Saturday, July 07, 2018

Love and Fear in Research and Writing

This week I had the pleasure to tag along to my life scientist friends to hear the opening talk of a large biology/cancer research conference in Amsterdam. The speaker was Uri Alon from Israel's Weizmann Institute and I loved what he had to say. He spoke about the emotional aspects of being a primary investigator, running a research lab and mentoring students. I found his talk to be universal and insightful also for us lawprawfs and social scientists. Also - he plays the guitar during his talks - and he even improvises a song with requests from the audience. You can him here on related themes and his famous "I got scooped" song.

 

 

 

Posted by Orly Lobel on July 7, 2018 at 04:25 PM | Permalink | Comments (0)

AALS Call for Papers: “New Voices in Legislation”

 

The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2019 AALS Annual Meeting in New Orleans, LA.  This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles.  Scholars whose papers are selected will present their work in small panel sessions.  A senior scholar will moderate each panel and lead discussion about the draft article.

Continue reading "AALS Call for Papers: “New Voices in Legislation”"

Posted by Howard Wasserman on July 7, 2018 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Friday, July 06, 2018

How Susan Collins avoids being "disappointed" as abortion rights are eliminated

Kevin Drum predicts the Susan Collins path with respect to the confirmation of Justice Kennedy's successor (aka, the fifth vote to eliminate constitutional protection for a woman's right to terminate a pregnancy): Trump nominates a Justice certain to overrule Roe; Collins is convinced after an hour-long conversation that the nominee has "undying respect" for stare decisis; Collins declares herself satisfied and votes to confirm; eighteen month later, the Court overrules Roe; "Collins will announce that she’s disappointed." I have been saying much the same thing, which is why media coverage and interviews about Collins support for abortion rights are so mind-numbing, because it pretends that something other than what Drum says is a possibility.

But this piece by Leah Litman offers another way for Collins to avoid disappointment, by offering two paths by which the Court can eliminate the constitutional right to abortion without uttering the words "Roe is overruled." The first is by finding that the various state restrictions on abortion (short of an outright ban or criminalization) do not impose undue burdens and thus are subject only to rational scrutiny, which they survive. The second is by expanding the government interest in not "facilitating" abortion, which could be taken to its logical extreme that "allowing abortion under law facilitates abortion," so the state is justified in a ban. Either approach would eliminate abortion in many states and make the "right" impossible to exercise for many people, but without uttering the magic words.

And Collins will not be "disappointed." She can say, "well, the new justice did not overrule Roe, which is what I was concerned with." And she will not be smart enough (or care enough) to know what really happened.

Posted by Howard Wasserman on July 6, 2018 at 08:51 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Compliance & Diversity

All of the Supreme Court speculation circulating this week took my mind to places that I suppose are pretty atypical.  When I was a law student, I really wanted to clerk, but the University of Chicago had guidelines requiring each student to limit their clerkship applications to fifty judges or less.  As a result, I poured over my list of judges meticulously and asked many people advice about who should be on the list.  One of the people who looked at my list said quite bluntly – “Most black clerks are hired by black judges; keep all of the black, appellate court judges on your list.”  So I basically did.  As it turns out, I had two judges (a white woman and a black man) call me for interviews, and I did ultimately clerk for a judge who is amazing, kind, smart, organized, generous, and also black.  When I went for the circuit-wide clerkship training, I did note that the only two black people in attendance were one of my co-clerks and me.  And a black classmate emailed me shortly after his circuit-wide clerkship training to comment on the fact that he was the only black clerk in attendance. 

Thus, while all the interests groups are lining up to make their pitches about what the important qualities are in a Supreme Court Justice, my mind has turned to the fact that the small number of black appellate court clerks leads to a paucity of black, Supreme Court clerks (how many black, appellate feeder judges are there?), which narrows the field of those persons of color who might one day be on one of these lists.  Clearly, I digress and in doing so have skipped some pertinent intellectual and factual steps in the interest of writing a short-ish post.

My digression, nonetheless, has some relevance in that it may help to connect my interest in diversity to my interest in compliance.  I think sometimes people read my work and feel like the articles I have written on diversity in the profession are unrelated to my compliance work.  They are not.  Individuals attempting to create diverse organizational cultures and those attempting to create compliant organizational cultures and those attempting to create ethical organizational cultures are all addressing the same basic question. One could state the question in a few ways, but here is one:  How does one create a culture that promotes a particular set of values—diversity, compliance, ethics—and actually get buy-in of the organizational members in an effort to achieve the culture one has set out to create?  The question has no easy or simple answer.  Instead, the question requires step by step consideration of the external and internal forces that contribute to the creation of organizational cultures.  When one considers the questions as related, it opens up a number of scholarly approaches.  For instance, in a forthcoming article discussing antidiscrimination efforts within the bar, I rely on literature about the damaging effects created when an employee feels like s/he must remain silent.  I could just as easily use that same literature when talking about sexual harassment at Fox News or internal whistleblowers at Wells Fargo. 

There are certainly very good reasons to think about diversity, compliance, and ethics on their own, but there are upsides to approaching the concepts as if they are one, although perhaps not in the same law review article.  Happy weekend! 

Posted by Veronica Root on July 6, 2018 at 07:58 AM in Corporate, Culture, Judicial Process, Workplace Law | Permalink | Comments (1)

Thursday, July 05, 2018

The Law and Custom of Riparian Rights

If you want a break from constitutional law, this post is for you. 

We spend our summers by a lake in Michigan, and every year I am reminded when I get here that riparian rights are under-appreciated as grist for the academic “law and society” mill.  They are kind of like space savers in crowded urban street parking spaces that people have shoveled out in after blizzards (see Susan Silbey's article); the difference is that I don't think somebody with a single family home and no driveway would have thought that there was a legal right to the "street bottom" extending out from the property.  No, there the "property" right accrues on account of the work invested in clearing the spot.  And, as Susan's study notes, the property is denoted with all sorts of artifacts: "old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects."
Riparian (1)
In contrast, riparian rights are law, not custom.  And they are really cool - for a lawyer, kind of the gift that just keeps giving.  

What you see in the picture to the left is the northwest section of Lake Charlevoix.  Under Michigan law, to figure where the riparian rights go, you have to first decide what the shape of the lake is, circular, oblong or irregular.  Lake Charlevoix in total is irregular, but this section of the lake is circular, so one's riparian rights get determined by drawing a line from the point where the boundary line of the property meets the lakeshore to the center of the lake.  Aalsburg v. Cashion, 14 Mich. App. 91, 100 (1968). What we see here is the riparian area for a lot with about a 150 foot frontage.  

If you own riparian land, as here, you have certain exclusive rights to the lake bottom in your riparian area.  One is to erect and maintain a dock and to permanent anchorage off your shore. Lake Charlevoix is a navigable waterway with access to Lake Michigan and ultimately to the Atlantic Ocean, so everybody has the right to use the surface of the lake, including the right to temporary anchorage, but not to the lake bottom.  In other words, if you are a member of the public, you can swim through somebody's riparian area, but you don't have the right to wade with your feet on the bottom.  On the other hand, the lake at that spot in the middle is about 110 feet deep, so one's practical use of the lake bottom as riparian owner is somewhat limited.  And, finally, you can't use your riparian rights to cause hazards to navigation, or to unduly interfere with the riparian rights of others.  Thies v. Howland, 424 Mich. 282, 287-88 (1986); West Michigan Dock & Market Corp. v. Lakeland Investments, 201 Mich. App. 505, 513 (1995).  So setting a permanent mooring with a swim raft a mile out into the lake, just so you can get away from it all, is likely going to be problematic as well.

Okay, with that background, let's get to the really interesting clash of custom and law after the break, where we'll once again see that there's lots of unauthorized malpractice of law goin' on round here.

Continue reading "The Law and Custom of Riparian Rights"

Posted by Jeff Lipshaw on July 5, 2018 at 04:23 PM | Permalink | Comments (2)

Socio-Emotional Learning in Law School

Hello, Everyone! Happy to be back on Prawfs and blogging this month. I plan to talk about the Trump/Sessions criminal justice policy, the Golden State Killer case, new and unresolved issues in California corrections, the Manson Family's parole hearings (which is the topic of my upcoming book Yesterday's Monsters with UC Press), animal rights and personhood, and various other issues. But I'll start with pedagogy.

Last year I was delighted to attend the Greater Good Science Center's Summer Institute for Educators. It was a fantastic experience that dramatically impacted my pedagogy in the subsequent year and bore amazing fruit.

The Institute is open to all educators, k-12 to university level. I was not surprised, but somewhat disappointed, to find that I was the only law school professor in attendance (I hope this will change!). The premise of the Institute is to open faculty at all levels to the many ways in which we can introduce socio-emotional skills into our classrooms, in a way that enhances our students' mindfulness, gratitude, overall happiness, compassion, empathy, and other qualities that improve their lives beyond the material. Law schools have made big strides in that respect--Ronda Magee's work is just one example--and my own school has a meditation group. But the Institute inspired me to extend the reach of beneficial, healing methods and themes into every class I teach. Here's Prof. Magee explaining more about how this could apply directly to our law school experience:

This is of great interest to me, because I teach criminal justice topics that are highly politicized and have high emotional valance. I want my students to feel comfortable enough to discuss these topics with their classmates and to profoundly explore their opinions, and even disagreement, in a constructive, compassionate environment. The general climate of my classes, as of the Bay Area in general, is that my students tend to be politically progressive, and there's quite a bit of self-policing that goes on into discussing issues of race, class, and disability, in the context of policing and constitutional rights.

