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Proceduralists’ Shibboleths

Would Charles Clark really care about plausibility pleading?

Would Charles Clark really care about plausibility pleading?

(Cross-posted at Prawfs).

Recently a call for nominations came out on the civil procedure listserv: what’s the worst civil procedure case ever.  Nominations poured in–even as Pepperdine’sexcellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal.  In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars.  The decisions together appear to be politically conservative (fitting modern progressives’ newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars’ newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.

But here’s the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in  or out of Court. In that way,  Twiqbal is a black hole for scholarship — its sucks in quants and non-quants alike in, but nothing comes out.

Consider two recent papers — one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review.  As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that “a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal.”  (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal,  conclude that whether “at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements.” And yet, as they point out, “many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect.”

What’s going on? Is this motivated cognition by progressive proceduralists, who can’t admit that the worst cases of their generation (or any!)  had no measurable effects? (That’s not to say that Twiqbal hasn’t had an effect in the world – just not one that is observable.)  Because their priors are so strong, later evidence is discounted.  As such, Twiqbal is quickly becoming a progressive proceduralist’s shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded.  Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.

Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure – the beginning of a return to a pre-1938 code or fact pleading regime. Like Doleor Printz, it’s a signal of a revolution that’s coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively — will Twiqbal be such an icon in another few generations?

 

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FAN 51.2 (First Amendment News) Larry Tribe unto the Breach — “I believe Citizens United was rightly decided” (But hold on, there is more . . . )

[J]ust as these issues cannot be intelligently settled by slogans like “money isn’t speech” and “corporations aren’t people,” so too they cannot be satisfactorily settled by proclamations that independent expenditures don’t corrupt or by sweeping assumptions that government regulation of spending on political speech always equals censorship.” — Laurence Tribe (March 9, 2015)

Venturing into dangerous ideological minefields, Professor Larry Tribe has just posted an article on the most controversial topic in the modern free speech era. His article, posted on SSRN, is entitled “Dividing ‘Citizens United': The Case v. The Controversy.” The piece will appear in a future issue of Constitutional Commentary.

Here is how Tribe begins his article:

In the five years since Citizens United, that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told ‘no.'”

And where does the all-too-liberal professor come down on the case that so many liberals love to hate? Well, here is his short take: “As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided.” He sounds like another liberal prepared to incur the wrath of his fellow liberals — merely consider how this issue has divided the ACLU. But hold on; the good professor may yet endear his liberal friends with the next admonition:

It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Laurence Tribe

Professor Laurence Tribe

For those reasons and others, Professor Tribe believes we should rethink the First Amendment as it pertains to campaign finance law. “The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme.” He fears that the Court has begun to privilege “an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture.” That troubles him.

And yet . . . he remains concerned about First Amendment liberty being cabined. That troubles him, too. What to do? Nuance! Balance! Moderation!

On the one hand: “The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment.” (Applause: Conservatives)

On the other hand: “But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values.”  (Applause: Liberals)

→ The problem is that Citizens United represents an “unrelenting skepticism of legislators’ motives, a pathologically rigid doctrinal absolutism, and a naïve, unrealistic economic libertarianism and blindness to political corruption.”

The challenge: “How to understand the First Amendment, and deciding how it should blend libertarian, egalitarian, and democratic values, is among our most difficult constitutional questions.”

The warning: “There may be satisfaction in such intellectual absolutism, in painting in bright colors and with a broad brush. But a wiser path recognizes the difficulty of the normative issues at the heart of campaign finance law and the irreconcilable values that recent cases implicate.”

→ The plea: “This is not a plea for deciding any particular case one way or another. Indeed, as I stated at the outset, I believe that the Court rendered the correct judgment in favor of the right claimed by the corporation that sought to distribute a video critical of Hillary Clinton in Citizens United. This is instead a plea for greater judicial open-mindedness, sensitivity to nuance, and a measure of old-fashioned humility.”

→ The path: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality. The form that these regulations may take is properly policed by the federal judiciary . . .”

Question: Has Professor Tribe found some important common ground? A new day perhaps? Or has he, too, abandoned the values that for so long informed liberal thought? Yesterday repackaged? However you come me down, let the dialogue begin anew.

There is, of course, more (much more), and I urge readers to give serious thought to this thoughtful contribution to our free speech literature.

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Help! Help! I’m Being Coerced!

