Month: November 2015

As I blogged about earlier this month, the Supreme Court heard oral arguments in Spokeo, Inc. v. Robins, a putative class-action lawsuit against Spokeo, an Internet people-search engine, for allegedly failing to follow required reasonable procedures to ensure the most accurate publishing of information on its website in violation of the Fair Credit Reporting Act (FCRA or the Act) and California fair competition and consumer protection laws. This blog entry takes a closer look at the amended complaint.

Previously, I explored the existence of Article III actual injury on the theory that Spokeo published inaccurate information. As Justice Kagan emphasized, she would feel harmed if a website posted inaccurate information about her. But this view focuses on a notion of injury with which we can all empathize. Technically (h/t Asher Steinberg), however, plaintiff Robins hopes to serve as representative for a class of plaintiffs on a theory that does not require publication of incorrect information for class members. This strategy broadens the potential class members to anyone reported on by Spokeo regardless of accuracy of the reporting. The Court may seize the opportunity to curtail class actions. The Spokeo complaint, however, still raises actual injury based on sufficient allegations of Spokeo’s improper processes and safeguards to ensure accuracy of reported information. Let’s look more closely to discern why.

According to Robins’s amended complaint, Spokeo operates a searchable website that provides detailed consumer reports, including assessments of data as well as personal information such as marital status. Further, Robins alleges that Spokeo does not publicly disclose the full list of sources for the reported information, though known sources include: “phone books, real estate listings, government records, and social networking websites.” Meanwhile, Robins asserts that Spokeo publishes inaccurate information, including information about Robins, without an effective system for consumers to remove mistakes. The gravamen of the complaint centers on Spokeo’s inadequate procedural compliance with the law, which creates fertile ground for misreporting information. The amended complaint includes further allegations regarding other federal law violations such as Spokeo’s failure: to make the required disclosures when offering consumer reports for employment purposes, and to create processes required to enable consumers to request annual file disclosures. Robins maintains that Spokeo violated federal consumer laws that mandate “strict guidelines for maintaining and distributing fair and accurate consumer reports.” The complaint’s final cause of action asserts Spokeo amassed an unfair business advantage in violation of California law “by failing to produce accurate reports and otherwise take the necessary steps to adhere to FCRA.” Robins seeks to represent a class of individuals for which Spokeo has published reports under these faulty procedures even if the information contains no inaccuracies.

In the amended complaint, Robins seeks the following remedies in his prayer for relief: declaratory relief, statutory damages, injunctive relief, attorneys’ fees, interest, and other relief as justice requires. Other relief, coupled with other portions of the complaint, might imply recovery for unjust enrichment if any. Regarding common questions of the class, the complaint lists: “whether Defendant unjustly received and/or continues to receive money as a result of its conduct described herein, and whether under principles of equity and good conscience, Defendant should not be permitted to retain those monies.”

Again, the Act establishes a private right of action and a statutory remedy for willful violations where plaintiff cannot prove actual damages: “damages of not less than $100 and not more than $1,000.” The Act envisions the very plaintiff that Robins is. He alleges no pecuniary loss for Robins or the putative class. Yet, the Act requires certain processes be provided to facilitate accurate reporting. Robins alleges that Spokeo willfully did not satisfy such procedures, which resulted in errors for some including himself. The injury to Robins with inaccuracies is more central than putative class members with no inaccuracies. But, if the point of the remedy in the Act is to deter willful noncompliance with consumer protection processes to ensure accuracy, then actual injury exists by virtue of the statutory violation.

What do you think? Should the Court vent its frustration at class actions by denying access to the federal court to vindicate a congressionally created right and remedy? Should Congress limit the class and the remedy to those who prove inaccurate information or to those who prove pecuniary loss based on the misinformation? Do you think this case fails to show actual injury because of the lack of pecuniary loss, despite the Act’s statutory minimum remedy? Regardless, this case raises significant standing and separation-of-powers issues as explored in the Vanderbilt Law Review En Banc Roundtable, as well as remedies concerns for a host of noncompensatory injuries that exist from public law to private.

Posted by Caprice Roberts on November 30, 2015 at 08:53 PM

Comments

True, but what statute did Congress ever pass where it grants a specific remedy but didn’t think there was some injury? Certainly not the Robins case, as discussed above: increased risk is injury – or so Congress thinks. And from an expected value proposition, it’s certainly true. Is there a statute where Congress gives the aggrieved a direct remedy but explicitly or implicitly finds that the person entitled to the bounty gets the bounty only because they they followed the statute?

One case I can think of is an appeal from PTAB challenges to patents, where the challenger is not actually at risk of infringing the patent for one reason or another. They get standing before the PTO, but arguably not in the Article III court on appeal. But that’s nowhere near this case.

Posted by: Michael Risch | Dec 3, 2015 5:45:50 PM

Hmm, I’m not so sure it’s a rabbit hole; I still see an meaningful distinction. One could always say that X is a legal principle because those with power to make law say so, but that doesn’t really illustrate much for present purposes.

WHY did Congress think that trademark dilution should be actionable? My understanding of trademark dilution—which is admittedly limited—is that the claim is premised on the diminishment of the uniqueness that represents the primary value of a trademark in the first place. Ie, Congress makes the injury actionable, but the injury is presumed to exist nonetheless (no need to prove actual damages is not the same as no need for there to be actual harm) due to the the nature of what trademarks do and why they exist (and the reality that dilution is much easier to result in recovery if the given mark is “famous” seems to support this point). So Congress’ definition of “harm” corresponds to an external property interest of sorts.

I suspect that the exercise of making conceptually meaningful distinctions is only a rabbit hole if we abstract things out to a level such that the distinctions appear to not exist.

