Category Archives: Court Opinions

Running afoul of the Flores Settlement Agreement [text and CRS reports]

Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.

Here’s links to two recent CRS reports:

Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)

Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)

— Joe

Empirical analysis of Lexis and West headnotes in SCOTUS opinions from the 2009 term

“The data make clear that headnote assignments are far from scientific. In fact, they appear somewhat arbitrary, at least based on the discrepancies described in this article. Further study is warranted,” wrote Peter A. Hook and Kurt R. Mattson in Surprising Differences: An Empirical Analysis of LexisNexis and West Headnotes in the Written Opinions of the 2009 Supreme Court Term, 109 Law. Libr. J. 557 (2017). Here’s the abstract:

The number of headnotes assigned by LexisNexis and West are empirically examined for opinions of the 2009 Supreme Court Term. Additionally, Citizens United is examined in detail to determine the overlap of headnote-worthy language. Discrepancies in the number of headnotes assigned and disagreement as to headnote-worthy language call into question the rigor with which headnotes are created.

H/T to Legal Skills Prof Blog. Interesting. — Joe

Court rules President cannot block his Twitter account [text]

From the US District Court for the Southern District of New York’s holding in Knight First Amendment Institute v. Trump, 17-Civ-5205, May 23, 2018:

Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.

— Joe

Seventh Circuit affirms nationwide injunction in sanctuary cities case

The Seventh Circuit issued its decision in City of Chicago v. Sessions. The court upheld a nationwide injunction blocking the Trump administration from imposing restrictions on recipients of federal public safety grants. Here’s the text of the decision. — Joe

Court ruling calls for partial reimbursement of PACER fees [text]

On March 31, 2018, Judge Huvelle, DDC, ruled that the Judicial Conference overcharged Pacer users. Here’s the text of the opinion. For a critique of the ruling, see Stephen Schultze, Judge Declares Some PACER Fees Illegal but Does Not Go Far Enough, Freedom to Tinker, April 1, 2018. Recommended. — Joe

Historical Supreme Court cases now online thanks to Library of Congress (and Hein & Co.)

According to the press release, “More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.” You can access the collection here. — Joe

“No one is above the law:” Former Apprentice contestant’s suit against Trump can proceed while he is president, court rules [text]

Here’s the text of the court ruling. — Joe

Determining precedential effect of non-majority opinions

Here’s the abstract for Adam Steinman’s Non-Majority Opinions and Biconditional Rules, Yale Law Journal Forum, Vol. 128 (Forthcoming):

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).

Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.

— Joe

Beyond the bully pulpit: the first systematic examination of presidential speech in the courts

Here’s the abstract for Katherine Shaw’s Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Texas Law Review ___ (2017):

The president’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the president. The president speaks to the entire population; about the full range of domestic and international issues we collectively confront; and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: for at least a century, presidents have used the bully pulpit to augment their existing constitutional and statutory authorities.

But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action.

This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive-branch dynamics can shed on judicial treatment of presidential speech. I then turn to the normative, arguing that for a number of institutional reasons, it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. That general principle, however, is not absolute. Rather, in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate. That subset includes: cases in which presidential speech reflects a clear manifestation of intent to enter the legal arena; cases touching on foreign relations or national security; and cases in which government purpose constitutes an element of a legal test. In light of the rhetorical strategies of President Donald Trump, the question of the impact of presidential statements in the courts is quickly becoming a critical one.

Interesting. — Joe

Litigation records relating to Trump’s three travel ban executive orders

Lawfare’s Litigation Documents & Resources Related to Trump Executive Order on Immigration is an archive of court filings and related resources surrounding Trump’s three travel ban executive orders. — Joe

Methods of selecting presidential nominees: From peer review to populism in democratic institutional design

According to Stephen Gardbaum and Richard H. Pildes in Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies, New York University Law Review, 2018, Forthcoming, Donald Trump would most likely not be President but for the institutional change made in the 1970s in the nature of the presidential nomination process. From the article’s conclusion:

This Article should be read against the rise of the populist forces, including illiberal and authoritarian ones, that are currently roiling numerous long-established democracies. Populist alienation, anger, and hostility toward government and political elites are not unexpected in the aftermath of the financial crisis that began in 2007; as economic historians have shown in studies of democracies going back to 1870, financial recessions—which endure much longer and are therefore more painful than ordinary economic recessions—regularly spawn a rise in populist politics and parties, in left and right variations. Add to these economic dislocations the cultural challenges posed in many countries by the dramatic rates of increase of immigration (legal and illegal) in recent years, as well as the opportunities created by the rise of social media, and the challenge to traditional politics and parties is even less surprising.

Here’s the abstract:

In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. This article explores the contrast between nomination processes that entail a central role for “peer review” – in which party leaders have a central voice in the selection of their parties’ nominees – and purely populist selection methods, such as currently used in the United States, in which ordinary voters completely control the selection of nominees and party figures have no special role.

The first half of the article is historical and focuses on the United States. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. In the historical sections, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The comparative sections show that the U.S. system is an extreme outlier among major democracies: in no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for Chief Executive.

