Thursday, December 17, 2020

Trump v. New York--The Four Corners Offense

The Supreme Court did nothing with Trump v. New York (the census/apportionment case) before leaving for a month-long recess. This means that the case may never be decided, though that conclusion is not without complications.

Prior to January 20th, the President is supposed to receive the population tallies from the census and issue a report to Congress outlining the next reapportionment. One problem is that the pandemic is delaying the census work. Another issue is that the President's request to the Secretary of Commerce for data on illegal residents is creating a further delay. Thus, it is unclear whether the census data will be ready by January 20th. 

Even if the census data is ready before then, though, can President Trump issue the report if Trump v. New York is still sub judice? If he does, does that mean that the report is not final and can be changed by President Biden? The Justices might be stalling in the hope that they do not need to decide anything and can declare the dispute moot. Does the stalling, though, itself end up creating the mootness?

UPDATE: Today the Supreme Court dismissed the case for want of jurisdiction. We'll see if this comes back next year.

Posted by Gerard Magliocca on December 17, 2020 at 11:08 AM | Permalink | Comments (1)

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, December 16, 2020

Fake electors

If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.

But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.

This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.

Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.

Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process.  The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.

Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.

Posted by Howard Wasserman on December 16, 2020 at 03:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Universality and the facial/as-applied distinction

An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.

Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.

Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.

[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit

There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:

Continue reading "Universality and the facial/as-applied distinction"

Posted by Howard Wasserman on December 16, 2020 at 10:07 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Excluding Members-Elect from Congress

As a comment to my prior post noted, Representative Bill Pascrell of New Jersey wrote Speaker Pelosi last week and suggested that the Republican members who signed an amicus brief in the Texas lawsuit challenging the presidential election result should be excluded. Pascrell quoted Section Three of the Fourteenth Amendment and asserted: 

"[M]en and women who would act to tear the United States government apart cannot serve as Members of the Congress. These lawsuits seeking to obliterate public confidence in our democratic system by invalidating the clear results of the 2020 presidential election attack the text and spirit of the Constitution."

He goes on, but you get the point. Pascrell's request is absurd. Joining a brief is not "insurrection or rebellion" against the Constitution under any standard. If it were, the number of Representatives that could have been subject to exclusion would be quite long. We want people to use peaceful and lawful means to contest election results so that they don't use violent and unlawful means.

I would also point out that many people called President Rutherford B. Hayes "His Fraudulency"  during his Administration because of the murky circumstances of the 1876 election. Were they all engaged in insurrection or rebellion against the Constitution? Hardly. They were exercising their First Amendment rights.

Posted by Gerard Magliocca on December 16, 2020 at 08:46 AM | Permalink | Comments (3)

Monday, December 14, 2020

Draft Paper on Section Three of the Fourteenth Amendment

I've posted a draft of my new paper on "Amnesty and Section Three of the Fourteenth Amendment." Comments are welcome.

Posted by Gerard Magliocca on December 14, 2020 at 01:13 PM | Permalink | Comments (3)

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, December 11, 2020

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

Posted by Howard Wasserman on December 11, 2020 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, December 10, 2020

New Fed Courts cases from SCOTUS (Updated)

As the Court wrestles with absurd original-jurisdiction cases, some procedure decisions from SCOTUS today, with some interesting twists and background points.

Carney v. Adams involved a challenge to Delaware law controlling party affiliation for judges; a unanimous Court, per Justice Breyer, held the plaintiff lacked standing because he failed to show he was "able and ready" to do something to be injured by the challenged law. Bare testimony that he "would apply" for a judgeship but for the party limitations was insufficient to establish a particularized harm, especially when balanced against the sequence of events (he never applied for any judgeship, retired as an attorney, read a law review article about the invalidity of these party limits, unretired, changed his party affiliation from Democrat to Independent, then filed the lawsuit about a week later). Basically, he got Lujaned--he did not have the judicial-application equivalent of a plane ticket. Justice Sotomayor concurred to comment on some issues that might arise on the merits of a future challenge to laws such as these.

