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Abstract: This light essay introduces the new interdisciplinary field of Law and Fast Food. It examines several well-known legal disputes involving fast food and fast food establishments. The inspiration and starting point for the essay is the recent decision in Hedgepeth v. WMATA (D.C. Cir. 2004), in which Supreme Court nominee John Roberts wrote the opinion rejecting a constitutional challenge by a 12-year-old girl who was arrested for eating a french fry in a train station. I suggest that this case captures the essence of Law and Fast Food: serious legal and social issues lost in the cultural and media parody that is fast food. Other cases that are part of the canon include the McDonald's obesity litigation, the McDonald's coffee case, and the McLibel lawsuit in England.
Libel, First Amendment, Supreme Court, Tort Reform
Abstract: In this essay, Professor Wasserman discusses the First Amendment implications of recent controversies over offensive and profane cheering speech at college sporting events. Use of offensive chants and signs by student fans has prompted several universities, most notably the University of Maryland, to consider establishing fan codes of conduct at stadiums, in the stated interest of protecting the sensibilities of unwilling captive listeners at the game, especially children. The First Amendment, particularly Cohen v. California and the protection accorded to the manner of communicating a message, renders such speech policies invalid at public university stadiums and arenas. Arenas are forums for what can be labeled "cheering speech," protected expression by fans about the game, the participants, and the surrounding circumstances. This essay is part of a broader upcoming project on the free speech rights of fans at public sporting events and the link between free expression and professional sports in American society and popular culture.
Free speech, first amendment, colleges, sports
Abstract: This article explores in detail the free expression rights of fans at professional and collegiate sporting events, concluding that such "cheering speech" possesses, reflects, and expresses important social, cultural, political, and communal ideas and messages. Short of the rare instances when it falls into unprotected categories such as incitement or threats, all manner of cheering - profanity, heckling, waving flags and banners, rooting for the wrong team, and other political messages and statements - is entitled to vigorous protection. This conclusion flows not only from prevailing free speech principles and jurisprudence, but also is informed by the economics, sociology, and psychology of sport, stadiums, and fandom. The article examines three distinct issues essential to the conclusion that fans at sporting events possess the full range of free-speech rights in their cheering. First, it argues that the grandstand is a public forum. Second, it argues that professional sports teams and public universities are state actors, the latter for obvious reasons and the former as a result of the pervasive public financing of sports arenas. Third, it examines different forms of cheering speech, using examples from incidents at recent college and professional games, and explains why such speech is constitutionally protected.
Constitutional law, freedom of speech, First Amendment, sports, public financing
Abstract: Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and manner in which issues are adjudicated and resolved within the litigation process, as well as the positivist imperative of treating distinct legal conceptions in a distinct manner. This Article argues for a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject-matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress's structural power and empowering the court to hear and resolve civil actions. All facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights.
Jurisdiction, Positivism, Procedure, Discrimination, Civil Rights, Antitrust
Abstract: Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner. The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions. All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.
Civil procedure, federal courts, jurisdiction, Title VII
Abstract: The future of the enforcement of civil rights and civil liberties is linked to video. The proliferation of recording technology enables everyone - law enforcement, suspects, and bystanders - to record police-public encounters on the streets and in the stationhouse. The result is a balance of power in which all sides can record most police-public encounters - Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.
Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video - as evidence in constitutional litigation (at trial and during pre-trial processes) under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future.
Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second the path breaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman shows that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer's interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer's identity-defining cultural characteristics. These insights together demand a level of caution - a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video's meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.
The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be "yes," in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.
Summary judgment procedure, First Amendment, Video
Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video - as evidence in constitutional litigation (at trial and during pre-trial processes) under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second the path breaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman shows that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics. These insights together demand a level of caution - a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.
The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be “yes,” in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.
