PrawfsBlawg

I posted this elsewhere a year ago, but it’s worth posting again:

From a speech he gave on October 8, 1867:

[T]hey framed your matchless Constitution of Government at Philadelphia, known as the Constitution of the United States.— The word white is not there. The words “natural-born citizen” are there, and the man is a natural-born fool who does not understand that the term “natural-born citizen” implies that citizenship is a birthright. It comes with a man into the world. He has a right to citizenship, no matter what his complexion, upon the spot in which he had his origin; and the man who denies it to him, or attempts to withhold it from him, is simply a monster. When he comes to you with his nostrums you ought to herald his approach with the cry of the old cheating peddler: “This is the genuine old Doctor Jacob Townsend’s sarsaparilla.” – [Laughter.] 

Dr. Jacob Townsend’s sarsaparilla was a popular “medicine” with many imitators.

Imagine that there was a proposal for an Article V amendment and a sitting U.S. Supreme Court testified to either support or oppose the proposal. Most people would probably think that inappropriate.

How about a state Supreme Court Justice? I note this because at least one state Supreme Court Justice testified before the Senate in the 1960s to support an amendment modifying the “one-person, one-vote” cases. No objection was raised during the testimony. I’m unsure what people would think now though.

The first episode (covering 1492-just before WW II) aired on Tuesday evening, following an introductory webinar. Worth watching. I already learned some things I did not know.

This mantra first emerged in the 1960s when proposals were introduced to modify or overrule some of the Warren Court’s decisions (on school prayer, for example.) Why then? Many constitutional amendments do not touch the Bill of Rights, of course. But even those that did or proposals that did not pass never drew this sort of reaction until around 1965.

One answer, as I discussed in my Bill of Rights book, is that the first ten amendments held a much higher status in our constitutional culture by the 1960s for various reasons (incorporation among them). But another one that I’d not thought of before was that Barnette was quoted for the proposition that the Bill of Rights should not be the subject of politics, including Article V.

Now I don’t think that’s what Justice Jackson meant. To say that fundamental rights depend on no elections refers to their restriction by ordinary statutes. If supermajorities over an extended period of time want to modify a provision in the First Amendment (say, by banning flag burning) that strikes me as valid, if mistaken. But the broader interpretation of Barnette carried the day. The Bill of Rights has not been formally amended since the case came down.

Utah recently expanded the membership of its Supreme Court from 5 to 7 Justices. My understanding is that this was done because the Legislature was unhappy about that Court’s recent decisions on gerrymandering.

It’s an interesting experiment. If it turns out fine, that would undercut the criticism of Court-packing at the federal level. (I’m not sure what fine means, but anyway.) Will the Court’s decisions with respect to gerrymandering change? Probably, if only because there is the possibility that if they don’t, Utah could go to 9 Justices or 11.

As long as the Religious Liberty Commission’s charge includes both “[r]ecommending programs to increase awareness of and celebrate America’s peaceful religious pluralism” and advancing the religious freedom rights of public employees, may I offer another educational project for its consideration? That project is Emory Law graduate Mike Howell, currently a fellow at the Heritage Foundation–not working on religious liberty issues, if one may offer sincere thanks to Providence for its small and tender mercies. He is also currently advocating–on social media, because of course–a ban on “head coverings and hoods” on the floor of the House of Representatives, for “decorum.” (No word on the status of decorum and head coverings in the Senate.) The discussion makes clear that Howell would offer a gerrymandered exception for kippahs. I say gerrymandered for two reasons: Like the 28-sided district in Gomillion v. Lightfoot, the distinction patently lacks a sound explanation. And also like that district, the actual explanation is obvious. Lest there be any doubt, one may turn to Howell’s comment that he’s “not even getting into whether Islam is a legitimate religion.” Jefferson would have wept. (Incidentally, it’s not clear how he would treat a woman wearing a sheitel. Or how he would deal with Sikhs. Maybe he would be better off avoiding all the messy details and just recommending that Congress discriminate against Muslims.)

