8 and the developing conversation.

A

Estelle Griswold has entered the public discussion around SB8. Griswold was the executive director of the Planned Parenthood League of Connecticut who (along with Dr. C. Lee Buxton, a ynecologist)  violated Connecticut's ban on contraception, was prosecuted and convicted of aiding-and-abetting contraception, and appealed to SCOTUS for the opinion that established the constitutional right to reproductive privacy. Josh Blackman and David Garrow (Garrow's op-ed is behind a Houston Chronicle paywall, but the linked Faculty Lounge post quotes the key paragraphs) both tell Griswold's story and suggest that some abortion provider or advocate must follow suit in performing or aiding a post-heartbeat abortion.

But Garrow gets the process wrong, arguing that upon the lawsuit, Griswold's heir can file a federal suit against the judge assigned the case. I continue to reject this possibility because state judges are not the appropriate targets for offensive litigation designed to stop enforcement of a law. If they were, every media outlet or other defendant sued in state court for defamation would do what Garrow suggests (a defamation suit against protected speech violates the First Amendment as much as an SB8 suit violates the Fourteenth Amendment). That this never happens suggests something about the shape and structure of constitutional litigation. It is telling that Garrow tells Griswold's story, then describes a process different than the one she followed. She did not sue the state judge; she raised constitutional defenses in the criminal case, was convicted, and appealed the conviction to SCOTUS (which at the time had mandatory jurisdiction), which declared the law invalid and overturned the conviction. In other words, Griswold litigated the constitutional issue in a defensive posture in state court--exactly as we argue providers and advocates must do with SB8.

We cannot understand the procedural posture of Griswold without understanding Poe v. Ullman, four years earlier. Poe arose from several (state) declaratory judgment actions against the state AG challenging the validity of Connecticut's contraception ban. The Court held that the appeal was not ripe, because the plaintiffs could not show that the AG intended to immediately enforce the contraception laws, which had been the basis for one prosecution in more than 80 years. Justice Brennan concurred in the judgment to provide the fifth vote, arguing that the individual couples who brought these actions could not fear prosecution because they were not the real targets of the law. He argued that the "true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples." With offensive litigation off the table, defensive litigation became necessary, with the large-scale clinic violating the law and defending against the prosecution by arguing the law is invalid.

As in Connecticut in 1961, offensive litigation is off the table because there was no threat of public enforcement. The reason varies--no intent or history to enforce as opposed to no power to enforce; but we end in the same place. So the solution is defensive litigation--violate the law and assert the Constitution as a defense to liability.

B

On Thursday, President Biden called for a "whole-of-government effort" to find ways to protect reproductive rights as against SB8. On Monday, Merrick Garland announced that DOJ is exploring "all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion." What might those efforts include? Garland points to the Free Access to Clinics Etrances (FACE) Act, which prohibits obstruction of access to clinics. This works to the extent SB8 bounty-hunters are interfering with clinics or threatening clinic workers and clients (and reports suggest that happening on the ground); it does not do much to stop anyone from filing an SB8 lawsuit.

Lawrence Tribe argues in the Washington Post that the U.S. should prosecute SB8 plaintiffs under § 242 (the criminal counterpart to § 1983). He is not alone in this idea. "Under color" means the same thing for both statutes and both can reach private actors. Most prosecutions, particularly those from the Civil Rights Era, involved private individuals conspiring with government officials, although I have found lower-court prosecutions of private actors under a traditional-public-function analysis. This option stands or falls with our argument for § 1983 suits against bounty-hunter plaintiffs--it works for both or it does not work for both.

The larger problem for a § 242 prosecution is that the defendant must "willfully subject[]" a person to a deprivation of rights. This imposes a specific-intent requirement--the defendant must have acted with the intent to deprive a person of their constitutionally protected rights. In the most common use of § 242 against police officers for excessive force, the government must show that the officer intended not to assault the victim, but to assault him so as to impose an unreasonable seizure; this forms part of the reason that § 242 cases are hard to prove and why DOJ prosecutes so few of them. The problem as to willfulness in these cases is that the SB8 plaintiff is acting pursuant to state law. His intent in filing suit is to recover remedies authorized by (presumptively valid) state law and perhaps to produce a change in the judicial interpretation of the Fourteenth Amendment, as opposed to depriving any person of their constitutional rights. Tribe's rhetoric aside, people bringing lawsuits in state court to enforce a state statute seems a distance from the Klan lynching people for trying to vote. The government would have to show that the criminal defendant/SB8 plaintiff knew the law could never be declared valid.*

[*] Section 242's willfulness requirement overlaps with the good-faith defense that an SB8 plaintiff would have to any § 1983 action.

The necessary move for the government would be an action for injunctive relief against the State of Texas to stop the entire government from enforcing the law. The problem is finding a law that authorizes such a suit. Tribe argues the source is the All Writs Act--an injunction is a writ and an injunction prohibiting Texas from enforcing its law on the grounds that it violates the Fourteenth Amendment would be a writ "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Moreover, as someone argued on a listserv, a suit between the U.S. and a state is within SCOTUS' original jurisdiction, which might allow the U.S. to fast-track its challenge.

 

Posted by Howard Wasserman on September 6, 2021 at 02:43 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Sunday, September 05, 2021

The judicial departmentalism of SB8

On an emergency episode of the Divided Arguments podcast, Will Baude and Dan Epps discuss SB8 and SCOTUS's refusal to stop enforcement pending litigation. Dan attempted to distinguish a longstanding law whose constitutional validity was newly called into doubt by a change in Court personnel and constitutional doctrine from a new law enacted in the face of contrary precedent and designed to change precedent against long-protected rights-holders. The former includes the handgun restriction declared invalid in McDonald or the abortion law declared invalid in Roe; the latter includes SB8 and other new abortion restriction. Rights-holders should be protected and free to exercise their rights during litigation. But that problem arises in the latter class but not former class. In the former, rights-holders have not been exercising their rights (which had not existed), so they lose nothing having to wait for resolution of litigation. In the latter, rights-holders have been exercising recognized constitutional rights for years, so they bear a risk of losing long-recognized rights in the interim.

