Saturday, May 07, 2022

The "Black Legend" (of American constitutional law) returns

Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic.  "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said.  "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.

Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here.  He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"): 

Stone's analysis generated an uproar, but it was correct then, as it would be correct now:  someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).

As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.  

I wrote then (I still cannot get over how long ago that was!):

[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."  What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.

It is interesting, I think, that Professor Stone invokes the example of Justice Brennan.  Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice.  And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith.  Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?



Posted by Rick Garnett on May 7, 2022 at 12:39 PM in Rick Garnett | Permalink | Comments (0)

Thursday, May 05, 2022

Ex-Confederates Interpreting the Fourteenth Amendment

Going back to Aristotle, there was the idea that there are different types of persuasive arguments. One is an appeal to personal authority. Person X was a great judge, scholar, leader, etc and thus her conclusion about a subject is entitled to great respect. This is the opposite of an ad hominem argument, where you say that Person X was terrible and thus you should disregard what she says. Neither of these focus on Person X's reasoning.

Here's a question along these lines: Can a former Confederate be a good source of personal authority for the interpretation of the Fourteenth Amendment? I would say no. No matter how great a legal career was before or after that, the very act of being a Confederate makes any conclusions about the Fourteenth Amendment suspect. (Unless you're talking about the rare Confederate who turned around and supported the 14th).

A former Confederate's reasoning about the Fourteenth Amendment should be assessed on its own merits.


Posted by Gerard Magliocca on May 5, 2022 at 04:10 PM | Permalink | Comments (0)

Tuesday, May 03, 2022

The Fourth Circuit Argument in the Cawthorn Case

Today's argument in Cawthorn v. Circosta may be rendered moot if Representative Cawthorn loses his primary race in two weeks. That said, there was one detail from the argument that I wanted to highlight.

On the question of whether the Qualifications Clause makes Congress the exclusive judge of Section Three ineligibility for congressional candidates, one member of the panel cited Jones v. Montague, a 1904 Supreme Court case, as support. Montague does say in dicta that Congress is the sole judge of the qualifications of its members. The case strikes me, though, as a poor source of authority. The Court there rejected a challenge by Black defendants against the white supremacist Virginia Constitution of 1901 that established a system that excluded them from voting in violation of the Fifteenth Amendment. 

The better source of authority (though also dicta) is U.S. Term Limits v. Thornton, which said that Congress is the ultimate (not the sole) judge of the qualifications of its members.

Posted by Gerard Magliocca on May 3, 2022 at 06:25 PM | Permalink | Comments (0)

Who assigned this and why? (Update)

Who assigned Dobbs to Alito--the Chief or Thomas?

Assume the following at conference: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett want to overrule Roe, declare the MS law valid, and enter judgment for the state; the Chief wants to declare the MS law valid as not imposing an undue burden  and enter judgment for the state. Who is the senior-most Justice in the majority? What is the "majority" when in Conference and before any opinions have been written--is it a majority for the judgment ("the law is constitutionally valid, plaintiffs lose, state wins") or is it majority for a rationale or an answer to a QP (Roe/Casey are overruled)? If the former, the Chief keeps the assignment; if the latter, Thomas gets the assignment.

I raised this question (without a satisfactory answer) over the now-meaningless June Medical, where four Justices (Breyer for Ginsburg, Sotomayor, and Kagan) declared the law invalid by balancing burdens and benefits under Casey and the Chief agreed the law was invalid but on the logic of WWH and considering only the burdens; did the Chief assign or did Ginsburg? Does the assignment work differently when there is a majority for a result but not for a rationale, as in June, as opposed to where there is a majority for a rationale plus extra votes for the result?

My best guess is Thomas assigned it. If so, I am impressed (and a bit curious) that he chose not to keep it for himself. Casey was decided during Thomas's first Term, meaning he has been waiting his entire time on the Court for this opportunity.

If Roberts assigned it, the choice of Alito creates all sorts of Kremlinology. If Roberts  (presumably) wanted to make the least noise, he would not have assigned it to Alito, knowing the likely tenor of the opinion. Or he assigned it to Alito intentionally, knowing he might draft an opinion (what my colleague called a "nuclear bomb overruling") that might scare off Kavanaugh or Barrett. In which case the "conservative leaker" theory makes sense as a counterpunch to that. Anyway, I doubt anyone thinks this way, which is why I believe the relevant majority was to overrule Roe and Thomas gave the opinion to Alito.

Update: This question was raised on the Con Law Prof listserv. No one knew for sure, although one former clerk says his understanding is that the majority is for the bottom-line disposition. This make some sense, the person argued, because some justices only have identified a conclusion but not a reason at conference. Alternatively, many cases may have a bottom-line majority but competing reasons, none garnering the initial support of any 5; the only way to identify a seniormost-in-the-majority is to go by majority for the judgment, meaning the Chief assigned Dobbs. It also would follow that the Chief, rather than Ginsburg, gave Breyer June Medical.

Posted by Howard Wasserman on May 3, 2022 at 11:37 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Of leaks and legitimacy

I am not as outraged by the leak as Paul is, although I agree it suggests something about the elevation of individual personalities over the institution. I want to weigh in on a couple points. (Update: Mark Graber argues that leaks, especially from the Court to the executive but also to the press, were common during the 19th century).

• Regardless of the source--Justice, clerk, court personnel--there are plausible arguments for the source coming from either side of the divide over reproductive freedom. A critic of the decision might leak hoping that public outrage might sway someone off the Alito opinion or, seeing that as a lost cause, to get an early start on generating political activism to prompt Senate action (a law codifying the right to reproductive freedom passed the House but is stuck behind the Senate filibuster*) or to get Democrats to the polls. A supporter of the decision might hope publicity surrounding the prospective opinion would shore-up Alito's majority; soften the public outrage when the opinion issues (closer to the election), so that the anger has dissipated by November; and distract from the story of the Court eliminating reproductive freedom (and perhaps other rights, more on that below) by offering the story of the leak, failed processes, and the Court-as-institution as a competing narrative. As a couple people have put it, the leak is a story, but not the story; the source might have hoped to make it the story, especially in the right-wing noise machine (which will suggest the source is from the other side). One person on the ConLawProf Listserv suggested Alito might be the source--knowing he will be forced to soften the language in the published opinion, he gets his raw thoughts into the world and becomes a Fed Soc rock star.

[*] Putting aside whether such a law is valid under the Commerce Clause or § 5, a question that the same five-Justice majority would likely answer in the negative two years from now.

• I do not understand the insistence that the decision is "illegitimate." I think it is wrong, uses (typically) bad history, and written with the usual Alito arrogance and causticity that grates on me (even when I agree with him). But it does not say anything that Roe/Casey critics have not been saying for years; it reads as the opinion overruling Roe that we have feared for years, at least as written by Alito or Scalia. But that should not make it "illegitimate" any more than Roe/Casey are illegtimate, as Alito suggests throughout the opinion.

