PrawfsBlawg

Friday, October 15, 2021

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

Posted by Howard Wasserman on October 15, 2021 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Defining an Insurrection

One question that will arise in any Section Three litigation is whether what occurred at the Capitol in January was an insurrection in a constitutional sense. One argument against that conclusion is that an insurrection for Section 3 purposes must be comparable to the Civil War. The riot at the Capitol, the argument goes, was not significant enough to qualify. 

While I'm sure there'll be more research on this point, my initial review of sources prior to the Civil War indicates that "insurrection" was used to refer to all sorts of smaller scale events that involved a group of people who used violence in part to obstruct a legal process. For instance, the Whiskey Rebellion of the 1790s was described as the "Whisky Insurrection." Shays Rebellion in the 1780s was described as an insurrection. Nat Turner's Rebellion in the 1830s was described as the "Southampton Insurrection." And so on.

Here's another interesting piece of evidence. When Federalist #10 appeared in the newspapers in New York, the subtitle of Madison's Essay was "The Union As a Safeguard Against Domestic Faction and Insurrection." Madison was not talking about a civil war or some large-scale calamity. He was instead explaining why a larger union would tend to prevent factions powerful enough to obstruct the law.

Did Section Three of the Fourteenth Amendment change the definition of insurrection in 1868? I don't think so. Nobody at the time said that they were applying a stricter or more limited meaning. And the post-bellum use of the term does not seem different.

BTW, I didn't know the subtitle (or headline) of Federalist #10 until yesterday. Makes me wonder how the other essays were subtitled. 

Posted by Gerard Magliocca on October 15, 2021 at 09:21 AM | Permalink | Comments (20)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

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

SCOTUS is next.

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

FDR on States'-Rights

One of the strongest (and most surprising) defenses of federalism came from Franklin D. Roosevelt in 1930. As Governor of New York, FDR gave a radio address on the subject that took a pro states'-rights view that is (needless to say) ironic given his actions as President. Here is a link to the speech, and here are some choice quotes:

Posted by Gerard Magliocca on October 14, 2021 at 01:14 PM | Permalink | Comments (6)

The state role in offensive and defensive litigation

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

Continue reading "The state role in offensive and defensive litigation"

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

Wednesday, October 13, 2021

Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a "rule of law" that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

Posted by Richard M. Re on October 13, 2021 at 10:09 PM | Permalink | Comments (2)

Argument in Thompson v. Clark

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

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

Justice Thomas?

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

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

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

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

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

The Return of Space Law

Space law was a hot topic in the 1960s. I recall from law school a portrait of Myres McDougal that had the moon in the background because of his work on space law. 

Needless to say, space law has not been a hot topic since the 1970s. Indeed, it's almost not a topic at all. But that should start to change. The advent of space tourism means that people need to start thinking harder about basic questions of jurisdiction and substantive regulation for injuries that occur on a space flight. Some of the treaties on space law were made with the Soviet Union and are woefully out of date, for example. 

BTW, you could ask whether maritime law might provide a better template for space law than the common law, but I'd need to give that more thought.

Posted by Gerard Magliocca on October 13, 2021 at 09:02 AM | Permalink | Comments (5)

Tuesday, October 12, 2021

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Posted by Howard Wasserman on October 12, 2021 at 11:14 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, October 10, 2021

Fair Play and Democracy

Turning back to the subject of FDR's Constitution Day Address, here is one passage that stands out: 

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.

A common theme in the 1930s and 1940s was that democracies in Europe failed after World War I because nations could not respond effectively to economic distress and inequality. One implication of this view is that law was neither a cause nor the salvation. You see this idea in Learned Hand's "Spirit of Liberty" speech in 1944 and in some of Churchill's writings from the same period. This is the intellectual context for FDR's statement in the Address that the Constitution is a "layman's document, not a lawyer's contract." Lawyers are not the heroes in his constitutional narrative: they are the villains. The fact that they are the villains explains why lawyers and courts have ignored the Address for as as long as they have. (As I'll point out in my paper, the Constitution Day Address is a pre-civil rights era story of the United States. Lawyers look better after Brown.) 

When people consider the more recent democratic failures, they instead emphasize cultural factors. The Arab Spring, for instance, is not seen as something grounded in economics. Neither is the failure of democracy in Russia in the 1990s. But you could describe both events in those terms. Granted, there was a stronger link between economics and politics in the 1930s and 1940s (think of people like Keynes and Hayek and their influence). But even in the 1980s, I would venture to say that successful democracy was associated closely with economic success in a way that faltered in the 1990s. Perhaps that is because of the rise of China. More on that in a later post.

