PrawfsBlawg

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Independence Day is not military

The President has added military elements (including tanks that may damage the bridges into the district) to the Independence Day celebration on the National Mall. Many argue that this reflects the ostentatious military parades staged in the former Soviet Union, North Korea, and other authoritarian regimes trying to convince their people and the world of their power and greatness (which they usually lack in reality).* Unfortunately, these are the governments and leaders the President likes and respects and wishes to emulate.

 [*] As Tom Nichols puts it in The Atlantic, Trump "has blown through the romance of Bastille Day and past the stodgy opera of the Soviet May Day reviewing stand, and is now squarely in the North Korean 'Because I feel like it' mode." 

I want to offer a different criticism: A  military display does not reflect what we commemorate and celebrate on Independence in the U.S. The signing of the Declaration was an expressive and political act. And it was nominally grounded in theoretical and philosophical terms of consent of the governed, the law of nations, the purposes of government, and human rights--all decidedly non-militaristic ideas. This holiday should not be celebrated in militaristic terms because it does not mark an historic military action.** I reacted the same way several years ago when the m.c. at the small-town celebration I attended announced that the day was about the men and women in the military.  The evolution of the world from 2011 to 2019 can be seen in the evolution of this militaristic conception from the uninformed remarks of the speaker at a celebration at the Delaware beach to the President commandeering the Capitol concert and fireworks for his own display of military force, while threatening to ignore court orders.

[**] France's historic act of independence was a military event, so it makes some sense to celebrate with a parade. The equivalent for the U.S. might be commemorating Yorktown, the culmination of the military force that was necessary to secure what we mark on the 4th of July. But we do not do that. Or it might be Lexington and Concord, somewhat analogous to the storming of the Bastille. But Boston celebrates that by running a long race and playing a baseball game.

Rather than tanks and planes, the best move would be to return to Mark Twain's suggestion that public celebrations include a reading of the Declaration.

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

A dramatic reading of the Mueller Report

In 2012, PBS aired a documentary called The Central Park Five, produced by Ken Burns, his daughter Sarah, and David McMahon. It was excellent and thorough (although produced while the civil rights suit was pending and before the $ 41 million settlement). And it produced no public reaction--Linda Fairstein kept publishing books, Elizabeth Lederer kept adjuncting at Columbia, and Donald Trump was on a path to being elected President. But mere weeks after Netflix dropped DuVarney's docudrama When They See Us, Fairstein no longer has a publisher and no longer is on several boards and Lederer no longer teaches at Columbia.

The difference, it seems to me, is the drama of the docudrama compared with the reality sought in the documentary. When They See US depicts Fairstein as the big bad,* determined to get these rapists and stubborn to the point of arrogance when confronted with evidence of their innocence.** Lederer is depicted as plagued by doubts about the case, but charging ahead and being tough in her cross examination, including bringing out negative or embarrassing information about the defendants.*** The drama, the pathos, creating heroes and villains--you get that in a docudrama but not in a documentary.

[*] Along with the cops, who we expect to behave badly.

[**] It probably does not help Fairstein at this moment to have been played by Felicity Huffman.

[***] As, of course, she should as a good lawyer representing a client.

Which brings me to the Mueller Report. A press conference will not do it (obviously). Neither will congressional testimony, even if the point is just to have Mueller read the report live on camera.

Instead, we need a dramatic reading. Get James Earl Jones, Morgan Freeman, Meryl Streep, Dame Maggie Smith, Nancy Cartwright (the long-time voice of Bart Simpson), and any other great-sounding actors and actresses. Put them on TV and have them read or perform the report in the most dramatic fashion possible.

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:

Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.

“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”

First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily  deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.

Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.

Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate  her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.

[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?