Let me say in fairness that the rabbi arguing back against Howell in the excerpt linked to above, Yaakov Menken, is actually on the Commission’s advisory board of religious leaders. He is quite right in arguing that “religious garb in no way harms decorum,” and that certainly includes Islamic religious garb; and he’s right to acknowledge and celebrate America’s religious diversity. As a fellow tolerated person of these United States, I’m glad to see it. In daily discourse, the phrase “strange new respect” has become the lead-in to a joke. Still, the Heritage Foundation is not exactly the place I expected to find strange new respect for the idea of turning the United States into Quebec. (As an aside: Howell has spent much more time as a Swamp denizen than I did. But even a little time there taught me one thing: the way to tell the difference between the serious people, and the unserious people who like to look serious, is that the unserious people are the ones using phrases like “We will handle it at the principal level.”)

Here is Donald J. Trump talking to reporters yesterday about his lawsuit against the Treasury: “I’m supposed to work out a settlement with myself … We could make it a substantial amount, nobody would care, because it’s gonna go to numerous, very good charities.”

Not quite cy pres and its abuse in class action litigation, but close. One difference, of course, is that this not a class action; the settlement here would short-change not absent, diffusely injured class members, but the taxpayers and the public fisc. Another is that the donations in a cy-pres settlement are part of the agreement, and we do not know whether this casual remark indicates any plan for such a settlement agreement or just an an unreliable pledge by the plaintiff that he will give his winnings to “numerous, very good charities.” The collusive aspect is way, way present, however. And so is the worry about the actual nature of the “very good charities” and the possibility that the donations would just flow directly to the plaintiff.

The other day I became curious about the process through which the United States gave the Philippines independence on July 4th, 1946. The answer is Congress enacted a law in 1934 creating an independence framework.

The first step was for the islanders to hold a convention that would draft a constitution that was republican in form and had a bill of rights. Congress did not specify the substance of either, but it’s interesting that at this point a bill of rights of some sort was seen as essential.

The next step was that the President had to approve the draft constitution. This was novel. When Congress admits states, they judge the proposed constitution. After the President approved, a ratification referendum of sorts was required. Then there was a ten-year transition period until full independence.

Armin Langer (visiting in UF’s Center for European Studies) argues that it is wrong and dangerous to describe ICE as Nazis and the Gestapo. His argument surpasses any of the arguments I have seen. While I disagree, it is worth responding to. (Langer’s piece is part of a pair of competing arguments in The Forward; I did not think much of the piece that reaches the conclusion I share and the photo they used with that piece would make a great defamation hypo).

Here is the crux of Langer’s argument: While we are experiencing democratic backsliding, we remain a democratic and not “full-fledged” authoritarian state. The press remains free (if supine); people are protesting and organizing; the courts remain independent and have ordered ICE and the Administration to take certain actions and have threatened to hold officials in contempt.

Langer’s argument ignores the possibility that fascist/police-state/authoritarian elements can operate–to greater or lesser success, depending on how the rest of society responds–within a functioning democracy. ICE and others continue to do a lot of unlawful or constitutionally invalid stuff. That the courts have stopped some stuff does not make ICE any less of an authoritarian entity trying to do things analogous to what Nazis/fascists/authoritarians hoped to do. A failed Brownshirt–or a Brownshirt that has not yet achieved its goals–remains a Brownshirt.

And, of course, the courts have not stopped all of it. The courts are unable to stop some stuff (given the difficulty of prospective remedies and the unavailability of retroactive remedies). And the government has, to this point, disobeyed (according to Chief Judge Schlitz) dozens of court orders without consequence. Langer waves away the “sharp disputes over enforcement” that render these court orders and attempts to obtain judicial remedies ineffective, if not worthless. That courts remain open and offer theoretical checks does not mean ICE is not doing (and, for the moment, getting away with) analogous stuff.

I take Langer’s point that we lose something if “Nazi” becomes synonymous with “bad politics.” But ICE is engaging in more than bad politics; their conduct rhymes, if not repeats, albeit with a different target.

Finally, Langer continues the category error that Nazis were not Nazis until they turned murderous. He writes:

Nazism remains historically singular, both because of its eliminationist antisemitism and its state-driven project of industrial genocide. No other political movement has so entirely organized its worldview around the idea that a specific people constitutes a cosmic threat. The Nazis were driven by the belief that the mere existence of Jews endangered humanity, and that Jews therefore had to be physically annihilated everywhere.