Tanzin v. Tanvir, unanimously per Justice Thomas, held that federal officers could be sued for damages under RFRA; the action was brought against FBI agents who allegedly placed three Muslim men on the "No Fly List" when they refused to act as informants. A lot of discussion. RFRA provides an express cause of action against governments, which includes officials and other persons acting under color of law, terms which include personal-capacity claims against government employees. The Court uses § 1983 to establish background understanding for concepts such as under color and damages as a remedy for constitutional violations.

Qualified immunity lurked in the background in Tanvin in two interesting respects. First, the Court drops in a footnote that everyone agrees that the officers can assert qualified immunity, which pre-ordains what will happen in this action on remand (it will not be clearly established that placing someone on the List in retaliation for not spying on their neighbors violates religious freedom). I guess it makes sense as a policy matter that qualified immunity applies. But why does it work as a statutory matter. The logic of qualified immunity and § 1983 is that a qualified-immunity-type defense existed at common law in 1871 and was incorporated as background in § 1983 in the absence of a plain statement rejecting the defense. (The dissimilarity between modern QI and what existed at common law is the basis for Will Baude's criticisms). The logic of qualified immunity and Bivens is that Bivens is the federal counterpart to § 1983. But what is the source of qualified immunity to assume it was incorporated (again by silence) into RFRA? I guess the argument would be that RFRA displaced § 1983 and Bivens and was modeled after both, so any defense built into these was built and incorporated into the new statute. (Update: Doug Laycock confirms this, along with the belief that QI was a necessary concession to get a damages remedy in the statute. Thomas describes the scope of § 1983 at the time of RFRA as permitting "monetary recovery against officials who violated 'clearly established' federal law.").

Second, Thomas is the one Justice who expressed an interest in at least reconsidering QI. It thus is interesting that he incorporates into RFRA the broad understanding of under color to include suits against any official acting as an official in his personal capacity. One argument for broad QI (as Will discusses in his article) is as a counterweight to a broad conception of under color--Screws/Monroe were wrong, so QI corrects that imbalance without overruling those cases. But I wonder what Thomas' broad adoption of under color means for his views on QI.

United States v. Briggs unanimously held that certain rape prosecutions under the UCMJ were timely, an unfortunate loss for Steve. Justice Gorsuch concurred to express his continuing view that SCOTUS lacks jurisdiction to review decisions from the Court of Appeals for the Armed Forces (an Article I Court).

Posted by Howard Wasserman on December 10, 2020 at 11:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Texas Lawsuit on the Presidential Election

Here are some questions about the pending litigation:

  1. Should the Supreme Court reject the bill of complaint without explanation, should an explanation be given, or should one or more Justices write an explanation for themselves? This strikes me as a hard issue. There are many people who think that the Court will do something to change the election result. If the Court does not do that and does not explain why, would that not be a problem? I can also see, though, that getting agreement quickly on what to say (in other words, before the Electoral College meets) might be rather difficult. So maybe they should just issue an order and let some subgroup write an explanation for themselves.
  2. Will the three Justices who were appointed by the President feel compelled to explain themselves? I can see advantages to that in confirming the legitimacy of the election. But I can also see why they might want to stay as far away from that as possible (i.e. they'll get a lot of death threats).
  3. What will be the reaction when the Court rejects the lawsuit?

Posted by Gerard Magliocca on December 10, 2020 at 09:19 AM | Permalink | Comments (23)

Wednesday, December 09, 2020

#researchpitch: Monetizing Your Supreme Court Tenure

It won't be me, but it seems to me that this is a natural research topic for someone to pursue, both as an examination of the contemporary Court and against some kind of historical backdrop. The closest I can come to a general discussion is not quite on point, although I was glad to find it: Richard Hasen's 2016 Green Bag piece Celebrity Justice. It focuses on the volume of extrajudicial statements made by members of the Supreme Court, and muses about its causes, costs, and benefits. He concludes that we are not likely any time soon to "run out of Justices willing to step into the public spotlight to educate, dish, defend, cajole, sell books, entertain, or just bask in the celebrity spotlight." If others are aware of more on-point treatments, I'm happy to hear about it; my search was quick and crude.