It is an interesting distinction, especially for how we understand zombie laws.

The problem is that--regardless of the source, timing, or nature of the law--constitutional decisionmaking must follow regular judicial processes. That need not and cannot always entail offensive pre-enforcement litigation in which a federal court preliminarily enjoins enforcement pending the completion of litigation. And such offensive litigation remains limited to the parties to the action--any further compliance is voluntary.

It may be, as Dan argues, that the Court would have responded differently to a law prohibiting gun ownership and allowing "any person" to sue a gun owner. But the Court's inconsistency (hypocrisy?) should not obscure the procedural rules. The answer is that the Court should act appropriately as to the guns law, not that we should urge the Court to act inappropriately as to the abortion law.

Posted by Howard Wasserman on September 5, 2021 at 02:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 04, 2021

Stay (the SB8 judgment) just a little bit longer

My recurring argument around SB8 is that the statute does not eliminate judicial review of SB8's substantive provisions, it channels it into a defensive posture in state court (with SCOTUS review at the end). Providers and advocates reject that because it requires them to violate the law, get sued, and risk liability. But this reflects two distinct concerns: Incurring ultimate liability because SCOTUS rules against them at the end of the day and having to satisfy and comply with a judgment before they have an opportunity to fully litigate the issues.

But state procedures in the defensive action address that by allowing courts to stay judgments or orders pending appeal. That is, imagine the state court rules in favor of Billy Bob and against Whole Women's Health and awards statutory damages, attorney's fees, and enjoins WWH from future prohibited abortions. The state court can stay that judgment pending review, preventing the plaintiffs from collecting damages or enforcing the injunction until appellate review is complete. A stay seems appropriate here, given the constitutional uncertainty, the unique procedural posture of these cases, and the irreparable harm to the defendant if they must comply with this judgment immediately. One member of the ConLawProf listserv suggested that the SCOTUS majority could have alleviated some of the shouting over its refusal to stay or enjoin by including a sentence saying they expect state courts would issue such stays in any enforcement proceeding.

There is precedent for this. After the Alabama trial court issued a $ 500,000 judgment against The Times and four civil-rights leader defendants, all defendants moved for a new trial and The Times asked for and received a continuance (essentially, a stay of the judgment), so Sullivan never began collecting against them. The individuals never asked for that stay, so Sullivan went after Ralph Abernathy's assets. The point is that providers can avoid paying on any loss until litigation is complete. If the loss is affirmed because SCOTUS declares SB8 valid, the concern now is about the substantive right, not the process.

There is a third problem for providers--having to defend dozes or hundreds of such suits. But there is a possible solution to that. Given that every SB8 action involves the same conduct and raises the same issues (state standing and substantive invalidity), there is a good argument that the courts in cases 2-200 should, in their discretion, stay those cases awaiting the outcome of the one "test" case.

This is not perfect by any means. But it undermines the complaint that judicial review is impossible or that it requires providers or advocates to place themselves in irreparable jeopardy.

Posted by Howard Wasserman on September 4, 2021 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 03, 2021

Some responses to Somin on SB8

Ilya Somin offers some thoughts on SB8 and the Court's decision to allow enforcement pending litigation.

Somin argues rejecting current standing and injunction rules in favor of a "general injunction" precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task. In an email, Somin clarifies that the target defendant in the lawsuit would be the government entity that created the law (a further rejection of current sovereign immunity rules). This is an intriguing idea. I favor simplifying constitutional litigation by making the government the target defendant. And I do not like standing rules as they exist as jurisdictional limitations. I am not quite ready to dissaggregate judicial review and remedy from actual or threatened enforcement of the law by someone, even if the government is ultimately "responsible." We still do not have that.

Somin rejects the criticism that SB8 unleashes "vigilantes," because many laws use private enforcement. "The troubling aspect of SB 8 is not the use of private enforcement, as such, but the resort to it as a mechanism for evading judicial review." But SB8 does not evade judicial review, as much as it channels judicial review into a defensive posture. That is unusual for most statutory regimes (e.g., environment and civil rights law), which combine public and private enforcement, leaving a government official to sue for injunctive relief. But it is not unusual for tort regimes (e.g., defamation), in which constitutional challenges to liability must be made on defense. Yes, that has a chilling effect in the interim. But the only way around that chilling effect is to say that pre-enforcement offensive litigation is constitutionally required--and I see no reason for that to be the case.

Somin's third issue is ingenious. He argues that leading pro-choice organizations should commit to providing legal representation and to cover any damages or fees awarded, thereby incentivizing providers  to continue providing services. The prospect of providers being able to defend themselves may deter Billy Bob from filing suit. And I would add that the legal representation could include suing Billy Bob in federal court, further deterring him from filing suit. This is a fascinating idea that we will try to work into the paper.

Posted by Howard Wasserman on September 3, 2021 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 02, 2021

SCOTUS denies interim relief in SB8 litigation (Updated)

SCOTUS denied interim relief in the SB8 litigation, emphasizing the uncertainty of whether there is a proper defendant in the case. The Chief, Breyer, Sotomayor, and Kagan dissented. I will have some thoughts once I get out of class.

Update: OK, done with class. I actually discussed this in Fed Courts, something I ordinarily don't do--we have not gotten to standing or EPY yet, although we were in the middle of SCOTUS review of state courts and I was about to talk a bit about the shadow docket. It was a pretty good discussion. I think I will use this law and this case as a case-study when we come back to later topics.

Thoughts on the order:

• Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.

• I think the procedural discussion reduces to this question: Is Ex Parte Young/pre-enforcement offensive litigation required by the Constitution. Breyer cites Marbury for the proposition that when a right in invaded, the law provides "'a legal remedy by suit or action at law." This is true when the right is invaded outside of court--defaming me, hitting me with a car, or not giving me my commission. But here the right is invaded inside court, when someone attempts to enforce a law against me. In that case, I have a legal remedy in the form of a defense. If that is not sufficient, then Younger, limitations on habeas, and other doctrines that channel certain federal issues into defensive state-court litigation are invalid. Maybe that is true, but I do not know that Breyer is going that far.