Posted by Gerard Magliocca on October 10, 2021 at 09:44 PM | Permalink | Comments (4)

Argument preview for Thompson v. Clark

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

 

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

Saturday, October 09, 2021

Administrative Stay in SB8

The Fifth Circuit issued an administrative stay of the injunction and gave the U.S. until Tuesday to respond to the motion for stay pending appeal. The U.S. has the option of asking SCOTUS to stay the administrative stay or briefing the stay in the Fifth Circuit.

This is wrong. Because the district court (in 113 pages) issued the injunction, the status quo that the stay is designed to maintain changed to favor non-enforcement of the law. And the balance of equities favors the U.S. The state has an interest in enforcing its laws. But the state always has that interest, so that cannot be the end of the inquiry. Hundreds of pregnant people are forced to continue pregnancies or to incur the cost and burden of traveling outside of Texas while the litigation is ongoing. And non-enforcement pending review does not produce "chaos" with long-term consequences that the state cannot unwind. (Compare marriage-equality, where requiring licenses to be issued would have meant thousands of same-sex couples with valid-at-the-time-but-no-longer-valid that the state must either accept contra state law or retroactively invalidate).

SB8 attempts to account for this situation. A provider can be liable for abortions performed in reliance on a "decision" that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal.* So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction. That should be factored into the balance of equities, as decreasing the harm to the state. In fairness, the lawfulness of that provision as applied to injunctions is uncertain; the Court has never resolved whether a party can be retroactively liable for conduct taken while enforcement of a law has been enjoined. But that is on Texas, not the rights-holders on whose behalf the U.S. has sued.

    [*] I say appears because "decision" is a legally meaningless term--courts issue judgments and opinions. So that could mean the provider can be liable for relying on Roe and Casey if they are eventually overruled or for relying on the precedent of one SB8 case.

Posted by Howard Wasserman on October 9, 2021 at 08:24 AM | Permalink | Comments (3)

Friday, October 08, 2021

The Marshall Court and the Warren Court

Next year I'll have an essay on "Bushrod Washington and the Marshall Court" in the Journal of Supreme Court History, which is published by the Supreme Court Historical Society. Under their rules, I cannot share the draft on SSRN. Nevertheless, I can do a riff on a theme in the essay, which is also a theme in my forthcoming book on Justice Washington.

A Chief Justice of the United States cannot be a successful leader of the Court without an able and willing partner among the Associate Justices. Bushrod Washington and John Marshall were close collaborators. This is largely why Marshall was a great Chief. Earl Warren found close collaborators in Hugo Black and William Brennan. He was also very successful. Same with Chief Justice Taft and Willis Van DeVanter. The Chief Justices that are forgettable or considered failures lacked a reliable partner. While a Chief Justice might not develop that sort of pivotal relationship due to blunders (maybe Warren Burger is an example), sometimes it's just not something he can control. Maybe Chief Justice Roberts is in this boat now. He cannot lead the Court effectively because he lacks a partner.

The myth of John Marshall clouds this picture. People generally think that he led the Court by himself, so they naturally ask why can't other Chief Justices do the same. But he did not, in fact, lead the Court by himself. Consider the following analogy. When people refer to the Warren Court, they do not mean that Chief Justice Warren did everything. Virtually everyone understands that the Warren Court was a collaborative effort among many strong Justices. The same thing is true about the Marshall Court.

Posted by Gerard Magliocca on October 8, 2021 at 12:31 PM | Permalink | Comments (6)

Thursday, October 07, 2021

How Important is the Rule of Law?

In some prior posts, I mentioned that I am finally writing an article on FDR's Constitution Day Address in 1937. I've been interested in this speech for years but unsure about how to approach the issues he raised there. Now I have a better sense on that point.

The question posed by Roosevelt's speech is why do democratic constitutions fail, which is a topic now attracting considerable attention due to democracy's decline around the world since the peak in the 1990s. You could answer this question in different ways. One is cultural. In effect, you need to develop a culture that supports democracy or harness cultural forces that can be supportive. Here you can look at Alexis de Toqueville and civil society, or Walter Bagehot and the idea of constitutional monarchy. Another answer is that the rule of law is indispensable to constitutional success. If you don't have a strong legal culture, the rest doesn't matter. (I'm not quite sure who is the best authority to cite here--perhaps readers have thoughts.)