I was curious to hear thoughts on the following possible resolutions of King v. Burwell.  Suppose the Court holds that the portion of the Act at issue is unambiguous and that federal subsidies may not go to people in states without exchanges.  They also say that this provision raises serious constitutional questions, but that no constitutional claim is before them, so they will not address that point.  At that point, some state will presumably sue and raise the constitutional claim.  Let’s say that claim is successful when it gets back to the Supreme Court.  Would the relief be that subsidies must go all states, or would the subsidies just be annulled entirely until Congress writes a new subsidies provision that is constitutional?

This is not an entirely academic question.  Suppose four Justices read the statute in the Government’s favor and four go the other way in King.  Justice Kennedy, meanwhile, reads the statute as unambiguous and unconstitutional.  His opinion would then control, and that would mean, I guess, that all subsidies would be unlawful until the Act is amended.  Right?

P.S.  I couldn’t resist writing a post with this title.

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FAN 51.1 (First Amendment News) Oklahoma ACLU Issues Separate Statements on Racist Chants

March 9, 2015 (ACLU of Oklahoma Press Release)

OKLAHOMA CITY – Following this weekend’s news of members of the University of Oklahoma’s Sigma Alpha Epsilon Fraternity chanting about lynching African Americans, and the investigative and disciplinary actions in progress, the American Civil Liberties Union of Oklahoma as released the following statements:

The following is attributable to Ryan Kiesel, ACLU of Oklahoma Executive Director:

Sixty-six years ago and after two trips to the United States Supreme Court, Ada Lois Sipuel Fisher became the first African American student to be admitted to the University of Oklahoma College of Law. Even after her admission, she was still segregated from her white peers. With a legal team that included Thurgood Marshall, her case played a critical role in the end of the separate but equal doctrine. As monumental as that victory may have been, the video showing SAE fraternity members at the University of Oklahoma singing a disgraceful racist chant serves as a stark reminder that racism is very much a present reality.

We offer our sincere appreciation to the students, faculty and staff who have joined together in solidarity against hate and racism. They remind us that the spark in Ada Lois Sipuel Fisher still persists in the minds of those who benefitted from her work. Let history say the same of us. At the very least, this awful incident must prompt a robust conversation and a review of every aspect of campus life so that we can combat persistent discrimination and realize racial justice. And as the fates of the students at the center of this controversy unfold, we encourage the administration to demonstrate their commitment to due process; for it is often in protecting the rights of the very worst, we are able to demonstrate our fullest commitment to justice. (emphasis added)

The following is attributable to Brady Henderson, ACLU of Oklahoma Legal Director:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night. While many Americans paused this weekend to reflect on the 50th Anniversary of Martin Luther King’s famous march in Selma, Alabama, these students marked the occasion by mocking one of the saddest chapters of American history, the mob-fueled, government-sanctioned murder of African Americans. These students remind us that despite King’s victory in Selma, and other battles won by countless citizens with the courage to face hate head-on, racism is not dead or even dormant in modern America, even on our college campuses.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members. The deep-rooted problem of racism will not be solved by discipline alone, but by open and honest dialogue and an accounting of where we are and where we need to go not just in our universities, but in the communities university students will one day lead.(emphasis added)

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Population Control in Griswold v. Connecticut

I was reading Petitioner’s Brief in Griswold, and was struck by this passage:

Population expansion poses a momentous problem for this country and the world today. The issue must be ranked as equal in importance to the questions of disarmament and peace, automation, poverty and civil rights. Indeed population control is a part, and a significant part, of each of these burning problems. We will not attempt to present in this brief the facts pertaining to the “population explosion.” It is now fully apparent that the public welfare of the world, this nation, and all its constituent parts, requires immediate consideration of measures to plan and limit population growth. And any such program must obviously rely upon the use of scientific methods for preventing conception.

The Federal Government has recognized the problem and is actively seeking a solution. In December of 1962 United States policy was officially stated by Richard H. Gardner, Deputy Assistant Secretary of State for International Organization Affairs, speaking to the United Nations:

‘In the opinion of my Government progress toward (the) high aims of the United Nations Charter cannot be measured merely by increases in gross national product. The object of economic development is the welfare and dignity of the individual human beings. If the condition of the individual, and not gross statistics, is to be the measure of our progress, then it is absolutely essential that we be concerned with population trends . . . . So long as we are concerned with the quality of life we have no choice but to be concerned with the quantity of life.’

‘We believe these statements are true not just for some but for all nations . . . .

‘Within the United States our local, state and federal governments are all devoting attention to population trends as part of their planning for the improvement of individual welfare.’