Procedure, Summary Judgment, Judges, Courts, First Amendment, Culture, Evidence, Video
Abstract: The terrorist attacks of September 11 and the subsequent War Against Terrorism have raised in many minds the possibility of a massive, perhaps nuclear, terrorist attack laying waste to all of Washington, D.C., killing the President and Vice President and destroying Congress and the federal government. President Bush's "shadow government," composed of members from each federal executive agency working from an undisclosed secure location, ready to step-in in the wake of an attack, reflects this newfound concern with continuity in the federal government. This Article considers the constitutional and structural problems raised by the terrorist attack scenario and the plans for government continuity. First, President Bush's plan (details of which have not been shared with the public) does not obviously provide for the safety of a proper statutory successor to the President, one person who will assume and exercise the "executive power" under the Constitution. Second, the plan does not appear to provide for continuity of Congress, but instead assumes that the executive branch alone provides sufficient continuity in the federal government without a functioning legislative branch. Third, there has been no discussion of the more important aspect of government continuity, the repopulation of the federal government and the replacement of those high officials in both political branches killed in any attack so as to bring the government up to full working speed. Most importantly, repopulation demands action not by the federal government, but by the several States, which are responsible for choosing, or controlling the process of choosing, new members of Congress and new Electors to choose a new President. This Article then suggests how succession, continuity, and, most importantly, repopulation of the federal government should function, through several proposed constitutional amendments and statutory changes that will enable the governmental structure to handle the new contingency and survive in a structurally and constitutionally sound and consistent form.
Abstract: The Terrorist Attacks of September 11 and the subsequent War Against Terrorism have raised in many minds the morbid, unlikely, but nevertheless timely possibility of a future massive, perhaps nuclear, terrorist attack laying waste to all of Washington, D.C., killing the President and Vice President, and destroying Congress and the federal government. President Bush's "shadow government", composed of members of all federal agencies working from a secure undisclosed location, ready to step-in in the wake of a terrorist attack, reflects this newfound concern with continuity in the federal government. This Essay considers the constitutional and structural problems raised by the terrorist attack scenario and the plans for government continuity. The Essay focuses on several points. First, there is no place to extend the statutory presidential succession order beyond the current line of Speaker of the House, President Pro Tempore of the Senate, and Cabinet. The extension of the line to all three alternatives - rank and file members of Congress, sub-Cabinet executive officers, and state Governors - creates constitutional, democratic, and practical difficulties. Second, President Bush's "shadow government" (details of which have not been shared with the public) is potentially problematic in that it does not obviously provide for the safety of a proper statutory successor to the President, one person who will assume and exercise the "executive power" under the Constitution. The plan is certainly problematic in that it does not appear to provide for continuity of Congress, but appears to assume that an executive branch alone provides sufficient continuity in the federal government without a functioning legislative branch. Third, there has been no discussion of the more important aspect of continuity under the Constitution, the repopulation of the federal government and the replacement of those high officials in all three branches who were killed in any attack so as to bring the government up to full working speed. Most importantly, repopulation would demand action not by the federal government, but by the several States, which are constitutionally responsible for choosing, or controlling the process of choosing, new members of Congress and new electors to choose a new President. This Essay discusses the constitutional, statutory, and structural problems that would arise under current continuity plans, particularly President Bush's shadow government. It suggests how succession, continuity, and, most importantly, repopulation of the federal government should operate in the event of a massive terrorist attack, both under current law and through some constitutional and statutory changes that are necessary to meet the new exigency.
Abstract: In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two extant free expression concepts - the right and opportunity to communicate through symbols and the Brandeis imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message. Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has returned to what Vincent Blasi called a "pathological period," a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression. Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech show the inconsistency between principles and traditions of freedom of speech and the movement for "flag preservation," which logically would eliminate all symbolic counter-speech directed against the flag and its complements.
Abstract: In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two free expression concepts: the right and opportunity to communicate through symbols and the Brandeisian imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message. Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has fallen back into to what Vincent Blasi labeled a pathological period, a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression. Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech illustrate the inconsistency between principles and traditions of freedom of speech and the movement for flag preservation, which logically would eliminate all symbolic counter-speech directed against the flag and its complements.