FDR instead argued that democratic constitutions fail if they are inflexible and do not provide people with a growing standard of living. In other words, it's an entirely pragmatic explanation. He based his claims in part on the failures of the post-World War One democracies in Europe, though he also made them to advance his own domestic agenda. He said little about culture, except to acknowledge the vital role that civil liberties play in the Anglo-American tradition. And he definitely did not think the rule of law was the cause. Indeed, the speech is famous for its dismissive tone towards lawyers who are labelled, to paraphrase Ronald Reagan, the problem and not the answer.

This brings me to the present. How important is the rule of law for a democratic constitution? Is constitutional democracy in retreat due to culture, legal culture, or the failure to generate economic results? More on this in the next post. 

Posted by Gerard Magliocca on October 7, 2021 at 10:27 AM | Permalink | Comments (1)

Wednesday, October 06, 2021

Braid v. Stilley in federal court

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

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

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

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

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

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

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

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

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

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

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

JOTWELL: Vladeck on Siegel on habeas

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Jonathan R. Siegel, Habeas, History, and Hermeneutics, Ariz. L. Rev. (forthcoming 2022), which traces the history of habeas in the shadow of Edwards v. Vannoy.

Posted by Howard Wasserman on October 6, 2021 at 01:23 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, October 05, 2021

The Supreme Court's New Oral Argument Process

One unexpected effect of the pandemic is the significant improvement in the Court's oral arguments. We now regularly hear from Justice Thomas. The Justices don't talk over each as much. It's much easier to follow what is being said. It's great.

The live audio is also a plus. I must say that I'm much more inclined to listen to arguments now rather than just read the transcript. Why? 'Cause it's live! Who knows what might happen? (OK, nothing that dramatic is going to happen, but still . . .)

One revelation, though, is that the quality of many of the oral advocates before the Court is worse than I thought. Transcripts make presentations look much better than they actually are because they remove all of the awkward pauses. I was taught about this as a rookie lawyer learning how to take depositions, but the difference between how the arguments read and how they sound is greater than I expected. (Though not for everyone--Jeff Fischer was outstanding today, though that is no surprise.)

More posts starting tomorrow. The pause that refreshes is over. 

Posted by Gerard Magliocca on October 5, 2021 at 09:16 PM | Permalink | Comments (8)

SB8 and SCOTUS politics

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

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

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

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

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

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

Monday, October 04, 2021

A Jewish post-season (Updated)

As baseball's post-season begins, my side interest will include following the Jewish players competing for a championship. No concerns for missing holy days this year, since they have passed. There is a greater risk that if play continues too far into November it will run into Chanukah, which begins on November 28.

We have: Pitcher Max Fried and outfielder Joc Pederson of the Braves; third-baseman Alex Bregman (who at this point must be closing on the record for post-season games by a Jewish player) and backup catcher Garrett Stubbs of the Astros; and Rowdy Tellez of the Brewers, activated off the IL. The unknown is pitcher Ryan Sherriff of the Rays, who is one of several lefty relievers from whom the team will choose. [Update: Sherriff is not on the Rays' roster for the ALDS, although there is a chance he could be for later series if they advance]

A Braves-Astros World Series (possible but unlikely--the Braves won a weak division and have the worst record of the six NL post-season teams) would produce the first four-Jew Series.

Posted by Howard Wasserman on October 4, 2021 at 04:31 PM in Sports | Permalink | Comments (0)

Northwestern Pritzker School of Law Faculty Hiring

Northwestern Pritzker School of Law invites applications for tenured or tenure-track faculty positions with an expected start date of September 1, 2022. This is part of a multi-year strategic hiring plan, and we will consider entry-level, junior, and senior lateral candidates.

Continue reading "Northwestern Pritzker School of Law Faculty Hiring"

Posted by Sarah Lawsky on October 4, 2021 at 01:33 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Saturday, October 02, 2021

Constitutuionalizing constitutional litigation

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

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

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

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

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

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

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

Friday, October 01, 2021

ICYMI: My thoughts on the Alex Jones Defamation Cases (Fall 2018--First Amendment News)

Libel, Lies, and Conspiracy Theories

       Alex Jones of Infowars certainly knows how to monetize controversy, or at least he did until now. Since 1999, Jones has built a vast audience and has made millions of dollars by peddling conspiracy theories and survivalist supplies via the radio, Internet, and social media. He’s asserted that the U.S. government was behind the attacks on 9/11, that Democratic officials were using a pizza parlor in D.C. to operate a satanic child porn ring, that the Sandy Hook Elementary School shooting was a hoax, that a man who witnessed the killing of a woman protesting against armed white nationalists in Charlottesville was actually a deep state operative and accessory to the murder, and that a Boston man who had never been to Florida perpetrated the Parkland shootings. Several of the people targeted by Jones, including the Sandy Hook parents he labelled “crisis actors,” have sued him for libel and other torts. As a result of public pressure, Jones’ content has now been “de-platformed” from Facebook, YouTube, Vimeo, iTunes, LinkedIn, Pinterest, Mailchimp, Stitcher, YouPorn, and Spotify. He has also been suspended temporarily by Twitter.