The Summer Institute faculty are researchers in their own right, many of them psychologists, and the research to which they exposed us convinced me that creating an environment where thoughtfulness, empathy, and self-care (and care of others) was at the forefront would improve the outcomes of class. It was a truly transformative week, in which we talked not only about our values and ideals, but also about actual techniques to apply in the classroom. It was helpful that the organizers grouped us into "families" based on the educational environment we worked in--I was in a group with university professors--and thus we came up with ideas on how to run a better classroom for everyone.

I ended up applying many of these insights in both my large (about 80-90 students) Criminal Procedure class, as well as in a small seminar, Environmental Criminology, which I co-taught with a like-minded friend, David Takacs. The seminar enabled us to really get to know our students, who were bright and curious, and to allow them to take charge of their own education and that of their classmates. 

The first thing we did was start our class with something awe-inspiring (awe has been linked to greater interest in the material and better educational outcomes.) We shared with the class a beautiful essay about the solar eclipse. Subsequently, at the beginning of every week, we started class with a poem related to the class, to give everyone a moment to ground and center before starting our discussions.

Naturally, we needed to convey knowledge, and there was a reading list, but we went about discussing the readings in nontraditional ways. Specifically, we emphasized collaborative group work and roleplaying. For example, when discussing an article about the economics of caviar smuggling in Europe, we split our seminar class into three groups: poor fishermen in the Caspian Sea, smugglers with a boat, and German executives responsible for high-end caviar sales. Each group was required to talk about their circumstances and incentives and to inquire whether legal prohibitions on smuggling would alter their behavior (and how.) The group work required our students not only to step into the shoes of people whose life conditions were very different from their own, but also to collaborate with each other. The success of this exercise led us to trust them with more and more student-led work, such as drafting their own climate change laws (and coming up with legislative priorities on climate change.)

One conversation I was particularly impressed with involved environmental ethics. The students discussed, in pairs, their orientation in terms of environmental values: anthropocentric, biocentric, and ecocentric. Not everyone was in agreement--in fact, there was wide diversity in terms of perspective--but the conversations were so rich and deep that we were widely impressed.

Early on, we decided that we would relinquish our control over the discussion to the students. We used a rubber toy, which the students tossed to each other as a squishy "talking stick" throughout class. Of course, since we knew more about the subject than they did, they tossed the ball back to us when questions about the material came up; but once we gave up our authority to run the discussion we were pleasantly surprised at how well the students stayed on topic, challenged each other to think, and graciously gave and received control. This method of running the classroom also led to a more-or-less even social footprint in the classroom, so that the discussion was not just dominated by a vocal few aiming to impress us. 

At seminar presentations, we did not intervene, introduce the speakers, or run the discussion. We gave time limits and distributed notepads to all participants, inviting them to write down feedback for each other after each presentation. We were blown away by the high quality of the conversation and the constructive offers they made to each other about improving their papers.

The outcome of this method was astounding. The seminar papers the students wrote were the best papers, bar none, that either of us had seen in any class we taught before. Six of the papers were published in various law reviews, one was a runner-up for a prestigious award, and the students reached out to policymakers on their own initiative to offer suggestions. Also importantly, the students became fast friends with each other. On the last class we distributed greeting cards and invited them to write each other a good-luck-on-finals and thank-you for the seminar note. They took their time doing it and wrote lengthy, thoughtful, and kind missives to each other. We have since learned that they remained on very warm and friendly terms with each other after the seminar was over.

Implementing this method was a bit more challenging in my large Criminal Procedure class, but there, too, I found that it paid off to invest in the social and emotional climate of the class. I introduced the talking stick method and found, to my surprise, that it works in a large class almost as well as in the small one! The students could interact with each other on an interpersonal basis even in the large lecture hall, and comfortably assumed control of the discussion as well as returned their attention to me when I needed to chime in. Moreover, our work on empathy paid great dividends. Teaching policing in an environment of a complete disintegration of trust between police departments and the communities they serve can be very difficult. But we found that we can see even very contentious topics from both perspectives, and moreover, understand that neither the police nor the community are a monolith. It was a supportive environment that enabled both my students who had law enforcement background and my students who had criminal records or criminal victimization experience to interact feeling that they would not be judged or retaliated against.

People warned me against doing the notecard exercise in the big class, arguing that cynical or mean students could use them to bully each other. But I prefaced the exercise by inviting them to write the kind of notecard they would like to receive. I personally handwrote good-luck cards to all of them, and included each of my cards in the same envelope as the card from a fellow student. The feedback was incredibly positive and people came into the exam feeling that, rather than competing against their classmates (an inevitable aspect of the curve) they were buoyed by their fellow students.

I am so grateful for the opportunity to introduce these methods to my pedagogy, and plan to do even more of that in the coming year. This might read as very touchy-feely to some folks, but there are ways to exhibit care for our students' wellbeing that would fit with nearly everyone's personal style. What do you do in the classroom to enhance your students' social and emotional experience?

Posted by Hadar Aviram on July 5, 2018 at 03:32 PM | Permalink | Comments (2)

UCI Supreme Court Term in Review

UC-Irvine will host and livestream the 8th Supreme Court Term in Review next Monday, July 9. Panelists include UCI faculty Leah Litman (a participant in our Prawfs symposium) and Alexandra Natapoff, along with Erwin Chemerinsky, Justice Goodwin Liu of the Supreme Court of California, and Erin Murphy of Kirkland & Ellis; Rick Hasen will moderate.

Posted by Howard Wasserman on July 5, 2018 at 02:35 PM in 2018 End of Term | Permalink | Comments (1)

Tuesday, July 03, 2018

Vaccines Mandates Win in Court


Thank you, Howard, for letting me contribute as a guest blogger this month. For the past five years, I have been involved in the vaccine wars.

Vaccines have tremendous benefits. In the United States, vaccines prevent tens of thousands of deaths and millions of hospitalizations each year. Their risks, while real, are very small. And yet, a misguided minority rejects vaccines, and in some communities, their numbers are disturbingly high. One place they made little headway in are courts - as this state example, mirroring the national jurisprudence, demonstrates.

In 2015, after a measles outbreak centered on Disneyland, California, in a contentious, high intensity legal process, passed Senate Bill 277 (SB277), a bill removing the personal belief exemption from California’s immunization law. SB277 became law on June 30, 2015 when Governor Jerry Brown signed it. Since California did not have a separate religious exemption, the effect of the law was to almost completely remove non-medical exemptions to California’s school immunization law. Unsurprisingly, opponents turned to the courts. After losing in three federal district courts and two state superior courts, two groups of plaintiffs appealed. On July 2, 2018, a California Court of Appeal released the first appellate decision upholding the law. This case was brought by eight plaintiffs seeking to send their children to school unvaccinated, represented by a lawyer who was openly anti-vaccine.

Continue reading "Vaccines Mandates Win in Court"

Posted by Dorit Reiss on July 3, 2018 at 09:34 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (42)

Sponsored Post: Teaching Remedies

The following post is by Samuel L. Bray (UCLA School of Law, soon decamping for Notre Dame) and is sponsored by West Academic.

Last year I joined Emily Sherwin as an editor of a remedies casebook: Ames, Chafee, and Re on Remedies. We worked together on the second edition, which was published in December by Foundation Press. In this post, I want to sketch some of the ways this remedies book is distinctive and why you might or might not want to use it.

We hope the book is a volume of logic, but first a page of history. The book is a lineal descendant of James Barr Ames’s Cases in Equity Jurisdiction (1904-1905), and its title is a homage to Ames and two of the other editors in the long history of the book, Zechariah Chafee and Edward Re. (Edward was no relation to the brilliant Richard—I asked.)

A remedies teacher confronts three threshold questions, and how they are answered will determine the shape of the course. The first is about organization, the second is about equity, and the third is about restitution. On each of these our book takes a different approach than some other books.

Continue reading "Sponsored Post: Teaching Remedies"

Posted by Howard Wasserman on July 3, 2018 at 07:49 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Monday, July 02, 2018

Hiring Posts - Schedule

An approximate schedule of law school hiring posts follows, based off the dates of the release of the first FAR distribution and the AALS conference . Because the dates of the FAR distribution and AALS conference are approximately three weeks earlier than last year, all the below dates are similarly earlier. 

Wednesday, July 11: Hiring committee post. (Last year's post here.)

Thursday, August 16: FAR distribution 1 released.

Thursday, August 23: Law School Hiring post (reporting interviews and callbacks; last year's post here). (Because all the information is collected on a single spreadsheet, we don't need separate posts for interviews and callbacks, as in the olden days.)

Thursday, August 23: Clearinghouse for Questions (last year's post here). 