I would be interested in seeing a piece focusing more on the verb "sell." Do what degree have a larger number of contemporary Court members profited off of their status as Supreme Court justices? What small-e ethical questions does it raise? What is the relationship between cause and effect--between the justices profiting off of their celebrity and the justices enhancing their celebrity through at least partly profit-seeking extrajudicial enterprises? What is the complex connection between monetizing one's tenure with, say, a memoir, and the circus and controversy of confirmation hearings? Many people lament what those hearings have become, somewhat variously depending on the nomination in question, but the controversy and publicity of the hearings makes the post-confirmation memoir more valuable, raises the visibility of Supreme Court justices, and thus makes it more likely that the next hearing will be even more public and visible, that there will be a market for the next memoir, and so on. Is there a difference between the simple and well-compensated memoir or generalized set of musings and a more substantive work? (I think there is. I am less inclined to think ill of the books published by Justice Breyer and the late Justices Scalia and Rehnquist than of a number of others. But I'm happy to be pushed to change my mind or to distinguish some of those works from others.)

What about more indirect profit, such as the usual round of international travel and lecture or teaching sinecures that justices like Anthony Kennedy enjoyed? And what about second-order monetization, perhaps abetted or encouraged by the individual judge even if he or she is not the direct beneficiary? It is not hard to find public criticisms of Virginia Thomas for profiting off of her husband's celebrity status. The financial beneficiaries of various RBG books and movies include family members and associates (such as her personal trainer), and I assume her blessing or access were at least sometimes relevant to those enterprises. Success in politics is always potentially a profitable family business or ancient Roman patron-client relationship in the mixed quasi-aristocratic/mercenary culture we inhabit. Are things really all that different for at least the pinnacle of the judicial branch? Should they be?

Some historical background would be useful too. Of course the current justices are not the first to write books, and some of those books were as light on legal substance as some of the present generation of books. But there may be significant differences in degree of profit. Justice Douglas was highly prolific. But I'm not sure he is a model we should want to follow.    

In any event, it's a fertile subject and I would love to see a comprehensive article or book on it, or at least a symposium on the celebrity justice phenomenon that addresses it decently.    


Posted by Paul Horwitz on December 9, 2020 at 12:21 PM in Paul Horwitz | Permalink | Comments (0)

Hungary and Germany arguments

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

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

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

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

Tuesday, December 08, 2020

What a difference 160 years makes

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

Pardons and Mootness

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

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

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

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

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

What Is/Was Your Pandemic Hobby?

I'm curious what readers took up by way of new hobbies, habits, and obsessions during the pandemic. The poll numbers suggest many or most of you did. Personally, I went from being a terrible jazz drummer to being a merely bad (but enthusiastic) jazz drummer, enjoyed inflicting the results on my students from time to time, and read a large amount of jazz history. I would like to tell you my kids took up Latin or baking. (Although, if I recall my past controversies correctly, you need to stop baking bread.) In fact, they became proficient spend-time-on-TikTok-ers. (In fairness to them and their future online selves, they also took up guitar and ballet, of their own accord.)  

Comments open, for once. I add the obligatory and thus wholly unnecessary acknowledgments that being in a position to have a pandemic hobby is ipso facto an indication of good fortune and that having a hobby does not mean one doesn't also have and care about the job of teaching in a changing environment.  

Posted by Paul Horwitz on December 8, 2020 at 02:08 PM in Paul Horwitz | Permalink | Comments (8)

Monday, December 07, 2020

Explaining Chief Justice Chase's Inconsistency

In my prior post, I explained that Chief Justice Chase reasoned in Jefferson Davis's that Section Three of the Fourteenth Amendment was self-executing in Virginia in December 1868 and held in Griffin's Case that Section Three was not self-executing there at the same time. How can this be explained?

