Tuesday, February 07, 2023

Younger strikes again

Florida (naturally) leads the pack of red states trying to stop (likely First Amendment protected) drag shows. It is pursuing the Orlando Philharmonic Foundation in an administrative action for producing "A Drag Queen Christmas" in December; it seeks to revoke its business and alcohol licenses, premised on a drag show involving lewd, lascivious, and sexual activity. The state is threatening a similar action against the Broward County Performing Arts Center for a similar program. The Foundation should win, because drag show should be constitutionally protected, including for children. The pleading includes photos of the event, but it is hard to take the pleading's descriptions of the event seriously when comparing it to the photos.

But the case offers yet another example of the commonality of defensive litigation, including where the constitutional invalidity of the state's enforcement efforts is obvious. An administrative proceeding, subject to state judicial review, triggers Younger abstention; this case squarely fits the second Sprint category of a quasi-criminal civil action. And while politically motivated and designed to score cheap populist points (towards a presidential run), I doubt this qualifies for Younger's bad-faith exception.

Posted by Howard Wasserman on February 7, 2023 at 10:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 06, 2023

Augustus Hand and W.E.B. Dubois

For years I've been kicking around the idea of writing something about Judge Augustus N. Hand, Learned Hand's cousin and fellow Second Circuit judge. Maybe that will just focus on his opinions, but there is more than that.

Hand and W.E.B. Dubois were classmates at Harvard. Here is a lovely letter than Hand wrote to DuBois on his 50th wedding anniversary.

Posted by Gerard Magliocca on February 6, 2023 at 09:33 PM | Permalink | Comments (0)

Sunday, February 05, 2023

Law-Abiding People

Last week the Fifth Circuit issued United States v. Rahimi and held that a man subject to a domestic violence restraining order retained his Second Amendment rights. In so holding, the Court said that the references in Heller and other Second Amendment cases to "law-abiding citizens" should not be taken literally as a restriction. Instead, the phrase was just shorthand for describing traditional restrictions on gun ownership in line with the Court's discussion in Bruen.

One implication of this reasoning is that non-citizens have a Second Amendment right. I'm not aware of any tradition of denying aliens the right to have guns, except perhaps in wartime. And I've said before that limiting the Second Amendment to citizens makes no sense under the Court's doctrine on incorporation and given the fact that aliens possess every other freedom in the Bill of Rights. Nevertheless, there are a couple of circuits that have held that people here illegally do not have a Second Amendment right. It seems to me that these cases are erroneous under the Fifth Circuit's reasoning, though the Supreme Court may weigh in on Rahimi.

Posted by Gerard Magliocca on February 5, 2023 at 08:43 AM | Permalink | Comments (0)

Friday, February 03, 2023

Plagiarism in the Supreme Court

In a prior post I said that Justice Jackson's concurrence in Youngstown drew on a memo written by Assstant Solicitor General Golden Bell in 1937. For example, Bell used the phrase "zone of twilight" to describe presidential power, and Jackson probably got the idea from there.

I can now say that there many other similarities between Bell's memo and Jackson's opinion. Jackson borrowed cites and quotes from Bell and even copied his analysis at one point. Here is Bell's description of United States v. Curtiss-Wright Export Corp.

It must be remembered, however, that the Curtiss-Wright case involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an act of Congress. In that case the constitutionality of the act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the decision is dicta, and the ratio decidendi is contained in the following language.

 "When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

It is apparent, therefore, that the case leaves much of the controverted question still unsettled. It places internal and external affairs in separate categories, and holds that the strict rule applied by the court to congressional delegations of power to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the President’s power in this field.

Here is Jackson's version (in Footnote Two of the concurrence)

United States v. Curtiss-Wright Corp., 299 U.S. 304, involved, not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language:

"When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.

Today we would call this plagiarism. Jackson did not cite Bell's memo. Would this have been considered plagiarism in 1952? I don't know.

Posted by Gerard Magliocca on February 3, 2023 at 03:50 PM | Permalink | Comments (0)

Thursday, February 02, 2023

Life and the Court marches on

I have mentioned that I end each Civ Pro class by telling students to Remember someone associated with that class. We did Twiqbal today, so it was "Remember David Souter." Students had to google him.

Posted by Howard Wasserman on February 2, 2023 at 01:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, January 31, 2023

Workshop on Participatory Law Scholarship - Announcement

From Northwestern University Law Review and Drexel Law Review:

 

Building from Redeeming Justicea law review article co-authored by Professor Rachel Lopez (Drexel Kline Law) with two activists who were sentenced to life without parole decades ago and winner of the 2022 Law and Society Association Articles Prize, Professor Lopez and her colleagues are rolling out a larger project on "participatory law scholarship" or PLS. PLS is legal scholarship co-authored with those with no formal legal training, but expertise in law’s injustice through lived experience. 

 

Continue reading "Workshop on Participatory Law Scholarship - Announcement"

Posted by Sarah Lawsky on January 31, 2023 at 12:18 PM | Permalink | Comments (0)

Monday, January 30, 2023

More on Warren-DeSantis and the court's ill-advised analysis

I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.

That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.

I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.

The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.

Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.

This is wrong.  The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.

But those words provide Warren's first line of attack in the press and in politics.

Posted by Howard Wasserman on January 30, 2023 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, January 29, 2023

Tulane Forrester Fellowship and VAP Positions - 2023

From Tulane Law School:

 

Tulane Law School invites applications for its Forrester Fellowship and Visiting Assistant Professor positions, both of which are designed for promising scholars who plan to apply for tenure-track law school positions. Both positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support and mentorship, a professional travel budget, and opportunities to present works-in-progress in faculty workshops.

 

Continue reading "Tulane Forrester Fellowship and VAP Positions - 2023"

Posted by Sarah Lawsky on January 29, 2023 at 04:26 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)