Again, however, this works only in hindsight and ignores history. The Reich did regard Jews as a cosmic threat. But for about a decade, it was content to strip Jews of rights, status, and property; place them in detention without due process; and incentivize them to self-deport, mixed in with some state-sanctioned violence (sound familiar?). The Nazis turned to eliminationism when the “space” prong of their ideology collided with the “race” prong of their ideology. By spring 1941, Germany’s territorial aspirations had compelled them to invade and conquer most of Europe; this brought within the Reich the Jewish populations of those countries, including more than 6 million in Poland and Russia. Deportation/self-deportation ceased to be an option because there was nowhere for them to go. That is when Nazism turned murderous.

This is a close call. There were a lot of candidates.

1. The president suing the United States Treasury for a (legitimately objectionable) leak of tax information which occurred during the presidency of Donald J. Trump, and demanding damages of $10 billion, thus wiping out most if not all of the actual “DOGE savings.”
2. The disturbing presence of the Director of National Intelligence at the FBI raid on an election center in Georgia–a presence justified neither by her remit nor, God knows, her expertise and intelligence, but by her understanding of the simple fact of court-politics geography dictating that the shortest path between her office and any chance of getting back into the good graces of the Oval Office runs through Fulton County.
3. The spectacle of the president yet again taking to social media to order the Justice Department to arrest Barack Obama, on the basis of a conspiracy theory–like all good conspiracy theories, it involves Italian satellites–that was originally “brought to the White House by a woman who went by several aliases including ‘The Heiress’ and was known at the Pentagon for her claimed ties to Somali pirates.”
4. The cult-of-personality antics of the premiere at the it’s-still-actually-called-Kennedy Center of the documentary “Melania,” a film which was the incidental byproduct of the $40 million in protection money paid by Jeff Bezos to Trump and, fittingly enough, was directed by an accused sexual miscreant.
5. The fact that the “arrest Obama” order was one of literally dozens of deranged tweets and rants launched by the president on social media yesterday. This was, of course, just the latest example of the frequent manic phases that demonstrate his manifest moral and mental unfitness for the office he occupies. By extension, it demonstrates the manifest moral and intellectual unfitness of his enablers, apologists, and diligent blind-eye-turners, who will have gotten around to carefully deciding on a sound historical analogue for Trump right around the time he has finished raiding the public fisc, naming things after himself, propagating lies as official government propaganda, jailing his enemies, enriching his family and friends, disappearing individuals and leaving their cars running in the streets, and sending undesirables to foreign torture prisons and to what respect for the English language demands we openly and accurately call internment or concentration camps.  

But I would like to make a case for another story: The president’s threat to decertify, and thus possibly ground, “all Aircraft made in Canada.” I note incidentally that the true mark of a Trump supporter is to approve of his eccentric and distinctly Germanic capitalization practices. But the true mark of a Trump apologist is his or her determination never, ever, ever to mention those practices, lest it take time away from making impassioned arguments that widespread American illiteracy is the fault of a failed progressive educational system, which must be replaced by a rigorous classical education.

Characteristically, the threat lacked specifics or a deadline. Also characteristically, it lacked specifics about either the precise meaning and contours of the threat or the precise legal authority for the threatened action. One hardly expects the latter from a tweet, but the reason for that is that one hardly expects a properly functioning president in a properly functioning nation to direct policy and enforcement through a tweet; the less the latter is true, the less forgiving or dismissive one should be about the need for the former. “It’s just a tweet” is a laughably inapt bit of rationalization in the context of the second Trump regime. The ambiguity and lack of clarity has, of course, led to an equally inevitable round of “what he meant was,” as administrators try to pick up the pieces and apply a bit of sanity around the edges, like makeup artists applying concealer to a bruised hand.