Let's start with extrajudicial explanations. Was Chase a racist who wanted to help a white defendant and not Black defendants? Hardly. He was a great anti-slavery lawyer. Did Chase act as he did because he wanted to be President and was putting his finger in the wind? Maybe. Chase pursued the Presidency even while he was Chief Justice. Did Chase rule differently in the two cases because he wanted the South to accept the legitimacy of the Fourteenth Amendment. Could be.

Turning to internal answers, there is a candidate. One is that in both cases Chase was acting as a small c-conservative who did not want to rock the boat. Concluding that Jefferson Davis could not be tried for treason due to Section Three would avoid a highly divisive trial. And concluding that Section Three did not authorize the release of many prisoners in Virginia avoided a different disruption. Put another way, Chase may have wanted to tame the Fourteenth Amendment as best he could.

Whatever the answer, one lesson from the Davis/Griffin pair is the the Fourteenth Amendment was destined to be read more favorably for whites than for Blacks even if that was not the intent. It was, you might say, in the judicial DNA from the very beginning. 

I will have more to say about Section Three of the Fourteenth Amendment soon, as I'm getting close to finishing the draft paper.  

Posted by Gerard Magliocca on December 7, 2020 at 09:12 PM | Permalink | Comments (0)

Consumer Contracts and Addressing the Boilerplate Challenge

Samuel Becher has two interesting articles up on ssrn about consumer boilerplate contracts. In Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts Becher and Yehuda Adar propose a professional system of administrative oversight over the content of consumer form contracts. They propose to tackle the widespread use of unfair practices as well as unconscionable and plainly illegal terms in a way that is more proactive, regulatory and ex-ante, rather than the private law system that currently is relied upon. This proposal very much resonates with the argument I have been developing in the context of unenforceable employee contracts, such as non-competes and overreaching innovation assignment/proprietary information clauses -- that agencies like the FTC, the EEOC, the antitrust division, and the Dept of Labor should coordinate enforcement and prevention, rather than rely on courts to address enforceability and public policy ex post. here and see here for example.

In Termination without Explanation, he and his coauthor Uri Benoliel empirically study consumer agreements that allow firms to terminate their contract without disclosing the reason for termination. The Article examines the contractual termination mechanisms of 500 sign-in-wrap contracts of the most popular websites in the United States, finding that the vast majority of these contracts are non-transparent termination without explanation contracts. They propose to impose a duty to explain on firms. 

Posted by Orly Lobel on December 7, 2020 at 04:49 PM | Permalink | Comments (0)

Kraken the 11th Amendment

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

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

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

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

The Eyemonger - A Graphic Novel about Privacy

Dan Solove, one of the world's foremost privacy law experts has published a children's book about privacy and security. It's called the Eyemonger and it's about a person who spies on others, and trouble ensues. What a great holiday gift! 

Posted by Orly Lobel on December 7, 2020 at 01:29 AM | Permalink | Comments (1)

Sunday, December 06, 2020

SCOTUS and Shoah expropriation

SCOTUS tackles claims of Shoah expropriation on Monday in Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon and whether such claims can be brought in U.S. courts. Both cases consider whether international-comity abstention is available in cases under the expropriations exception to the Foreign Sovereign Immunities Act, which I will be covering for SCOTUSBlog. Germany raises the additional question of whether jurisdiction is possible under the expropriations exception when a foreign sovereign takes property from its citizens in its territory.

The Germany briefs offer a fascinating contrast in framing a case. The case arises from one piece of Nazi art looting--the collection known as the Weldenschatz (Guelph Treasure). Germany's summary of the facts goes, "A group of Jewish art collectors bought the collection in 1929, there was a worldwide depression in the 1930s, the collectors sold it at a bit of a loss, but hey, there was a worldwide depression, the collection has been on display without complaint since after the war." The survivors' summary of the facts goes, "Goering, Goebbels, Nuremberg Laws, Wannsee Conference, systematic exclusion of Jews from civil service and other parts of German society, gift for Hitler, lives destroyed, people dragged through the streets and killed by a mob in Frankfurt."