Thursday, October 11, through Saturday, October 13: Hiring Conference.

Monday, October 29: VAP post (last year's post here).

Late February/early March: Begin entry level hiring report data collection.

Posted by Sarah Lawsky on July 2, 2018 at 01:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Repost--Colorado Law Review Exclusive Submission beginning July 9

The Colorado Law Review is excited to announce its exclusive submission track for Volume 90. We welcome innovative and thoughtful submissions on any topic of legal interest and look forward to reading scholarship that presents solutions to today’s most challenging legal questions.

This exclusive submission track will remain open from Monday, July 9 to Sunday, July 15, 2018. All pieces submitted will then be reviewed by the Colorado Law Review’s complete article selection committee and publication decisions will be issued by Sunday, July 22, 2018.

Continue reading "Repost--Colorado Law Review Exclusive Submission beginning July 9"

Posted by Howard Wasserman on July 2, 2018 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Self-Plagiarism (and the First and Second Laws of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN.  (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

Continue reading "Self-Plagiarism (and the First and Second Laws of Textual Physics)"

Posted by Jeff Lipshaw on July 2, 2018 at 08:08 AM in Article Spotlight, Lipshaw | Permalink | Comments (2)

Compliance

Many thanks to Howard for arranging to have me contribute as a guest blogger this month!    

A few months before I began my tenure-track position in 2014, I was nervous that my seemingly diverse research interests were going to create problems for me down the line.  I had interests in professional responsibility, corporate governance, workplace law, and organizational misconduct, which meant I did not feel like I “fit” neatly within a field of legal research. I knew that my research was all connected, but I felt like conveying that connection to others was sometimes a bit difficult.  Thankfully, I had a wonderful conversation with a senior scholar who said something to the effect of:  “You just research compliance.  It is kind of new, so people may not realize it, but that is what you are doing.”  These words were instantly clarifying and gratifying.  I suppose I knew I was researching compliance issues, but not having met many scholars who defined themselves in that way at that time, I did not realize it was legitimate to actually use the compliance title to describe my work. 

Today, compliance has developed into its own, albeit some might still say new, field.  There are several law schools with centers, programs, or areas of study in compliance.  The ALI is working on a set of Principles of the Law in Compliance, Enforcement, and Risk Management.  And there are a variety of compliance-specific conferences that I can attend.  Compliance is, however, an interdisciplinary field.  Some people writing in the space describe themselves as corporate law scholars, some as criminal law scholars, and there is quite a bit of very good work being done by business school professors.  Personally, while I self-identify as a compliance scholar, I do so with the caveat that I draw on research from several areas within legal scholarship and organizational behavior.  More specifically, the underlying research question that motivates my scholarship asks how one might address dysfunctions within organizations in an effort to create more productive, healthy, and ethical environments within firms.     

This month I’ll be blogging a bit about my compliance research, but also about the experience of working within a field that is (i) still emerging and (ii) interdisciplinary in scope.  For me this has been a really exciting endeavor, but it does have its own set of challenges to work through.  But for now, I will just wish you all an early Happy July 4th. 

Posted by Veronica Root on July 2, 2018 at 07:55 AM in Blogging, Corporate, Criminal Law | Permalink | Comments (0)

Sunday, July 01, 2018

Signing off, and a call for papers

Thanks so much to Howard and the Prawfs crew for hosting me this month!

I wanted to my guest-blogging month by highlighting a call for papers. The Center for Professional Ethics at Case Western Reserve University School of Law will be sponsoring a panel on ”Ethical Challenges in the Role of In-House Counsel“ as part of the CWRU 2018 Leet Symposium on November 2, 2018. We plan to select one panel member from the call for papers. The author will be awarded a small cash prize, and travel and lodging expenses to participate in the Conference will also be covered. Papers are due a month from today, though submissions need not be polished (half-baked submissions are still appreciated!). More details are available here, and I'm also happy to answer any other questions by phone or email.

Posted by Cassandra Burke Robertson on July 1, 2018 at 10:37 PM | Permalink | Comments (0)

Rotations

Welcome to July. Thanks to the participants in our second annual End-of-Term symposium, which turned out to be a lot more eventful (and depressing, for some of us) than expected; they will be finishing up this weekend. We will see you all again next June.

And welcome to our July visitors--returning guests Hadar Aviram (Hastings) and Jeff Lipshaw Suffolk) and first-time guests Dorit Reiss (Hastings) and Veronica Root (Notre Dame). Thank you for joining us.

Posted by Howard Wasserman on July 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Friday, June 29, 2018

(SCOTUS Term) Departmentalism and Kennedy's Hawaii concurrence

June guests Dan Epps and Leah Litman did a "Good Behaviour" edition of the First Mondays podcast to discuss Justice Kennedy's retirement (both clerked for Kennedy). They talked a bit about Kennedy's concurring opinion in Trump v. Hawaii, trying to make sense of it. Their discussion triggered a thought.

Judicial supremacy (to which Kennedy long has adhered) without judicial enforcement is incoherent. Kennedy argued that, even without judicial oversight, executive officials must "adhere to the Constitution and its meaning and its promise." It is an "urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs." But Trump  and his aides and officials believe they are adhering to the Constitution, as they interpret and understand it. Trump and his administration believe that the Constitution gives the President the broad discretion to enact and enforce the travel ban, because national-security concerns outweigh any disadvantages imposed on persons of a particular faith. And if the judiciary is unwilling to review the President's actions, that presidential interpretation becomes the last and controlling word on this piece of the Constitution.

So it must be that Kennedy was urging the President to adhere to the Constitution as the Court (or just Kennedy) understands it. But this is the key insight of judicial departmentalism--the other branches are bound by the judicial understanding of the Constitution only when that understanding is reduced to a binding judgment in an action to which the executive is a party. Or, short of a judgment, the executive prediction that he will be subject to a judgment unless he follows the judicial understanding. But when the judiciary decides that it cannot intervene, no judgment is possible, therefore the judiciary cannot impose its interpretation on the executive. And we return to the executive having the final constitutional word.

Kennedy was trying to have it both ways in his concurrence--no judicial involvement and so no judgment, but a push towards the judicial constitutional interpretation. But he cannot have it both ways. Either the judiciary gets involved or the judiciary's constitutional interpretation carries no weight.

Posted by Howard Wasserman on June 29, 2018 at 11:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, June 28, 2018

Civility is the new unity

I criticized the demands last fall for "unity" in the face of various protests. The call for unity means speech that "divides"--which is to say all speech critical of the status quo or majority position--is divisive. And that is anathema to free speech.

The same can be said for recent calls for civility, to which Neil Buchanan responds at Dorf on Law, Vann Newkirk responds at The Atlantic, and Osita Nwanevu responds in Slate.  One problem is definitional. It is too easy too define criticism or protest, even measured criticism and protest, as uncivil. Another problem is New York Times v. Sullivan, "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." That means debate and criticism of public official can, will, and should be uncivil, especially when it is the powerless attempting to be heard by the powerful who otherwise have no obligation or opportunity to listen or engage. A requirement of civility means a high-ranking public official can demand silence from those who serve her cheese or who stand near her in the restaurant, It effectively creates a right for public officials to be free from proximate speech that she deems unfriendly or uncomfortable--rather than averting her eyes or ears, she can demand civility, which means demanding silence.

Posted by Howard Wasserman on June 28, 2018 at 11:43 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

(SCOTUS Term) Things Are Every Bit as Bad as They Appear, Part I: The Travel Ban

When I accepted Howard’s invitation to join this June’s Supreme Court symposium almost a year ago, I signed off by hoping for an eventful term. Lesson learned: be careful what you wish for.

In writing about the events of the last few days, it is important not to be hyperbolic. But it is equally important not to just write everything off as business as usual and shift into insider baseball or law geek mode. The decision in Trump v. Hawaii was a momentous one, the kind of bet-the-reputation-of-the-courts opinion that will remain at the center of our debates about the proper role of the courts for generations to come.  And the decision of Justice Anthony Kennedy to retire at this moment in our political and judicial history raises the prospect of the most significant shift in our jurisprudence since at least 1936.

In this blog post, I offer a few thoughts on the former; in my next, I will take on the latter.

Continue reading "(SCOTUS Term) Things Are Every Bit as Bad as They Appear, Part I: The Travel Ban"

Posted by Andrew Siegel on June 28, 2018 at 09:41 PM in 2018 End of Term, Constitutional thoughts | Permalink | Comments (9)

(SCOTUS Term) Trying again with First Amendment retaliation

I wrote last week that the narrow and fact-specific decision in Lozman v. Riviera Beach reflected a vehicle failure--the Court wanted to consider the effect of probable cause on First Amendment retaliation claim, but took a case in which retaliatory intent rested with members of the city council, not the arresting officer. The Court on Thursday granted cert in Nieves v. Bartlett, a decision out of the Ninth Circuit (the court most willing to allow plaintiffs to show retaliatory intent even if there was probable cause) that squarely tees-up the issue without possible intervening factual issues.

Posted by Howard Wasserman on June 28, 2018 at 01:17 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 27, 2018

(SCOTUS Term) What is back in play with Kennedy retiring?