It is worth examining the Sandy Hook libel suits against Jones to gain clarity about the limits of the First Amendment and contemplate some of problems libel law faces in the “post-truth” era.

If Jones were simply peddling conspiracy theories perpetrated by unnamed actors or large anonymous groups, such as “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And this protection would hold even if his conspiracy theories targeted broad groups such as African-Americans, Jews, or Muslims with hateful or pejorative lies.

Although the Supreme Court has held that false information has “no constitutional value,” lies that do not cause direct, tangible harm to individuals are constitutionally protected. The government may not censor such lies (though private actors such as Facebook and Twitter may). For at least the last fifty years, the Court has not deemed interests such as preserving the dignity of a group or protecting society from “fake news” as sufficient to justify imposing liability upon speakers who peddle lies. Moreover, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views, although it may punish incitement, discrimination, threats, crimes, and defamation.

The reason for protecting vague conspiracy theories and the theorists who propound them rests in part upon an unwillingness to unleash the government to serve as a roving truth commission. The government’s temptation to suppress criticism would be far too great, and the history of censorship is replete with examples of the suppression of truth and enshrinement of error. In general, therefore, the remedy for false speech is counterspeech. As the Court stated in Dennis v. United States: “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.”  A further pragmatic rationale for letting even hateful conspiracy theorists seek adherents (as long as their theories do not target individuals) is that government suppression can sometimes lend them and their theories more legitimacy (as I’ve discussed here). In such situations, it is better to leave them peddling their wares in the back alleys of the marketplace of ideas than risk bringing them to the fore by censoring them.

Jones crossed a critical line, however, when he went beyond vague conspiracy theories to disparaging the parents of murdered children by accusing them of fabricating their children’s deaths. As libel cases go, this is about as easy a case as one can imagine. Inventing supposed “facts” that cause reputational harm to vulnerable individuals is the essence of the tort of defamation. The central issue in a defamation claim is whether the defendant published or posted a statement that was false and defamatory. Here, copiously available evidence testifies to the falsity of his statements, and the accusation that parents fabricated a child’s death to advance a social agenda is certainly one that would harm their reputation in the eyes of their community.

Jones’ lawyers have argued that his statements are not defamatory because they are mere opinion. They are not—at least not in the constitutional sense that would bring them within the mantle of First Amendment protection. In considering protection for opinion, the Supreme Court held that the government may not award plaintiffs damages for harm to their reputations based upon a defendant’s publication of statements about matters of public concern that are unverifiable or cannot reasonably be interpreted as stating actual facts about the plaintiff.

Jones’ lawyers have asserted that no reasonable readers or listeners could interpret Jones as stating actual facts about his targets. I have long and repeatedly argued that context is crucial in discerning whether speech is asserting actual facts or instead is mere hyperbole. Although Jones’ statements as a whole should certainly be taken with a grain of salt by reasonable readers, there is little about his statements targeting the Sandy Hook parents by name that brand those statements as non-factual. Admittedly, Jones uses a ranting or hectoring tone in many of his videos, and it is public knowledge (easily discoverable via a Google search) that some of his prior conspiracy theories have been proven false. But Jones appears to have taken pains to bolster his credibility with segments of his very large audience and overcome any assumptions that he might be engaging in schtick or hyperbole. On the Infowars website, Jones asserts that his radio show, which is “syndicated on over 160 stations across the country . . . routinely breaks huge stories in addition to featuring some of the most insightful and news making guests from across the world.” He touts his “team of news reporters who provide cutting edge analysis” and his past interviews with prominent political figures such as Rand Paul and Noam Chomsky. He has also been praised by President Trump, who appeared on his online show. Moreover, Jones knows that some of his audience members clearly do not view his statements as mere hyperbole, because at least two of them are in jail for responding to his statements with violence or threats of violence against those Jones accused of wrongdoing.