I will be writing about the comity piece of both arguments tomorrow.

Posted by Howard Wasserman on December 6, 2020 at 09:16 PM | Permalink | Comments (1)

The Common Law of Qualified Immunity

I want to flag an important forthcoming article in Stanford Law Review entitled "Qualified and Absolute Immunity at Common Law." Here is the Abstract:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, nineteenth-century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of a violation of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.

Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the “clearly established law” test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.

Having read the paper, I can say that I think the basic argument is sound, though I have quibbles with some specific points. The article makes a significant contribution to what will likely be a long debate over qualified immunity reform.

Posted by Gerard Magliocca on December 6, 2020 at 08:48 PM | Permalink | Comments (3)

"Church, State & Society" Writing Competition

The Notre Dame Program on Church, State & Society  is sponsoring a writing competition for students:

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement:

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted.

Submissions: Papers must be submitted by February 15th, 2021. Winners will be announced on or before May 7th, 2021. Papers must be e-mailed to the Program Director on Church, State & Society in .pdf form. Each submission must include a cover letter and resume in a separate .pdf document. Papers should not include author names in order to ensure that the Program Director can deliver submissions to judges and have them scored with anonymity. Emailed submissions should be sent with “2020 Writing Competition” in the subject line, and addressed to: Jonathan Hannah, J.D. at [email protected]

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $4,000 cash award; Second Place, $3,000 cash award; Third Place, $2,000 cash award; Honorable Mention, $1,000 cash award.

Posted by Rick Garnett on December 6, 2020 at 11:15 AM in Rick Garnett | Permalink | Comments (0)

Friday, December 04, 2020

It's been a long time since my civil procedure class

As the lawyer for President Trump said to a doubtful federal judge in the lawsuit challenging the election results. While asking a federal court to "remand" something to the Wisconsin legislature. I may need to replace or supplement the long-standing motto atop my course blog.

Meanwhile, I have to decide whether to give students the scheduling order from Chief Judge Pepper in the Wisconsin Kraken suit, in which she enumerates Sidney Powell's substantive and procedural mistakes, then agrees to decide the TRO motion on the pleadings and without evidence, as the plaintiff requested. Some of the stuff in the order will not make sense to students new to procedure. But it highlights what happens when you ignore or do not understand how courts operate.

Posted by Howard Wasserman on December 4, 2020 at 04:26 PM in Civil Procedure | Permalink | Comments (0)

The Inconsistency of Chief Justice Chase

Let's continue with my discussion of the first Fourteenth Amendment opinion--In Re Griffin. In my last post, I explained that Chief Justice Chase held in that case that Section Three of the Fourteenth Amendment was not self-executing and that no legislation applied that provision in Virginia in 1868.

Now contrast this holding with a different case before Chief Justice Chase in Virginia at the same time  --the treason trial of Jefferson Davis. The treason case against Davis was very controversial and raised many difficult questions (for one thing, what kind of jury could be impartial). Chief Justice Chase, who as the Circuit Justice for Virginia was supposed to preside over the trial in circuit court, worked hard to find ways to delay or avoid that proceeding.

After the Fourteenth Amendment was ratified, Chase hit on a novel idea. Section Three could be read as the exclusive punishment for anyone to whom the provision applied, including Davis. Thus, Davis could not be tried for treason. The Chief Justice then met with Davis's attorneys and pitched this idea to them. WHAT? Yes, you read that correctly. Davis's lawyers then made the Section Three argument in open court to Chase and District Judge John Underwood (circuit courts in those days had two judges).

In the course of their argument, Davis's lawyers said Section Three was self-executing, They had to say that, as there was no statute applying Section Three to Virginia in December 1868. Chief Justice Chase and Judge Undewrwood disagreed about the merits of the Section Three claim and the question was certified for appeal to the Supreme Court. The Chief Justice told the Court Reporter to note his view that Section Three barred Davis's treason prosecution. Shortly thereafter, President Andrew Johnson gave Davis a pardon.