Speech, First Amendment, American Flag
Abstract: This Article addresses the problems incurred by Section 1983 plaintiffs who do not know the identities of the officers who violated their constitutional rights, file a Complaint naming Officers John Doe 1-3 as defendants, learn the officers' names in discovery after the statute of limitations has expired, and are time-barred from filing an Amended Complaint properly identifying those officers. Courts do not permit the amended pleading to "relate back" to the original time of filing, because the plaintiffs' lack of knowledge of the officers' names is not a "mistake concerning the identity of the proper party" for purposes of Fed. R. Civ. P. 15(c)(3). This interpretation and application of the rules is improperly restrictive, having a uniquely disparate impact on the substantive interests of civil rights plaintiffs and the substantive purposes of Section 1983. This is due largely to the byzantine Section 1983 liability scheme, under which the officers, rather than the government, are the primary (and often sole) proper and liable defendants. Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, the Article considers four legal changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use in discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint.
Abstract: An important, but often overlooked, aspect of the Constitution is the way in which it established and structured the federal government, including the methods and procedures for selecting officeholders. The Constitution establishes some of these procedures itself and punts others to Congress for the passage of framework legislation. Any decisions as to the design, creation, and operation of a selection procedure reflect four underlying structural principles - separation of powers, federalism, democracy, and political partisanship. Any selection scheme reflects a choice or emphasis on one or more of these principles and a change in the principles of emphasis often will require a change in the selection procedures. Every selection decision can and should be examined against these principles to determine what principle or principles are at work; whether the choice properly reflects the principle or principles that it is trying to reflect; and whether a different procedure would better serve the intended principles. One selection issue that was punted to Congress and the legislative process was executive succession in the event of a double vacancy in the presidency and vice presidency. The current statute provides for legislative succession, through the Speaker of the House of Representatives, and is the reason that Secretary of State Alexander Haig was wrong when, following the 1981 assassination attempt on President Reagan, Haig famously declared that he was "in control, here in the White House." This Article examines three structural principles - separation of powers, political partisanship, and democracy - and the role each plays in selection under the Constitution. It then analyzes the current double vacancy statute in light of these. It concludes that the present succession order is inconsistent with all three principles, considered individually and on overall balance. A scheme more consistent with each of these principles would establish cabinet succession, beginning with the Secretary of State. The new statute also should provide for a special presidential election as soon as possible.
Abstract: In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation or subjective analysis. For the majority, there was no need for a fact-finder to review the video or to compare the video with the competing testimony of eyewitnesses, because what the majority saw in the video was true. The reality, however, is that video evidence is not so singularly objective or definitive in its meaning and message; instead, video presents one perspective on events and is subject to the interpretation and close analysis reserved for the jury at trial. This essay critiques the Court's approach in Scott, both the immediate decision and with an eye on the increasing use of video recording of encounters between police and the likelihood that video will be an increasingly common element of civil rights litigation.
Civil Rights, Fourth Amendment, procedure, summary judgment
Abstract: The debate about the constitutionality and wisdom of Congress stripping federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes, in the Hohfeldian sense, real-world rights or imposes real-world duties to be judicially enforced and vindicated. The focus of this paper is what happens in the wide range of situations in which the legal rule establishing enforceable rights or liberties and imposing duties and obligations does not exist as enforceable positive law.
At some level, limits on substantive rights have loosely but realistically been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.
But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase jurisdiction stripping loosely or inaccurately.
Abstract: The debate about the constitutionality and wisdom of Congress stripping federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated. Under Wesley Hohfeld's model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf's conception of existence conditions, requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law. At some level, limits on substantive rights have loosely but realistically been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim. But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase jurisdiction stripping loosely or inaccurately. This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld's model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules. This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.