What makes it illegitimate as a judicial decision--as opposed to wrong as a matter of substantive constitutional law--for people who do not subscribe to Eric Segall's view that the entire SCOTUS enterprise is illegitimate?

    1) It overrules precedent. No, because the Court has overruled or changed precedent in the past. It has standards for doing so. And disagreeing with how Alito applies those principles is a critique on the merits.

    2) It eliminates an existing constitutional right. That has never been part of the stare decisis or constitutional analysis. While perhaps a worthwhile constitutional principle (a judicial presumption of liberty, if you will), that again goes to correctness on the merits rather than structural legitimacy.

    3) Everything that went into how the five-Justice majority was formed--GWB and Trump losing the popular vote (such that 4/5 of the majority was appointed by a President who, at least initially, was a minority President); McConnell holding Gorsuch's seat open for more than a year; Kavanaugh perhaps perjuring himself; McConnell ramming the Barrett nomination through, Susan Collins Susan Collinsing, etc. But it seems to me that proves to much, rendering "illegitimate" any decision from this Court for the foreseeable future. And many might agree with that conclusion. But we cannot ignore the role of politics, a less "clean" process than the judicial is supposed to be, in the appointment process. Other Presidents and Congresses have gained or sought to gain political advantage through the Court. What makes this uniquely illegitimate.

I am not trying to downplay how bad this opinion is. I am concerned that "illegitimacy" is the new "judicial activism"--an illegitimate decision is any decision I disagree with written by a justice I do not like. That is not helpful to the discourse or to the functioning of any institution. Or it is the new obscenity--I know an illegitimate or judicial activist opinion when I see it (usually because I disagree with it).

• I cannot tell how much mischief the opinion can do in the future--whether it also takes out marriage equality, freedom of intimate association, contraception. Alito tries in several places to distinguish those rights as not involving potential life, although query whether that holds true for contraception, given some religious views about what constitutes abortion and the misunderstanding of how some contraception works. The rigid historical approach to substantive due process does not bode well for rights and interests that have developed in a modern, more open, more technologically advanced, and more accepting society.

Posted by Howard Wasserman on May 3, 2022 at 10:29 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Justice Alito's New Draft Paper

Available widely, though not on SSRN. Here is the Abstract:

This paper offers a revisionist account of Roe v. Wade and Planned Parenthood v. Casey. Incorporating recent critical commentary from judges and scholars, the paper argues that Roe was "egregiously wrong" and should be overruled. The author welcomes feedback, though only from four other individuals. 

Posted by Gerard Magliocca on May 3, 2022 at 09:28 AM | Permalink | Comments (0)

Monday, May 02, 2022

Leaks and a Look Backward

I'm sure there will be lots of commentary on the apparent leak and, with luck, I will not add to it. But I do have a couple of immediate thoughts, albeit they come at the least useful moment, since a) as the leak itself suggests, one often acts and reacts foolishly in the moment and b) one doesn't know whether, assuming a leak did indeed occur, it came from a member of a chambers--a Justice or a law clerk--or from someone or somewhere else. That matters for some reasons and not for others.

The first thing I must suggest is something I have been saying to myself plenty over the past five or six years--somewhat ruefully, since I wrote a completely true but, it appears, ill-timed book on the value of institutions in the First Amendment--and that is that the true, encompassing crisis of our times is an institutional crisis. In this case, the crisis might be manifest in the failure of the institution to stanch such leaks; it might be manifest in the petty leaks and apparent off-the-record interviews with justices that have occurred over the past few years, all of which were contemptible; and it might be manifest in a different and possibly generational way, in the sense that there is no greater sign of an institutional crisis than that its constituents no longer understand the nature, role, and value of an institution and its norms, and no longer have the faintest capacity to understand why their own desires might be less important than that institution. We spent a great deal of time talking about that during the Trump presidency--about the idea that staffers, officials, or, God help us, the chief executive might not understand that they filled a particular institution and must inhabit and respect its norms, whether they liked it or not and despite their own views in the moment. That would certainly be true of a justice or clerk who thought, "Every institutional norm forbids this action. But I'm doing it anyway."

The second is that, to the extent we are talking about a law clerk leak, it is somehow incomplete, if not dishonest, to do so without talking about money and its equivalents. Supreme Court law clerk signing bonuses are in the neighborhood of $450,000 these days. Some people consider that pretty decent money. But people value all sorts of things, and there are lots of ways to cash out the value of a Supreme Court clerkship, all at highly inflated sums, and a signing bonus is just one, as any former clerk working at a desirable law school (which is any law school, given the desirable nature of the job) could tell you. It seems to me that any anonymous leak by a Supreme Court clerk cannot be discussed or understood with any openness and intelligence while pretending that the context of almost endless remuneration just for having had the job doesn't exist. I would disagree with a law clerk who openly, by name, leaked a draft opinion, but I might feel a kind of respect for that person. Of course I would still call for their prosecution, possible imprisonment, and lifetime ineligibility for the bar, and rightly so. (This would hardly disable them, of course, from profiting substantially from such an action. In this country, everything can be monetized at some point and in some way. A memoir entitled "I Did it For Principle!" would get an advance from any publisher in the land large enough to make Croesus blush.) Still, I might respect the action, in its way, and at least doing so in that way would be preservative of the institution: violating institutional norms openly and for reasons of alleged principle reinforces those norms in the very act of violating them. But--again, if it is a clerk doing the leaking--we cannot understand an anonymous leak without understanding the money, goods, connections, and reputation involved in the commodity of having clerked for the Court. Leaking anonymously strikes me as worse than cowardly--it's chickenshit. (I should add an edited point here. I understand that Orin Kerr argues, in a Place I Do Not Visit, that there may in fact be no criminal penalties available if a law clerk was the culprit. Fair enough. I should not have assumed otherwise, and it ought to temper my rhetoric, even as I think any available remedies and punishments should be sought. On the other hand, in a way it underscores the cowardice involved in leaking anonymously and the degree to which there is no point discussing a leak by a law clerk--if it was a clerk, which it may not have been--as some great act of principle without also discussing the unwillingness to give up the myriad prizes that come with the Certificate of Clerkitude. Taking prosecution off the table would elevate the level of cowardice and unworthiness of the clerk-leaker from "But for Wales" territory to "But for Denbighshire?")