Here is the punch line. In Griffin, Chief Justice Chase held that Section Three was not self-executing. In Davis, he concluded that Section Three was self-executing. This was at the same time in the same state. He must have reasoned that Section Three was self-executing in Davis's case, otherwise he could not have concluded that Section Three barred Davis's prosecution when he did.

How can we explain this discrepancy? Is it simply that Jefferson Davis was a prominent white defendant and Ceasar Griffin happened to be a poor Black defendant? More on that next time.


Posted by Gerard Magliocca on December 4, 2020 at 03:53 PM | Permalink | Comments (0)

Thursday, December 03, 2020

Identify yourself as an academic

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

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

Am I being too harsh?

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

How many cheers for the GOP? (Updated)

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

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

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

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

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

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

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

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

Lethal religion

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

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

Wednesday, December 02, 2020

In Re Griffin and the Fourteenth Amendment

Section Three of the Fourteenth Amendment provided that many officials in the ex-Confederate States were ineligible to serve. Or did it? That was the issue that Chief Justice Chase decided in In Re Griffin. He held that Section Three was not self-executing and that legislation by Congress was required to make the ineligibility operative.

Months after the Fourteenth Amendment was ratified, some criminal defendants in Virginia brought habeas corpus petitions that made the following claim: The state court judge who presided over their trial and sentenced them was ineligible to be a judge because of Section Three. Accordingly, their convictions and sentences must be vacated. The District Court ruled in favor the petitioners and issued the writ.

Chief Justice Chase, the circuit Justice for Virginia, reversed these decisions. He did so based on two arguments. The first was that a "literal reading" of Section Three would cause chaos. If all acts by officials who were ineligible to serve after the Fourteenth Amendment was ratified were null and void, then that would mean that many civil judgments, deeds, and criminal convictions would have to be thrown out. Chase's second point was that Section Three imposed a punishment that was inconsistent with many other constitutional provisions. For example, there was no jury trial and no due process of law. And Section Three functioned as a bill of attainder or an ex post facto law. The Chief Justice conceded that a constitutional amendment could impose these sorts of punishments, but that the text should not be so read if another construction was possible. An alternative reading was possible: Section Three was not self-executing.

There are some interesting themes in Griffin that repeated themselves in subsequent Fourteenth Amendment cases during the 19th century. One was that the text should not be read as revolutionary. Another was that the text should be harmonized with the ideas of the 1787 Constitution. In Slaughter-House, both of these principles were applied to limit the Privileges or Immunities Clause in Section One (in the name of traditional federalism). In Griffin, they were used to limit Section Three (in the name of Article One and parts of the first set of amendments).

There was more going on in Griffin than meets the eye though. Once you compare that case to how Chief Justice Chase handled the treason proceedings against Jefferson Davis and his Section Three claim. More on that tomorrow.

Posted by Gerard Magliocca on December 2, 2020 at 07:14 PM | Permalink | Comments (1)

Botching jurisdiction and merits, Ex. No. 613

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

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

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

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

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

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

Federal Rules of Trumpist Procedure

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

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

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

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

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

Northwestern Pritzker Seeks Director of SCOTUS and Appellate Advocacy Clinic

Northwestern Pritzker School of Law invites applications for a clinical faculty position to serve as the Director of its Appellate Advocacy Center, a Center in the Bluhm Legal Clinic, which includes the Federal Appellate Clinic and the Supreme Court Clinic.

Continue reading "Northwestern Pritzker Seeks Director of SCOTUS and Appellate Advocacy Clinic"

Posted by Howard Wasserman on December 2, 2020 at 09:31 AM in Teaching Law | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

Tuesday, December 01, 2020

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

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

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

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

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

Defending Trump's lawyers on hearsay (Updated Twice)

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

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

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

As I like to map these problems for class:

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

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

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

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

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

Please tell me why I am wrong.