Jurisdiction, Courts, Procedure, Rights, Liberties
Abstract: In this article, Professor Wasserman addresses the problems encountered by Section 1983 plaintiffs who do not know the identities of the officers who violated their constitutional rights, file a Complaint naming Officers John Doe 1-3 as defendants, learn the officers' names in discovery after the statute of limitations has expired, and are time-barred from filing an Amended Complaint properly identifying those officers. Courts do not permit the amended pleading to "relate back" to the original time of filing, because the plaintiffs' lack of knowledge of the officers' names is not a "mistake concerning the identity of the proper party" for purposes of Fed. R. Civ. P. 15(c)(3). This interpretation and application of the rules is improperly restrictive, having a uniquely disparate impact on the substantive interests of civil rights plaintiffs and the substantive purposes of Section 1983. This is due largely to the Byzantine Section 1983 liability scheme, under which the officers, rather than the government, are the primary (and often sole) proper and liable defendants. Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, Professor Wasserman considers four changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use to discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure modeled on Fed. R. Civ. P. 27, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint.
§ 1983, Relation back, Procedure, Civil Rights
Abstract: This article explores in detail the free expression rights of fans at professional and collegiate sporting events, concluding that such cheering speech possesses, reflects, and expresses important social, cultural, political, and communal ideas and messages and thus is deserving of First Amendment protection. Short of the rare instances when it falls into unprotected categories such as incitement or threats, all manner of cheering - profanity, targeted heckling, waving flags and banners, rooting for the wrong team - is entitled to vigorous protection. This conclusion flows not only from prevailing free speech principles and jurisprudence, but also is informed by the economics, sociology, and psychology of sports, sports stadiums, and sports fandom. The article examines three distinct issues essential to the conclusion that fans at sporting events possess the full range of free-speech rights in their cheering: 1) the grandstand as a public forum; 2) professional sports teams and universities as state actors, the former as a result of public financing of stadiums; and 3) the specifics of different forms of cheering speech, using examples from incidents at recent college and professional games.
First Amendment, free speech, sports, baseball, public forum, state action
Abstract: This Article undertakes a comprehensive analysis of the doctrine and theory underlying the First Amendment protection against being compelled to utter or present an unwanted message or to fund another private speaker's message. The particular focus is on how that protection applies or should apply to the use of government-compelled payments - such as taxes, assessments, or university student activities fees - to fund traditional and designated public forums when those forums are used by objectionable or offensive speakers. The premise is that a broad protection against the compelled funding of public forums threatens the feasability and existence of places and programs established and maintained by Government for the purpose of facilitating and enhancing private expression. The article creates a three-part model for determining when an objecting payer's free speech rights have been triggered, looking to 1) whether there has been an actual government compulsion; 2) whether the payer is required to give money to, or for the benefit of, a specific private speaker or whether the payer gives money only to the government; and 3) whether the use of the funds can, itself, be understood as expressive. The model recognizes that the right against compelled funding of expression is triggered only when the immediate use of the funds is expressive and is not triggered when the immediate user of the funds is the Government, as opposed to a private speaker. This model reaches a necessary balance between the important theoretical underpinnings of the protection against compelled expression and the First Amendment commitment to the dissemination of the maximum amount of individual expression. The Article applies this model to show how the Supreme Court should have rejected the First Amendment challenge in Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (rejecting, but on different and unworkable grounds, challenge by students at a State University to the use of their mandatory student activities fees to fund speaking programs by student organizations), as well as possible future challenges to the funding of other public forums, in the University and in the community at large, including parks and sidewalks, auditoriums, and expressive subsidy programs such as the National Endowment for the Arts. Under this approach, no payer may object to having her mandatory payments used to create and maintain a public forum, because the establishment, administration, and maintenance of the forum is not itself expressive (as distinct from the speech that may occur in that forum). The payer funds only the physical place and services associated with that place or the pool of money in the subsidy program, none of which is expressive. The payer is not compelled to fund any actual objectionable speech or speaker.