Read more here: https://www.fresnobee.com/news/local/article230903884.html#storylink=cpy//www.fresnobee.com/news/local/article230903884.html#storylink=cpy

Mitch McConnell and neutral principles

Over the weekend, Senate Majority Leader Mitch McConnell told a Chamber of Commerce luncheon that the Senate would fill a Supreme Court vacancy that should arise in 2020, contra his arguments in 2016 that the Senate should not fill Justice Scalia's seat in an election year but should let the people decide who should fill the vacancy. Asked to explain the seeming inconsistency, McConnell spokesman David Popp said the difference is that in 2016, the President was a Democrat and the Senate was controlled by Republicans, while now the Republicans control both.

Obviously that is nowhere close to what McConnell argued three years ago. But what would McConnell say about the converse of 2016--would not filling the seat be similarly proper when the President was a Republican and the Senate controlled by Democrats? That is, was Popp's point about split partisan control (a nonsense argument, but at least neutral) or was it specifically Democratic President and Republican Senate that made it ok, while the converse would not be?

I would have expected a different disingenuous argument, one that would sound slightly more neutral: The difference is that in 2020 the incumbent is seeking reelection and so is in the prime of his executive power, whereas the Democrat presented to the voters was not the current President. Again, a stupid argument. But it at least pretends to rest on some principle besides "now my party has the White House."

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

I also wonder about the constitutional validity of Warren's proposals under current doctrine and given the current Court (putting aside that it would not pass).

In her Medium piece, Warren calls for federal legislation that would: 1) Prohibit states from interfering in the ability of a health care provider to provide medical care or from interfering in the ability of a patient to access medical care from a provider; 2) Preempt TRAP laws; 3) Guarantee reproductive-health coverage in health plans, including repealing the Hyde Amendment; and 4) general protections for women, in seeking care and elsewhere (such as at work).

Is this valid federal legislation and under what power? Not § 5. Without Roe, Due Process does not protect reproductive freedom, so a law designed to protect that freedom by prohibiting state-level bans would not be congruent and proportional as to constitute legislation "enforcing" the 14th Amendment. Perhaps it could be framed as a gender-equality provision, enforcing the equal protection rights of women. But is halting abortion discrimination against women or is it halting a particular medical procedure that happens to have a disparate effect on women? And if the latter, is a disparate-impact provision congruent-and-proportional to a constitutional right that only prohibits disparate treatment?

So the power source would have to be the Commerce Clause. But a law doing what Warren proposes would interfere with the traditional state function of regulating the medical profession, the doctor-patient relationship, the insurance industry, and local zoning. Might the same five Justices conclude that there is not a sufficient nexus to interstate commerce to allow federal law to supersede state law in this area of historic state power?

I welcome thoughts on these questions--not being a Commerce Clause scholar, I do not know the answer. But pinning this on Roe, or suggesting that the anti-choice craze that has taken hold in these states is simply a reaction to Roe, seems wrong.

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

This presents two fun what-ifs. First, Fortas was 58 when he resigned and lived another 13 years. How different might the jurisprudence of the 1970s have been had he remained on the Court with Douglas (replaced by Stevens in 1975), Brennan, and Marshall  as a starting point. And maybe Fortas retires prior to 1980 and gives Jimmy Carter the appointment he never had. Second, how might Nixon's Court appointments have differed? If Fortas does not resign, Blackmun remains on the Eighth Circuit in 1971 when Black and Harlan retire within days of one another. Does Nixon nominate Blackmun for one of those spots, since he appears to have been Nixon's "next" nominee, or had his time passed? Does Powell or Rehnquist, who were commissioned simultaneously, get the other? And if Powell, how does Rehnquist get on the Court and, more importantly, still become Chief?

Update: SCOTUSBlog has an interview with author Michael Bobelian about his new book Battle for the Marble Palace, which examines Fortas' failed nomination as Chief, marking it as the starting point for the "modern" Supreme Court and "modern" appointments process.

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Electing women

A question asked over dinner: Why are so many nations ahead of the United States in electing women to the highest national office?