The other argument Jones is likely to employ in the libel cases against him is that he lacked actual malice. “Actual malice” is a legal term of art that entails actual knowledge of falsity or reckless disregard of the truth on the part of the speaker. The Supreme Court has stated that actual malice requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The very examples of actual malice given by the Court describe Alex Jones’ conduct to a T. In St. Amant v. Thompson, the Court said that actual malice exists if a defendant invents a story, bases it on “an unverified anonymous telephone call,” publishes statements that are “so inherently improbable that only a reckless man would have put them in circulation,” or publishes them despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports.” Granted, it is not clear that the parents will even have to prove actual malice, because they may be private rather than public figures. It is an open quesiton whether granting media interviews after one’s child is murdered is enough to transform a person into a public figure for libel purposes. This is a hard and important issue that deserves clarification by the Supreme Court. Be that as it may, the plaintiffs suing Jones ought to be able to prove actual malice even if they are deemed to be public figures due to the nature of his remarks.

Another defense Jones might assert is one that might be dubbed the “Courtney Love defense”—namely that Jones did not recklessly disregard the falsity of his statements because he irrationally believe them to be true. As my co-author RonNell Andersen Jones and I pointed out with regard to the Twitter libel cases against Courtney Love, there is no insanity defense to a libel claim. However, the determination of whether a defendant acted with actual malice is subjective, meaning that a defendant’s delusional belief in the truth of his own lies might absolve him of responsibility for libel. It would be highly problematic, however, to give mentally disordered or vengeful defamers license to embark on campaigns of character assassination based on fantasies they concoct. As a practical matter, the problem is likely to be solved by the skepticism of juries, for it is hard to believe a jury would accept Alex Jones’ assertions that he believes his own baseless accusations. Moreover, one can hardly conceive of more sympathetic plaintiffs than the parents of murdered children who were subjected to death threats because of one man’s cruel accusations.

            Even ardent defenders of free expression must concede there are limits to the right lest they lose credibility. Drawing the line is easy when purveyors of malicious lies are harming the reputations of innocent individuals, such as the Sandy Hook parents. Defamation law exists to enforce baseline norms of civility and respect for the dignity of the individual.  It also rewards the investment of individuals in their good names by giving them redress when those names are smeared by unscrupulous speakers such as Jones. Moreover, defamation law helps guarantee that public discourse retains a necessary anchor in truth, because public discourse without such is meaningless.

            Given these important interests, proper resolution of an easy case is a good way for the law to remind speakers like Jones that we do not truly live in a post-truth era.

Posted by Lyrissa Lidsky on October 1, 2021 at 01:53 PM | Permalink | Comments (2)

Thursday, September 30, 2021

Newell's Law Review Meta-Rankings 2021

Since we are ranking things, here is Bryce Newell's 2021 Law Review Meta-Rankings.

Posted by Howard Wasserman on September 30, 2021 at 03:03 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (2)

Tuesday, September 28, 2021

A Fair and Inclusive Alternative to the Sisk Academic Impact Rankings

The following guest post is by Matthew Sag (Loyola-Chicago). This post is a short version of this new essay.

The Sisk Rankings of the academic impact of law school faculties have been around for a while now. Gregory Sisk and his team release these rankings of the top 67 or so schools every three years. And so every three years I find myself wondering: “Really? Can it be true that all these schools have higher academic impact scores than Loyola Chicago, DePaul, and Houston Law?”

Continue reading "A Fair and Inclusive Alternative to the Sisk Academic Impact Rankings"

Posted by Howard Wasserman on September 28, 2021 at 09:31 AM in Life of Law Schools, Teaching Law | Permalink | Comments (19)

Monday, September 27, 2021

Professor and Director of the Center for Negotiation and Dispute Resolution, UC Hastings

The University of California Hastings College of the Law in San Francisco is conducting an open-rank search to hire one lateral tenured or tenure-track faculty member to begin July 1, 2022. The ideal candidate will be a productive scholar in the field of alternative dispute resolution, a successful teacher, and a visionary programmatic administrator capable of leading the nationally esteemed Center for Negotiation & Dispute Resolution (“CNDR”).

Continue reading "Professor and Director of the Center for Negotiation and Dispute Resolution, UC Hastings"

Posted by Howard Wasserman on September 27, 2021 at 12:24 PM in Teaching Law | Permalink | Comments (0)

Must SCOTUS Injunctions Abide By Precedent?