The institutional design through which democracies choose nominees who compete to become a nation’s Chief Executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This article also contributes to the general analysis of the rise of populist politics in many democracies today by showing how the institutional design for how party nominees are chosen can enable or constrain how easily and quickly populist political forces are able to capture control of government.

Interesting. — Joe

Steinman on case law

Here’s the abstract for Adam Steinman’s very interesting article simply titled Case Law, Boston University Law Review, Vol. 97, No. 1947, 2017:

Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.

This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.

This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.

— Joe

ACLU and Yale Law School Clinic have standing to seek FISA court rulings on data collection

On Constitutional Law Prof Blog, Steven D. Schwinn reports that a sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School’s Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. He noted that the ruling [text] means that the movants’ efforts to obtain the rulings can move forward, although it does not say anything about the merits. — Joe

ProPublica spots factual errors in very limited sample of SCOTUS opinions

“ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.” It’s a Fact: Supreme Court Errors Aren’t Hard to Find. Interesting.

H/T beSpacific. — Joe

Sixth Circuit holds against University of Cincinnati in Title IX case

The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today.  The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld.  The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case.  The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure.  Nonetheless, they have to provide a level of due process to the accused.  The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties.  This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing.  University rules did not, in fact, require any of the parties to attend.  The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing.  They decided to impose a two year suspension that was later reduced to one year on administrative appeal.

Doe took his case to the District Court which found in his favor.  The University could only decide based on the submissions from each party, basically one’s word against another.  The Court stated that cross examination was “essential” to due process in these circumstances.  The District Court also noted that the University’s code allowed for notarized statements from the accuser.  Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.

The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension.  The Court largely agreed with the District Court’s reasoning.  The Court of Appeals set out the required process:

While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).

Both parties agreed that Doe’s property interest (not being suspended) is significant.  The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The Court held that the cross examination need not take the form of direct confrontation.  The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype.  At the very least, the accuser will have to participate somewhat more actively in the hearing.

I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances:  Sexual Paranoia Come to Campus, which is about this very issue.  Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories.  It’s well worth reading in light of this decision.

Mark

Integrating PACER in the case method of instruction

Here’s the abstract for Teaching with PACER: Improving Understanding by Harnessing Transparency by George Kuney:

The article discusses teaching law school courses with the Public Access to Court Electronic Records (PACER) system and both student and instructor e-writing projects relating to that system.

The case method of instruction in its classic form does not capture the context and intricacies of bankruptcy practice, especially in United States Chapter 11 cases. What is often missing is the rich compilation of detail found in the mountain of filings that is a Chapter 11 case, whether large or small. These details often evidence the shifting loyalties, relationships, interests, and emotions of the participants. These dynamics are largely lost in even trial court decisions in the case, much less appellate opinions.

With the advent of national federal court adoption of the PACER system throughout the United States, however, a new resource for teaching has arrived. Over the last several years, I have been teaching Chapter 11 seminars that augment a text with a research project that uses PACER (or a similar service available in some large cases from the claims agents in the case) to provide access to the docket and substantially all the pleadings and other documents in the case. This research project allows students to research the background of the debtor company, examine what led it to seek relief under Chapter 11, and to follow the case to conclusion, through all its twists and turns, even if there are no appeals. Student reaction has been positive.

Interesting. — Joe

Reporters Committee for Freedom of the Press and a coalition of 17 other media organizations file amicus brief in support of limiting fees for accessing PACER records

From the Sept. 6, 2017 press release:

On Tuesday, the Reporters Committee for Freedom of the Press and a coalition of 17 media organizations submitted a friend-of-the-court brief to the U.S. District Court for the District of Columbia in the case of National Veterans Legal Services Program v. United States of America. The brief argues that the law requires the judicial system to limit the fees it charges people to access its Public Access to Court Electronic Records (PACER) system to the cost of disseminating the information requested. Currently, many members of the media face prohibitive costs when trying to obtain court records to inform the public about what is happening in the judicial system.

Text of amicus brief. — Joe

Kerr: How to Read a Legal Opinion: A Guide for New Law Students

Orin Kerr’s How to Read a Legal Opinion: A Guide for New Law Students, 11 The Green Bag 2d 51 (2007) celebrates the 10th anniversay of its publication in The Green Bag. It should be required reading during the first week of 1Ls’ law school careers. — Joe

Elected official cannot block constituents from ‘official’ Facebook page

At the US District Court for the Eastern District of Virginia, the court ruled that a politician who reacted to a constituent’s comment on her “official” Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment. Davidson v. Loudoun County Board of Supervisors, 1:16-cv-JCC-IDD (July 25, 2017). On Constitutional Law Prof Blog, CUNY Professor of Law & University Distinguished Professor Ruthann Robson writes “This case should serve as a wake-up call for politicians who use their ‘official’ Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President’s practice of “blocking” people on Twitter.” — Joe

Pubishers win antitrust appeal against small vendor

Here’s a little postscript to the Apple e-book antitrust case.  A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure.  BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.

BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries.  The publishers presented evidence contradicting BOB’s claims.  The move to agency model pricing actually increased revenues for BOB.  The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.

The District Court opinion from 2016 is available here.   The Second Circuit Court of Appeals opinion which largely adopted the District Court’s reasoning is here.

—Mark