• The related problem is whether the existence of a law equals a constitutional violation. Again, I think Breyer assumes it does. Which explains his demand for offensive litigation--the "injury" is the existence of the law, so there must be an offensive remedy. But if the existence is not a violation until enforcement, it does not work.

• Breyer says a case could proceed against "those particularly likely to exercise the delegated powers." This is correct. The problem is no such person has been identified. When has has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help--even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim. Not sure Breyer recognized that.

Michael Dorf has a good post and discussion on some issues.

Posted by Howard Wasserman on September 2, 2021 at 06:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (15)

Wednesday, September 01, 2021

SB8 and New York Times v. Sullivan

Mary Ziegler (Florida State) describes SB8 as the culmination of a decades-long strategy, centered in Texas, to use civil litigation to end abortion.

Ziegler reinforces our argument that current events around abortion in Texas recall events around pro-civil-rights speech in Alabama in the early 1960s. Alabama officials developed a coordinated plan to use civil defamation litigation under wildly pro-plaintiff state law to silence pro-civil-rights speech by civil rights activists and the Northern press. By the early 1960s, the New York Times faced $ 300 million in defamation judgments, prompting it to pursue the case to SCOTUS and ultimately change the First Amendment.

The difference, of course, is that SCOTUS in 1964 would interpret the First Amendment to end that strategy. Reproductive-rights activists and providers fear, probably rightly, that SCOTUS will not interpret the Fourteenth Amendment to end that strategy. But that shows that the concerns and complaints about SB8 are substantive rather than procedural--the current Court believes that states can ban abortions after six weeks of pregnancy and so will allow enforcement of that law.

Posted by Howard Wasserman on September 1, 2021 at 09:14 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Nomenclature

SB8 took effect at midnight. Neither SCOTUS nor the Fifth Circuit has moved on various motions to enjoin enforcement pending litigation, therefore the law is enforceable by everyone against everyone (except for the limited state TRO protecting three individuals from enforcement by an entity and two individuals). But the courts' failure to act is not why the law took effect. Had either court acted, the law would have "taken effect." But it would not be enforceable by some persons against some persons (although it may be enforceable by other persons against other persons) as a result of a court order.

Posted by Howard Wasserman on September 1, 2021 at 06:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, August 31, 2021

Still more on SB8

Here are two stories on the state-court TRO. It protects three named plaintiffs--Dallas attorney Michelle Simpson Tuegel, Allison Van Stean, and abortion fund The Bridge Collective--from having SB8 actions filed against them by Texas Right to Life, its legislative director, and other individuals affiliated with RTF. The judge emphasized the irreparable harm without the TRO. But I have no idea what cause of action the plaintiffs used to get into court. Both stories emphasized how narrow the order is and that it does not stop SB8 from going into effect. But, an attorney for Planned Parenthood complained, "it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion."

The media coverage and the comments of lawyers and courts shows just how badly we talk about the process underlying constitutional litigation. So once more with feeling:

1) No court at any level can stop SB8 from taking effect tomorrow--not a state court, not the Fifth Circuit, and not SCOTUS. 2) The only thing any court can ever do in an order in any case is stop some individuals or entities from enforcing the law (here, by filing a lawsuit) against other individuals or entities. 3) No court order provides"full relief" to "all Texans" unless the suit was brought as a class action of all Texans (who are not subject to suit anyway). 4) Rather than decrying the limited scope of the victory, the plaintiffs should celebrate it as a step that gives them the relief they need as part of a larger process of litigation over the law's enforcement and constitutional validity.

The exception to this is if the Fifth Circuit or SCOTUS, however erroneously, enjoins the judges and clerks. But that works by virtue of procedure and the nature of judicial relief as to specific parties, not because federal courts have greater remedial power. Their order would not bind the individual would-be SB8 plaintiffs or prohibit them from filing suits. But no clerks could accept the complaints and no judge could adjudicate them. You end in the same place, but the process matters.

Finally, I have not heard anyone explain how SB8 differs from possibly invalid tort law or my hypothetical cause of action against racist speech. I expect we would not have this hand-wringing, even though the enforcement mechanisms are the same and the difference is only the substantive rights at issue.

Posted by Howard Wasserman on August 31, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Buying time in constitutional litigation

The media coverage around the efforts by abortion-rights activists and providers to enjoin enforcement of SB8 pending litigation has reached panic mode, with stories about this case representing a test of whether the Fifth Circuit or SCOTUS continue to regard Roe and Casey as law and setting up the "Roe has been overruled" narrative if neither court stops enforcement.

That misconstrues what is going on here. This is a lousy suit for trying to stop enforcement. One group of defendants (the judges) are not proper targets of constitutional litigation, as federal courts typically do not stop judges from the opportunity to adjudicate cases before they have been filed. One defendant (Mark Dickson) is not a proper defendant now but could become one. And one group of defendants (agency and executive officials) are proper defendants for the limited purpose of preventing them from stripping occupational and medical licenses, not for the broader purpose of stopping primary enforcement of the substantive law. Meanwhile, the lawsuit and any temporary order cannot reach, and therefore enjoin, the many "any person[s]" authorized to file suit because they are not parties to the case--although if judges and clerks are enjoined from accepting or adjudicating those suits, remaining outside the injunction does not help these would-be state plaintiffs.

Texas lawmakers intended to create this situation. But it is important to highlight these procedural issues in describing the denial of any stay or injunction. It may have nothing to do with the substantive merits of SB8 and the continued vitality of Roe.  And these procedures--forcing providers to defend their rights in state court or to wait before filing in federal court--while burdensome, are  common in other contexts. The Constitution does not compel any particular framework for adjudicating constitutional rights.  Any stay or temporary injunction will be short-lived because this case is doomed to fail--not on the merits of SB8 but because this is the wrong litigation vehicle.