A possible answer: The influence of a nation's political system. Many (most?) of the women in these countries have been elected as prime minister (or its equivalent), the head of government who is not also the  head of state. So they are not elected nationally, at least not as a formal matter; they are elected in legislative districts and assume national office by virtue of leadership in a political party that attains a legislative majority (or leads a legislative coalition). This seems true of many of the European and Commonwealth countries that most Americans think of as having elected high-profile women leaders, although there are counter-examples in South American and Asia.

Note that the United States has elected a woman in this manner--Nancy Pelosi. But the U.S. political system does not give her the same power that Germany or Norway or New Zealand does.

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

About that New York Times cartoon

Hypo: A cartoonist wants to make the point that Vladimir Putin and Russia are dictating U.S. policy and that President Trump is following without thought or consideration and without knowing where he is going. The cartoonist depicts Putin as a guide dog, leading a sightless Trump; the guide dog has Putin's face and a collar with the Russian flag, while Trump is shown as a sightless man with dark glasses, with the guide dog on a lead taking him he knows not where.

I presume the meaning of that cartoon would be clear and that such a cartoon would be ok. If so, I do not understand why this cartoon becomes filled with anti-Semitic tropes when making what I believe to be the same point about Netanyahu and Israel. And any answer must not reduce to a prohibition on criticizing Israel in the same terms and using the same tools, including cartoons and satire, that would be used without objection against other nations and other political leaders.

What is anti-Semitic about this cartoon? (FWIW, my wife--who is more likely to find something anti-Semitic than I am and was less forgiving of Rep. Ilhan Omar than I was--is similarly confused).

   • Is it depicting a Jewish person as an animal, particularly a dog?  Anti-Semitic literature and cartoons (both old-fashioned European and modern Islamic) have depicted and described Jews as animals. But there also is a long history of depicting political leaders as animals. I interpret the picture depicting Netanyahu as the leader of a nation rather than as a Jew or a representation of Jews and the Star of David as the central piece of the Flag of Israel rather than as a Jewish symbol. Is my interpretation wrong? Can Israeli (or all Jewish) leaders not be depicted as animals because of the historic link to anti-Semitism?

   • Is it having Trump dressed like an Orthodox Jew, wearing a yarmulke, black suit, and white shirt? I find that piece out of step with what (I believe) the cartoon is trying to show. Unless Trump represents not only the U.S. but also American Jewry (or a segment of American Jewry). Either way, I do not see why this is anti-Semitic.

   • Is it the overall message that Israel dictates U.S. policy, recalling the ideas of secret-and-nefarious Jewish influence? That reduces to an argument that a common political critique--one country or one leader unduly influencing another country or leader--cannot be made against Israel or Israeli leaders. Or that criticism of Israel must be even-handed and reasoned ("Israel is wielding undue influence over U.S. policy, as do other nations") to avoid the charge of treating Israel differently because it is a Jewish State. Which precludes political cartoons criticizing Israel or Israeli leaders, as the "art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

I end with this: Describe a political cartoon making the criticism discussed at the top of the post--Netanyahu and Israel are dictating policy or action to a blindly following Trump--that would not be anti-Semitic.

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

Your [Office holder]

President Trump likes to refer to himself as "Your President," as in "This is outrageous harassment of Your President by the Democrats." Over the weekend, speaking to a group of Jewish Republicans, he referred to Benjamin Netanyahu as "Your Prime Minister."

Has any previous President used this framing? It sounds new to me. It also has a ring of monarchism or authoritarianism--"Your Majesty," "Your King," "Your Dear Leader."

Free speech petards

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing. Last week, Davis rejected the call in a letter to Republican Assemblyman James Gallagher, citing the First Amendment and President Trump's executive order purporting to require universities receiving federal funds to  promote free enquiry on campus consistent with the First Amendment. Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

The answers, in order: 1) Of course not; 2) Of course not; 3) Of course not. But the President's intent cannot overcome charges of viewpoint discrimination.