Trump was at least clear about his purported reasons, which centered around the Canadian delay in certifying several Gulfstream airplane lines. (One naturally assumes he recently spoke to or played golf with someone from or representing Gulfstream. As a reminder, tariff lobbying contracts are up roughly 500 percent since last year and 1,550 percent from 2016–one more reminder that it is either a foolish error or a lie to call Trumpism, in this or any other area, a war against elites and elitism; it is, at best, a war between competing elites. Often enough, it consists of Stanford and Yale grads railing at other Stanford and Yale grads.) There are two problems with that explanation, however. First, he is a liar, so there is no reason to believe him; it could just as easily be because he continues to be angry at Mark Carney for drawing more applause than him in Davos. Second, and also characteristically, he got most of the facts wrong.

National and international aviation, with the immense issues of coordination and safety it raises, is almost definitionally the sort of area that demands and justifies some form of administrative state. But my reason for suggesting that the airplane story–or, if you prefer, the Airplane story–should be front and center for people who like to theorize about and justify the unitary executive is not that it demonstrates the need for a non-unitary executive. Rather, it’s that it demonstrates yet again the need for UET writers to examine, theorize, and discuss what a proper approach to management under a unitary executive regime entails.

The simple possibility of a unitary executive is hardly inconceivable, although I only follow and certainly make no claims about what the history and theory ultimately suggest about its actuality. It is no more inconceivable than the possibility of a large corporation run by a single chief executive. But no one thinks that once you have determined to have a single corporate CEO, you have exhausted the topic of how that entity should be managed, or that nothing useful can be said about what it looks like to mismanage it. This, I take it, is why many fine people study management, and why the kiosks of airports across this great Canadian-plane-free land of ours are full of awfully written books about management.

I can understand why so much time is spent debating the fundamental question whether, under the Constitution, we have a unitary executive branch or not. But, for all the vast archives that have been pillaged to fuel that debate, it seems strange to me that much more time is not spent–especially by proponents of a unitary executive–on the then side of the if-then equation. If we have a unitary executive, then the discussion is just beginning, and much of the rest of that discussion should be filled in with examination–no doubt helped along by a century of adjacent writing about modern corporate management in addition to public administration literature–about how such an executive should or shouldn’t be run, what its particular risks are and how to manage them, and what misfeasance, malfeasance, incompetence, and impeachable conduct look like under such a regime. A unitary executive theory that fells whole forests to discuss the history but only sometimes gets around to normative questions of practice makes about as much sense to me as a definitive treatise on the hamburger whose first sentence states that questions concerning meat, condiments, and vegetables are no doubt interesting but fall outside the scope of the discussion.

As the airplane story illustrates, as well as the other stories listed above and several dozen more besides, just from the past 24 hours or so, both the materials for such a discussion and the urgent need for it are right in front of us.

We have an update on the patient citing statutes: He is a law student. He was sedated the entire episode, so no further clues as to what he was citing or why.

The big legal story of the season is a running one: One of the residents is supposed to be deposed in a med mal case in which she is named as defendant. She is working while anxiously awaiting the dep, which will take place sometime later in the day (it is 10:59 a.m. at the end of Episode 4). We have known all along it is July 4. We also found out yesterday it is Saturday.

So: Attorneys are going to depose defendant doctor at the hospital, in the middle of her ER shift, on a Saturday, that is a national holiday.

ER doctors celebrate this show for its accurate (if time-compressed) depiction of emergency medicine. I doubt lawyers will say the same on this plot point.

Edith Beerdsen (Temple) has written some interesting stuff about how the discovery process is less about the FRCP and more about the culture of a legal community. The process moves according to a rough sense of how things ought to work in a gestalt manner rather than according to the rules.

It is an interesting idea. And it may explain the entire mechanism of civil litigation. Case in point is Sokolowski v. Digital Currency Group, from the Middle District of Pennsylvania.

This is a pro se action, apparently a dispute among a bunch of crypto bros. The original complaint was 66 pages/125 ¶s, with another 42 pages of exhibits. The amended complaint (filed as a matter of course) was 81 pages/163 ¶s with almost 200 pages of exhibits. Plaintiffs moved for leave to amend; the proposed second amended complaint was 946 pages (pleading and exhibits)/720 paragraphs (Carlson notes it rivals Gone With the Wind in length). It adds several new parties, talks at length about many non-parties, and adds a claim for RICO. Magistrate Martin Carlson’s R&R recommends that the district court grant the motion for leave to amend in part–do not allow the proposed SAC because it is obscenely long and contains a lot of improper stuff, but direct plaintiffs to offer a different proposed amended complaint that better complies with Rule 8(a)(2).