Some random thoughts on Justice Kennedy's retirement:

• I agree with Mike Dorf's argument that it is silly to doubt how this will play out--the Republicans have 51 votes, there is no filibuster, Senate Republicans all are going to be on board, and Mitch McConnell will make sure this happens before the elections. I would add that President Trump announced that his nominee would come from a list of 25 names that the White House posted in November, all of whom no doubt are pre-approved by White House Counsel and the Federalist Society; there is not going to be a Harriet Myers or Harold Carswell to gum up or delay the works. (Some of us at FIU would be fascinated to see Trump nominate Labor Secretary, and our former dean, Alex Acosta, although he is not on the list). And I do not believe the risk of overruling Roe/Casey or Obergefell will cause Collins or Murkowski to defect.

• This is the last chance chance for Eric Segall's eight-person/4-4 partisan Court. In fact, it is the perfect chance, even better than 2016. It would leave two divided camps with no real median Justice between the camps, precisely what Segall has in mind to force some compromise.

• Constitutional protection for reproductive rights is history at some point soon. The only question is what state's outright ban on abortion will reach the Court first. Any other doctrines for which Kennedy was the fifth vote with which his replacement may disagree? Might a state reenact and attempt to enforce a sodomy law or a same-sex marriage ban? What will happen with marriage-equality adjacent issues (custody, adoption, etc.)? Note that under judicial departmentalism, nothing stops a state from enacting and enforcing such laws other than the certainty of a judicial loss. Depending on Kennedy's replacement, that certainty is gone. 

• If Republicans keep the Senate in November and Trump remains unpopular, might Thomas retire next year (there were rumors he might go this year)? That would give Trump the same number of SCOTUS appointments in one term as Reagan had in two and more than Obama, Bush II, or Clinton had in two. The 18-year term limits proposals look increasingly sensible.

Posted by Howard Wasserman on June 27, 2018 at 04:36 PM in 2018 End of Term, Howard Wasserman | Permalink | Comments (17)

(SCOTUS Term) Janus

As I have said, the outcome in Janus was so over-determined, I am surprised it took this long to come out. It was decided--and everyone knew it was decided--on the night of November 8, 2016. I figured Alito and Kagan (who sparred in the two prior cases that set this up) had their respective decisions pre-written eighteen months ago.

My one take-away is that the opinion demonstrates why asking SCOTUS nominees about stare decisis is pointless. And so is looking at their decisions as lower-court judges. Stare decisis is too easy to pay lip-service to in a hearing and too malleable (to use the word that was all the rage in the opinion) to limit Justices determined to overrule precedent. And nothing that someone does as a  lower-court judge predicts what she will do when the only limits are prudence and rhetoric.

Kagan scores an important point by arguing that the only reason that Abood had become a First Amendment "outlier" was Knox and Harris, Alito decisions that included dicta attacking Abood that the majority then used to argue that Abood had been undermined. As Kagan wrote, "relying on them is bootstrapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as 'special justifications.'”

Time will tell if this decision hurts public-sector unions as much as advocates (and the dissenters) fear. I do not know labor law well enough to know. The majority says the union could charge nonmembers for representing them in arbitration or grievance procedures, although I do not know if that would be sufficient. Meanwhile, Aaron Tang offers a legislative solution to provide unions with sufficient resources (as have others). But Kagan is correct that there is now an enormous gap in the degree to which government can control employee expression when it comes to unions versus individual speech activities. It cannot compel non-members to pay for work-related speech (which the majority defines as being of public concern), but it can fire workers for making the same speech in and around the workplace. Kagan argues that this will prove to be a "unions-only" protection for government employees objecting to unions, who will otherwise find their at-work speech rights quite limited.

Posted by Howard Wasserman on June 27, 2018 at 01:24 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Enjoining family separation

A judge in the Southern District of California certified a Rule 23(b)(2) class of "[a]ll adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child" and issuing a classwide preliminary injunction  prohibiting DHS from "detaining Class Members in DHS custody without and apart from their minor children," to release minor children from detention, and to take steps to reunite parents and children within 30 days. The court found that plaintiffs are likely to succeed on a substantive due process claim, as the zero-tolerance policies and their effects "shock the conscience.

The court followed appropriate procedures. It created a class that is a unique party to the case, then issuing an injunction that protects that party. This is not the sort of universal injunction Justice Thomas and others are criticizing, because it protects only parties and the parties are defined. The class is broad, but it is manageable and seems consistent with the nationwide class and classwide injunction allowed in Califano.

I would guess that the court (or the Ninth Circuit) is going to stay the injunction, at least the mandatory portions that give the government 30 days to release detained children.

Posted by Howard Wasserman on June 27, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(SCOTUS Term): Justice Kennedy is not a centrist (Several Updates)

For personal and political reasons, I hope Justice Kennedy does not retire. I care deeply about reproductive freedom and a Trump-appointed/Fed Soc-approved replacement would be a fifth vote to eliminate constitutional protections for reproductive freedom as early as fall 2019.

But this rests on a fundamental misconception: Justice Kennedy is not a centrist and never has been. He is a conservative  (although not an Originalist) who follows the conservative judicial line on virtually everything. And this did not begin with the rise of Donald Trump. Kennedy has followed the conservative judicial on just about everything except reproductive rights (and not always) and free speech (which is increasingly becoming a conservative preference)[Update: I forgot LGBTQ rights, of course--although I would bet against Kennedy concluding that sexual-orientation discrimination is sex discrimination under Title VII]. And there are the stray votes to uphold race-based affirmative action in education or in the military-commission cases [Update: And some death-penalty stuff]. Otherwise, he has repeatedly been in the five-Justice conservative majority on most issues--expanding state sovereign immunity, narrowing congressional legislative power, expanding qualified immunity, narrowing Bivens, narrowing habeas, narrowing standing, allowing expanded government support for religion, expanding state power to limit voting. We could go on. And his almost-certain vote in Janus should not be surprising, as Kennedy has been consistent in his dislike for Abood.

It is not that his vote is not in play anymore. It is that this Term's cases did not present the rare issues on which he departs the conservative position.

Update: Dahlia changed her mind following Kennedy's announcement, beginning the piece with:

It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative.

That was a quick reversal. But I obviously agree with where she landed.

Second Update: Eric Citron at SCOTUSBlog identifies five areas, covering 11 cases, in which Kennedy's conclusions or approaches departed from the rest of the conservative Justices.

Posted by Howard Wasserman on June 27, 2018 at 08:56 AM in 2018 End of Term, Constitutional thoughts, Howard Wasserman | Permalink | Comments (16)

Tuesday, June 26, 2018

(SCOTUS Term) Korematsu and the Court of History

In declaring valid the travel ban, the Chief did not cite or discuss Korematsu. He raised it at the end of the opinion, in response to the dissents' "rhetorical" trick of raising that case. But the Court took the "opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--'has no place in law under the Constitution.'" (quoting Jackson's dissent). Joey Fishkin questions how Korematsu is different than this case or what makes Korematsu wrong and the current decision upholding the restriction right, rejecting the distinction based on facial neutrality. The post is worth a read.

I was struck by the Court's reference to the "court of history" in announcing that Korematsu did not reflect a valid interpretation of equal protection. This language hearkens to New York Times v. Sullivan, which declared that "the attack on the validity" of the Alien and Sedition Acts had "carried the day in the court of history."

Posted by Howard Wasserman on June 26, 2018 at 08:32 PM in 2018 End of Term | Permalink | Comments (0)

SCOTUS Term: Justice Kennedy’s Imprint on Masterpiece Cakeshop and Becerra

The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case).  However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think. 

In Becerra, Justice Kennedy’s concurrence chides California for enacting what the state describes as a “forward thinking” piece of legislation.  Kennedy notes that, “it is not forward thinking to force individuals” to unhappily be the instrument of the state’s favored position.   In Masterpiece Cakeshop, Justice Kennedy’s majority opinion takes the Colorado Civil Rights Commission to task for denouncing religion in its desire to create a more progressive civil rights regime.  Tolerance of the perceived intolerant seems to be Justice Kennedy’s approach, an approach that bodes well for robust First Amendment protections.

But perhaps too well?  Scholars and advocates argue that the First Amendment has become “the new Lochner,” a sword to invalidate economic legislation.  This is especially true in an age of soft paternalism, where speech-implicating disclosure requirements have replaced outright prohibitions.  Masterpiece Cakeshop,, in future form, has the potential to undermine decades of civil rights progress applying anti-discrimination provisions to businesses.  Becerra, the dissent fears, has the potential to disturb a wide swath of disclosure requirements -- so long as they are deemed controversial and not simply factual.     

More than Lochner, I think both cases echo the spirit of West Virginia Board of Education v. Barnette, the case deciding that public school students cannot be forced to salute the flag.  I’ll be participating in a symposium on the 75th anniversary of Barnette in the Fall. I will be writing about how courts should treat what I call “good orthodoxy” cases, where a claimant challenges the constitutionality of a law or policy that was designed to remedy the harms committed against historically marginalized groups.  The key to avoiding Lochner-like concerns will be deciding when the law at issue compels speech, and when it regulates something more akin to conduct.