Time to Channel Madison

Alexander Hamilton has been fashionable of late, but for a solution to our extreme political polarization, we should look to James Madison. As Madison recognized, people are not angels. We cannot rely on the virtue of government officers to do the right thing. Rather, we need to design our political system in a way that creates the proper incentives for public-spirited conduct by elected officials.

To be sure, Madison didn’t get it all right. While he was correct on theory and many of the practicalities, he came up short on implementation. The critical structural flaw in our political system lies in its “winner-take-all” nature. That feature does much to fuel our high levels of partisan conflict. My experience as a state legislator made this clear.

Like many first-time candidates, I pledged to judge ideas by whether they were good or bad, not by whether they were Democratic or Republican. And as a three-term legislator, I worked across party lines regularly. But I also found that try as one might to stay above the partisan fray, one inevitably gets sucked in. That’s because each side understands that if it gains control of the levers of government power, it can promote its agenda, while if the other side gains control of government power, there is little that can be done to achieve one's own goals or to stop the other side from achieving its goals. Recent Supreme Court appointments are illustrative.

Our political system has many winner-take-all features. For example, whoever prevails in the battle for the presidency gains 100% of the executive power even if the victor triumphs by the barest of margins. This denies meaningful representation to half of the public in the most important policymaking office in the world, and as a result, it invites levels of competition and conflict that are intense, excessive, and harmful to social welfare. Winner-take-all politics also dominates elections for Congress and a judiciary where major decisions can be decided by a conservative or liberal majority.

Instead of cooperation for the overall good, we get tit-for-tat politics that escalates rather than resolves conflict. Thus, for example, Senate Democrats eliminated the filibuster for lower court appointments, and Republicans responded by eliminating the filibuster for Supreme Court appointments. 

In a winner-take-all world, we also see candidates increasingly promoting agendas that will mobilize their bases rather than appeal across party lines. It’s no surprise that U.S. Sen. Sherrod Brown and former NYC Mayor Michael Bloomberg concluded that a more moderate campaign would face stiff headwinds in a race for the Democratic nomination.

To address winner-take-all politics, we should look across the Atlantic to countries where power is shared across partisan lines, and elected officials from both sides of the political spectrum have a say in the making of governmental policy. For example, in Switzerland, all of the major parties hold seats in the executive branch (the cabinet), and the cabinet ministers decide by consensus. Power-sharing makes for better representation and less conflict. It also makes for better policy—two heads really are better than one. If we want to bridge societal divides, we need to ensure that everyone’s voice is heard in the halls of power.

More right-wing snowflakes are outraged

This story about calls by some UC-Davis students and California Republicans for the firing of a Davis professor who called (on Twitter, several years ago) for the killing of police officers reminds me of a comment I made last summer about calls by the Broward County Police Benevolent Association to boycott the Miami Dophins for not forcing players to stand. The political right, on and off campus, has as little patience for objectionable speech as the political left and is as ready to call for boycotts and firing of speakers who say mean things they do not like.

The Davis situation and the Dolphin situation share another similarity (as does the ongoing controversy at Sarah Lawrence College, which has gotten far greater attention but is still a call to sanction a professor for "expressing his views"). As one person put it on Twitter: "[T]erms that absolutely no one in the media has used so far to describe this episode include snowflakes, call-out culture, victimhood culture, outrage culture, cancelled, coddled, PC run amok, censorship, self-censorship, fragility, identity politics, or micro-aggressions."

And just to head-off a response: The prof's speech, while obnoxious, is constitutionally protected and comes nowhere close to incitement.

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Michael Cohen and Prosecutorial Overreach

As the House Oversight Committee hearing this week reminded us, Donald Trump has given special counsel Robert Mueller and the Department of Justice plenty of reason to investigate him and his aides for misconduct. The Trump campaign’s ties with Russia may have compromised the integrity of our elections. Trump’s business dealings in Russia may have led him to sacrifice U.S. foreign policy interests in favor of his personal financial interests. And Trump’s efforts to hide all of this may constitute obstruction of justice.