Continue reading "Defending Trump's lawyers on hearsay (Updated Twice)"

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

In Re Griffin

I am going to begin a series of posts on a significant part of an article that I'm working on, which is tentatively titled "Amnesty and Section Three of the Fourteenth Amendment." The posts concern In Re Griffin, an 1869 circuit decision by Chief Justice Salmon P. Chase.

Why am I so interested in Griffin? The short answer is that Griffin is the first Fourteenth Amendment opinion (as far as I can tell). Griffin was issued in May 1869, less than a year after the Fourteenth Amendment was ratified. The reason Griffin does not receive the attention that a "first" usually gets is that the opinion is about Section Three of the Amendment, which nobody cares about now, rather than about Section One.

This oversight is a mistake, as I will try to show. Griffin is extremely interesting because it set the tone for much of the subsequent interpretation of the Fourteenth Amendment and stands in sharp contrast to how Chief Justice Chase understood Section Three of the Fourteenth Amendment in a companion case--the treason trial of Jefferson Davis. More tomorrow. 

Posted by Gerard Magliocca on December 1, 2020 at 10:48 AM | Permalink | Comments (1)

Monday, November 30, 2020

Trump v. New York

From the oral argument today, the most likely result is that the Court will either decide the case without reaching the merits or stall for as long as possible and hope that there is more information from the Department of Commerce about the count of people who are in the United States illegally.

I want to add one observation. The case is in a curious posture because the reapportionment laws were written on the assumption that the process be mechanical rather than value-laden. A point that went unstated at argument is that the lame-duck President will make the report to Congress. This is an odd result, especially given that the President's determination will be final, unlike a typical executive order that can be overturned by the new President. How did we end up with that?

The answer is that the reapportionment laws say that the President's report must be made in January after the census year in such a way that must occur before January 20th. I'm not sure if that was intentional or an oversight. To be fair, a presidential election only coincides with the census every twenty years. It so happens, though, that four of those conjunctions accompanied a transfer of power from one party to the other (1961, 1981, 2001, 2021). Maybe the thought was that in that situation an outgoing President would not break with practice with respect to reapportionment. Alas.

Posted by Gerard Magliocca on November 30, 2020 at 03:03 PM | Permalink | Comments (4)

Sunday, November 29, 2020

The 20-day coup (and counting)

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

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

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

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

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

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

Updating the Standing section on my Fed Courts syllabus

1) Constitutional and Statutory Considerations                         

2) Taxpayer Standing                                                                

3) Third-Party and Other Standing

4) Presidential Standing                                  

5) Legislative Standing to Sue                                            

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

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

Saturday, November 28, 2020

More state universality (Updated)

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

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

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

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

Evidentiary problems (Updated Again)

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

The difference is evidence.

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

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

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

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

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

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

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

We have not pulled back from the edge

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

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

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

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

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

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

Continue reading "We have not pulled back from the edge"

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

Friday, November 27, 2020

Making students thirsty for Civ Pro

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

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

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

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

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

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

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

Reshuffling the Court? (Updated)

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

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

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

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

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

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

Posted by Howard Wasserman on November 27, 2020 at 02:56 PM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (0)

Thursday, November 26, 2020

Baseline Hell in Brooklyn: The Futility of Neutrality Talk in Roman Catholic Diocese v. Cuomo

With weary predictability, each side, secular and religious, is playing its accustomed role in the Roman Catholic Diocese of Brooklyn v. Cuomo. Is a religious service more like a visit to a liquor store? Or more like attending a movie house? If the former, then Cuomo’s order strictly limiting numbers of attendees “single[s] out houses of worship for especially harsh treatment,” as the per curiam opinion declares. But maybe religious services are more like a night at the movies, because (as Breyer notes in dissent) “the risk of transmission is higher when people are in close contact with one another for prolonged periods of time.” On this view, a few minutes spent grabbing and buying Old Forester is just not the same as an hour spent singing hymns in close proximity to other singers.