There now appears to be consensus at the Court that it may issue injunctions not only when claims are “indisputably clear,” but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable. 

Indeed, it is fair to say that every sitting justice has recently voted for at least one “anti-precedential injunction,” that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that “newly minted rights . . . cannot justify an emergency injunction pending appeal.” 

This controversy resembles debates over many other “clarity doctrines.” There are two basic ways forward:

Continue reading "Must SCOTUS Injunctions Abide By Precedent?"

Posted by Richard M. Re on September 27, 2021 at 10:47 AM | Permalink | Comments (16)

Friday, September 24, 2021

Easy First Amendment cases

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

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

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

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

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

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

Wednesday, September 22, 2021

Florida sinks to Texas' level

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

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

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

The truth of SB8

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

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

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

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

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

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

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

Tuesday, September 21, 2021

Stare Decisis as Crying Wolf

Stare decisis is in the news again as the Supreme Court begins to consider requests to overrule abortion-rights precedents. To a great extent, the justices have spent years preparing for this moment, as every recent debate over precedent has seemingly had abortion rights looming in the background. Dissenting justices have adopted certain rhetorical strategies, and majority justices have had to respond. 

I explore this rhetorical dynamic in a forthcoming paper (Reason and Rhetoric in Edwards v. Vannoy) and reproduce a slightly edited excerpt below:

Imagine that you are a justice who generally hopes to protect existing case law from erosion or repudiation. You might think it is a good idea to complain about each and every instance of overruling, so as to keep stare decisis salient and make the majority coalition pay an ever-increasing “price” in professional and public esteem. But you would also worry about coming across as Chicken Little, or the Boy Who Cried Wolf. It isn’t always a big deal to overrule, even when doing so is wrong. And, sometimes, overruling is positively the right thing to do. Much as the Court would lose face by overruling too freely, as though precedent were legally irrelevant, dissenters can sacrifice their credibility by acting as though every new overruling is a fresh End of Days. So, what’s a dissenter to do?

…

One way of squaring the rhetorical circle is to try and have it both ways at different points in time. This solution requires selective forgetting: the importance of stare decisis is trumpeted in dissent after dissent, but the doom-and-gloom rhetoric attending each dissent is instantly swept under the rug. The point of this strategy is to make each transgression of stare decisis seem unprecedented, as though stare decisis had been eroded for the first time. A less helpful understanding of events, namely, that stare decisis has proven to be quite flexible, is thus kept out of view. This approach counts on the reader’s short memory—and, ironically, on the forgettability of the dissenter’s earlier rhetorical flourishes. 

…

All this raises the question of how the majority coalition might respond to our imagined dissenter’s rhetorical strategizing. The majority might do just what the dissenter hopes: wince at each rhetorical lashing, try to avoid the next one, and generally think hard before overruling. But there is another salient possibility: much as the public could come to wonder whether the dissenter is overdoing it, the majority might decide that there is no satisfying the opposition. Someone who cannot see that overrulings are sometimes justified—or just not a big deal—might not be worth appeasing. Thus, the majority could become numb to the lashing, and unafraid to overrule. The strong rhetoric against overruling would have defeated itself.

That reasoning can be taken still further. A cynical majority might put itself on the lookout for precedents to overrule. Not just any precedent will do, of course. Overruling cases that are either too important or too sound would tend to feed the dissenter’s critical flame. But when precedents are contrary to the would-be dissenter’s view of the merits, or else not terribly important, a decision to overrule can put the dissenter in a bind: she would have to moderate her rhetoric or else risk coming across as crying wolf. Notably, Ramos and Edwards respectively fit each half of that strategy, with Ramos, which established a right to unanimous criminal jury verdicts, appealing to (and splintering) the Court’s left wing and Edwards, which declined to apply Ramos retroactively in habeas cases, “overruling” only a never-used exception.

Posted by Richard M. Re on September 21, 2021 at 01:58 PM | Permalink | Comments (9)

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

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

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

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

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

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

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

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

Monday, September 20, 2021

We have our SB8 test case (Udpated)

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

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

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

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

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

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

JOTWELL: Steinman on Bayefsky on respect and Article III

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021). This is a great article (and great review), although I unsurprisingly do not believe the model, however valid, gets us to universal injunctions.

Posted by Howard Wasserman on September 20, 2021 at 12:27 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Shorter Chronicle of Higher Education

Some members of the Stanford College Republicans are immature assholes who do immature asshole things and other members realize both of those facts. But nothing described in this story comes close to falling outside of First Amendment protections. Thanks for sharing.