But while we should welcome efforts to hold the President accountable for his misdeeds, we should reject the prosecutorial overreach that has occurred in the plea agreement with Michael Cohen. It was wrong for federal prosecutors to use campaign finance law to bring charges over the “hush money” payments to Stormy Daniels and Karen McDougal. And it would be wrong to go after the President because of the payments.

The prosecutors’ campaign finance allegations are dubious. Indeed, similar charges were unsuccessful when filed against John Edwards after his failed bid for the presidency in 2008.

Under the prosecutors’ theory of the case, Trump should have made the payments directly to Daniels and McDougal and disclosed the payments on his campaign finance reports. That would have been legal.

But if Trump had taken that path, it would have become clear very quickly that he paid the two women not to reveal his affairs with them. Trump needed to funnel his payments through Cohen to keep his intimate relationships private. So while the charges against Cohen alleged violations of campaign contribution limits, the charges ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.

Prosecutors should not interpret election law in a way that requires candidates to open for public scrutiny their consensual, intimate relationships. Candidates lose much of their privacy when they run for office. Their financial status and their health status are fair game. But hiding Trump’s affairs did not deny voters any information that was a legitimate matter of public concern during the 2016 presidential campaign. Neither Daniels nor McDougal has alleged sexual harassment, sexual assault, or other abuse by Trump. This was not a #MeToo moment. Voters do not have a meaningful interest in knowing about a candidate’s consensual, intimate relationships.

Some observers have argued that we were entitled to know whether Trump cheated on his spouses because it spoke to his fitness to serve. But there is no good evidence connecting marital infidelity with quality of service. Jimmy Carter was faithful, JFK was not.

In any event, we do not have to worry that the public was misinformed about Trump regarding his sex life. Anyone who cared about his marital infidelity already knew he cheated on his spouses. They also already knew he engaged in much worse sexual conduct—the sexual assaults that he described in the Access Hollywood tapes. Voters who cared about marital fidelity knew what they were getting in Trump, and they either voted against him for that and other reasons, or they voted for him because they felt the advantages of a Trump presidency outweighed his personal failings.

There are serious downsides to prosecuting candidates who try to hide information about consensual, intimate relationships. When the government starts policing the bedroom, it does more harm than good. Suppose a candidate for office is running in a community unfriendly to the LGTBQ community, and the candidate is secretly gay. A former lover threatens to disclose their relationship, and the candidate pays hush money. Is it a good idea to bring criminal charges against the candidate for violating campaign finance laws?

These kinds of charges may discourage many desirable candidates from running. It is already true that many worthy candidates do not run for office because of the intrusive scrutiny on their personal lives. Potential candidates with an adulterous affair in the past may decide against a campaign to spare their spouses and children of the publicity that will ensue.

We should know lots more information about President Trump’s relationships with Russia and how their ties may have influenced our elections and our foreign policies. But we should not turn consensual intimate relationships into criminal violations.

Lawyers, counselors, and wrongdoing

Scott Greenfield of Simple Justice takes strong issue with Adam Benforado's criticism of the lawyers in "hiding abuse, silencing + further harming victims, and protecting abusers." Greenfield cannot understand how a law professor does not realize that "even members of the clergy accused of abuse are entitled to constitutional rights, including the right to effective assistance of counsel." To "decide beforehand that a defendant is unworthy of lawyers honoring their oath and respecting the constitutional rights of their clients . . . is to make the ends justify the means."

It seems to me that this is too narrow a view of the lawyer's role, particularly the lawyers for the Church, as opposed to the lawyers for any priests charged with a crime. Greenfield is right with respect to the lawyers representing priests charged with crimes and defending them in a criminal prosecution.