(Cross posted at In a Crowded Theater.)

 

Posted by Erica Goldberg on June 26, 2018 at 07:13 PM in 2018 End of Term | Permalink | Comments (2)

(SCOTUS Term) Preliminary Adjudication

Perhaps recognizing how many constitutional cases are coming to it on immediate interlocutory review of the grant or denial of preliminary injunctions, the Court has been couching its constitutional holdings in that preliminary posture. In NIFLA, the majority held that "petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment." In Hawaii, the majority concluded that "plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."

In both, the Court writes as if its constitutional decision was only for purposes of deciding whether to halt enforcement of the challenged law pendente lite. And in both the Court remands for further proceedings, seeming to suggest that this is not the final word on the constitutional validity of the challenged laws and that there may be further arguments to be made during further proceedings on remand.

This seems like something new. Significant constitutional cases have come to the Court on review of preliminary injunctions, at least where issued following a full and detailed hearing (if not a full "trial"). The Court's determination of constitutional invalidity, as part of the likelihood-of-success prong, was seen as the last word on the constitutional merits in that case, requiring only an after-notice conversion to a permanent injunction on remand. And maybe that is what the Court understands as further proceedings for these cases. But putting this in the language of the preliminary-injunction standard hints at a more interlocutory decision and the expectation that more detailed proceedings, including a full trial on the merits, may be required.

Posted by Howard Wasserman on June 26, 2018 at 06:05 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(SCOTUS Term) The goose is sauced, but the gander is not

On Tuesday, the Court in NIFLA v. Becerra declared invalid, at least preliminarily, California laws requiring crisis pregnancy centers to disclose and advertise certain information about the procedures and services (specifically related to abortion) that can be had for free at state-run facilities. I do not know how much this will hurt the state, because there should be other ways for the state to get this information out--including posting signs outside the clinics themselves.

The problem is that the Court's analysis suggests that the goose and the gander will not be sauced in the same way. The counterpart to California's compelling facilities to provide information about abortion services is states compelling doctors to inform patients about about the development of the fetus, alternatives to terminating the pregnancy, and (often false) information about the risks and effects of abortion, as well to show the patient the ultrasound and play the fetal heartbeat. The Court declared valid one such law valid in Planned Parenthood v. Casey and others have been challenged unsuccessfully in the lower courts. The majority's explanation is that Casey dealt with informed consent surrounding a "medical procedure," analysis that also applies to other abortion script laws. On the other hand, these clinics are not performing "medical procedures," so the state cannot compel providers to say things as part of informed consent. But that gives the game away--terminating the pregnancy always requires a procedure, whereas not terminating the pregnancy does not require a procedure. (Well, other than ultrasounds, prenatal tests, C-sections, and other things related to birth itself). So this decision likely will be used to declare valid speech compulsions imposed by legislatures seeking to eliminate abortion, while barring compulsions by legislatures seeking to protect women who might seek abortions.

If the "medical procedure" line does not show the one-sidedness, Justice Kennedy's short concurring opinion, emphasizing the viewpoint-discrimination in these regulations (a point Justice Thomas avoided), clinches the point. The challenged law "compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these." Medical providers opposed to abortion can point to such precepts. Medical providers willing to perform abortions will not be able to identify a similar philosophical, ethical, or religious precept against having to read to a patient a script containing false medical information.

Finally, a question about that concurring opinion. Kennedy wrote it for himself, the Chief, Alito, and Gorsuch--in other words, four of the five Justices in the majority, other than the author. Can anyone recall this happening--four out of a five-Justice majority join one separate opinion? What went on internally that Thomas would not include something about viewpoint discrimination, even in a footnote, when every Justice joining his opinion wanted to talk about it? And why did the four remain with Thomas as author? Surely there was nothing in the two-page concurrence with which Thomas disagrees.

Posted by Howard Wasserman on June 26, 2018 at 05:20 PM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

SCOTUS Term: Free Thoughts on Trump v. Hawaii

1. I was wrong. I predicted at a conference last month that the Court would uphold the proclamation either 7-2 or 6-3, but it was 5-4. Everybody else on the panel was wise enough not to make such a concrete prediction. And though the Court never says so, I'm still not so sure that the Court would have upheld the first version of the travel ban.

2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

3. The majority's declaration that Korematsu is overruled is an important statement. I confess I had not predicted that the Court might repudiate Korematsu and uphold the proclamation at the same time, but it is a clever move. Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation.

Some scholars had suggested that Justice Thomas's prior opinions might provide some support for Korematsu, but Justice Thomas fully joins the majority opinion, including the repudiation.

Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)

4. As Eugene Volokh notes, Justice Thomas's critique of the issuance of national/universal injunctions makes extensive reference to Sam Bray's excellent article on the subject. And as Steve notes, there is a pending stay application in City of Chicago v. Sessions that looks like a good vehicle for the rest of the Court to decide what it thinks about the practice. (Two of the dissenters argue that a nationwide injunction was appropriate here, but on reasoning that might not extend to the sanctuary cities litigation.)

5. After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.

[Cross-posted from Volokh.]

Posted by Will Baude on June 26, 2018 at 02:54 PM in 2018 End of Term | Permalink | Comments (1)

Call for Papers: Midwestern Law & Economics Association Annual Meeting, September 2018

My colleagues Shahar Dillbary and Yonathan Arbel have asked me to post the following announcement, which I'm proud to do:

Call for Papers: Midwestern Law & Economics Association Annual Meeting – New Deadline: July 20, 2018
The University of Alabama School of Law
September 14-15, 2018
 
Dear colleagues,
 
Please note that the deadline for submitting papers to the Midwestern Law & Economics Association has been extended to July 20, 2018. 
The University of Alabama School of Law (UASL) is pleased to host the Eighteenth Annual Meeting of the Midwestern Law & Economics Association (MLEA) September 14-15, 2018 in Tuscaloosa, Alabama. This year’s meeting will be co-sponsored by the UASL and the UASL¹s Cross Disciplinary Legal Studies Program.
 
We invite participants from across the nation (not just the Midwest) and abroad. There are no registration or membership fees. Participants will finance their own travel and hotel costs.
 
Papers can be on any topic that touches on law and economics. This includes, for example, papers with empirical analysis and economic modeling, as well as papers that address legal doctrine or theory that have been informed by economic thought.
 
To apply, submit a paper or abstract to Shahar Dillbary (sdillbary@law.ua.edu) and Yonathan Arbel (yarbel@law.ua.edu ) no later than Friday, July 20th. 
 
A block of rooms at Hotel Indigo has been reserved for conference participants at a rate of $119 (excluding tax). You can book by calling the hotel directly at 205.469.1660 or via the website at Hotel Indigo Reservations. Use Group ID Bama Law to receive the special conference rate.  You will need to reserve your room by September 3, 2017 to receive this conference rate.
 
Contact Shahar Dillbary (sdillbary@law.ua.edu) and Yonathan Arbel (yarbel@law.ua.edu) with any questions.
 
I acknowledge that Alabama is technically not located in the Midwest, but I gave up fighting that battle when it came to SEALS member school requirements a number of years ago. I will also note that Shahar and Yonathan are superb colleagues and will be great hosts, the Hotel Indigo is lovely, and the quantity and quality of barbecue is fairly high in Tuscaloosa compared to that of most Midwestern college towns.   
 
 

 

Posted by Paul Horwitz on June 26, 2018 at 02:49 PM | Permalink | Comments (0)

(SCOTUS Term) More on universal injunctions (Updated)

I agree with Stephen's post about Gill's foreshadowing of the demise of the universal injunction. Several additional points.

First, the standing analysis in Gill was tied to the nature of the right and the theory of the violation. We see that not only in the Chief's majority opinion, but in Kagan's concurring opinion guiding these and future plaintiffs on how to frame this as a First Amendment claim for which an all-state injunction may be appropriate. But this emphasizes the unavoidable and inherent connection between standing and merits, because the nature of the injury (and thus the permissible scope of the remedy) depends on the substantive right asserted. It is about time we follow Willie Fletcher on this.

Second, an all-state injunction ordering redistricting in a case such as Gill would not be universal, at least not as a formal matter. The injunction would have an unavoidable spillover effect to the benefit of non-parties--the government cannot redristrict to protect only the plaintiff. But the injunction still would protect only the plaintiffs in the case and only the plaintiffs would be able to enforce the injunction.

Third, if Stephen is correct that the next chance to consider universal injunctions is the stay request in Chicago v. Sessions, the result on the issue will be obvious because the universal injunction cannot be justified in Chicago. There are arguments that a universal injunction could be appropriate for the travel ban, given the large number of affected persons, their geographic dispersal, how easily they can move, and the use of third-party standing that made it impossible to identify specific injured persons (for example, Hawaii could not identify which people from the affected countries might want to travel to Hawaii to study or teach). But no such remedy is necessary in Chicago, because each city suffers its own injury by the denial of funding to it and each can bring its own lawsuit.

Update: A good post from Michael Dorf arguing that Thomas' critique of universal injunction is "ridiculous" because it focuses on antiquarian ideas of historic equity. It does not grapple with genuine arguments in favor of universality (conservation of resources) or the obvious solutions, such as Rule 23(b)(2) class actions.