President Kennedy supported these developments. Thus in a speech on June 5, 1963, calling for solution of the problem of hunger in the world, he made clear the interest of this country when he said, ‘Population increases have become a matter of serious concern.’

And President Johnson, in a significant and much-noted passage in his State of the Union Address this year, emphasized that additional action was necessary and would be taken:

‘I will seek new ways to use our knowledge to help deal with the explosion in world population and the growing scarcity of world resources.’

We are confronted then with an acute world-wide problem that is pressing for immediate solution. That solution must involve, as a major element, the voluntary use of contraceptive devices to limit the number of children born. Viewed in this context, in the light of world opinion and world needs, the contrary judgment of the Connecticut statutes, left-overs from a by-gone era, can have little standing.

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The Third Amendment and the Civil War

Here’s a thought that occurred to me yesterday.  When the Army of Northern Virginia invaded the North in 1862 and 1863, there must have been situations where Union officers quartered in private homes.  (Maybe only generals did this, but still.)  Was this always the product of homeowner consent?  If not, would this have violated the Third Amendment?  The Amendment says that troops may be quartered in homes during wartime “in a manner to be prescribed by law.”  As far as I know, though, Congress never passed a statute during the Civil War governing this sort of situation.

I suppose you could say two things about this.  One is that “quartering” does not refer to a soldier staying in your house for one or two nights during a campaign.  Rather, it’s a more permanent stationing of troops.  The other is that consent was always given, though in practice consent may have been meaningless when armed troops showed up at your house and “asked” if they could stay with you.  Thoughts?

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The Purposes of a Bill of Rights

As part of my research for my next book (and perhaps for another paper), I’m thinking through what bills of rights do and why we have them.  The best discussion of this subject was in an article by David Strauss written in 1992, where he identified three ways of thinking about a bill of rights:

1.  A Bill of Rights is Just a Code:  A bill of rights simply reflects whatever a given society or jurisdiction deems important.

2.  A Bill of Rights Is Only About Fundamental Rights:  You can understand a bill of rights as something that only addresses rights that no democratic society can do without.

3.  A Bill of Rights Is About Political Failure:  You need a bill of of rights to deal only with rights that elected institutions are likely to invade or abuse.

Depending on which of these three views you take, different provisions in bills of rights (and bills of rights more generally) look different.  The first theory describes many state bills of rights, which include all sorts of things that look pretty ordinary.  The second theory would reject the inclusion of many things that are in the Bill of Rights, such as the right to a grand jury indictment or a jury trial.  The third would posit that the Third Amendment is the sort of thing that need not be in a bill of rights since no elected legislature would quarter troops in homes.  And so on.

Another way of examining this question asks what role bills of rights have served historically (let’s just focus on the United States in this post).  For instance,

1.  Justifying Revolution:  The first state bills of rights, especially the Virginia Declaration of Rights, were all revolutionary statements justifying independence.  This is why they contain many broad statements on natural rights and read like the Declaration of Independence.

2.  Defending Federalism:  This, of course, was the purpose of the first set of amendments in 1791.  The Anti-Federalists rallied around a bill of rights as a way to limit the new federal government.

3.  Limiting the Police Power:  This was the purpose of state of bills of rights after the Revolution.

4.  Limiting Federalism:  This was the purpose of John Bingham and those who called the first set of amendments a bill of rights during Reconstruction.  The Bill of Rights trumps states’-rights.

5.  Justifying Colonialism:  As I explained in a prior post, doubts about whether America should govern colonies acquired during the Spanish-American War were soothed by giving those colonies bills of rights.

6.  Justifying Judicial Review:  This was a purpose of the Bill of Rights after the New Deal.  People are more likely to accept judicial review framed as an application of the Bill of Rights.

I’m working on one or two other angles that I may post on later.

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FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak

Articles

  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy  Read More

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A Negative Right of Publicity?

I was batting around the following issue with a student today.  Suppose that a celebrity makes a positive statement about a product or is seen publicly using that product.  The product manufacturer, horrified by any association with this person, issues a statement saying that they are not associated with the celebrity.

Would the celebrity have a right of publicity claim under these circumstances?  One could argue that the corporate statement is an unauthorized use of the celebrity’s name and image for commercial gain.  In this example, though, you would have a negative or reverse endorsement of the brand.  The firm would say that their brand is defined in part by not being somebody.

Presumably, a firm has some First Amendment interest (and a Lanham Act interest) in disassociating itself from unwanted people or actions.  What limits, if any, are there on these interests?