The scandal was the Church's failure to do stop the misconduct by its priests--moving them to different parishes, allowing them to continue working with children, threatening and manipulating would-be accusers. The scandal was the institution's internal management where it identified and recognized wrongdoing and not only did not stop or punish it, but affirmatively enabled it to continue. And the lawyers for the Church helped that. I read  Adam as criticizing those lawyers. One vision of the attorney role is as counselor, helping that institutional client do the "right" thing in response to that identified wrongdoing, rather than helping the institution to further enable it. If for no other reason than that when the wrongdoing is exposed--and it always is exposed--the fallout for the client will be even worse and more costly, so helping the client do the right thing also protects the client's interests.

Everyone needs a lawyer

So argues Ken White (of Popehat fame) about yesterday's Michael Cohen hearing. Everyone needed the unique skills that trial lawyers provide about how to behave as a witness (Cohen), how to handle a sleazeball witness who helps you (Committee Democrats), and how to conduct cross examination without just loudly attacking the witness (Committee Republicans). It dovetails with this argument that real oversight requires the hiring of skilled lawyers to conduct the questioning, not grandstanding political figures.

Paying for Public Records

Much to the delight of legal reporters and researchers who study the courts, PACER fees are under attack.  A lawsuit challenging the fees is pending in the Federal Circuit, and the media coverage of the suit is decidedly in favor of the plaintiffs. PACER allows the public to electronically access motions, complaints, briefs, and other documents filed in federal cases.  It charges a fee of $0.10 per page, which is far more than what it costs the courts to store these documents and make them available to the public.  By one estimate, “the cost of retrieving a document from PACER—including the cost  of  data  storage with a  secure  service  used  by many  federal  agencies—[is] only $0.0000006 per page.”  As the New Republic reported: “The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.”  The courts use the extra money to fund other projects, such as courtroom technology needs, that would otherwise be paid for by funds appropriated by Congress.

It appears that the PACER litigation will ultimately turn on a question of statutory interpretation involving the legislation that created the program and allowed for the collection of these fees.  But I’m interested in the case because it raises larger issues about access to public documents.

You see, for the past year, I’ve been conducting a massive research project in which I collect the campaign finance documents for every candidate who ran for district attorney and enter information about the campaign contributions into a database.  (You can learn more about the project here. You can see a summary of our data here.  And our raw data is being compiled here.)

Because we are collecting information from all 46 states that elect their local prosecutors, I’ve been dealing with dramatically different public records regimes while collecting this data.  Some states are fantastic—they put this information online in a centralized state database.  Some even fully digitize that information, allowing you to search not only by candidate, but also by donor.  Other states have decided to leave the collection of campaign finance information to the counties.  And some counties do a terrible job providing access to that information.

More than one county has informed me that they have been unable to locate these records.  Some can’t find the records because they do not have a formal filing system.  Some can’t find them because they keep only paper copies of these records, which were damaged through some sort of accident.

Other counties do a perfectly good job retaining these records.  But they refuse to allow access to the records without significant payment.  For example, one county in North Dakota insisted that I send a check for $50 before they would even look for the responsive documents.  And while I can understand why counties would need to charge for making physical copies and mailing those copies, some counties insist on charging fees for emailing documents—treating email pages no differently than physical copies for fee purposes.  (Here is a recent op ed that I co-authored with a student that describes some specific problems in Kansas.)

I have even encountered counties that charge fees higher than what is permitted by their state open records laws.  One county has a posted fee schedule of $1.00 per page, even though state law only permits charges of 25 cents.  When I asked about the discrepancy, the county clerk responded by waiving the fee.  Another county in different state with a 25 cent per page cap invoiced me for 50 cents per page.  When asked about the cap, the county insisted it had made a mistake—of course they only meant to charge me the statutorily-permitted fees. 

Because I work for a public institution, I routinely asked that these fees be waived.  A small number of counties granted those requests.  But most didn’t.

The responses that I received when I asked for a waiver were interesting.  Some counties said that they never grant waivers—even though the state statutes specifically give them the power to waive—because they want to treat everyone the same.  Several county officials told me that they were unable to grant waivers because their offices depended on these fees to stay operational.  Their state and local governments have cut their tax revenues to such a degree that they cannot afford to operate their county offices without charging people fees.  In other words, the offices were charging these fees not only to support the time an effort of responding to individual requests, but also to offset the ordinary costs of running their government office.  They were using these fees to make up the shortfalls in their budgets.