Posted by Howard Wasserman on June 26, 2018 at 02:26 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

Posted by Stephen Sachs on June 26, 2018 at 01:34 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Scholarship in the Courts | Permalink | Comments (1)

(SCOTUS Term) Thomas adopts universality, rejects injunctions

I may have more to say about Trump v. Hawaii later, but I wanted to start with Justice Thomas' concurring concurring opinion on scope-of-injunction. (The majority, having rejected the merits of the plaintiffs' argument, says it is unnecessary to reach that issue).

Thomas begins with a footnote adopting "universal" as the "more precise" term because the injunctions are distinctive because thet "prohibit the government from enforcing a policy with respect to anyone, including non-parties--not because they have wide geographic breadth." (Unfortunately, Thomas does not cite me for the nomenclature point). Instead, he relies heavily on Sam Bray's discussion of the history of equity and universal injunctions. He then rejects scholarly counter-arguments--protecting non-parties and constraining the executive--as not justified by historical limits on equitable and judicial power. He closes with "[U]niversal injunctions are legall and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

[Update: I should have included Justice Sotomayor's brief, conclusory discussion. She argues that given the nature of the Establishment Clause violation, a universal injunction was necessary to accord complete relief to the plaintiffs and was dictated by the extent of the violation established.]

Posted by Howard Wasserman on June 26, 2018 at 12:07 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, June 24, 2018

SCOTUS Term: Extraterritorial remedies: How Far Will WesternGeco Go?

On Friday, the Supreme Court issued its opinion in WesternGeco v. Ion Geophysical Corp. The case involved a patent infringement claim. WesternGeco alleged that Ion Geophysical Corp. had manufactured component parts which it shipped overseas intending that they be integrated into a product for which WesternGeco held a US patent. The question before the Court was whether WesternGeco could recover damages for lost profits arising from sales of the product outside the United States, given the presumption against the extraterritorial application of U.S. statutes

                  In a 7-2 decision authored by Justice Thomas, the Court held that WesternGeco could indeed recover for the loss of profits from overseas sales. The Court held that it need not decide whether the presumption against extraterritoriality had been overcome (a difficult question that the Court acknowledged could have far-reaching effects) because “conduct relevant to the statutory focus in this case is domestic”—that is, the production of the component parts took place in the United States. Because the wrongful conduct took place within the US, the statute was not being applied extraterritorially.

                  Justice Gorsuch, joined by Justice Breyer, issued a dissenting opinion arguing that WesternGeco should not be allowed to recover for lost sales outside the US. The dissent pointed out that damages were being recovered for the foreign sales of the product—and those foreign sales did not themselves violate the U.S. Patent Act: “No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our patent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders.”

                  The Court’s decision is an interesting departure from its recent trend toward limiting litigation with foreign dimensions--a trend that Professor Pamela Bookman has called “Litigation Isolationism.” This decision potentially opens the door—at least a crack—to an increase in transnational cases. In allowing recovery based on foreign sales, Justice Thomas’s majority opinion criticizes the restrictive view held by Justices Gorsuch and Breyer, stating that the dissent’s “position wrongly conflates legal injury with the damages arising from that injury.” But of course, much litigation is driven by the possibility of damages—and this is doubly or triply true in transnational litigation, where the possibility of higher damages is a big part of what draws litigants to U.S. courts in the first place, “like a moth to the light.”

                  Going forward, the question will be how far the WesternGeco decision extends beyond its facts. Intellectual property lawyer Ronald Abramson has suggested that the logic of the decision is not “necessarily limited to patent damages,” and that it appears “to open up some more room for a full remedy for infringement (or other violation or tort), which addresses foreign consequences.” It remains to be seen whether the Court will in fact extend the decision in such a manner. Plaintiffs seeking a remedy for foreign harms caused by domestic action, however, will likely rely on WesternGeco’s rationale.  

Posted by Cassandra Burke Robertson on June 24, 2018 at 11:46 PM in 2018 End of Term | Permalink | Comments (2)

Universal injunctions in other countries

An alert reader emailed this photo, taken at a construction site in London.

Image1

I found the court order. I cannot find details about the case or the separate injunction referenced in the order. [Update: The referenced order is here] The "Seventh Defendant" mentioned is "PERSONS UNKNOWN entering or remaining on the Claimants' property without the Claimants' license or consent." The posted notice constitutes notice of the order and the injunction itself. I think that category was intended either to create a defendant class (only one named defendant was represented) or to constitute a group of John Doe defendants. So it is not quite universal, as there seems to be an attempt to expand the scope of the case to expand the injunction.

Either way, I am not sure it would fly in the U.S. to subject a broad number of unknown people to contempt without being named or well-represented in the action.

Posted by Howard Wasserman on June 24, 2018 at 11:27 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Saturday, June 23, 2018

When the Nazis became "The Nazis" (Updated)

That question occurs to me reading historian Deborah Lipstadt's argument against comparing family separation and the detention of children and families to Nazis and concentration camps. She argues that the analogy is historically inaccurate, rhetorically self-defeating, and unnecessary, because "something can be horrific without being a genocide or a Holocaust."

One problem with both Nazi comparisons and criticisms of Nazi comparisons is that they assume a singularity to what the Nazis did and were. But, as one Holocaust scholar argues, the Nazi campaign against the Jews did not begin with murder or even intend towards murder. Hitler and the Nazi Party came to power in 1933 seeking to strip Jews of civil rights rights, to "degrade, segregate, and diminish" Jews--precisely how Lipstadt describes the purpose of apartheid. The plan was to keep new Jews from entering Germany and expel those present. The turn to mass murder did not begin until 1941, when officials realized they had both the need and the means.* There were concentration camps for political and other prisoners (including Jews) from the beginning of the regime and conditions in the camps were poor. But gas chambers were not installed at the camps until 1941 and construction of "death camps" designed only for murder began the same year.

[*] Some scholars argue that the Nazi turn to murder grew from a conflict between two Nazi goals--conquering nations and creating a Greater Reich and getting rid of the Jews within the Reich. Millions of Jews lived in the areas Germany invaded, so as German territory grew, so did the number of Jews in German territory.

In other words, the Nazis had between five and eight years of harassing, intimidating, isolating, and dispossessing Jews, marked with dehumanizing metaphors and language, but without resort to genocide. That is, between five and eight years of pursuing discriminatory policies that are not, in degree or kind, so different from what many other regimes (South Africa, Jim Crow South) have pursued. So focused, the analogy between German policies and some aspects of U.S. treatment of  immigrants is not entirely inaccurate.

Lipstadt's assumption is that "The Nazis" is shorthand for what Nazi Germany became from 1941-45, not what they started out as or the discriminatory policies they implemented from the beginning. And that is probably true. The power of the analogy comes from what made the Nazis different--the ultimate horrors everyone knows.

[Update: Andrea Pitzer has written a book called One Long Night: A Global History of Concentration Camps, tracing their origins (and name) to Cuba during the revolt against Spanish rule and their acceptance through the early days of Nazi rule. In this interview and this op-ed, she explains how the term and its implications changed under the Nazis and argues how and why the term applies to the current situation in the U.S.]

Posted by Howard Wasserman on June 23, 2018 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, June 22, 2018

SCOTUS Term: Teaching Carpenter v. United States

Because I teach criminal procedure but write mostly about the First Amendment (I do have some Fourth Amendment pieces), I read Fourth Amendment cases differently from First Amendment cases.  The Supreme Court's decision in Carpenter v. United States is exciting because it holds that government use of cell site data to determine a defendant’s location over a period of seven days is a search, requiring probable cause and a warrant.  Perhaps even more exciting, Carpenter promises to be a joy to teach.

There are so many reasons why Carpenter will be a great teaching case.  Skeptical (and anxious) students prefer precise answers to thorny legal questions, but also need to be pushed to recognize a case’s inherent ambiguities and open questions.  The majority and dissenting opinions give the reader snippets of clarity but also plenty of work to do to find coherence with underlying principles for future application.  The case also straddles the line between “third-party doctrine” cases, so it recruits line-drawing and analogical reasoning skills.   Plus, fundamentals of the doctrine are challenged by several Justices.  The different opinions grapple with the relationship between property and privacy, and the Court also wades into confused areas like the connection between the Fourth Amendment and the subpoena power.  This case has everything, even a lesson in cell phone technology!

Some of the most pedagogically interesting aspects of Carpenter:

Continue reading "SCOTUS Term: Teaching Carpenter v. United States"

Posted by Erica Goldberg on June 22, 2018 at 11:37 PM in 2018 End of Term | Permalink | Comments (1)

ACLU's competing values and principles (Multiple Updates)

On Thursday, a memo leaked showing the national* ACLU's new policies on undertaking representation where the litigated issue conflicts with the organization's other values and principles, notably equality and the rights of historically disadvantaged groups. The memo lists general case-selection criteria. It then identifies five considerations specific to free-speech cases--whether the speaker seeks to engage in or promote violence, whether the speaker seeks to carry weapons, the impact of the proposed speech and its suppression (including how the speech advances white supremacy or negatively affects oppressed communities or historic social inequalities), the extent to which the ACLU can represent the speaker while publicly denouncing the speech, and the extent to which it can mitigate the conflict (such as by earmarking recovered attorney's fees to groups the speaker attacks).