So why bother? At some level, the plaintiffs are buying time, putting off the procedurally inevitable and hoping to prepare and strategize for the next steps. And maybe there is nothing wrong with that, as I said in defending President Biden in issuing the new eviction moratorium despite likely judicial defeat. Litigation takes awhile, so there is merit to maintaining what you want (no risk of enforcement, no evictions) in the meantime.

At the same time, as I argued yesterday, providers and advocates have a viable prospect for offensive litigation that is not this case--sue "any person" once a state-court action is filed and get a TRO and PI stopping that person from pursuing the state litigation. And add a new "any person" to the case, and to the PI, whenever a new action is filed. It is neither easy nor efficient (and, again, that was the legislative goal). But it can work procedurally and providers/advocates would be well-served to be ready to implement that strategy. Maybe that is what they are buying time to do.

Posted by Howard Wasserman on August 31, 2021 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, August 30, 2021

SB8 Update

SB8, Texas' ban on abortions following detection of a fetal heartbeat, goes into effect on Wednesday. Following the district court's (partially erroneous) denial of motions to dismiss and the defendants' immediate appeal of that seemingly non-appealable order, the Fifth Circuit issued an administrative stay of proceedings in the district court, which canceled a preliminary-injunction hearing. Absent SCOTUS intervention, the law will be enforceable and "any person" can begin filing lawsuits. Briefing on an injunction pending appeal is due later this week. The plaintiffs in the WWH case have asked SCOTUS to enjoin enforcement pending appeal.*

[*] Please do not say, as so many media outlets continue to say, that this is about stopping the law from "taking effect." The law takes effect--becomes an enforceable part of Texas law--on September 1 because that is the effective date of the legislation, per Texas lawmakers. No court can stop that. A court can stop enforcement of the law.

Three things are true. SB8's substantive provision is constitutionally invalid and judicially unenforceable under current SCOTUS precedent. The threat of enforcement will cause serious harm to abortion-rights advocates, abortion providers, and the women of Texas. But  there is no basis for a federal court to enjoin the statutorily authorized lawsuits at this stage, given how the law is to be enforced. The substantive awfulness and bad effects of the law do not change that third point and the focus on the first two does not change the third.

The next big move for providers and advocates is two-pronged, triggered on "any person" bringing (or actually threatening to bring) an SB8 action. First, defend that suit in state court (including by challenging the constitutional validity of the heartbeat ban and the constitutional validity of the SB8 provisions purporting to limit those defenses.  Second, sue "any person" on a § 1983 action in federal court to enjoin him from pursuing the state-court action. The argument that the SB8 plaintiff acts under color, given the structure of SB8, is strong; the standing problem resolves once an actual plaintiff reveals himself and acts; and the scholars with whom we have discussed our paper agree that Younger does not apply here.

That is the litigation move now, rather than wrestling with the Fifth Circuit and SCOTUS over administrative stays over offensive litigation that cannot work.

Update: A reader points out that the district court declined to dismiss the claims against the judges on sovereign immunity grounds as well as standing grounds (another example of the identity of standing and sovereign immunity where the plaintiff sues the wrong defendant). Denial of 11th Amendment dismissal is subject to COD review, although that would not pull Mark Dickson or the executive officials with them. The executive officials may have asserted sovereign immunity, as well, although it is not clear if the court reached it.

Posted by Howard Wasserman on August 30, 2021 at 01:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Court with No Names: Anonymity and Celebrity on the "Kardashian Court"

My essay, A Court with No Names: Anonymity and Celebrity on the "Kardashian Court", has been published in Iowa Law Review Online. This is a response to Suzanna Sherry's Our Kardashian Court (And How to Fix It), which argues that the solution to judicial celebrity is to require the Court to issue one per curiam opinion with no separate opinions or vote counts. I consider some things lost or gained under Sherry's plan, why it may be too late for it, and how to expand the plan or combine it with other court-reform proposals.

Posted by Howard Wasserman on August 30, 2021 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, August 26, 2021

District court finds standing in SB8 litigation

Opinion here finding standing as to all defendants, contrary to much (but not all) of what Rocky and I argue. There is a joke in here somewhere about either judges or law professors not knowing the law, although obviously I think we are right and the court is wrong. The defendants filed a Notice of Appeal, which I presume they will argue, and the court will treat, as a petition for writ of mandamus since there is no basis for appeal (no finality, no collateral order, no certification of interlocutory review and no possibility of certification). This is a good case for mandamus because parts of this decision are clearly erroneous.

I will post some analysis of the opinion this weekend, as we begin editing the article to discuss and critique the opinion.

Posted by Howard Wasserman on August 26, 2021 at 04:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, August 21, 2021

Bray on universal injunctions

Sam Bray comments on the universal injunction against repeal of the remain-in-Mexico policy. Bray calls out the "baffling" nonsense of the judge enjoining paragraphs of an agency memorandum, because "[p]eople get enjoined. Injunctions protect people from people. Or require people to do things." He offers the following:

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.

Well said.

Posted by Howard Wasserman on August 21, 2021 at 08:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 18, 2021

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

Posted by Howard Wasserman on August 18, 2021 at 04:15 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, August 14, 2021

The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.

Posted by Howard Wasserman on August 14, 2021 at 08:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 05, 2021

Jack Phillips goes on defense and no one complains

I stumbled across this while doing research for my SB8 paper. I think it illustrates my point that the partisan valence of the rights and rights-holders at issue influence the complaints and hand-wringingabout SB8's procedural and jurisdictional rules.