Posted by Howard Wasserman on September 20, 2021 at 12:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Are the Federal Rules of Evidence Unconstitutional?

I have a paper on the quirky way we enacted and continue to revise the Federal Rules of Evidence forthcoming in the American University Law Review.  The paper is here.  Abstract below:

This paper explores how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the current Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.

 

 

Posted by Ethan Leib on September 20, 2021 at 10:04 AM | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

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

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

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

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

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

Thursday, September 16, 2021

Checking on the Koufax Curse

What is the latest on the Koufax Curse? Which Jewish players played on Yom Kippur 5782 and how did they and their teams do?

Continue reading "Checking on the Koufax Curse"

Posted by Howard Wasserman on September 16, 2021 at 12:01 PM | Permalink | Comments (0)

Wednesday, September 15, 2021

Devin Nunes wins a small victory, for now

To show I can write about something other than SB8: This terrible Eighth Circuit opinion. The court holds that Devin Nunes did not sufficiently plead actual malice against Esquire and Ryan Lizza over publication of an article about Nunes' family's farm, because he had not sufficiently pleaded actual malice. (Nunes acknowledged he had not done so--he asked the court to reconsider the standard, which it obviously cannot do). But the court reversed dismissal of a claim against Lizza for retweeting a link to the story two months Nunes filed his original complaint. Retweeting constitutes republication. And because Lizza retweeted after the lawsuit denied the story, it was "plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"

This cannot be right. The denial or contesting of allegations, without more, cannot plausibly establish knowledge or reckless disregard as to truth of the statements, presumably in the face of other reasons to believe the story (which is why they published it). The implication of this is that a defamation claim can survive 12(b)(6) by alleging that someone retweeted the disputed story knowing that the target of the story has sued or otherwise contested its truth. Or, one step further, a plaintiff could survive 12(b)(6) by pleading that the reporter published the story despite pre-publication denials of the content. Either of those puts the defendant on notice of the denial, which raises the same plausible inference the defendant "purposefully avoided" the truth.

I doubt Nunes survives summary judgment, because I doubt he can establish evidence beyond his denial for Lizza to disbelieve the article. That is not enough to establish actual malice by clear-and-convincing evidence, as required. Still, letting this get beyond 12(b)(6) is not good. It raises again whether plausibility should account for a higher standard of persuasion, as it does on summary judgment.

And just to tie this back to SB8, because that is my life right now: No one seems to believe that Lizza was denied judicial review of his First Amendment rights by having to defend a lawsuit.

Posted by Howard Wasserman on September 15, 2021 at 06:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

US seeks emergency TRO against SB8 (Updated)

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

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

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

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

This is more complicated than the DOJ rhetoric acknowledges.

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

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

SCOTUSBlog review of "Painting Constitutuional Law"

Amanda Frost (American) published a nice review on SCOTUSBlog of Painting Constitutional Law, my edited volume with M.C. Mirow on Xavier's Cortada's series May It Please the Court.

Posted by Howard Wasserman on September 15, 2021 at 09:31 AM in Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 14, 2021

Kentucky Law Journal: Exclusive Submissions

The Kentucky Law Journal is opening an exclusive submission track for Fall 2021, with an expedited review process. We are accepting manuscripts from all areas of law, though we are particularly interested in scholarship focused on tort law. Authors who submit to our exclusive submission track agree to accept a binding publication offer, should one be extended. The accepted Article will be published in Volume 110 of the Kentucky Law Journal, with final publication around April 2022. The KLJ will provide a publication decision within 7 days of submission. The final manuscript will be due shortly after we accept the article for publication. 

 

Authors interested in submitting to the exclusive submission track for Fall 2021 should email their CV and manuscript to Editor-in-Chief Kelly Daniel at [email protected], and Managing Articles Editor Samuel Weaver at [email protected] with the subject line "Exclusive Article Submission."

Posted by Howard Wasserman on September 14, 2021 at 04:33 PM in Teaching Law | Permalink | Comments (0)

SB8 op-ed

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

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

Chronicle of Higher Ed reveals its biases

The Chronicle of Higher Education has an article on the rankings obsession among colleges. They begin the story with three examples--University of Houston, Washington State, and us. The top of the piece contains a photo with an array of pull-quotes from strategic plans--we are the only school mentioned by name. Also garnering mention in the story are Clemson, Oklahoma State,  and Oregon State. Apparently the only schools obsessing about rankings are non-flagship public universities, two of which are urban and some of which serve significant numbers of non-white students. My colleague Louis Schulze has some thoughts about the biases reflected in the editorial framing choice.