I'm also interested in looking back. My rather visceral reaction to this story makes me reflect on past news, even if this case is unusual and extreme. It is worth recalling the number of law clerks who apparently lined up--all anonymously, of course--to perform their outrage by leaking information to that august institution, Vanity Fair, about the deliberations concerning Bush v. Gore. Those leaks happened after the fact, of course, although this point cuts both ways: it did no harm to the institution in the moment, but it also can hardly be said to have been done in the heat of the moment. It was a studied act of cowardice. Years ago I called their stated justifications for doing so "insufficient and melodramatic," and I see no reason to change my view now. If anything, with that decision having gone from scandal to footnote, it seems more appropriate, and a reminder that a clerk's view of what constitutes "urgency" or "necessity" pales next to the wisdom of the  longue duree. But while we share our shock or outrage (or glee, for some) at the idea of a leak, we should remember that it happened before, and that those leakers did very well for themselves. Their names are public; you could look it up, as the old saying goes. A look at the clerks from that Term reveals any number of people I would happily curry favor with today, lickspittle that I am. But I also continue to think that their anonymous leaking was cowardly and that they too should have been prosecuted (or, per my note about Orin above, subjected to actually existing penalties). At a minimum, it is not too late for them to write to their bar or bars, presumably copying their current employers, reveal their violation, and see whether the bar or their employer cares to take action. If you have nowhere to go but down, why not try that?  

Finally, what of Justice Potter Stewart? After all, this leak might have come from a Justice--and, at a minimum, a number of justices in recent years have been happy to give off-the-record interviews to the press. Stewart, of course, did a good deal more than that. He leaked like a sieve. His role as unofficial reference librarian to Bob Woodward and Scott Armstrong, authors of The Brethren, was not revealed officially until after his death. But of course he knew it, and could have disclosed it any time he wished. And doubtless it was an open secret for many more. Stewart today is, I think, fairly evaluated as an okay justice but more or less a footnote and certainly not a star in the Court's history. (As are most Justices, after a long enough time, in fairness.) But in his day, he happily took his full measure of victory laps: the usual double-round of tributes and encomia from his servitors, both on his retirement and at his death. I think The Brethren did no lasting harm to the Court. It certainly did not at the time harm Stewart, who surely leaked in part precisely to buff up his own public reputation. But I also think it is entirely fair to conclude that by many a reasonable reading of his oath, of the judicial role, and of the norms of the Court, Potter Stewart spent the last decade or so of his service on the High Court as a sitting justice who was fully eligible for impeachment. Should that not somehow be factored into our mentions of Justice Stewart, on the rare occasions that he is mentioned at all? There is a bit of a trend right now of law review articles articles talking about the need to add moral considerations to parentheticals in citations. Should we not at least refer to him, when we mention him, as "Stewart, J. (committed impeachable offenses)"? Or do something similar in remembrances by former clerks? ("I remember the time that Justice Stewart, who was then committing impeachable offenses on a regular basis, said sagely to me, in his inimitable gruff voice,....")

Perhaps, in short, as we reflect on the cowardice and greed (with whatever added alleged soupcon of asserted principle or outrage) of the current leaker, we might spare a thought or two for the pusillanimity of the leakers of the not-so-distant past.    

Posted by Paul Horwitz on May 2, 2022 at 11:37 PM in Paul Horwitz | Permalink | Comments (0)

Boston's flagpole program not government speech

A unanimous-in-the-judgment SCOTUS holds in Shurtleff v. City of Boston that Boston's program of flying private flags (on a pole usually reserved for the city flag) did not constitute government speech and denying permission to a group to fly a "Christian" flag violated the First Amendment. Breyer writes for six. Kavanaugh joins the majority but writes a short concurrence to argue that "religious persons, organizations, or speech" cannot be excluded from "public programs, benefits, facilities, and the like." Alito concurs in the judgment, joined by Thomas and Gorsuch, to offer a different approach to government speech. And Gorsuch, joined by Thomas, concurs in the judgment to complain about Lemon.

The meaningful dispute is over how to identify government speech. The majority relied on a multi-factor balancing test, considering the history of the expression, the public's likely perception or who is speaking, and the extent to which government shapes or controls the expression. The Court found that the first favored the city (with a lengthy discursive on how government communicates through flags, including the story of Boston flying the Montreal flag following a bet on a Bruins-Canadians playoff series) but the third favored the speaker, because the city exercised no meaningful involvement in selecting flags or crafting their messages. Labeling this  as private speech ended the case, as the decision to deny permission to the plaintiffs was unquestionably viewpoint discriminatory.

Alito continues relitigating Walker v. Sons of Confederate Veterans (the specialty license-plate case)--he includes a footnote explaining why the Court got that wrong. He rejects the balancing test, arguing that any of the factors can indicate government speech or government censorship. Instead he urges a clearer and more specific approach to government speech. First, the government must speak in the literal sense--a person acting within the scope of power to speak for the government must purposefully communicate a governmentally determined message. Second, government cannot express its message through a means that abridges private speech (citing, e.g., Wooley). As to the first point, government can deputize private persons as its agents who voluntarily agree to convey the government message or government can adopt private speech as its own, such as taking ownership of the private speech), but not by subsidizing, facilitating, or providing a forum for that speech.

Although Alito's approach is cleaner on paper, I am not sure it is clearer in application or produces more obvious results. Shurtleff did not involve government speech under any approach and Alito's first point (was the government communicating an intentional message) turned on the same control that drove the majority's third factor. Walker represents the point at which Alito and the majority will reach different conclusions. The question is where the different approaches go in the many cases in between.

A different issue--and possible future bomb--involves whether government has speech rights. Alito drops a footnote arguing the federal government does not have such a right, but that states might have free-speech rights against the federal government. The text of the First Amendment--prohibiting Congress from abridging--eliminates any free-speech right for the federal government against itself. But extending that restriction to state governments in the 14th Amendment as to private individuals does not answer the question of the speech rights of states as to the fed. So is the next line of lawsuit against anything policy from a Democratic administration going to be a claim that it violates Texas' free-speech rights?

Posted by Howard Wasserman on May 2, 2022 at 11:40 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Why Mallory?

This is the second post on next Term's SCOTUS case on general personal jurisdiction by Rocky Rhodes (South Texas) and Cassandra Burke Robertson (Case).

As we mentioned in our last blog post, scholars and practitioners have been waiting a very long time for the Supreme Court to take up the question of the states’ power to require consent to personal jurisdiction as a condition of registration to do business. Another case, Cooper Tire & Rubber Company v. McCall, appeared to be a strong candidate for a cert grant. It attracted substantial cert-stage amicus support, and we predicted that the Court would be interested in it.

Continue reading "Why Mallory?"

Posted by Howard Wasserman on May 2, 2022 at 09:47 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Private enforcement and the state court option

Oklahoma enacted (although it awaits the governor's certain signature) an SB8 copycat. Reproductive-rights advocates have brought an original-jurisdiction action in the Supreme Court of Oklahoma. This is the other option for rights-holders, to the extent state procedures are more forgiving than federal.

On the other hand, the hell with Oklahoma AG John O'Connor, who said this:

Once again, the people of Oklahoma have spoken through their representatives in defense of the rights of unborn human beings, and once again abortion clinics have run immediately to the courts to attempt to trample on the people’s voice and the most innocent humans among us.

Indeed, with SB 1503 they have literally attempted to sue before the bill has even gone to the governor’s desk, even though the U.S. Supreme Court dismissed preliminary challenges to a similar law not six months ago.