In June 2017, the day SCOTUS granted cert in Masterpiece Cakeshop, a trans woman ordered a cake from Phillips to celebrate her birthday and her male-to-female transition--it would be pink on the inside and blue on the outside; Phillips refused and the woman filed a complaint with the Colorado Civil Rights Commission, which found probable cause. In August 2018, a few months after SCOTUS' decision in Masterpiece, Phillips filed a federal action challenging the P/C finding and enforcement of state law as violating the First Amendment. In January 2019, the district court declined to abstain under Younger, applying the bad-faith exception. The Commission dismissed the administrative enforcement action, mooting the federal action. So the woman sued Phillips in state court for violating the state public-accommodations law. In June, following a bench trial, the state trial court rejected Phillips' First Amendment defense and found that he had violated the ordinance, imposing damages of $ 500. Phillips plans to appeal to the state court of appeals (and to the Colorado Supreme Court and then to SCOTUS).

The case illustrates that it is not unheard-of for rights-holders to be forced to assert federal constitutional rights in a defensive posture and in state court. Phillips is similarly situated to abortion providers and advocates who are the likely targets of SB8 suits, forced to defend private statutory actions for damages rather than government-initiated enforcement proceedings. Colorado courts likely are as hostile to the First Amendment rights Phillips asserts in defense as Texas courts are to the reproductive-freedom that providers and advocates will assert in defense in SB8 actions. The difference is that Phillips faces one action by one denied customer, whereas abortion providers face a tidal wave of lawsuits by random Texans across the state. But imagine that dozens or hundreds of LGBTQIA people order cakes, knowing they will be refused, then sue for damages; the similarity sharpens (although the amounts of money are very different). And both cases show why the well-pleaded complaint rule is such a bad idea--Phillips and Whole Women's Health should be able to gain that federal forum for their federal defenses.

Once again, many people complaining about abortion providers having to defend in state court would be happy to see Phillips sued into oblivion. But the procedural and jurisdictional propriety cannot turn on the rights involved.

Posted by Howard Wasserman on August 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 04, 2021

Embrace the judicial departmentalism (Updated)

I do not know enough to say whether the CDC's new eviction moratorium is constitutionally valid, although if Steve believes it is at least an open question, I am inclined to think it must be.

I would have loved for Biden to own the judicial departmentalism underlying the new policy: "Most constitutional law professors believe the policy is constitutionally invalid, but we have found some who disagree. Lawyers within the executive branch disagree. The courts may rule against us, as is their power. But for the moment we believe the policy is valid and will pursue it. And if it turns out we are wrong, we have bought ourselves some time. And in this case, we are willing to risk the attorney's fees and political fallout." I have no problem with the executive taking that position, regardless of my sympathy for the policy at issue.

Update: Mark Tushnet makes a similar argument, framing it in terms of norms v. law v. constitutionalism. But he gets at the same point: Biden and the CDC are not not enjoined from stopping evictions and can continue to pursue what they view as the best course until such injunction comes. And they can balance the benefits of even temporary relief against the cost of being liked to Orval Faubus.

Another Update: This Washington Post op-ed shows how far into judicial supremacy much of the commentariat fallen. The unexplained votes of four Justices to vacate a stay of an injunction pending appeal plus the view of one Justice--announced without full briefing or argument--that the policy is unlawful means any effort by the administration disregards the courts, the rule of law, and the Constitution. The possibility that the one Justice whose views we know might change his mind is "unlikely," therefore the CDC is acting in a constitutionally violative manner in trying. This eliminates Holmes' bad person (which Tushnet references), who is no longer entitled to try to predict what the courts might do.

The piece ends on this note:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

Nothing like some uninformed both-siderism to complete the puzzle. But note how this moves the line. The problem here is not that the executive ignored an injuncti0on, which the cannot do. The problem here is not that the executive ignored binding precedent created by a Court majority, which he can do. The problem here is that the executive ignored a "direct warning" (is there any other kind?), which the Post regards as an equivalent affront to the courts and the Constitution.

Posted by Howard Wasserman on August 4, 2021 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Defamation procedure II

Devins Nunes is not the only new defamation action raising interesting procedural issues. Alan Dershowitz sued Netflix and others for defamation over the documentary Jeffrey Epstein: Filthy Rich. Defendants answered yesterday; here is Netflix's Answer.

Netflix has good lawyers (the firm of Davis Wright Tremaine). But the Answer does many of the things that are inconsistent with the FRCP, that I try to teach students not to follow, but that are common in practice because no one--not plaintiffs, not defendants, and not judges (since Milton Shadur died)--cares about the content of the Answer. This would make a good final exam next spring.

Here are some problems:

    • Netflix responds to numerous allegations as it "lacks information sufficient to form a belief as to the truth or falsity of the
allegations and "on that basis, denies each and every allegation in" the paragraph. This is wrong. FRCP 8(b)(5) allows a party to "state" that it "lacks knowledge or information sufficient to form a belief about the truth of an allegation," which has the "effect of a denial." That is, a defendant can respond to an allegation by saying "I don't know" and the court will treat that as a denial. But Netflix said "I don't know and therefore I deny." That is not logically possible and not what FRCP 8(b)(5) authorizes. This might reflect a disconnect between FRCP 8(b)(5) and FRCP 11(b)(4), which requires a defendant to certify that denials "specifically so identified, are reasonably based on belief or a lack of information." But if 11(b)(4) allows a denial based on lack of knowledge, 8(b)(5) is superfluous.

    • This is one I had not seen before: After responding to 138 numbered paragraphs, the Answer has a subject-heading "General Denial" and states:

Each numbered paragraph in this Answer responds to the identically numbered paragraph in the Amended Complaint. Netflix denies all allegations, declarations, claims, or assertions in the Amended Complaint that are not specifically admitted in this Answer. To the extent the headings contained in the Amended Complaint constitute allegations, such allegations are denied.

        This is unnecessary. FRCP 8(b)(3) allows general denials of the entire complaint or a general denial of everything not admitted. But the Answer admitted and denied facts paragraph-by-paragraph. This blanket statement is unnecessary.