Posted by Howard Wasserman on September 14, 2021 at 01:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 13, 2021

THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions

The George Washington University Law School invites applications for up to five tenure-track or tenured faculty appointments. The appointments will be made at the rank of Associate Professor or Professor and will begin as early as Fall 2022. The school may hire faculty in any subject area or category based on a candidate’s overall strength. Areas of particular interest include all large 1L classes (torts, contracts, criminal law, civil procedure, property, legislation & regulation, and constitutional law), professional responsibility, family law, health law, intellectual property, government procurement, international law, environmental law, and civil rights law. The University and Law School have a strong commitment to achieving diversity among faculty and staff.  We are particularly interested in receiving applications from members of underrepresented groups and strongly encourage women, persons of color, and LGBTQ candidates to apply for these positions.

Continue reading "THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions"

Posted by Howard Wasserman on September 13, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Retroactive enforcement of zombie laws

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

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

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

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

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

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

Sunday, September 12, 2021

Sports nomenclature

Novak Djokovic lost in the finals of the U.S. Open today, ending his attempt to complete the first Grand Slam by a male player since Rod Laver in 1969 and by any player since Steffi Graf in 1988.

Much of the writing about this will describe Djokovic as missing the "Calendar-Year Grand Slam," a qualifier distinguishing what became known as a "Serena Slam" in which a player holds the four titles at the same time measured from some arbitrary point in time. For example, a player wins Wimbledon and the U.S. Open in Year One and the Australian and French Opens in Year Two; measured during the month between French and Wimbledon in Year Two, that player has won a "Slam" over the last 12 months.

This is stupid. Had Djokovic won, he would have captured a Grand Slam, unmodified and unqualified. The Serena Slam is not a thing and we should not mention it. A Serena Slam is equivalent to saying a baseball player who hit 37 home runs in the last 81 games of Year One and 37 home runs in the first 81 games of Year Two holds the record by hitting 74 homers in 162 games (the length of a season). Or a hockey player who scored 46 goals in the final 41 games of Year One and 47 goals in the first 41 games of Year Two holds the record by scoring 93 goals in in 82 games (the length of a season). Season records are measured in a season, not the number of games that comprise a season, measured from arbitrary points over multiple seasons.

Tennis has a season that follows a calendar year and contains four Grand Slam tournaments in order. It begins in January leading to the first Slam tournament in Australia in late January and ends in November with round-robin tournaments featuring the eight best men (played in Italy) and women (played in China), two months after the fourth and final Slam event in New York. If winning the four tournaments is a thing, it must be within that "season," meaning a calendar year. Anything else looks like an attempt to create a special achievement when the real achievement proved too rare.

Posted by Howard Wasserman on September 12, 2021 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

John Marshall's "Life of Washington"

I'm going through Volume 2 of John Marshall's biography of George Washington. (Volume 2 covers GW's life from 1781-1799). It's a remarkable book, both for what we learn about the Chief Justice and for its style.

First, consider that Marshall (while Chief Justice) wrote in detail about political controversies during the Washington Administration. These occurred only a decade before the book was written and were not ancient history by any means. Yet Marshall does not shy away from sharing his opinions on various matters, including the role that Jefferson played in some of these disputes. It would be hard to imagine John Roberts writing, say, a book about the Bush 41 or the Clinton Administration. (In the second edition of the book, Marshall added one note that directly responds to comments that Jefferson made about the first edition.)

Second, Marshall does not mince words when discussing the various wars fought between the United States and the Native American Tribes. He uses the word "savages" more than once to describe the Tribes. Perhaps scholars of Marshall's Native American decisions should take a look at Life of Washington to see if that sheds any light on those decisions.

Third, Marshall gives his views on various early constitutional controversies. Some of these are ones that came before the Supreme Court later, such as the validity of the national bank. Others never did, such as the Decision of 1789 or some of the fights over foreign policy during the 1790s. What he had to say about these issues is worth examining, though maybe not enough for a paper of its own.

Fourth, Marshall talks about the XYZ Affair but never mentions that he was one of the diplomats involved in the Affair. Maybe he was being modest, or maybe he assumed that his readers would just know. It's odd though.

Posted by Gerard Magliocca on September 12, 2021 at 03:27 PM | Permalink | Comments (2)

Saturday, September 11, 2021

Universal injunctions are back, baby

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

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

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