Posted by: Edward Cantu | Dec 2, 2015 10:44:09 PM

Hi Edward – I think we’re on the same page, but I don’t think it’s so simple: “So, in the trademark context, I see infringement as perhaps akin to trespass of physical property” Sure, but this “trespass” (especially for dilution) is entirely a creature of statute. It’s only wrongful to use a mark in a dilutive way because Congress says it so. Without that statute there’s no trespass or injury.

So too with Robins – Congress says that behavior is wrongful and provides a remedy. There is injury because Congress says it is so. QED. I think returning to first principles of some sort of common law definition of what constitutes an injury is going down the rabbit hole.

Posted by: Michael Risch | Dec 2, 2015 9:24:48 PM

Michael, the trademark point is an interesting one. I might be misinterpreting you, but I think you overemphasize the importance of economic harm, specifically, to arguments made against there being standing for Robins. Nobody means to equate “actual” with economic, at least I don’t. An actual injury could be to other concrete personal interests, even if those concrete interests arise from something abstract.

So, in the trademark context, I see infringement as perhaps akin to trespass of physical property (I’m far from a trademark expert so perhaps the analogy doesn’t work, but it seems to). In order to sue for trespass must a property owner plead/show economic harm as a result of the tort? Last I checked, the asnwer is no. Does she still have an injury in fact? Yes, she does; the harm is to her right of exclusion, which is considered a real and personal (even if abstract) interest of property owners. Trespass is thus considered violative of the owner’s personal interests not simply because a statute expediently declares it to be so, but rather because people are already presupposed to have an individualized, material, and non-speculative interest in protecting their property from use by others. Which is why we have other laws that establish property rights to begin with.

So, while drawing a definitive and conceptually clear line between actual/non-actual injury is impossible, I think this is how a court would draw the distinction between the “injury” Robins asserts and the injury relevant for trademark dilution, and that distinction makes a lot of sense, at least under current doctrine.

Posted by: Edward Cantu | Dec 2, 2015 4:43:48 PM

I feel like a lot of this shows the folly/difficulty of prudential standing. The court makes a “floor” for Article III, but it’s not really a floor, because if Congress gives a remedy, then someone petitioning the court for that remedy has a controversy and is entitled to a ruling on that controversy granting that remedy.

I’m not a standing specialist, but I think part of the complication is that a lot of the standing cases are about generalized harms: Monsanto (harm to party by regulation required showing of harm by regulation), Clapper (harm by those spied on had to show that they were actually spied on), Lujan (harm to species from funded projects).

But that’s not this case. This case has a fixed “wrong” and a fixed remedy for an individual that fits within the prescribed “wrong.” Failure to be able to seek that remedy is an actual injury – econ 101 says this is an opportunity cost – money that could be paid but is not.

This is no different than many other statutes. Consider trademark dilution: blurring does not require any showing of economic injury. It’s right there in the statute: “regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.” And, yet, no one argues that there’s no case or controversy by the trademark owner because there’s no actual injury. There is a controversy because there is behavior that the statute bans and the trademark owner has a remedy provided by Congress.

In short, I think the reason Robins seems so novel is that it’s not really the type of standing case where there’s no standing. At least, it shouldn’t be in my view.

Posted by: Michael Risch | Dec 1, 2015 9:28:54 PM

Asher, thank you for the continued dialogue on these arguments. I’m saying that is what Congress seems to have created, though that alone won’t save the claims. I agree that those with posted inaccurate information have a stronger case for actual injury, though still uphill. I see trouble with the class action as currently framed, but I think the best argument for the current framing is an intolerable risk of false reporting. With the mistakes alleged, then perhaps even those all who face the risk of imminent, irreparable harm warrant standing for at least injunctive relief. Of course, imminence and irreparability may prove too difficult a hurdle, especially if Robins is still trial ballooning how best to constitute the class.

Posted by: Caprice Roberts | Dec 1, 2015 5:05:06 PM

To be honest, I’m not really following your argument. You really just seem to be saying that because Congress has said that credit-reportees have a right to certain procedures, the failure to use those procedures is an injury, whether or not any inaccuracy results. I can’t see, if that’s so, what’s left of a constitutional irreducible minimum of injury. On that view, if Congress said that credit reportees have a right to have their names displayed in certain fonts in the credit agencies’ internal reports, there’d be injury if the agency used the wrong font – internally.

That said, how about this? The use of faulty procedures creates a risk of inaccurate reporting in the future, inaccurate reporting (let’s assume) is injurious, and while the status of probabilistic injury is unclear after Clapper, there are some cases, like Monsanto, that say a substantial risk of injury satisfies Article III. I’m not sure why this point hasn’t been made in Spokeo; at oral argument, Robins’s counsel was happy to concede that the class would have to exclude class members who’d never suffered a false report. He claimed that the class was just defined, in the complaint, the way it was to avoid a fail-safe objection to certification, but that at certification some sort of algorithm would be used to identify people who suffered false reporting.

Posted by: Asher Steinberg | Dec 1, 2015 4:50:54 PM

Edward, Thanks as well. Our casebook statement may imply too much given that I agree that Congress cannot get around Article III’s constitutional minimums (though what is the minimum seems in practice to move, and I think based on the merits views in some cases). I also agree the Court’s precedent makes it increasingly difficult to meet “actual injury” without pecuniary (or physical) loss. That said, much work depends on what we conceptualize as injury in the first place. I am arguing for a broader conception that goes beyond the limitation of compensation.