    • The Answer asserts 24 affirmative defenses. But most of these are not affirmative defenses--where the defendant admits the allegations in the complaint but raises new facts and law that cause those facts not to have their ordinary effect. These are expressly stated failure-of-proof defenses--defendant arguing that the plaintiff cannot prove the truth of the allegations in the complaint. For example, the sixth defense is that Dershowitz is a public figure and cannot prove actual malice by clear-and-convincing evidence. That is a failure-of-proof defense--Dershowitz will fail to prove his claim because he cannot carry his burden of persuasion on an element. The defendant is not required to plead the absence of malice. The twenty-third defense is that Dershowitz's reliance in his fraud claim was not reasonable. Again, this argues that Dershowitz cannot prevail on an element on which he bears the burden of proof--the reasonableness of any reliance. The defendant does not have to prove unreasonableness.

            Again, this is common. If the complaint alleges the plaintiff spoke with actual malice, denying the allegation is equivalent to saying  "we did not act with actual malice," which puts the plaintiff to the task of proving the disputed fact of the defendant's state of mind. If the complaint alleges the plaintiff reasonably relied on false statements, denying the allegation is equivalent to saying "his reliance was not reasonable," which puts the plaintiff to the task of proving the disputed fact of the reasonableness of his reliance. But defendants are afraid that will be lost to whomever reads the pleading. So they affirmatively state the failure of the element, even though that is not what the rules imagine.

    • The Answer includes a counterclaim under New York's new Anti-SLAPP law. I have written before about how the procedural defenses of anti-SLAPP laws should not apply in federal court. But New York's law creates a counterclaim that the claim is a SLAPP (as defined), allowing for recovery of attorney's fees and compensatory and punitive damages. It functions something like the tort of abuse of process, often raised as an affirmative defense to a questionable tort claim. This is a nice example of how one legal rule can be an affirmative defense and a counterclaim and the different roles each plays. The SLAPP issues will not defeat Dershowitz's claims (that will happen under New York Times), but they provide basis for Netflix to recover money apart from the resolution of the original claim. By establishing a new claim, New York found a way to allow federal defendants to pursue anti-SLAPP arguments and recover anti-SLAPP remedies, in a slightly different posture.

    • Netflix alleged supplemental jurisdiction over the counterclaim because Dershowitz's claims arise from the same set of facts. This is a legal and strategic mistake, although another common one.

        Why not allege diversity jurisdiction? That is the basis for jurisdiction over Dershowitz's original claims (defamation, fraud, and other torts) over the defendants. If there is diversity over the claims Dershowitz and all defendants, there must be diversity over counterclaims between the same parties. The fees and damages sought almost certainly will exceed $ 75,000. So § 1332(a)(1) is satisfied. Supplemental jurisdiction is supposed to be limited to cases in which there is no "independent" basis for jurisdiction. My guess is this practice derives from habit established in the paradigm case--plaintiff brings federal claims against non-diverse defendants and the defendants assert state counterclaims; supplemental jurisdiction is necessary in those cases. But it is not necessary when the basis for original jurisdiction is diversity and the same parties are involved in claims and counterclaims.

        There is a second problem--there may not be supplemental jurisdiction here. The best conclusion is that the SLAPP counterclaim is permissive rather than compulsory, because it does not arise out of the same transaction or occurrence as the claim. This case reflects a common posture--defendant does something to injure plaintiff, plaintiff seeks a remedy for the injury, defendant alleges that plaintiff's remedial efforts violate defendant's rights, defendant brings counterclaim based on those injuries. For example, courts generally hold that an abuse-of-process counterclaim is not compulsory to an original tort claim--the tort claim is based on the real-world events that caused the injury to the plaintiff, while the counterclaim is based on the action of filing the lawsuit. Or take Jones v. Ford Motor Credit. Plaintiffs believed the terms of their auto loans were racially discriminatory and brought ECOA claims while also stopping payment on the loans, prompting counterclaims to recover the money owed on the loans; the court said the counterclaims were permissive because the claims were based on the mark-ups in the loan agreement while the counterclaims were based on subsequent non-payment. Dershowitz's claims arise out of the documentary, while the counterclaim arises out of Dershowitz's subsequent lawsuit itself seeking a remedy for that injury; these are distinct real-world facts and events. There is a but-for connection--but-for the false statements in the doc, Dershowitz would not have sued, which would not have caused the alleged injury to Netflix. But such a but-for connection is generally insufficient.

        That matters because most courts treat "same transaction or occurrence" in FRCP 13(a)(1)(A) as meaning the same thing as "same case or controversy" (which courts interpret to mean "common nucleus of operative fact") in § 1367. That is, a counterclaim that is not sufficiently related to satisfy 13(a)(1)(A) is not sufficiently related to satisfy § 1367. That is why it makes sense for defendants to plead diversity jurisdiction when they can--it provides a basis for jurisdiction over the counterclaim independent of the original claim, jurisdiction that the district cannot decline to exercise. Some courts, including the Second Circuit in Jones, treat "same case or controversy" as broader than "same transaction or occurrence," allowing jurisdiction over a non-compulsory counterclaim where there is a "loose factual connection" among claims, including the sort of but-for connection we see here. At least to this point, however, the Eleventh Circuit has not treated them differently.

None of this matters, of course. Dershowitz is not going to push back on improper responses or bad affirmative defenses and I doubt he will both moving to dismiss the counterclaim for lack of SMJ (since Netflix can replead to establish diversity). Any errors  are harmless because the court and the parties treat them as such. The FRCP often is observed in the breach in the name of moving forward, for better or for worse.

Posted by Howard Wasserman on August 4, 2021 at 02:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Defamation procedure I

Yesterday saw developments in two stupid defamation lawsuits brought by two stupid people, but with some procedural fun thrown in.