As to the first, hasn't Oklahoma joined with the rest of the Republican states to ?\"run immediately to the courts to attempt to trample on the people's voice" as reflected in laws and regulations enacted and enforced by the Biden Administration? As to the second, what does SCOTUS have to do with a challenge under Oklahoma law; I thought the people in Washington should butt-out of Oklahoma's business.

And kind of the hell with Bloomberg for reporting such a dishonest statement and politically hypocritical statement. But that is par for the course.

Posted by Howard Wasserman on May 2, 2022 at 09:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, April 30, 2022

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.

Posted by Howard Wasserman on April 30, 2022 at 01:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, April 28, 2022

Supreme Court to Address Jurisdiction through Corporate Registration

SCOTUS granted cert for in Mallory v. Norfolk S. Ry. Co., on whether a state can require businesses to consent to general jurisdiction as a condition of registration. Before co-authoring the authoritative works on SB8 with me, Rocky Rhodes (South Texas)  published several piece on jurisdiction and consent/registration with Cassandra Robertson (Case). They have agreed to write a few posts now and perhaps to come back when the case is argued next Term.

The Roberts Court is still interested in personal jurisdiction, despite already hearing seven such cases over the last eleven years. These cases have re-shaped adjudicative jurisdiction, substantially narrowing the fora where plaintiffs can bring suit. Now, with its cert grant this week in Mallory v. Norfolk S. Ry. Co., the Court is poised to reconsider its cryptic century-old holding that states can require corporations to consent to personal jurisdiction within the state—even for claims arising outside the state—as a condition of registering to do business.

Continue reading "Supreme Court to Address Jurisdiction through Corporate Registration"

Posted by Howard Wasserman on April 28, 2022 at 01:26 PM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Sunday, April 24, 2022

Justice Thomas's Concurrence in Vaello-Madero

Justice Thomas wrote a thoughtful concurrence last week in a case raising an equal protection challenge against the denial of SSI benefits to Puerto Rico. He raised questions about whether Bolling v. Sharpe was correctly decided and suggested that the Citizenship Clause (rather than the Due Process Clause) was the better place to locate an equal protection guarantee against federal action.

One difference between Bolling and Justice Thomas's tentative position is that the latter would deny equal protection to non-citizens against federal action. This is part of a broader contraction in non-citizen rights that would occur by shifting doctrines from the Due Process Clause to citizenship provisions such as the Privileges or Immunities Clause. This contraction may be correct as an original matter, but would also present problems.  

Posted by Gerard Magliocca on April 24, 2022 at 07:59 PM | Permalink | Comments (0)

HB7 lawsuit

Filed Friday. Plaintiffs are a history prof at Central Florida, two public-school teachers, a rising kindergartner, and the owner of a DEI consulting firm. The choice to file everything in one action has its drawbacks. Consider:

• The First Amendment analysis and likely conclusion varies among the four educational plaintiffs. The prof has the strongest free speech claim, given the scope of academic freedom and its incorporation into the First Amendment. The student has the weakest claim, because I do not believe students have a First Amendment right to learn or not learn anything or to receive (or not) any information as part of the public-school curriculum.* The public-school teachers are somewhere in the middle, claiming some mantle of academic freedom but generally treated like most public employees. Query whether it would have made strategic sense to bring separate suits, allowing the court to focus on the unique First Amendment analysis for each and to earn a strong victory on the one obvious winner.

[*] if they do, consider the unintended consequences--a conservative student would have a viable First Amendment claim against a school board that prohibits, for example, teaching that Jim Crow was anything other than an unalloyed evil.

• The consultant brings a claim as an employer, alleging that the law infringes her right to present certain views in employee and organizational trainings by defining certain trainings (those that present certain viewpoints) as employment discrimination. But I am not sure this claim is appropriate for an offensive pre-enforcement claim. Any employment discrimination would be challenged by the employer filing an administrative or civil action. No defendant--the governor, the AG, members of the Board of Education, and members of the Board of Governors--is responsible for enforcing those provisions in that context. To the extent the consultant is concerned about what her employees might do, she may have to wait and defend on First Amendment grounds.

Posted by Howard Wasserman on April 24, 2022 at 01:26 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, April 23, 2022

The Perils of Constitutional Shorthand

Many people refer to Section Three of the Fourteenth Amendment as the Disqualification Clause. Of course, Section Three does not use the word "disqualification." And I did not describe the provision this way in my law review article. But I started doing so afterwards, as others were using that term and it seemed harmless.

Not anymore. An Arizona Superior Court dismissed a set of Section Three challenges yesterday in part by saying that the state eligibility statute refers to "qualifications prescribed by law" rather than "disqualifications" that are proscribed by law. Thus, the court said that the Disqualifications Clause is not enforced by state law.  

My first response is that there is no difference between a qualification and a disqualification. If I run for the Senate at age 18, have I failed to meet the age qualification or am I disqualified by being too young? But even if there is a difference, Section Three says nothing about disqualification. The Fourteenth Amendment's framers explained that Section Three added another qualification to the ones in the text. (The Arizona court responded that the Supreme Court has never so held, but that isn't saying much since the Supreme Court has said nothing meaningful about Section Three.) I want to take a closer look at the congressional precedents to see if they speak to this point, and if I find anything significant I will update the post.

UPDATE: Here is what the House of Representatives said about this point in excluding Victor Berger in 1919: "In the present case there is a fourth qualification prescribed by the Constitution, or rather a fourth prohibition, as the qualifications set forth in the Constitution are put in negative form . . ." Then the Report quotes Section 3.  This supports what I said above, which is that the Arizona Superior Court's distinction between qualifications and disqualifications cannot withstand scrutiny.

Posted by Gerard Magliocca on April 23, 2022 at 04:25 PM | Permalink | Comments (0)

FIRE on Florida's anti-woke law

Gov. DeSantis signed HB7 (the anti-woke law) that attempts to regulate what and how we can teach certain topics, including in higher ed. FIRE sent letters to every public college and university in the state (here is the letter to FIU) explaining how the law offends academic freedom and the First Amendment freedom to teach and write what we believe appropriate and urging schools to interpret the law narrowly or not to enforce. The letters argue much of what I discussed at a faculty meeting of another FIU unit last week.

Posted by Howard Wasserman on April 23, 2022 at 11:27 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

In memoriam, Michael Olivas

Ediberto Roman offers a tribute at Faculty Lounge (comments are open for those wanting to remember him).

Posted by Howard Wasserman on April 23, 2022 at 10:42 AM in Teaching Law | Permalink | Comments (0)

Friday, April 22, 2022

Update On the Pending Section Three Challenges

  1. Madison Cawthorn--The Fourth Circuit will hear oral argument on May 3rd.
  2. Marjorie Taylor-Greene--The state ALJ will issue a report to the Georgia Secretary of State sometime in the next month.
  3. Paul Gosar, Andy Biggs, and Mark Finchem--Today an Arizona Superior Court dismissed these cases. An appeal in state court will follow.
  4. Couy Griffin. Griffin has filed a federal removal action in this New Mexico quo warranto case.