Also, the taxpayer standing cases (not applicable in Spokeo) are riddled with inconsistencies and strained interpretations and thus may not be long for the world. Your point is well taken that the exception goes to circumventing the generalized grievance prohibition. As to Spokeo, Robins may have an easier path with injury as misinformation that causes suffering (if not provable job/relationship loss) than the class members that lack inaccurate reporting but instead point only to inadequate procedural safeguards. Isn’t there a difference between the fact of harm and the amount of provable pecuniary recovery? Did Congress intend that plaintiffs and the Courts enforce the Act’s regulatory standards (Asher Steinberg’s concern on an earlier thread) and thereby created a statutory minimum award?

Posted by: Caprice Roberts | Dec 1, 2015 12:46:33 PM

Bruce: Well, I suppose Congress can consistent with a literal reading of Article III, but it cannot consistent with standing precedent (save for an isolated and somewhat anomalous line in Warth v. Seldin that those on Robins’ side evoke regularly, but which is inconsistent with other decisions). The Court has repeatedly stated that injuries must be “in fact”: individualized and relatively concrete (save for “imminent injuries” which justify declaratory judgment actions and the like). Here, Congress has authorized individuals to recover “damages” but without any type of “harm” that amounts to injury in fact, only “statutory harm” that evades a showing of personalized injury. I understand that the response would be that, here, Congress has indeed “articulated” a “harm” of sorts and that harm is individualized: Spokeo published incorrect information about Robins specifically. But that’s not actual “harm” at all, unless we consider the negative consequences of Spokeo’s conduct, but, importantly, Robins has avoided relying on those consequences for fear of undermining class certification.

Caprice: thanks for the response. I agree the Court can “move the target,” which highlights the prudential driver of standing doctrine. But I still am not convinced Robins has a dispositively stronger standing argument than the other plaintiffs in the class. As for the excerpt in your book, I think we have different ideas of what Lujan and similar cases stand for. You write:

“Congress may create legal rights via statute, for example taxpayer and “citizen suit” standing, even where Article III standing is otherwise lacking.”

I agree with the first clause, but not the last. How can Congress circumvent Article III standing via a citizen suit provision? What cases stand for this? This is less of a challenge and more of a question: I am certainly open to the possibility that case law says this, but I haven’t seen such case law (yet). Certainly, Congress can create citizen suit provisions, but such provisions can only work to make injury that is already “actual” actionable via private litigation. As for taxpayer standing, that is (rather arbitrarily) limited to suits involving the Establishment Clause, which of course is not involved here, and in any event the Court has signaled that such an exception seems to make little sense so it might not have much longer left to live. And further, the exception for taxpayer standing does not circumvent the requirement for injury in fact as much as it helps overcome the prohibition against generalized grievances.

Posted by: Edward Cantu | Dec 1, 2015 12:13:32 PM

Edward, I agree that Congress cannot lower the Article III requirements, which case law defines as “actual injury” that thus creates the constitutional floor. Yet, the Court moves the target on what that means, and much of the Court’s work here has been prudential, as you say. I think it would be a mistake to require wallet injury. That said, my blog inferred that the failure of providing required procedures to ensure accuracy creates injury. Certainly, it is more clear for Robins who alleges misinformation than it is for class members who suffer only the risk of misinformation.

Bruce, here are the limits on Congress creating injury from whole cloth: In my Federal Courts casebook (coauthored with Mike Allen & Mike Finch), we note:

Congress may create legal rights via statute, for example taxpayer and “citizen suit” standing, even where Article III standing is otherwise lacking. Congressional ability to confer standing is not boundless, however. Plaintiff must still have suffered an injury. Simple conference of statutory standing is insufficient by itself. Rather, Congress should articulate language that “at the very least identif[ies] the injury it seeks to vindicate and relate[s] the injury to the class of persons entitled to bring suit.” Lujan, 504 U.S. at 580 (Kennedy, J., concurring). Thus, Congress may overcome obstacles to congressionally created citizen standing by carefully crafting statutory language and establishing clear legislative history.

***

Whether Congress has done so in the Fair Credit Report Act requires more attention. What do you think?

Posted by: Caprice Roberts | Dec 1, 2015 10:54:25 AM

“Congress cannot define what ‘actual injury’ means by establishing a right of action in a statute.”

Edward, why not?

Posted by: Bruce Boyden | Dec 1, 2015 10:00:54 AM

A very important and interesting case. Perhaps I’m focusing on a seeming weakness that you’ve addressed in other posts (or perhaps I’m just misunderstanding you), but this quoted language seems a big non-sequitur:

“But, if the point of the remedy in the Act is to deter willful noncompliance with consumer protection processes to ensure accuracy, then actual injury exists by virtue of the statutory violation.”

Congress cannot define what “actual injury” means by establishing a right of action in a statute. Creating a right of action only makes legally cognizable injuries that must already be “actual.” So by noting that Robins faced willful noncompliance by Spokeo, and that this conduct is what Congress had in mind in passing the statute, only re-begs the question of whether Robin’s injury is “actual” for standing purposes.

With that said, I think most of the Court’s standing jurisprudence is not rooted in Article III at all, but rather in prudential concerns (“all standing doctrine is ‘prudential standing’” as I like to say). But if we take precedent seriously, it seems no Article III standing exists here for Robins.

Posted by: Edward Cantu | Dec 1, 2015 7:25:23 AM

Many thanks to Prawfsblog for giving me the opportunity to be a guest blogger this month. It’s been an honor & a privilege. For those who enjoyed my posts (assuming that isn’t a null set), I plan to continue blogging on my Tumblr, which is titled Waste-Book, in honor of Georg Christoph Lichtenberg‘s brilliant collection of aphorisms. The posts are perhaps a bit less law-centric than my Prawfsblog contributions, but might be amusing nonetheless. In addition, I will also be a guest blogger at the Nonprofit Law Profs Blog the week of December 28.