First, Devin Nunes filed another defamation suit (how many is this?), this one against NBC Universal in the Eastern District of Texas over packages Nunes received from a Russian agent. This has the usual problems for a Nunes defamation suit--some of the challenged statements are opinion and rhetoric and there are no allegations showing actual malice. But as always, I am here for the procedure:

    • What the hell is the case doing in Texas? Nunes is from California and works in D.C; NBC Universal is a Delaware LLC with its PPB in New York. There is no connection between these statements and Texas, other than that they were heard in Texas along with every other place in the United States where MSNBC telecasts and Maddow tweets can be heard. The statements are not "about" Texas, Texas people, or Texas activities. Weird forum choice has been a common feature of Nunes' lawsuits; the first suit (against Twitter, Liz Mair, and Devin Nunes' Cow) went into state court in a remote spot of Virginia. But Virginia made some sense, since Mair lives there and it is close to D.C. Texas just seems random. Keeton v. Hustler is still out there (and the complaint, which for reasons of bad lawyering shifts into making legal arguments, cites it). But the recent jurisdictional trend in defamation cases is that there must be more of a connection between the statements and the forum, even for nationally distributed publications.

    • ¶ 10 states "MSNBC is at home in Texas and is subject to general personal jurisdiction in Texas," a statement which does not reflect the law as it has been for at least seven years and should be sanctionable. If that is the hook Nunes' lawyer plans to use, this should be over quickly.

    • Even if jurisdiction (and therefore venue) is proper, this case again seems ripe for transfer. No one and nothing central to this case occurred or is located in Texas. NBC has a good argument that its witnesses and evidence are located in New York, where it engaged in its reporting and broadcasting activities.

Posted by Howard Wasserman on August 4, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, August 03, 2021

FIFA as state actor and other bad arguments

Another entry in the "Bad § 1983 Takes" File: Siasia v. FIFA in the Southern District of New York. Samson Siasia is a U.S. citizen and international soccer coach who got caught up with a match-fixer while trying to land a coaching job in Australia; FIFA imposed a lifetime ban from coaching, which the Court for Arbitration of Sport in June reduced to five years, backdated to 2019. The Complaint alleges a due process violation in the FIFA proceedings and that FIFA acted under color by performing the traditional and exclusive government function of investigating and adjudicating bribery and imposing a sanction (the complain says "punishment" over and over).

This fails on so many levels.

First, FIFA is a Swiss association with its PPB in Switzerland, so it does not seem possible for it to act under color of the law of any state of the United States; it does not act in or as a replacement for any one state. The U.S. Soccer Federation is one of the 200+ national federations that comprise FIFA, providing a U.S. hook. But USSF is not a defendant (and was not involved in the Siasia case). Getting at FIFA through USSF runs afoul of Tarkanian v. NCAA, where SCOTUS said the NCAA did not act under color of law of any state when it was comprised of schools from multiple states.

Second, private entities can make internal decisions concerning the enforcement administration of internal rules, including by investigating alleged violations and rendering decisions through adjudicative processes. Sometimes the conduct violating those internal rules also violates a society's criminal laws. A private entity does not become a state actor when enforcing its internal rules and imposing internal sanctions, where it imposes no societal consequences (conviction and imprisonment). If it did, no private organization could maintain and enforce internal rules for conduct that also could be criminal. Under this theory, MLB is a state actor with respect to the investigation and suspension of Dodgers pitcher Trevor Bauer for sexual assault, because sexual assault is a crime.

The Complaint argues that FIFA should have followed the NCAA as to former basketball coach Lamont Evans. Having received information that Evans was accepting bribes to route players towards certain financial advisers, the NCAA turned the information to the federal government, which prosecuted Evans. The NCAA punished Evans with a 10-year ban after Evans had been convicted and sentenced in the federal criminal proceeding. But the distinction is incoherent, at least as it affects becoming a state actor. The NCAA cooperated with the government to allow it to prosecute and jail the person, something FIFA chose not to do. But the NCAA and FIFA otherwise engaged in identical conduct--imposing internal sanctions on someone for conduct that also violated a criminal law. The decision to also assist the government in having the person convicted and jailed should not affect the nature of the organization's internal proceedings and thus of the organization.

Alternatively, the argument means that a private entity cannot enforce internal rules and impose internal sanctions if the government declines to press criminal charges or if the person is acquitted. This has never been how the law requires private organizations to operate.

Third, I am not sure FIFA is subject to the 14th Amendment (or the 5th Amendment, as the complaint also cites for no reason) or to U.S. due process requirements for proceedings in Switzerland, even as they apply to a U.S. citizen. A U.S. citizen subject to foreign proceedings must abide by the rules of the foreign proceeding. At best, he might limit the domestic effects of those proceedings.

State action aside, there are some fun jurisdiction and venue issues here. Siasia is a Georgia citizen, while FIFA is a Swiss citizen. The Complaint alleges that venue is proper in the Southern District because FIFA is "an alien corporation and has significant contact in this District and is currently organizing the 2026 FIFA World Cup in this District." The Complaint does not cite the correct provision, but I believe it is basing venue on § 1391(b)(1) (where any defendant resides) as developed in (c)(2) (association resides where it is subject to personal jurisdiction) and (d) (in states with multiple districts, determine jurisdiction in the district as if it were a state).

Is FIFA subject to personal jurisdiction in the Southern District as if it were a state? The "significant contacts" language sounds in the pre-Daimler/pre-Good Year general jurisdiction, which no longer exists; FIFA is neither created in nor has its PPB in the Southern District, so is not subject to general jurisdiction there. Organizing the 2026 World Cup in the Southern District* and other contacts with the district have nothing to do with Siasia or his suspension, at least as indicated in the complaint; the complaint does not allege that anything related to Siasia occurred in New York or the Southern District. The Court of Arbitration for Sport has a location in New York City, so that might have been where Siasia appealed the FIFA decision; the complaint does not say. I doubt that is enough, since the alleged violation is the FIFA proceeding, not Siasia's partially successful appeal.

[*] A separate question is whether the 2026 World Cup will be in the Southern District as to be a contact. One of the eleven U.S. cities under consideration is "New York/New Jersey." Games would be played at Met Life Stadium in New Jersey (in a different district), although FIFA will pitch people to stay in and visit New York while in town for the games. What is the relevant place for jurisdiction based on FIFA's "organizing" activities--where the game is played or all the places that fans and teams will use?