There is also a challenge in Wisconsin against Senator Ron Johnson and others, but I must admit that I don't know much about that case.

Posted by Gerard Magliocca on April 22, 2022 at 04:33 PM | Permalink | Comments (0)

How is this not legislative immunity?

Ninth Circuit allows a First Amendment suit to go forward by a member of the Oregon legislature against against legislative leaders and officials for imposing a rule requiring him to give notice before entering the building, in response to his public statements. Accepting this was retaliatory, how is this not the rules of proceedings of an administrative body as applied to a member of that body.

I am so confused I am leaving comments open (although will delete unrelated ones).

Posted by Howard Wasserman on April 22, 2022 at 01:43 PM | Permalink | Comments (0)

Thursday, April 21, 2022

Bad legal journalism

I (and most lawyers) regularly complain about how badly the media covers courts and law. I am particularly attuned to sloppy and inaccurate use of procedural terms (e.g., "enjoining a law"). I hope for better from a publication such as Bloomberg, which is dedicated to talking about law. No such luck, as shown in a story about efforts of Gov. DeSantis and his legislative lackeys to punish Disney's objections to "Don' Say Gay" by repealing its exclusion from the state's social-media law. The story begins "Florida’s governor may be able to impose swift retribution against Walt Disney Co. for publicly disagreeing with the state’s “don’t say gay” education law."

First, the author seems quite blase about the governor of a state seeking retribution against someone who disagrees with state policy and about legislators agreeing that "the governor’s anger was well placed, and we’re happy to take it up." So new legislation targets an entity when that entity takes a political position that angers the governor and legislators back the governor. The reporter describes it as "retribution," yet treats that as an ordinary thing that happens (and, implicitly, should happen) when members of the public disagree with government officials. As opposed to one of the core things the First Amendment is designed to prohibit.

Second, she misconstrues the likely First Amendment validity of the social-media law. She writes as if the Disney exclusion was key to district court's reasoning in declaring the law invalid, quoting another Republican calling this a "good bill" because it treats all providers evenly. She also calls reversal of the district court "a real possibility" simply because it is on review to the 11th Circuit. But the Disney exception was not central or even necessary to the district court's analysis, functioning more as an absurd cherry on the constitutionally invalid sundae of this law. The court found the law compels speech under Tornillo, making it invalid no matter how even-handed--government can neither compel some people nor all people to speak or to carry the speech of others. And the court identified three reasons the law is "as content-based as it gets" before mentioning Disney. DeSantis, et al live in a fantasy world if they believe expanding the scope of the law eases its constitutional problems, yet the reporter echoes their points as if they are legally plausible. There also is no way the 11th Circuit, as conservative as it may be, reverses on this; these laws are not valid without overruling multiple areas of precedent.

I wish writers and editors did better than this; I would expect it from those at a publication that specializes in law.

Posted by Howard Wasserman on April 21, 2022 at 09:28 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Another SB8 funder suit

This one in federal court in Texas (HT: Josh Blackman). Plaintiffs are an abortion fund and individuals who work for and contribute to it; defendants are individuals who have initiated state proceedings or sent cease-and-desist letters; both should be enough to establish standing to stop future actions (and thus get a determination of SB8's validity). Two weird pieces. First, the complaint contains no allegations that the defendants act under color, despite being brought under § 1983; the lawyers dropped those allegations in favor of a lengthy description of SB8's legal scheme that should not be part of a complain. Second, it seeks a declaration that Texas' criminal abortion ban is invalid and unenforceable (as the law at issue in Roe), but did not sue anyone whose job is to enforce that ban; courts can be free-wheeling with DJs (which come close to advisory opinions anyway), but they at least demand a proper adverse party.

It's always something. This again shows that offensive, pre-enforcement litigation in federal court is possible and workable. It required more work and is more of a pain-in-the-neck. But it is available and consistent with ordinary rules of civ pro and civil rights litigation.

Posted by Howard Wasserman on April 21, 2022 at 08:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, April 20, 2022

Nerd Alert for Federal Courts Experts

Here is a question. In Re Griffin was an 1869 decision by Chief Justice Chase, sitting as a Circuit Justice in Virginia. Is this decision binding precedent for the 4th Circuit today? There was, of course, no 4th Circuit then. But the current 4th Circuit includes Virginia. Does this make a nineteenth century Circuit Justice decision from Virginia a binding decision in that circuit? Curious minds want to know.

Posted by Gerard Magliocca on April 20, 2022 at 11:29 AM | Permalink | Comments (0)

More universal injunctions

Sam Bray exposes the flaws in the district court's reasoning on issuing a universal injunction on enforcing the transportation mask mandate. I will add a couple points. First, the district judge committed every analytical error Judge Sutton identified as a problem with universality. Second, Sam's makes a point I have made and that is worth emphasizing: To the extent it may be difficult to identify who is protected by a particularized injunction, that is for the executive in its future enforcement decisions and the district court in enforcing its judgment; it should not be the predicate towards beginning with overbroad relief.

Finally, I co-sign Sam's conclusion:

[T]his is a deeply broken system.  * * * But it is a deeply broken system when the action and inaction of the various federal actors--House, Senate, President, agency reporting to the President--can be immediately swept aside by a single district court judge who chooses a remedy that is not only for the plaintiffs but for everyone.

* * * It doesn't have to be this way.

But it will stay this way if conservatives object to "nationwide" remedies only against Republican presidents, and liberals object to them only against Democratic presidents. Selective outrage and what-about-ism on the other side's inconsistency are a recipe for continued stalemate. If you object to these remedies on principle, stick to your principle, no matter who is President and no matter what you think of the merits.

Critics of universal injunctions are like free-speech absolutists--cursed with intellectual consistency.

Posted by Howard Wasserman on April 20, 2022 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 19, 2022

Restricting tenure, but not understanding why

Florida has passed a law designed to limit tenure by requiring tenured faculty to be reviewed by the Board of Trustees every five years. Gov. DeSantis announced the law at a press conference Tuesday (between promises to investigate Twitter's efforts to resist Elon Musk's takeover bid). The law does not specify a review procedure, so the devil will be in the details of what each university's Board comes up with.

The whiplash over the law's justifications is fun to watch. If I thought DeSantis or his minions had shame or self-awareness or that anyone in this state cared, I would say they have undermined their own cause. Instead, it is just Tuesday.

On one hand, DeSantis properly identifies the purposes of tenure--"to protect people so that they could do ideas that may cause them to lose their job or whatever, academic freedom"--and the supposed reason for limiting it--that "once you’re tenured, your productivity really declines." (Bracket for the moment whether the latter is true). On the other, he and others give the game away by ranting about indoctrination, smuggling ideology and politics, creating intellectual orthodoxy, and pushing ideas like socialism and communism. If  the purpose of tenure is to allow people to express unpopular ideas inside and outside the classroom, that must include those ideas that DeSantis and his henchpeople do not like and over which they want to fire tenure professors. So while purporting to limit tenure so it does not become a sinecure, they acknowledge they would limit tenure to stop professors from saying things they do not like or that students do not like. The goal is to ensure professors whose speech is "in line with what the state’s priorities are and, frankly, the priorities of the parents throughout the state of Florida."