In any case, I leave you with a selection from one of my favorite artists, the great German folksinger, Sibylle Baier.

Posted by Brian Frye on November 30, 2015 at 07:37 PM

Just kidding. I haven’t found anywhere in the country that actually allows animals to vote, despite some claims that dogs have registered and voted. In fact, allegations of dogs voting — including a springer-spaniel named Ritzy Mekler — was one of the arguments behind the initial push for voter ID laws. Senator Kit Bond claimed that Ritzy Mekler voted in St. Louis elections in 2000, and he was the author and primary supporter of the voter ID rule put into the federal Help America Vote Act of 2002. (Bond’s arguments were largely debunked.) Various states, including Indiana and Georgia, followed suit with their own, stricter state-level versions, and the rest, they say, is history. I recount this history of voter ID requirements in a chapter of the new Election Law Stories book, due out sometime next spring. (I am a co-editor of the book, along with Gene Mazo.) Forget holiday shopping; it will make a great May Day gift next year!

If you’ve enjoyed this discussion of election law this month, particularly on local election rules, please come to the AALS Section on Election Law panel, which is titled “Election Law at the Local Level.” We have a great group of speakers that will address various aspects of local control over elections. It is on Friday, Jan. 8 at 10:30.

Vote early, vote often (well, as often as there are elections, but vote only once in each of them!). Thanks for a fun month. I’ll see you all (virtually) soon.

Posted by Josh Douglas on November 30, 2015 at 12:27 PM

My thanks to all the Prawfsblawgers and thoughtful commenters! Here’s a recap:

• Nathan For You: Legal Edition
• Broad and Narrow Punishment
• The Fungibility of Intentional and Unintentional Punishment
• Your Turn, Retributivists
• Is Free Will Better than Cats?
• The Significance of Lawmaker Views About Free Will
• Mother, Child, and Meat Machines
• The “Do You Have Any Questions?” Question
• The Blandification of Stephen Colbert
• The Law is a Sith
• Do Crimes Proceed in a Smooth or Bumpy Fashion?

Those of you in New York City may be interested

Comments

Adam, Did you, by any chance, give someone an F- recently?

Posted by: Pranav | Dec 1, 2015 11:33:34 AM

Hack hack hack hack hack

Posted by: Goober | Nov 30, 2015 7:04:10 PM

Happy December. Thanks to our November guests, who will be closing up shop in the next couple days.

Our December guests include Jessica Berch (Concordia), Chad DeVeaux (Concordia), Andrew Gilden (Grey Fellow, Stanford), and Scott Maravilla (an ALJ at the Federal Aviation Administration). Returning guests are Ian Bartrum (UNLV) and Jay Wexler (Boston University). Welcome and we look forward to a great month.

Posted by Howard Wasserman on November 30, 2015 at 11:20 AM

It’s been a pleasure to be a guest this month. Thanks for all the comments and I look forward to seeing many of you soon at upcoming conferences. In the meantime, happy holidays,

Margaret

Posted by Margaret Ryznar on November 30, 2015 at 11:19 AM

Comments

Thanks for having me back!

Posted by: Margaret Ryznar | Nov 30, 2015 4:55:28 PM

Thanks, Margaret, for guest-Prawfing again!

Posted by: Rick Garnett | Nov 30, 2015 11:40:59 AM

The Supreme Court is becoming increasingly accustomed to reversing lower court rulings that deny qualified immunity to police. Just a few weeks ago, for instance, the Court attracted a lot of media attention in Mullenix v. Luna, which summarily sided with a police officer accused of using excessive force.

But for all the attention that Mullenix and similar decisions have garnered, the discussion has overlooked a critical procedural issue: when the Court reverses on qualified immunity because relevant law is unclear, what happens to the lower court’s separate determination that the Constitution was violated?

Under the Court’s qualified-immunity cases, there is a strong argument that lower-court merits determinations should remain intact even after the Court reverses on qualified immunity. This conclusion, if adopted, would substantially alter the implications of the Court’s vigorous enforcement of qualified immunity, including its recent use of summary reversals.

I

Let’s start with some quick background on Mullenix. In short, an officer attempted to stop a rogue vehicle by shooting at its engine block, even though his superiors allegedly ordered him to rely on a “spike strip” that had already been deployed. The officer’s shots missed the engine but killed the driver (whose car double-rolled seconds later, after hitting the spike strips). The officer was then sued for using excessive force in violation of the Fourth Amendment. A divided Fifth Circuit panel ruled that the officer’s alleged conduct violated clearly established law. Therefore, the officer was not entitled to qualified immunity.

In an 8-1 summary reversal, the Supreme Court ruled not that the police officer had acted constitutionally, but rather that no clearly established law precluded his action. As a result, the officer was entitled to qualified immunity. Objecting to that result, Justice Sotomayor penned a solo dissent arguing in part that the Court had encouraged a “‘shoot first, think later’ approach to policing.” That pointed observation understandably garnered a great deal of media attention—though, unfortunately, much of the media coverage didn’t appreciate the difference between ruling on qualified immunity as opposed to the merits. Indeed, Sotomayor’s criticism may ironically have contributed to the perception that the Court had upheld the constitutionality of the police conduct at issue.

Once the distinction between the merits and qualified immunity comes into focus, so too does the difficulty of Sotomayor’s position. Under current law, Sotomayor had to grapple with qualified immunity’s “clearly established law” standard—a challenge made all the harder by the fact that no other justice joined her opinion. (If you’re the only one who thinks that something is clear, it probably isn’t.) So Sotomayor’s dissent is perhaps best understood as an implicit plea to reform qualified-immunity doctrine, to make it is less protective of police.