A few thoughts on broader issues:

1. There is a nice question of whether FRCP 8(a)(2)’s “short and plain statement” requirement establishes a floor or a ceiling. That is, whether 8(a)(2) requires a short-and-plain statement as a minimum to survive a 12(b)(6) but leaves the plaintiff free to provide more, if she chooses (subject to whatever risks that entails, such as pleading herself out of court). Or whether it establishes the maximum–when a plaintiff provides more than a short-and-plain statement, she violates the rules and the pleading becomes improper.

The magistrate in Sokolowski took the latter view–the proposed SAC violated Rule 8 in its prolixity and thus should not be allowed even if the plaintiffs should be given leave to amend. So did Judge Merryday in striking a typically bumptious Trump pleading; a pleading that includes dozens of pages of extraneous stuff¹ “stands unmistakably and inexcusably athwart the requirements of Rule 8.”

Justice Jackson took the opposite view in her Berk concurrence in arguing that the state CoM requirement did not conflict with Rule 8. Rule 8 does not prohibit a plaintiff from submitting more than a short-and-plain statement, including a non-pleading document such as a CoM. That is, Rule 8 establishes a floor not a ceiling. Thus a state law requiring the plaintiff do something he could otherwise do did not conflict with that rule. The conflict arose with Rule 12–state law imposed the consequence of dismissal for lack of that non-pleading document, where FRCP 12(d) only allows dismissal based on the complaint.

2. What I wrote about Judge Merryday’s order in Trump applies to this R&R: The court conflates Rule 8 with Rules 12(e) and (f). This overly long and incomprehensible complaint is not defective for failing to offer a short-and-plain statement. It is defective because it contains “redundant, immaterial, impertinent, or scandalous matter,” warranting striking some or all of the pleading. Or the SAC’s prolixity renders it “so vague or ambiguous that the party cannot reasonably prepare a response,” warranting the court to order a more definite statement.

To be fair, prolixity does create a Rule 8 issue warranting dismissal, but not as the court describes it. The problem is not that the complaint is too long and thus fails to be short-and-plain, because Rule 8(a)(2) does not prohibit a pleading that is more than short-and plain. The problem is that the prolixity and extraneous stuff obscures any showing that the pleader is entitled to relief. That is, the magistrate cannot find a legally or factually sufficient claim in the mess and thus must dismiss. But that is not what magistrate said.

3. The ultimate order–grant leave to amend in part but deny leave to file the proposed pleading–is incoherent. Courts do not grant or deny leave to amend in the abstract; the decision must be pleading-specific–will the court permit the party to file this attached document. This is why every circuit trequires the movant to attach a copy of the proposed amended complaint to the motion–so the court can determine whether leave should be granted as to that pleading. And one reason for denying leave to amend is futility of amendment, which requires the court to evaluate a specific proposed pleading.

The correct approach would be to deny leave to amend as futile–the proposed amendment is obviously too vague, contains tons of strikeable stuff, and obscures any sufficient claim that might be in there.² But tell the plaintiff he can, within some time period, file a new motion for leave with a specific new pleading that the court can evaluate. The R&R seems to recommend allowing plaintiff to offer a new pleading without having to file a new motion (since leave to amend has been granted and thus need not be sought anew).

As I said at the top, we reach the same–and proper–end point through a rough, if atextual, sense of how litigation should proceed. Plaintiffs cannot file this monstrosity for reasons but should be allowed another crack. And Carlson might be more forgiving of the pro se plaintiff who claims to be seeking counsel. That is the right result. But this presents a nice example of how things operate on a logic independent of the rules.

I thought about assigning this case as an essay–what did the court do right and wrong and how would the actual rules get the court to this ending.

1. “As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers’ Corner.” ↩︎
2. Because it is never RICO. ↩︎