DeSantis says he wants to protect "dissenting" ideas. But dissenting from what? It appears to be from the views that he and the state and the state's parents want. The point of tenure is that the governor should not dictate what professors teach and write. Unless he is not concerned that orthodoxy exists, only that professors may not share and express his orthodoxy.

Posted by Howard Wasserman on April 19, 2022 at 04:28 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Posted by Howard Wasserman on April 19, 2022 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

JOTWELL: Campos on Gilles on compelled arbitration

The new Courts Law essay comes from Sergio Campos (Miami), discussing the legislative testimony of Myriam Gilles (Cardozo) on bills designed to limited compelled arbitration.

Posted by Howard Wasserman on April 19, 2022 at 10:59 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Sunday, April 17, 2022

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

Posted by Howard Wasserman on April 17, 2022 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

An experiment

I was able to reach Erie for the first time since spring 2019 (i.e., pre-pandemic). My approach to that has been to teach Erie and Hanna, then present the Erie flowchart we all use, then work through a series of problems demonstrating each analytical path.

But I am pressed for time. In 2019, I spent four 70-minutes classes on Erie last time. This semester, I reached Erie with about 250 minutes of class time (two 105-minute sessions plus another 50-or-so minutes).

My attempted solution was to have them reach Erie and Hanna, but to lecture on them in class, which took about 60 minutes of class time. I now have 210 minutes to work through the problems.

We'll see how it goes.

Posted by Howard Wasserman on April 17, 2022 at 10:40 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, April 15, 2022

Tear Down This "Wall?"

Today's NYU Law controversy has something in common with earlier and by now routine Yale Law School controversies. That common feature doesn't seem to have gotten the attention it deserves.* That is the presence and role of a student listserv or "Wall" (as I gather the Yale student listserv is called) and the contribution that such spaces make to real or apparent controversies and unpleasantness at such institutions. 

I imagine that different schools run their student listservs different ways and have different reasons or justifications for having one at all. Of course one can imagine many ostensible justifications for having a student listserv and many of them are no doubt sound. (Others might be sound in some ways but not others: for instance, seeing it as a kind of consumer feature or customer service.) But one also imagines that ostensible purposes are not always actual purposes, that in many cases these spaces just sort of happened and then became taken for granted parts of the institutional landscape, that some of the justifications offered for them are rather post hoc,** and that in many cases, whatever the original justification was, such as making it easier to communicate news of upcoming events, their actual use now differs substantially.

Your institutional mileage may vary, but I suspect that what takes place on these listservs or walls is invisible to most professors. If anyone sees them at all, it may be only or mostly administrators. Some of my best friends are administrators, but there is no guarantee that they always make the right call about the function or value of communications in such places, or communicate what they hear to the faculty in a timely fashion. In other schools, professors may be part of the listserv but may or may not pay any attention to it.

It's also unclear to me how many students pay attention to the communications or fights on student listservs. As with other social media, however, it may be that the loudest voices are not necessarily the soundest or sanest ones, with the result that some small number of students drive controversy and disagreement while a larger number of students react by disengaging altogether. (Law professors who participate in subject-matter listervs, in which most people stop reading them while five or ten people regale themselves with repetitive and unpleasant debate and grandstanding, have no shortage of experience with this phenomenon.) As some of the Yale controversies suggest, these spaces may also encourage an unhealthy culture in which, again, some number of students actively scour the written record for evidence to use against their fellow students, while a larger number, for this very reason, stop saying anything at all. And all this is just about the political issues. On topics like exams, course selection, and other matters more relevant to the day to day life of the institution, they may drive up anxiety and bad information instead of calming it.

We seem to take student listservs or walls for granted. I don't see why we should. Not all communication is good communication and, even if we adopt the general view that more speech is better, not all communication structures are designed or managed in a way that achieves that goal well. Peer-to-peer communication is not always better than top-down, one-to-many communication. I generally favor cheaper speech, but clearly it has bugs or side-effects as well as positive features. There is something to be said, sometimes, for making it more costly and difficult not only to say the first thing that comes to mind, but to broadcast it instantly to a wide audience. There is lots of value in forcing reflection or delay before communication, or simply treating some forums as having a limited purpose rather than serving as open forums for general discussion.

That's especially true for institutions, and schools are institutions, with specific institutional goals and purposes, however much they may prefer the language of "community" or, worse, "family." And it must be said that nothing about these issues is unique to law schools or universities. They affect (or afflict) other institutions as well. Full many a New York Times staffer, to name just one prominent example, must rue the day they first heard of the "Slack app" or "Slack channel"; conversely, some staffers may love those spaces, but not necessarily the right people or for the right reasons. It seems to me that far from serving the institution and its purposes, sometimes these spaces serve those who have no particular interest in institutions, including their own, but instead think that every space, including institutional spaces, should be a space in which they can and should discuss and push on every issue of interest to them.

The discussion around these controversies generally dives immediately into either the substance of the debate or the usual arguments around "cancel culture," "hate speech," and so on. It is rarer for the discussion to start by asking about the structures that facilitated or enflamed the controversy in the first place. Perhaps when such controversies arise, and we find that a good deal of the controversy has to do with or takes place in a particular communicative context hosted or facilitated by the institution, such as a listserv or Slack channel or "wall," we might ask some prior questions, such as: Why the hell do we have such a space in the first place? Is it still serving the purpose--if any--for which we introduced it, or has it become more a source of trouble than a useful feature? Is it serving the entire population equally well, or is it disserving or driving away a larger percentage of the institutional population than the few for whom it is, apparently, a hobby or obsession? Why not get rid of it, or at least significantly alter the way it works? To be clear, I don't know what the right answer is. But it seems reasonable to me to ask the questions, rather than take the current setup for granted. It would be especially useful if all this were a faculty discussion, not one confined to and addressed by a few administrators, who might or might not be making the right call on these questions.      

*David Lat has commented at various times about the effects of the Yale Wall and the ways in which current students seem to use it differently and in, to use an awful contemporary word, a more "weaponized" fashion compared to his own time at that school.  