II

But there’s an overlooked procedural solution to the problem that Sotomayor has identified. If summary reversals on qualified immunity are sending the wrong message to police by encouraging them to push the legal envelope, then the Court could clarify its message by explicitly preserving the lower court’s determination, applicable within its jurisdiction, that the police acted unconstitutionally. This approach would fulfill the distinctive purposes of qualified immunity by sheltering the officer in Mullenix and other cases from liability. At the same time, a targeted reversal of the lower court’s immunity decision would preserve the lower court’s ruling that the alleged police conduct was unconstitutional.

It may seem paradoxical to reverse the lower court’s formal judgment—that the officer is not qualifiedly immune—while simultaneously preserving the lower court’s determination that the officer has violated the Constitution. But as qualified immunity aficionados well know (and, really, who else is reading this post?), the Court has already drawn a similar distinction. Under Pearson v. Callahan, lower courts have discretion to rule on the merits that officers violated the Constitution, even when finding the officers protected by qualified immunity. And in Camreta v. Greene, the Court “vacated” a lower court’s informal merits decision while preserving its formal judgment finding immunity.

If a lower court can issue a distinct and reversible merits decision when it does find qualified immunity (Camreta), then it stands to reason that it can also issue a distinct and reversible merits decision when not finding qualified immunity (Mullenix). If anything, the latter conclusion is more defensible, since the existence of a constitutional violation is logically necessary to finding that the violation is clearly established. By contrast, finding a constitutional violation on the way toward finding immunity seems a lot like dicta, or an advisory opinion.

It’s possible to imagine a lower court that rejects a claim of qualified immunity only because it thinks it’s bound by clearly established law. If such a court had realized that it had an opportunity to exercise its Pearson discretion, it might not have made a discretionary merits ruling at all. In principle, this complication could call for vacating the lower court’s implicit merits ruling. In practice, however, lower-court reasoning that supports finding a clearly established violation usually entails a finding that, even if case law is disputable, there was a violation. And to extent there is uncertainty on this point, lower courts can alleviate the concern by plainly stating that, even if the law weren’t clear, they would still find a violation.

So, under existing law, the lower court decision in Mullenix is best viewed as having two distinct and freestanding components: first, a ruling on the merits that police violated the Constitution; and, second, a ruling denying the officer’s qualified immunity.

All the reasoning in Mullenix goes to whether the police violated “clearly established law”—that is, to the immunity point. None of Mullenix’s reasoning dictates the answer to the merits question. Moreover, the Court has recently said that certiorari is independently justified by the need to correct qualified immunity errors, given their “importance … to society as a whole.” All of this suggests that Mullenix and similar summary reversals should be understood to leave the lower court’s merits decision intact.

Besides clarifying the meaning of qualified-immunity reversals, preserving merits decisions by lower courts would facilitate the development of the law and provide guidance to officers and plaintiffs alike. In this way, narrowly construing Mullenix would promote systemic values recognized in Pearson and other cases as important to qualified-immunity doctrine.

None of this is to deny that the Supreme Court could properly reverse or vacate the lower court’s merits decision, in addition to reversing on qualified immunity. Most obviously, the Court could exercise its own Pearson discretion and opine on the merits itself. Or the Court might conclude, based on the Pearson factors, that it would be an abuse of discretion for any court to reach the merits. Or the Court’s reasoning on qualified immunity might cast doubt on the lower court’s analysis of the merits. In any event, the Court needs some reason for vacating the lower court’s merits decision. The Court shouldn’t automatically eradicate distinct merits determinations as though they were so much collateral damage.

* * *

Mullenix illustrates that the Court is using its summary reversal power to cut back on lower court rulings in civil rights cases. But even if the Court is right to enforce its broad qualified immunity doctrine, that alone isn’t sufficient justification to erase lower court decisions that the Constitution has been transgressed.

Posted by Richard M. Re on November 30, 2015 at 08:30 AM

Comments

Glenn: Many thanks for these thoughts.

I agree that this issue is closely related to the choice between Saucier and Pearson. For instance, if Saucier were rigidly followed in the Supreme Court, then the Court would be less likely to resolve these cases summarily, since it would be unlikely to opine on the merits in a summary posture. (As Will Baude has pointed out to me, Brosseau v. Haugen approved pure-QI reversals even before Pearson.) In general, more discretionary, Pearson-like approaches legitimize pure QI reversals, and the frequency of the Court’s discretionary review presumably increases when a less challenging, divisive, and consequential mode of review is available.

I also think you’re right that we should think about how different levels of the judicial hierarchy should approach Pearson discretion. For instance, we could be more supportive of discretionary merits rulings in the courts of appeals than in the Supreme Court–perhaps because lower courts should be laboratories of experimentation while the Supreme Court should set uniform, fixed precedents only when it’s especially sure that it’s correct.

One of the advantages of my proposal, I think, is that it allows the judicial system to take greater advantage of precisely that kind of variation. That is, it allows circuit courts to be maximalist about the merits in the case at hand, even as the Supreme Court gets to be minimalist about the merits in that very case. Otherwise, the legal system loses out on the benefits of circuit maximalism whenever the Supreme Court intervenes in a minimalist way.

Let me add one disclaimer, prompted by an off-line reader: the advantages of my proposal partially depend on whether circuit precedent can strip officers of qualified immunity, as the Court tacitly assumed in Camreta and other cases. But the Court has recently reserved that question in several cases. I’ve discussed this issue in previous posts (see for example: http://prawfsblawg.blogs.com/prawfsblawg/2014/11/does-circuit-precedent-deprive-officers-of-qualified-immunity.html) and should flag it again here.