Based on the complaint, there is specific jurisdiction in Georgia under Walden and Calder. The emails that formed the basis for the alleged bribery were sent to Siasia while he lived in Georgia. The emails notifying Siasia of the charges against him (which he alleges he never received, part of the due process violation) and of his sanctions were sent to his emails in Georgia. FIFA investigated a Georgia citizen about actions taken in Georgia, thereby directing its actions at Georgia. Because Siasia is an Atlanta citizen, venue is proper in the Northern District of Georgia.

Even if SDNY is proper, there is a good argument that NDGa is better and a § 1404(a) transfer is in order. Siasia does not reside in SDNY, so he cannot claim venue privilege. The relevant acts as to Siasia, to the extent they occurred in the United States, took place in NDGa, which is where the one relevant witness--Siasia--is located. Other than Siasia's lawyer being from Connecticut and barred in SDNY, I am not sure why the suit was filed there.

Alternatively, FIFA could try to get the case out of the U.S. and to Switzerland on forum non conveniens grounds. FIFA's actions in initiating and holding the proceedings and suspending Siasia's license occurred in Switzerland, so that would be the situs of the actions and location of witnesses and evidence concerning the propriety of the proceedings.

Fun stuff.

Posted by Howard Wasserman on August 3, 2021 at 12:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Terms limits and judicial reputations

At last week's hybrid SEALS, I moderated an excellent discussion group on court reform. Tom Metzloff (Duke) raised an issue for term-limits proponents--what do we lose or gain by cutting long-serving Justices' careers in half. Among historically great or significant Justices who served way more than 18 years, how much of their greatness or significance occurred within the first 18 years and how much in the back end of their tenure? Alternatively, how much did their later years add or detract from their achievements in those first 18 years?

Tom plans to do more with this, but I wanted to muse on a few names in skeletal fashion; there is a lot more to say in a lot more detail. Two observations. First, how we remember any Justice depends in part on historical vagaries and how those changes alter that Justice's role on the Court. Second, politics and partisan preferences affect whether we see those latter-half achievements or actions as good or bad.

Justice Brennan (1956-90; would have retired in 1974): Brennan's 34-year career divides almost cleanly in half. Until 1969, he was Warren's consigliere on a liberal (later overwhelmingly liberal) Court; for the last 20 years, he was the most influential (and beginning in 1975 senior-most) Justice in a liberal minority. How would we remember Brennan if he only had that first half as the intellectual leader of the liberal majority rather than the second half as great dissenter? This split is historically contingent--had Johnson succeeded in replacing Warren and/or had Fortas not been forced to resign, the Court would not have shifted as much as it did in the first three years of Nixon, leaving Brennan more in the Court's majority for at least a few more years.

Justice Stevens (1975-2010; would have retired in 1993): His first eighteen years were largely non-descript, mostly part of a large middle with an occasional individual voice. His final 15 years were among the longest periods as senior-most Justice in the minority of an evenly divided Court, which is the role for which history will remember him.

Justice Holmes (1902-32; would have retired in 1920): Retires the year after his Abrams dissent. He loses 12 years of continued First Amendment dissents, as well as Buck v. Bell, which remains a stain on his record.

Justice Thomas (1991-Present; would have retired in 2009): Thomas's last twelve years (and counting) have been a more confident and aggressive version of his first 18--solo opinions staking out iconclastic positions, unbound by precedent, and willing to challenge many jurisprudential sacred cows. Is he doing this more than he did prior to 2009? Again, how you feel about this depends on how you feel about the positions Thomas stakes out.

Chief Justice Rehnquist (1972-86; 1986-2005; would have retired in 199o): Like Brennan, Rehnquist enjoyed two quite distinct careers of almost equal length--Most conservative member of the Burger Court authoring many separate opinions and influential Chief Justice. Probably never gets the latter job, because Reagan would not have elevated him if he was four years from retirement.

Chief Justice Taney (1836-64; would have retired in 1854): Off the Court three years before Dred Scott.

We can play this game with a lot of Justices who served 25+ years and this is only intended as an outline. I think Tom is onto something good.

Posted by Howard Wasserman on August 3, 2021 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, August 02, 2021

SB8, racist speech, and partisan presumptions

Concerns about the process of SB8--privatizing enforcement, preempting offensive pre-enforcement litigation, and pushing rights-holders into a defensive posture--come from the left. So do fears that this could catch on. In urging the invalidity of this enforcement framework, the Whole Women's Health Complaint argues:

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.

But is this limited to conservative attacks on liberal rights-holders, as the complaint offers (other than the gun-rights example)? Could liberals use private enforcement and would the political alignments and arguments flip?

Imagine a state wants to eliminate racist speech. It prohibits the oral, written, non-verbal, or symbolic expression degrading or dehumanizing a person based on race and creates a private tort action for damages and attorney's fees for "any person" offended or bothered by such expression. This law violates the freedom of speech as currently judicially interpreted to the same degree that SB8 violates the right to reproductive freedom. But a would-be racist speaker (e.g., someone who wants to burn a cross on his own lawn or  display a "White Lives Matter" sign or stand on the corner and shout that only white people should be allowed to vote) could not bring an offensive action to declare the law invalid or stop its enforcement. As with SB8 actions, there is no one causing the racist speaker an injury, no one to sue, and no one for the court to enjoin. Such a racist speaker must continue to engage in his racist speech, get sued by that random "any person," and raise the First Amendment as a defense. Or he will refrain from speaking from fear of suit and liability. Either way, the point of the law is to chill or sue racist speakers into silence.

Would those on the left objecting to SB8 object to this strategy of silencing racists and racist speech? If not, is the reason that liberals favor the right to reproductive freedom affected by SB8 while opposing or wanting to limit the right to engage in racist speech? And can that be an acceptable distinction?

Posted by Howard Wasserman on August 2, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)