[*] The memo states that the policy binds the national office, but does not and cannot bind local affiliates.

The memo is being read and garnering attention as the ACLU backing away from its historic protection for free speech, especially its paradigmatic protection of Nazis marching past a village full of Shoah survivors. It seems to make unlikely (if not outright preclude) that the national office will represent Nazis or white supremacists in the future. The memo purports to demand a balance--how much the speech will attack certain groups compared with how much the speech restriction, left unchallenged, will harm free speech generally (presumably by also being used against pro-equality speakers). This tries to read as a balancing test, a "stop-and-think" policy that requires the group to "make every effort to consider the consequences of our actions" before taking or declining representation. But it is hard to envision a case in which that balance is going to weigh towards representing a racist, sexist, anti-Semitic, anti-whatever group, when that representation is certain in every case to anger those oppressed groups that the ACLU wants to maintain as allies.

Like any vesting of discretion, we must await application. But it does not bode well.

[Update: CoOp publishes remarks by ACLU President Legal Director David Cole responding to some criticisms of the policy, insisting these are guidelines and that the organization will continue to represent "even the most repugnant speakers."]

[Further Update: CoOp followed with statements from two former ACLU Presidents: One from Ira Glasser arguing that the ACLU has never before required that the content of speech be considered as part of the representation decision and two statement Nadine Strossen taking a more sanguine approach to the effect the guidelines are likely to have, arguing that the ACLU has always considered the potential harm of speech in deciding how to undertake representation, distinct from whether to undertake representation.]

Posted by Howard Wasserman on June 22, 2018 at 04:24 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference (SCOTUS Term)

The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan's opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are [at least inferior] officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of the agency. SCOTUSblog is running a symposium on the case, including a great post by my colleague Peter Shane in which he coins the term "constitutional dodgeball" to describe the judicial minimalism at play in a number of decisions this Term.

It's also worth checking out Justice Thomas's concurrence, which cites extensively my Yale JREG co-blogger Jenn Mascott's Stanford Law Review article on the definition of "Officers of the United States." I like how Dave Hoffman put it on Twitter:

In this post, however, I want to briefly flag two other decisions from yesterday that illustrate distinct, albeit not new, approaches to limiting the reach of Chevron deference.

Continue reading "Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference (SCOTUS Term)"

Posted by Chris Walker on June 22, 2018 at 03:12 PM in 2018 End of Term | Permalink | Comments (5)

(SCOTUS Term): Marbury and appellate jurisdiction

Marbury v. Madison made quite the appearance in Friday's decision in Ortiz v. United States, where the Court held that there was no statutory or constitutional violation in having a military officer serve as a judge on a service's Court of Criminal Appeals (which reviews courts martial decisions) while also holding a position as a presidentially-appointed-Senate-confirmed judge on the Court of Military Commission Review.* But the Court split over whether it had Article III jurisdiction to review decisions from the non-Article III Court of Appeals for the Armed Forces (the top court in the military-justice system), an issue on which the Court granted argument time to Aditya Bamzai (U Va.) as amicus.

[*] Ortiz was consolidated with Cox v. United States and Dalmazzi v. United States the latter and argued by our own Steve Vladeck. The Court DIG'd both cases, which also raised statutory issues the Court believed were unnecessary to reach.

Justice Kagan wrote for seven that the Court had jurisdiction; Justice Thomas joined that opinion but added a typically idiosyncratic concurrence; and Justice Alito dissented for himself and Justice Gorsuch. And it was all about Marbury, which both the majority and dissent discuss at length (while dropping comments that, of course, everyone knows the details of that case). Marbury establishes that SCOTUS' original jurisdiction is limited to the cases enumerated in Article III and that its appellate jurisdiction is limited to reviewing, revising, and correcting proceedings initiated in a another court, not to creating a judicial case.  Everyone agreed this was not (and could not be) an exercise of original jurisdiction. The point of departure is whether SCOTUS could exercise appellate jurisdiction over a decision of CAAF and the military-justice system.

Continue reading "(SCOTUS Term): Marbury and appellate jurisdiction"

Posted by Howard Wasserman on June 22, 2018 at 02:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 21, 2018

SCOTUS Term: Stare Decisis and Judge-Made Law

One of this morning's more consequential Supreme Court decisions was South Dakota v. Wayfair, where the Supreme Court overruled its 51-year-old and 26-year-old decisions in Bellas Hess and Quill to hold that states may require out-of-state retailers to collect and remit sales tax. The decision was 5-4 (and as Jonathan Adler notes, with an unusual lineup), but interestingly all nine justices agreed that the original decision in Bellas Hess was wrongly decided. What they disagreed about was stare decisis -- should the prior decision stand? -- especially given the context of the Court's jurisprudence under the so-called "dormant" Commerce Clause.

Normally the Court adheres more strongly to precedent in cases of statutory interpretation than in constitutional cases because Congress can fix the Court's mistakes of statutory interpretation but can't fix the Court's constitutional mistakes. The dormant Commerce Clause -- under which the courts strike down state laws that improperly burden interstate commerce, unless Congress authorizes those laws -- is somewhere in between. It purports to be an interpretation of the Constitution, but it is still subject to revision by Congress. So what form of stare decisis should apply?

From the majority opinion by Justice Kennedy:

Continue reading "SCOTUS Term: Stare Decisis and Judge-Made Law"

Posted by Will Baude on June 21, 2018 at 07:57 PM in 2018 End of Term | Permalink | Comments (4)

SCOTUS Term: Finding the Law, Abroad and at Home

Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?

Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.

That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.

Continue reading "SCOTUS Term: Finding the Law, Abroad and at Home"

Posted by Stephen Sachs on June 21, 2018 at 12:38 PM in 2018 End of Term, Civil Procedure, International Law, Legal Theory | Permalink | Comments (4)

(SCOTUS Term): Trusting adjudicators on remand

The Court on Thursday decided in Lucia v. SEC (link corrected) that SEC ALJs were officers of the United States rather than employees and that the appointment of ALJ's by SEC staff (rather than the SEC itself) violated the Appointments Clause. Justice Kagan wrote for herself, the Chief, Kennedy, Thomas, Alito, and Gorsuch. Thomas concurred, with Gorsuch. Breyer concurred in the judgment in part, agreeing that the ALJ in this case was not properly appointed, but for statutory rather than constitutional reasons. Sotomayor dissented on the constitutional question, joined by Ginsburg.

I want to focus on the issue of remedy in the case. The Court remands for a new hearing on the charges against Lucia (involving alleged deception of prospective clients). But it insists that the new hearing cannot be before the same ALJ; it must be before a different (properly appointed) ALJ or the SEC itself. The original ALJ "has already both heard Lucia's case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before." Appointments Clause remedies are intended to incentivize parties to bring Appointments Clause challenges; a party has no incentive to bring the challenge if the remedy is a new hearing before the same adjudicator, properly appointed. Because there was no suggestion the ALJ erred on the merits, he can be expected to reach the same result from hearing the same case. Breyer dissented on this point (and Ginsburg and Sotomayor joined that portion of his opinion). He compared reversal on appeal, where the same judge typically rehears the case on remand. And because this reversal was on a "technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings," neither due process nor the structural purposes of the Appointments Clause would be violated by the same ALJ rehearing the case.

The competing approaches reflect a paradox. For Kagan, the fact that the judge was not criticized or corrected on the merits shows that he cannot be trusted to hear the case anew, because his views on the merits will not have changed and no new or different evidence or arguments on the merits cause him to change those views. Implicitly, a decision criticizing the original decision or requiring something new forces him to reconsider those merits, whether to correct the original error or because the new information is convincing. Breyer's approach, on the other hand, presumes that a judge criticized on the merits might be put-off by the reversal (lower-court judges do not believe they were "wrong" even though a reviewing court disagreed with their decision) and more dug-in to his original position. If we trust that judge rehear that case on remand, we should trust a judge in this situation.*

[*] Marcus, Redish, Sherman, and Pfander, the Civ Pro book I previously used, included in the Discovery chapter a defamation action against Diana Ross by a former employee. The district court had dismissed the case on 12(b)(6), but the Second Circuit had reversed. The case back before the same district judge in discovery, every discovery decision went against the plaintiff and in favor of Ross, which can be seen as at least influenced by the judge's previously established views on the merits.

Kagan's approach raises the question of what other "structural" errors might be similar to an appointments problem as to require rehearing by a different judge. Denial of counsel comes to mind, although the assumption is that proper counsel will present evidence and arguments that the pro se party failed to present, changing what is available on the merits and requiring the judge to think about the merits differently. Another possibility is routine shackling in Sanchez-Gomez; if the reviewing court says this defendant should not have been shackled, it does not criticize the trial judge on the merits of any decision she made against the defendant, so that judge would be expected to reach all the same judgments.