Posted by: Richard Re | Dec 1, 2015 4:25:01 PM

I confess I find it very difficult to understand, Camreta and Pearson notwithstanding, how the constitutional “holding” of an opinion finding qualified immunity is anything more than dictum, and dictum of a rather invidious sort to boot, as courts can make new constitutional law without having to apply it in the case before them. That said, one can hold that view (expressed by Kennedy in his Camreta dissent) and still agree with you, I think, as the constitutional holding of an opinion that finds no qualified immunity really is a holding, and should normally remain intact when the Court reverses for the reason that the court of appeals got qualified immunity wrong.

Posted by: Asher Steinberg | Dec 1, 2015 1:09:50 AM

Very interesting post — as always — Richard!

I wonder to what extent this problem/issue interfaces with the Supreme Court’s shift in its jurisprudence on how one handles the ordering of the two steps of the QI inquiry. You may be too young to have encountered this, but when I was a litigator the governing rule was still Saucier v. Katz, 533 U.S. 194 (2001),and lower courts were to first determine if there was a constitutional violation and only then look to see if it was clearly established.

Saucier was very limited (indeed perhaps more accurate to say all but gutted) by Pearson v. Callahan, 555 U.S. 223 (2009). Many people disliked Saucier and thought it was a bad rule, but it did make me think your problem was intimately related to the question of whether Saucier vs. Pearson is the right rule.

I also suppose you could think of this as a multi-level game. Trial Court — Saucier or Pearson Cir Court — Saucier or Pearson approach in its REVIEW S. Ct — Saucier or Peason in its REVIEW

It need not be “turtles, turtles” (or pehaps “Saucier, Saucier”) all the way down but in fact could be a mix of which courts one thinks should have to speak to which of the two parts of QI first (or just make it a free for all). Of course it would be strange if the Supreme Court was the first one to answer both parts of the QI analysis in a particular case but I suppose one can always affirm on any ground in the record.

It is a bit on the late side so I may not be at my best at explaining what I am thinking, but assuming you follow some of it I am curious what you think.

Posted by: I. Glenn Cohen | Nov 30, 2015 11:21:57 PM

John Cage is a well-known modernist (post-modernist?) composer, arguably the most important and influential American composer of the 20th century. And for copyright professors, he is the gift that keeps on giving, because his compositions routinely test the limits of copyright protection of musical works. Typically, his scores require a great deal of discretion on the part of the performer: consider this 1960 performance of his composition Water Walk on the TV show I’ve Got a Secret. But Cage’s best-known composition is probably 4’33” (1952), which instructs the performer to do nothing other than be present: the performance consists of the atmospheric sounds that occur in the absence of performance. So Zen!

The composition is an ideal point of discussion for a copyright class, because it forces students to address the meaning of copyright “originality.” According to the Supreme Court, a work of authorship can constitutionally be protected by copyright only if it is “original.” And the Court has interpreted “originality” to require both “creation” and “creativity.” Cage’s 4’33” is undeniably creative – it fundamentally transformed the concept of a musical work. But can it be protected by copyright? The idea/expression dichotomy seems to say no. So one is left struggling with what role “creativity” does and should play in copyright protection.

In any case, 4’33” is in the news (again) because Soundcloud recently removed a “remix” of 4’33” on copyright grounds. It looks like Soundcloud’s action was based on a software bot that just looked at titles, but it still presents a range of copyright questions. Is the Cage composition copyrightable at all? Surprisingly, Cage’s publisher seems to believe that the answer is yes. And they have aggressively pursued infringement actions against anyone performing “silence.” Color me skeptical. I’m not sure I even see independent creation.

But the more interesting point is that works like 4’33” show that the Court’s “creativity” requirement is incoherent nonsense. The purpose of copyright is to solve market failures in works of authorship, not to promote creativity. Copyright is not a value judgment: many immensely influential and creative works of art cannot be protected by copyright (see, e.g., Marcel Duchamp’s Fountain), and many painfully banal works can (see, e.g., anything painted by Thomas Kinkade). That is ok & as it should be. Cage’s compositions may not be protected by copyright, but that doesn’t diminish their creativity or value. If anything, it’s part of what makes them so important.

UPDATE: Zvi Rosen has alerted me to another instance of copyright entanglement with Cage’s 4’33”, in this case a rather witty conceptual art stunt, in which a YouTube user uploaded the song ‘Murderers’ by John Frusciante & titled the upload “John Cage’s 4’33″”. Initially, YouTube muted the music as infringing, inadvertently making the title “true” and implying that Cage’s “silent” work was muted. Unfortunately (?), YouTube eventually changed its copyright policy & as a result unmuted the track, spoiling the joke.

Posted by Brian Frye on November 29, 2015 at 09:19 PM

Irina D. Manta and Cassandra Burke Robertson have posted Secret Jurisdiction, 65 Emory L.J. __ (forthcoming 2016) on SSRN. Here is the abstract:

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. The executive branch has argued that its decision to put someone on the no-fly list should be judged by a minimal “reasonable suspicion” standard. It has further stated that any plaintiff wishing to be removed from the list must demonstrate that the government’s suspicions are unreasonable, and must do so without hearing the evidence that led to those suspicions in the first place. The momentum may have finally shifted with the litigation in Latif v. Holder, which recently led a federal court to recognize for the first time that, at a minimum, individuals have a due-process right to learn whether they are on the list and to have at least some opportunity to challenge their inclusion on the list. Many questions still remain, and no court has yet ruled on the question of what process is due to plaintiffs in such actions — that is, whether they are entitled to a hearing, whether they have the right to learn the full scope of the evidence against them, and whether “reasonable suspicion” is a sufficient basis on which to affirm travel restrictions. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden — and real evidence of national security benefits — before the government may curtail significant individual liberties.