**Thus, one perfectly reasonable argument for keeping a law school listserv or its equivalent, or for concluding that whether one does or not is unimportant, is that students will do it themselves anyway. A friend or two have written to suggest that student connectivity is ubiquitous at every school regardless of the official setup. I have no reason to doubt that. But I'm not sure it's the reason the listservs were established in the first place, and I should think the chronology suggests otherwise. It seems to me, strictly anecdotally, that more of the public controversies involving fights on and evidence taken from listservs have involved official rather than unofficial sites, but I could be quite mistaken. (They also seem more often than not to involve the elite law schools. I assume the reason for this is not that these students are any better or worse than anyone else, although I could certainly imagine that there are some schools where students are too busy seeking jobs and learning practical skills to spend much time issuing statements and counter-statements. Rather, I imagine it has to do with these schools' visibility, their students' media savviness, the interconnectedness and shared social capital of American elites, and the odd shared view of elites and others, both within and outside these institutions, that what goes on in these places is somehow particularly significant.) If I'm not wrong about this, it would be worth asking why that is; perhaps it's the easy and/or automatic universality of the official site. In any event, in light of my view of institutions and their duties, I'm not crazy about futility arguments of this sort. The fact that nasty free-for-alls might erupt somewhere else is not much of a reason for an institution to host a site of its own for such free-for-alls. But I should certainly acknowledge that what law schools and other institutions do with their own resources will not prevent their members from doing unwise and intemperate things elsewhere.  


Posted by Paul Horwitz on April 15, 2022 at 12:41 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 14, 2022

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part II

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

Posted by Howard Wasserman on April 14, 2022 at 06:01 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 13, 2022

Upcoming Virtual Talk on "Washington's Heir" on May 11th

I will be talking about Bushrod Washington's life in Philadelphia for the Historical Society of Pennsylvania on Wednesday, May 11th at 6:30PM. Here is a link to the event if you would like to attend.

Posted by Gerard Magliocca on April 13, 2022 at 12:12 PM | Permalink | Comments (0)

Materials in the Some of the Section Three Cases

For any of you who wish to read the submissions in the ongoing North Carolina, Georgia, and Arizona Section Three challenges, this link provides access to those materials.

Posted by Gerard Magliocca on April 13, 2022 at 10:27 AM | Permalink | Comments (0)

Tuesday, April 12, 2022

Northwestern University Law Review Online Essay Series

From the Northwestern University Law Review Online:

Northwestern University Law Review Online is seeking essays for its first annual Online Essay Series to be published in May 2023. The topic for NULRO’s inaugural essay series is “Climate Change and Infrastructure: Existential Threats to Our Built Environment." NULRO encourages scholarship on all aspects of the intersection of climate change, infrastructure, and national security. Possible subtopics include economics, ecology, policy, litigation, advocacy, and international concerns. Essays should be between 3,000 to 10,000 words and submitted to Scholastica or via email at [email protected] The deadline to submit manuscripts is October 15, 2022. Authors can expect decisions on their submissions by November 15, 2022.

If you have any questions, please direct them to Taylor Nchako (Online Editor-in-Chief) at [email protected]

Posted by Sarah Lawsky on April 12, 2022 at 09:33 AM in Law Review Review | Permalink | Comments (0)

Monday, April 11, 2022

Civil Procedure in the Chief Justice's Year-End Report on the Federal Judiciary

Published in Stetson Law Review, part of a SEALS symposium on the Roberts Court's renewed interest in civil procedure.

Posted by Howard Wasserman on April 11, 2022 at 09:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

University of Florida seeks visitors

The University of Florida Levin College of Law is looking for visiting professors for the 2022-23 academic year. We are accepting letters of interest from professors to teach criminal law, patents, trademarks, antitrust, international law, environmental law, and property. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send a letter, CV with at least three references, and relevant course evaluations, directly to Associate Dean Amy Stein, [email protected].

Posted by Howard Wasserman on April 11, 2022 at 09:07 PM in Teaching Law | Permalink | Comments (0)

Thursday, April 07, 2022

UCLA School of Law seek Legal Research & Writing faculty

UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2022-23 academic year. The appointment will be effective July 1, 2022.

Continue reading "UCLA School of Law seek Legal Research & Writing faculty"

Posted by Howard Wasserman on April 7, 2022 at 01:19 PM in Teaching Law | Permalink | Comments (0)

Penn and Capitalizing on the Model Poor Student

I can't stop thinking about this story - every person who cares about academia and students, teaching and leadership, university ethics and the politics of merit, admissions and excellence needs to read this 

Posted by Orly Lobel on April 7, 2022 at 02:05 AM | Permalink | Comments (0)

Wednesday, April 06, 2022

A wild hypothetical

So something that proved more complicated than expected.

In transitioning from Subject Matter Jurisdiction to Personal Jurisdiction, we discuss the underlying process of World Wide--Audi and VWA paid for WW and Seaway to successfully challenge PJ through state court and to SCOTUS, then removed when SCOTUS held there was no PJ and the state trial court dismissed the claims against them.

But then I posed the following to the CivPro ListServ and no one could figure out the answer: Suppose the trial court found lack of personal jurisdiction and dismissed the claims against WW and Seaway. The case is now removable. If Audi and VWA remove, how does Robinson appeal the dismissal of the other defendants? Can Robinson's intent to appeal render the case not removable, perhaps by filing a notice of appeal before the Audi and VWA can file the notice of removal? If the defendants get into federal court before Robinson can appeal, his options seem limited.

This hypo is limited because unlikely. The strategy Audi and VWA followed is unavailable in most cases because § 1446(c)(1) prohibits removal of a diversity action that becomes removable more than a year after filing; it takes more than a year to brief and argue a motion to dismiss and more than one layer of appellate review. That limitation did not exist in 1980, which is why Audi and VWA could remove more than 3 years after the suit was filed. So this scenario likely does not arise in either direction.

Still, it exposes an interesting gap in the statutory framework. And it forced some creative solutions. Robinson might ask the federal court to stay the proceedings so the state appeal can proceed (and to not attempt to enjoin the state court from proceeding with the case). Or Robinson might amend in federal court to re-add the dismissed defendants, then ask the federal court to certify the propriety of the PJ dismissal to the state supreme court.

I stumbled on a third possibility this morning--Audi and VWA remove, then Robinson seeks a writ of mandamus to the 1oth Circuit, asking for review of the PJ dismissal. That prior order is part of the removed case. Robinson can satisfy the requirements for mandamus. This is extraordinary case. He does not have other adequate means to obtain relief, because the PJ issue affects whether the case should be in federal court in the first place--if the state court erred, the case should not have been removed and Robinson should not have to litigate in federal court, something that cannot be adequately protected if he must await final judgment in federal court. Robinson also faces the risk that the court of appeals would affirm subject matter jurisdiction, even if it believes the state court erred on PJ, because there was jurisdiction at the time of trial.

However unlikely, a fun problem that might expose a weird hole in the statutory scheme.

Posted by Howard Wasserman on April 6, 2022 at 11:54 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, April 05, 2022

Tulane Forrester Fellowship - 2022

From Tulane Law School:

Tulane Law School invites applications for a Forrester Fellowship. Forrester Fellowships are designed for promising scholars who plan to apply for tenure-track law school positions. The Fellows are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.