Posted by Howard Wasserman on June 21, 2018 at 12:11 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, June 20, 2018

Mootness, enforcement, and particularized injunctions

The mootness analysis in this Eleventh Circuit decision illustrates the importance of focusing on the particularized nature of litigation and remedies, including injunctions. This was an action against Hooter's by Haynes, a visually impaired plaintiff, alleging that the incompatibility of its website with certain software violated the ADA. Hooter's settled a separate lawsuit brought by Gomez and raising similar claims, agreeing to place an accessibility notice on its site and to improve access to the site.

The court held that the settlement in Gomez did not moot Haynes' action, for three reasons. First, whatever Hooters agreed to do had not been done, so Haynes still was suffering a remediable injury. Second, while compliance with the Gomez settlement would provide some of what Haynes sought, it did not provide everything and Haynes sought some unique remedies. Third, and this should be most important, Haynes is not a party to Gomez and so lacks the power or right to enforce that order if Hooters fails to comply or if it should reach a different agreement with Gomez.

That control over enforcement of the judgmentt is essential to party status and to injunctive relief. It is why injunctions are particularized to the parties--binding the defendant as to the plaintiff and allowing the plaintiff to enforce if the defendant fails to comply.

Posted by Howard Wasserman on June 20, 2018 at 10:57 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, June 19, 2018

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison.  That sentence was at the very bottom of the relevant Federal Sentencing Guideline range.  After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months.  The defendant sought a resentencing under the new, lower range.  The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested.  The judge did not provide any explanation for the new sentence.  Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors.  (A copy of the form can be found at the end of the opinion.)

The defendant was entitled to appeal his new sentence, and he did.  Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision.  As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)

[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.

But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case.  Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision.  Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”

Continue reading "SCOTUS Term: Chavez-Mesa and Sentencing Appeals"

Posted by Carissa Byrne Hessick on June 19, 2018 at 11:48 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (1)

Monday, June 18, 2018

(SCOTUS Term): Deciding little, deciding few, and competing judicial functions

I had thoughts similar to what Dahlia Lithwick and Eugene Volokh argue. This Court does not want to decide substantive constitutional issues--to make constitutional law--that can guide lower court, other branches and governments, and the public. In addition to the standing punt in Gill (which retains the gerrymandered status quo, so it is not a neutral result), Volokh points to Tuesday's decision in Lozman and last week's decision in Masterpiece as examples of the Court failing to resolve the tricky substantive issues presented in the cases. The acid test will be whether the Court does something similar with the travel ban. (Eugene also mentions Janus, although the outcome in that case is so over-determined, it feels like waiting for the inevitable).

The wisdom of so-called minimalism or reliance on "passive virtues" or what Dahlia derides as the Chief fearing political criticism must be measured against the Court's shrinking docket. The Court will decide fewer than 70 cases this Term. And the cases it decides will not have the long-term prospective effects that we expect from a Court of last resort working with an almost-entirely discretionary docket. The nature of that docket focuses the Court on its rulemaking, as opposed to its error correction, function. So what is the Court doing and how does it see its role?

On the rulemaking/error-correction line: We might think of Lozman and Masterpiece as failures of discretionary case selection, creating confusion between those competing roles of the Court. In both cases, the Court realized it had the wrong vehicle for resolving the core constitutional issue. Neither case presented the paradigm case for the supposed legal issue. And both had unique features that allowed for narrow resolution of the case at hand (in other words, correcting lower-court error) while providing little general guidance (rulemaking).

Posted by Howard Wasserman on June 18, 2018 at 09:59 PM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Behold the passive virtues

The Court had not one but two shots at partisan gerrymandering this term. And those chances included limiting (if not avoiding) charges of political bias, because both sides oxen were being gored--one case was Republican gerrymandering to screw Democrats and one case was Democratic gerrymandering to screw Republicans. Alas, the Court punted in both.

Gill v. Whitford, the Republicans-screwing-Democrats case from Wisconsin, was the higher-profile. The Court unanimously rejected the case on standing grounds. The Chief's opinion (joined by everyone at least in part) emphasized the individual nature of the standing inquiry in a vote-dilution case--each plaintiff must show the injury she suffered to her vote in her gerrymandered district, without regard to the makeup of any other district or the statewide balance of partisan power. The Court remanded to give the plaintiffs an opportunity to plead and offer evidence of standing, although Justices Thomas and Gorsuch did not join this part. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor (but not Kennedy), concurred to provide a roadmap for how plaintiffs can establish standing on a vote-dilution theory. This may include statewide evidence of harm to plaintiffs in districts throughout the state warranting a statewide remedy to relieve the injury to plaintiffs in multiple districts (on the assumption that the case include plaintiffs from all or most districts). Kagan also mapped how plaintiffs, including a political party, could establish standing on a First Amendment association theory, which by definition focuses on statewide harms.

Benisek v. Lamone was the Democrats-screwing-Republicans case from Maryland and was framed as lower stakes, focusing only on vote dilution in one district and not seeking to combat systemic statewide gerrymandering. Standing was not an issue. But the Court in a per curiam held that the  non-merits elements of the preliminary-injunction analysis were not satisfied, including the public interest and balance of equities.  The Court emphasized plaintiffs' delay in seeking an injunction and the impossibility, if the current map cannot be used, of drawing a new map that could be used in 2018.

Hasen points out that a third partisan gerrymandering case awaits the Court decision on whether to assert jurisdiction that includes a free-association challenge to explicit statewide partisan districting. But the case has similar standing concerns. We will see on remand how much mileage plaintiffs can get from Kagan's concurrence.

Continue reading "(SCOTUS Term): Behold the passive virtues"

Posted by Howard Wasserman on June 18, 2018 at 02:47 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

SCOTUS Term: Beckles v. United States As Anti-Canon

A little more than a week ago, Carissa Hessick wrote a PrawfsBlawg post about the Supreme Court’s decision in Hughes v. United States.  Hughes decided whether a defendant who entered a “Type C” plea agreement could have his or her sentence reduced after the U.S. Sentencing Commission retroactively reduced the defendant’s Sentencing Guidelines range under the federal Sentencing Guidelines.  Hughes answered that question in the affirmative because “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

In her post, Carissa noted that Hughes largely ignored the Supreme Court’s earlier decision in Beckles v. United States, which held that the Sentencing Guidelines are not subject to vagueness challenges.  Beckles reached that conclusion on the ground that defendants’ sentences are not really affected by the Sentencing Guidelines, since district courts are not required to sentence defendants within the ranges provided for by the Sentencing Guidelines.  In other words, defendants’ sentences are not really dictated by (or, one could say, based on) the Guidelines after all.

joked that Carissa’s post should have actually been titled “Beckles v. United States As Anti-Canon.”  After today’s sentencing opinions, I decided to write that post up myself.

Continue reading "SCOTUS Term: Beckles v. United States As Anti-Canon"

Posted by Leah Litman on June 18, 2018 at 11:53 AM in 2018 End of Term | Permalink | Comments (2)

(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.

Posted by Howard Wasserman on June 18, 2018 at 11:52 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath"

A commenter here recently observed that one of the key functions of a legal academic blog like this is to promote one's articles. Right they are. I've been very slowly working, on and off for the past ten years or so, on what I hope will eventually be a book on oaths and the Constitution. Since an oath means little without the underlying values and incentives to undergird it, it is necessarily and maybe primarily a book about the role of honor in American political culture and constitutional law: both a historical examination and an effort at reconstruction and revision of the concept. To shine the spotlight half away from myself for a brief moment, I wrote recently that a growing number of people have concentrated on issues connected to honor, oaths, office, and similar concepts:

General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.

Here is a new piece that is a small part of that project, titled "The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath." It's a contribution to a wonderful roundtable that was held recently to discuss Randy Kozel's recent book, Settled Versus Right: A Theory of Precedent.  The contributions include pieces by Alli Orr Larsen, Jason Mazzone, Stephen Sachs, Larry Solum, and Fred Schauer, among others, with a response by Randy. The roundtable was hosted by the University of Richmond's law school and coordinated by Kurt Lash and Jason Mazzone. The contributions will appear in Constitutional Commentary. They are short, which in my case makes the piece unusual and, I hope, less tedious than usual, although it does mean my piece is largely and merely an introduction to some of the concepts that interest me in this area rather than a full explanation or defense. (I have a longer piece on honor, oaths, and the rule of law that, after much delay on my part and extraordinary patience on the editors' part, should appear in the Canadian Journal of Law and Jurisprudence in time.) Here's the abstract. Enjoy.

This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality.

In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office.

The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus. 

 

 

Posted by Paul Horwitz on June 18, 2018 at 09:42 AM in Paul Horwitz | Permalink

Saturday, June 16, 2018

The "Faithful Execution" Conversation on Self-Pardons, Continued

Take a look at the Kent/Leib/Shugerman defense of the fiduciary theory of Article II, replying to critiques by McConnell and Epstein.  Stay tuned for our deep dive that will produce the first comprehensive effort to trace where the language of "faithful execution" came from and what it is doing in Article II, twice.

Posted by Ethan Leib on June 16, 2018 at 12:35 PM | Permalink | Comments (0)