I read an early draft of this article & found it quite compelling. The individual burden of being placed on the “no fly” list is high & the government’s incentive to ensure that such placement is justified is low, so I am inclined to agree that some degree of increased scrutiny is justified, under the circumstances. Sadly, I am not optimistic about the likelihood of Manta & Robertson’s recommendation being adopted, but I hope my cynicism is unwarranted! In other news, I recommend the oddly compelling & more-than-slightly creepy TSA Instagram account, which documents contraband seized by TSA agents, accompanied by helpful advice about what you can & cannot bring on a place & how. One of my favorite elements is the repeated assertion, “As we’ve said before, we’re not looking for illegal narcotics, but we have to report them to law enforcement when discovered.” Incidentally, if you have “travel-related questions” you can tweet them to @asktsa. Which is actually considerably more responsive than you might expect.

Posted by Brian Frye on November 29, 2015 at 07:20 PM

Comments

Orin, a good point. The article proposes in camera review, which strikes me as a reasonable compromise. Presumably, if you are on the no fly list, you can presume that the gov’t is watching you (at least in theory). In camera review would increase due process, while preserving (more or less) the secrecy of the information.

Posted by: Brian L. Frye | Nov 29, 2015 7:54:57 PM

If a person on the no-fly list has a right to know the government’s evidence that they pose a national security threat, is it problematic that this would seem to give people who actually *do* pose a national security threat a way to (a) know that the government is watching them and (b) know what information the government has, which presumably could tell them the sources of surveillance so they could avoid those sources in the future? Or is the assumption that only people who don’t actually pose a national security threat would bring such challenges?

Posted by: Orin Kerr | Nov 29, 2015 7:42:41 PM

Charles E. Colman (NYU) has published Design and Deviance: Patent as Symbol, Rhetoric as Metric, Part 1, 55 Jurimetrics: The Journal of Law, Science, and Technology 419 (2015). Here is the abstract:

This project reveals the unrecognized power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents. In Part 1, I show that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the “ornamental” and “decorative” works under the then exclusive legal purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design “for its own sake” grew increasingly intertwined with notions of frivolity, effeminacy, and sexual “deviance.” In Part 2, I will examine influential design-patent decisions from the 1870s through the 1930s against this cultural backdrop. My close reading of these decisions will demonstrate that federal judges, particularly in leading cases decided by the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of prevailing gender norms. The resulting doctrine relegated design patents to near-total irrelevance as a viable form of intellectual property protection for a large and crucial portion of the twentieth century.

A draft version of Part 2 is available here. I found that Colman’s articles provide a provocative counter-narrative to the prevailing history and scholarly assessment of design patent jurisprudence. Design patents protect the appearance of a product, rather than its function. Until relatively recently, design patents were largely considered worthless and typically not pursued. But since 1975, applications have been on the rise, a trend that was probably abetted by the creation of the United States Court of Appeals for the Federal Circuit in 1982, which made design patents more readily enforceable. While design patents are easier to obtain than utility patents, they can provide substantial benefits to their owners, depending on the circumstances, exemplified by the Apple v. Samsung (2012) case, the outcome of which relied at least in part on infringement of Apple’s design patents.

In any case, Colman argues that the long dormancy of design patent protection was a function of institutional associations between design or ornament and gendered and sexualized values. I find his reading of the development of design patent jurisprudence in the late 19th and early 20th century quite compelling, and believe that his articles provide a valuable contribution to the surprisingly limited scholarship on the subject. On that note, I also recommend Sarah Burstein‘s scholarship on design patents, as well as her excellent Tumblr, Design Law, which collects “new, notable, or otherwise interesting design patents.”

Posted by Brian Frye on November 29, 2015 at 06:59 PM

The life cycle of intentional crimes is often divided into three parts. First, you merely “prepare” to commit a crime during which time you have no criminal liability. Then, you attempt the crime during which time you are subject to, let’s say, roughly half or two-thirds of the criminal liability of the offense you were attempting. Finally, you complete the offense and are fully liable for it. The ways in which the law treats the life cycle are rather bumpy: changes in your conduct have little impact on your criminal liability within a particular stage of the life cycle but when you ever so slightly cross into the next stage, a small change in conduct can dramatically alter punishment amounts. Does the law reflect what our best theories of the criminal law say?

It depends. If you focus on culpability, you might think that deserved punishment ought to increase gradually as an offender gets closer to his criminal objective. (Alternatively, you might think culpability increases in spurts as the offender increases his wholehearted commitment to the plan.) If you focus on harm caused, you likely think deserved punishment increases rather suddenly (since the ultimate harm the statute is designed to avoid doesn’t occur until the moment the offense is completed). If you focus on the need to incapacitate a dangerous person, the appropriate punishment probably doesn’t change much (unless you think the person actually becomes more dangerous as his plan proceeds). We could go on like this but I think you see how the rate at which warranted punishment increases depends on: (1) the factor or set of factors that you think punishment should be responsive to and (2) at least sometimes, facts about the particular offender’s motivations, level of commitment, and so on that can be case specific.