Welcome to baseline hell, that infernal prison for all those who think there is an easy way to define “neutral” treatment in a polarized age. In baseline hell, no one can agree on the proper baseline by which to measure “neutrality.” This disagreement about baselines insures that "neutrality talk" is a waste of breath, because there is no Olympian perspective of some "reasonable observer" by which to assess whether or not a law is covertly discriminatory or scrupulously impartial.

The futility of “neutrality talk” in baseline hell is well-illustrated by Justice Kavanaugh’s concurrence in Roman Catholic Diocese. Justice Kavanaugh suggests a “most favored institution” rule of automatic suspicion towards even apparently neutral regulations. “[O]nce a State creates a favored class of businesses, as New York has done in this case,” Kavanaugh states, “the State must justify why houses of worship are excluded from that favored class.” This rule of "neutrality" is plainly a special exemption for churches, because there will always be some non-church institution that will enjoy some “special” treatment not generally available to others. Hospitals, for instance, will always be deemed “essential” in a pandemic. Must the state then explain carefully why churches are not like hospitals when the latter are allowed to perform surgeries but the former are banned from performing baptisms? To religiously minded people, however, Kavanaugh’s rule looks like a sensible safeguard against the hidden anti-religious prejudices allegedly coloring the Secular Left. If the "elaborate system of exemptions and waivers" in Trump's a travel ban could give rise to suspicions of anti-Muslim bias, as Breyer argued in his dissenting opinion in Trump v. Hawaii, then why can't the equally elaborate and perplexing system of restrictions in Cuomo's order raise similar suspicions? After all, Cuomo's order contains completely absurd elements such as the ten-person limit on church attendance regardless of the size of the meeting place where the religious service is conducted. Why doesn't such absurdity suggest deliberate indifference to religious needs?

Here are two suggestions for etiquette in baseline hell: (1) Stop with the question-begging “neutrality talk,” and instead (2) try to see things from your opponents' point of view rather than the viewpoint of some imaginary “"reasonable observer." So viewed, Cuomo’s executive order looks like really sloppy work. Was it biased against religion? Who knows -- and why should we care? Regardless of how we answer that unanswerable baseline question, the order's sloppiness was likely to inspire distrust from religious people. That distrust, far more than anything done by SCOTUS, undermines effective pandemic response.

Posted by Rick Hills on November 26, 2020 at 09:41 PM | Permalink | Comments (5)

Tuesday, November 24, 2020

Dumping Rule 11

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

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

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

Monday, November 23, 2020

Paying for vaccination and the First Amendment

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

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

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

Can you sue a psychiatrist for malpractice?

A divided Eleventh Circuit declared invalid a Florida municipal ordinance prohibiting conversion therapy. The court treated the ordinance as content- (indeed, viewpoint-) based and failing strict scrutiny. On one hand, this is not surprising, as the court had previously declared invalid a Florida statute prohibiting pediatricians from asking patients (and parents) whether they kept guns in the home. If anything, that law could have found stronger footing as an incidental regulation of a medical check-up.

The Eleventh Circuit rejected that possibility with the conversion-therapy ban. This is not speech incidental to medical conduct. Rather, "[w]hat the governments call a 'medical procedure' consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy 'is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.'”

If so, can a therapist be successfully sued for malpractice for the harmful effects of talk therapy (put aside medical issues, such as prescriptions)? Imagine a therapist who bullied and shouted at her patients, worsening their emotional and mental problems. If the "treatment" is entirely speech, then a malpractice claim would impose liability for speech. The majority insists the decision does not go so far and "does not stand in the way of '[l]ongstanding torts for professional malpractice' or other state-law penalties for bad acts that produce actual harm." The court distinguished this broad prophylactic rule prohibiting speech from tort rules imposing accountability for actual harm to children. But I do not understand why that matters for First Amendment purposes--the law would be regulating "entirely speech" in either situation.

Posted by Howard Wasserman on November 23, 2020 at 09:31 AM | Permalink | Comments (5)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

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

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

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

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

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

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

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

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