I find that state of affairs very troubling.  I appreciate that user fees are quite popular, and that they are touted as an efficient way to ensure that those who are actually benefiting from services are the ones paying for them. But even if you might ordinarily support user fees for some government services, I don’t think it is a good idea to depend on fees to run your government.  Governments aren’t business; they are governments.  And we should make sure that they operate even when people don’t “buy” their goods and services.

I am especially troubled at the idea of charging fees for information like campaign finance data.  That is because we make campaign finance data publicly available in order to ensure transparency and accountability.  For example, if my DA failing to indict officers involved shootings of civilians, I need to know if she is also taking money from police unions.  I need to know because it helps me to evaluate her charging decisions.  And if I disagree with my DAs charging decisions, my only recourse is to vote her out of office.  But I need to understand those decisions in order to make an informed decision at the ballot box.  But if my county clerk is going to charge me $50 before even trying to locate those documents, then I am less likely to request them and thus less likely to find out about the donations.  What’s worse, the people who aren’t going to spend $50 to check the campaign finance records of their elected officials are also the same people who are unlikely to be donating to campaigns.  Put differently, it seems bizarre that one of the most important checks we have on money in politics—transparency about that money—can be frustrated by requiring people to pay additional money in order to get access to that transparency.

I am glad that PACER fees are facing scrutiny.  And I am hopeful that they will be lowered.  But I hope that our conversation about document access fees can extend beyond the federal courts.  Some state courts charge even higher fees than PACER.  More importantly, if we decide to deal with issues like corruption through disclosures rather than direct regulation—i.e., making campaign finance information publicly available rather than outlawing campaign contributions—then we shouldn’t charge fees to see those disclosures.

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

What is a "State of the Union Address"?

Nancy Pelosi has disinvited President Trump from coming the House of Representatives to deliver the State of the Union Address, given the "security concerns" created by the government shutdown. She proposes that they find another suitable date once the government has reopened or that he deliver the address in writing (as Pelosi notes was done prior to Woodrow Wilson) on the planned date of January 29.

But what is required for the President to "give to the Congress Information of the State of the Union"? Must the address be presented to Congress through the President's personal appearance in Congress or delivery of a written message to Congress? If the President gives a televised address from the Oval Office (or Mar-a-Lago or anywhere else) about the state of the union that everyone in Congress sees, has he given Congress that information?

And what is the inevitable next step in this escalation? Does Speaker McCarthy choose not to invite President Warren to the House at all, forcing her to deliver the address in writing only?

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

2018 Year-End Report

Chief Justice Roberts issued his 2018 Year-End Report. This year focused on the results of the investigation Federal Judiciary Workplace Conduct Working Group into the working conditions for law clerks and other judiciary employees and what is happening to implement those proposals with the Judicial Conference. As is his wont, the Chief began with a historical anecdote--the influence that law clerk Henry Friendly had on Justice Brandeis' dissent in Olmstead--and a paean to the work of law clerks and the symbiotic relationship between judges and clerks ("relationship is one of close association, candid intellectual exchange, and confidentiality"), on the centennial of Congress allocating funds for "legally trained assistants" for federal judges.

The report also briefly thanked court employees for keeping the courts operating in the face of another years of natural disasters--flooding in Florida and North Carolina, a typhoon in the Northern Marianas Islands, an earthquake in Alaska, and California fires.

The report closes with workload statistics for the year. Filings in the courts of appeals dropped two percent, while civil filings in district courts rose six percent. District courts saw a 17 percent increase in diversity cases with a 23 percent increase in personal-injury cases--the report does not say, but it would be interesting to see how much of the increase is tied to mass-tort cases going to federal court under CAFA's minimal-diversity requirement.