At least as a general matter (that is, for many observers for many crimes), warranted punishment increases gradually as crimes proceed. For such people, they may be puzzled as to why the law punishes in a bumpy fashion given that pertinent input variables gradually increase. On the other hand, those who focus on culpability and dangerousness may find, in many instances, that warranted punishment does not change much at all as a crime proceeds. A person may mentally and emotionally commit to some offense and get down to serious business to make it happen. What does change, however, is our evidence that the person is serious about and capable of committing the crime. In such instances, we face a different puzzle: Should we allow the strength of our evidence to influence the amount of punishment we impose?

Sometimes we allow the strength of evidence to affect the punishment we impose, most notably in the context of plea bargaining. We don’t do this much, however, in formal sentencing contexts, at least not overtly. Why not some have asked? If we are 99.9% sure Defendant A is guilty, should he receive more punishment than Defendant B for whom we are 96% sure he is guilty (assuming they committed identical crimes, are otherwise alike, and independently satisfy the beyond-a-reasonable doubt standard)?

I’m particularly interested in the following issue that I raise here in more detail: If justice permits us to take the weight of the evidence into account in the law of attempt and in plea bargaining contexts, then it seems like we should also be permitted to do so in formal sentencing contexts as well. Alternatively, if justice does not, then plea bargaining looks questionable, along with, perhaps, the way we often treat attempts. Could it be that justice is indifferent as to whether amounts of evidence affect amounts of punishment? If so, when should the weight of evidence count and when shouldn’t it?

Posted by Adam Kolber on November 29, 2015 at 05:27 PM

From December 5-12 any residents of Cambridge, Ma. (including non-citizens) who are at least 12 years old may vote in the city’s Participatory Budgeting election. Residents will be able to vote for up to 6 projects, out of 23, to fund using $600,000 of the City’s FY17 capital budget.

In addition to the low voting age, there are other interesting features of this election as well. It will happen over a week — call it Election Week — and residents may vote online or at various events throughout the city. Online voting is available in English and Spanish, while paper ballots will be available in English, Spanish, Portuguese, Haitian Creole, Chinese, Amharic, and Arabic.

This is the second time the city has used a Participatory Budgeting election to decide how to allocate some of its funds. It is unclear what turnout — especially among the 12-18 year old group — was like in the first round, but the city was happy enough with the results that it decided to use the process again for FY17. 12 is the lowest voting age I have seen for any election in the U.S. I’m eager to learn whether many young people are voting in this Participatory Budgeting election, and how the low voting age is seen among the electorate.

If anything, this is yet another example of a franchise-enhancing rule created at the local level — the basis of my research for the next few months. I’ll be grateful for any thoughts or insights any of you might have on the topic.

Posted by Josh Douglas on November 27, 2015 at 04:35 PM

Comments

[If I include the URL for my Academia page, the post does not appear, despite a message informing me otherwise.]

A few thoughts (no insights, nor any thoughts on this extension of the franchise): This strikes me as an exemplary instance of one of the fundamental purposes of democracy, namely—and in the words of one of my college teachers—“political education in the widest and best sense, a strong commitment to training the populace in the arts of individual citizenship and collective coexistence.” And this case of “participatory budgeting” reminds us that the older democracies don’t have a monopoly on democratic methods and processes (or ideals, for that matter), as participatory budgeting has its origins with the Brazilian Workers’ Party (Partido dos Trabalhadores), beginning with the city of Porto Alegre (1989) (according to Robert Goodin, ‘perhaps the most widely discussed recent innovation in participatory-cum-deliberative decision-making, especially when it comes to direct impact on policymaking’). It’s encouraging to see instances of “participatory” and “deliberative” democracy in action. We might examine and assess such cases in the light of works like Goodin’s Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn (Oxford University Press, 2008) and Hélène Landemore’s Democratic Reason: Politics, Collective Intelligence and the Rule of the Many (Princeton University Press, 2013).

Posted by: Patrick S. O’Donnell | Nov 30, 2015 2:12:26 AM

Patrick, I don’t think your first comment came through. Please post it again if you are interested.

Posted by: Josh Douglas | Nov 29, 2015 11:54:42 PM

(that should be “Joe”)

Posted by: Joe | Nov 29, 2015 9:25:06 PM

Voting is for multiple days and has an on-line option, so the children need not go to the polls and it would be fairly strict if parents think voting at some point online during those days would be so much of a time waster that they wouldn’t let their children vote.

Also, would have a lot of homework to not leave open a bit of time there to vote. Finally, the time overlaps with school days. Hard to believe any school would not open up a chance for students to vote online and might even set up field trips.

We can try not to totally resist the first question including assuming the parent opposes the child to vote at all for some reason. I gather a constitutional right to parental control there would not be overridden since there is no fundamental vote for minors to vote — if you had to balance the interests there (as compared, e.g., forced medical treatment). But, in practice, especially if schools provide a means to vote, it seems rather theoretical. Granting this is a state where a Pastafarian won a claim to wear a colander on her head for her driver’s license photo.

Posted by: Jolene | Nov 29, 2015 9:23:09 PM

I left a comment yesterday that may have ended up in a spam folder.

Posted by: Patrick S. O’Donnell | Nov 29, 2015 6:03:09 PM

Jim, fascinating questions, and I have no idea of the answers. I haven’t found any challenges on these grounds in my initial research. But I hope to figure out some of this stuff soon!

Posted by: Josh Douglas | Nov 29, 2015 1:01:51 PM

Josh, does this mean 12-year-olds have a legally enforceable right to vote in this proceeding? What if the parents think their 12-year-old should stay home and do homework instead of going to the polls? What if a parent has grounded the kids? What if a parent objects to his or her child voting, for whatever reason? What if the parents disagree? Can the state or a municipality forbid a parent from making these kinds of choices?

Posted by: Jim Gardner | Nov 29, 2015 11:54:38 AM