Continue reading "Tulane Forrester Fellowship - 2022"

Posted by Sarah Lawsky on April 5, 2022 at 01:47 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Personal or Impersonal Precedent?

Our co-blogger Richard Re has a new article coming out in the Harvard Law Review on "Personal Precedent at the Supreme Court." Here is the Abstract:

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

I want to highlight Richard's piece because there is a significant counterexample in my new book. As a circuit judge, Bushrod Washington held that the Bankruptcy Clause of Article One vested exclusive authority over that subject in Congress. But when the issue came before the Supreme Court, he wrote an opinion upholding the constitutionality of prospective state bankruptcy laws. He explained this by saying that he still thought his circuit opinion was sound, but that subsequent Supreme Court precedent had rejected his view.

Frankly, I think that we see too little of this deference today. In other words, the Justices tend to emphasize personal consistency at the expense of collective consistency. But the right balance is not easy to strike.

Posted by Gerard Magliocca on April 5, 2022 at 09:18 AM | Permalink | Comments (0)

Monday, April 04, 2022

"Favorable termination" requires non-conviction and nothing more

Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).

Posted by Howard Wasserman on April 4, 2022 at 09:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Bartholomew on Borchers on tag jurisdiction

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.

Posted by Howard Wasserman on April 4, 2022 at 03:00 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Plain Meaning and Plain Speaking

I've never given much thought to theories of statutory interpretation. But here's one that comes from being involved in some of the Section Three litigation.

Plain meaning arguments are largely circular. For example, suppose I say that the plain meaning of a statute is X. You respond by saying: "But lots of people said that's not so." I respond: "But you can't consider that because the plain meaning of the statute is X." The plain meaning argument therefore excludes some of the best evidence against itself (statements in the legislature, the context of the statute, subsequent commentary, etc.). Circular.

The only time, I think, that a plain meaning argument is not circular is if we agree on the plain meaning but then argue about whether an exception should be made. Maybe I take the strict view of "no exceptions allowed" to the plain meaning. Maybe you say there is some implicit exception or that equity demands one. But we're not in that case disputing the plain meaning of the text.

Posted by Gerard Magliocca on April 4, 2022 at 10:21 AM | Permalink | Comments (0)

Sunday, April 03, 2022

Working and playing on Shabbat

There Orthodox Jewish athletes have entered the Jews-in-sports conversation. Ryan Turrell was the star of some good Yeshiva basketball teams and has declared for the NBA draft; pitcher Jacob Steinmetz (coincidentally, the son of Yeshiva's basketball coach) plays in the Arizona Diamondbacks organizations; and pitcher-turned-catcher Elie Kligman plays at Wake Forest. Each hopes to make the top level of their sports as Shabbat-observant Jews.

What does having Orthodox Jews in The Show entail? According to reports, Steinmetz and Turrell plan to play on Shabbat, while avoiding driving to the game. One commentator sees this as a wise compromise and the evolution of full Jewish participation in American life, in which Jews need not choose between their identities as "Americans" and "Jews."

But how does this square the law of Shabbat, in which we can neither work nor play (barring the workaround they found for Hank Greenberg on Rosh Hashanah in 1934)? Do rabbis apply some sort of "necessity" principle--these players cannot pursue these activities, and thus use the gifts Hashem has bestowed upon them, without this workaround? An everyday baseball player who cannot play on Shabbat is guaranteed to miss about 35 games, almost 20 % of the season; no team could afford to miss a key player for that much of the season. And what might Steinmetz do on Yom Kippur, when (unlike Shabbat) most American Jews take at least a partial day off? It would be ironic if millions of less-observant Jews (and the occasional less-observant Jewish player) take the day off and attend synagogue on Yom Kippur, while a player who follows more of Jewish law and ritual in his daily life takes the mound. Not worried about being a role model for American Jews, he need only worry about the Koufax Curse.

Posted by Howard Wasserman on April 3, 2022 at 08:49 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Friday, April 01, 2022

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Posted by Howard Wasserman on April 1, 2022 at 03:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

"Who Decides?"

I'm now reading Judge Sutton's new book on state constitutional law. It's just as good as his prior book on the subject, which was 51 Imperfect Solutions. In particular, I like how this book draws attention to scholarship on subjects such as how territorial judges functioned (something I'd never thought much about before).

After reading 51 Imperfect Solutions, I thought about how I could incorporate state constitutional law into my Con Law curriculum. The trouble is that it's pretty hard when you have only one semester to cover the material. Just doing the major Supreme Court cases takes so much time. But perhaps this book will inspire me further.

Posted by Gerard Magliocca on April 1, 2022 at 01:11 PM | Permalink | Comments (0)

Tuesday, March 29, 2022

Joseph Story and Bushrod Washington

My biography of Justice Washington changes the story of the Marshall Court. We see the Court as more of a team on which Washington was a leading player. To some extent, this revisionist account comes at the expense of Justice Story. That said, the relationship between Story and Washington gets its turn in the sun. They had an apprentice/mentor connection given their difference in age and the fact that Bushrod had no children. But what they shared was an obsession with the law.

Put simply, Washington and Story were both law nerds. You see that in the detailed reports and commentaries that they sent each other about their circuit cases. The reports read as if they couldn't wait to tell each other about the complex issue they just decided or the nifty argument that was made. You don't see John Marshall writing these sorts of letters. My impression of Marshall after writing this book is that he was a very bright man who happened to be a lawyer. Marshall had many interests and probably did not think much about law in his spare time. Not so for Washington and Story. 

The chief difference between Washington and Story was their work method. Story was much more prolific and a much faster writer. But he also made more mistakes. Washington was slow and deliberate, in part because his poor eyesight probably forced him into that routine. These contrasting styles created some fascinating tensions in cases where Washington and Story disagreed. (I found one example where Story lost his majority opinion to Bushrod and ended up dissenting.) So I hope this book becomes part of the necessary reading for Marshall and Story scholars.

Posted by Gerard Magliocca on March 29, 2022 at 12:05 PM | Permalink | Comments (0)

Monday, March 28, 2022

Cert denied in John Doe relation back

The Court denied cert (without noted dissent) in Herrera v. Cleveland. The Seventh Circuit held (consistent with every circuit to consider the issue) that John Doe claims do not relate back under FRCP 15(c)(1)(C), because intentionally pleading a Doe placeholder when the plaintiff does not know the defendant's name is not a mistake concerning the proper party's identity. Too bad. I thought this case had a chance to get to the Court. The approach to mistake is arguably inconsistent with the Court's broad take on relation back in Krupski and has adverse effects on civil rights plaintiffs. Civ Pro professors and civil-rights activists filed amicus in support of cert.

Posted by Howard Wasserman on March 28, 2022 at 04:36 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Returning to Work: How COVID Changed Employment and Labor Law

This Berkeley Symposium promises important insights and timely conversation. free and open to all.

Posted by Orly Lobel on March 28, 2022 at 01:52 PM | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

Posted by Howard Wasserman on March 26, 2022 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)