Abstract: First Amendment Lochnerism sounds like a constitutional oxymoron, merging the much-despised Lochner v. New York and the much-revered freedom of speech. But recent scholarly commentary has suggested that courts may, and often do, use particular First Amendment rules and doctrines much as Lochner-era courts used economic substantive due process. Identifying the Lochneresque characteristics of the freedom of speech requires that we first understand what exactly we mean by Lochnerism, a term on which there is no consensus, beyond its use as a pejorative conversation-stopper. But we can point to five elements, five concerns that emerge (individually or in combination) in most discussions of the concept. The Lochnerism label reflects some or all of: 1) objections to judicial protection of non-textual rights; 2) objections to individual-rights-centered judicial review generally; 3) objections to the substitution of judicial for legislative judgment as to wisdom and efficacy of policy choices; 4) objections to rigorous judicial scrutiny aimed at ordinary commercial and economic regulation; or 5) objections to old-guard constitutional doctrine standing in the way of progressive legislative and political change. And we can see each of these elements at play in aspects of First Amendment doctrine and theory. With these five elements in mind, one recent decision emerges with so-called Lochnerian tendencies: Bartnicki v. Vopper (2000), in which the Supreme Court rejected a damages claim against two individuals who disclosed the contents of an intercepted cell phone conversation, in violation of the federal wiretap statute. The Court held that the First Amendment protected the disseminators, who were not involved in the illegal interception of the conversation, and who merely were publishing truthful information on a matter of public concern. Whatever interest government had in promoting and protecting individual privacy interests could not overcome the right to publish this information. Ultimately, the Lochnerism tag is inappropriate in discussing a case such as Bartnicki. One could disagree with the decision (although I argue it was rightly decided) and one could disagree with the balance the courts have struck between free expression and privacy. But slapping the Lochner label on the decision merely freezes the conversation and does not allow for meaningful discussion of what that proper doctrinal and normative balance should be. This paper was part of a symposium entitled First Amendment Lochnerism? Constitutional Limitations on Economic Regulation of Communications, Information, and Technology Industries, at Northern Kentucky University, Salmon P. Chase College of Law, in March 2006.
First Amendment, freedom of speech, Lochner, constitutional, privacy
Abstract: This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-law canon, a subject of a sort of 'cult' among some lawyers and commentators, although no one seems to know how or why. Two connected myths surround Klein. First, the case is said to be meaninglessly indeterminate because, given the confusing and disjointed language of the opinion, its precise doctrinal contours are not clear; second, the case is believed (and hoped) to function as vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Both of these ideas are false. In fact, close analysis of Klein, its progeny, and past scholarship reveals three core, somewhat-related principles of separation of powers and limits on congressional control over the courts: 1) Congress cannot dictate case outcomes; 2) Congress cannot tell the courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules. But close analysis also reveals that Klein lacks doctrinal vigor and that the belief in Klein's power is purely a myth. Those three core principles are neither groundbreaking nor exceptional and all are common ideas, reflected in and associated with other precedents and constitutional doctrines; we do not need Klein to advance these separation-of-power ideals. Consider that no federal law has been judicially invalidated on Klein grounds since the law challenged in Klein itself. Klein's principles fail to limit in any meaningful way Congress' power to enact two recent, controversial pieces of War-on-Terror legislation: the Military Commissions Act of 2006, which imposed limits on Habeas Corpus on federal judicial decisionmaking in cases brought by WOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting warrantless surveillance of people in the United States. Although both laws limit and control the authority, operation, and decisionmaking of federal courts over highly contested legal and constitutional issues - the concerns at the case's heart - the case imposes no meaningful constitutional barriers to either enactment and both survive constitutional scrutiny. The continued belief that Klein imposes significant constitutional limits is a continued belief in a legal myth.
separation of powers, jurisdiction, litigation, War on Terror
Abstract: As the debate rages about the power and wisdom of Congress to "strip" federal courts of jurisdiction to adjudicate particular controversial federal issues, the discussion either ignores another means of constricting the power and influence of the courts. That is the distinct act of "merits stripping". Merits stripping eliminates, limits, or diminishes enforceable substantive rights and the merits of claims brought to enforce those rights. Merits strips diminish the amount of real-world actors and conduct subject to legal duties and protected by legal rights. Merits striping limits who can sue whom over what conduct. Merits strips can target statutory or constitutional rights and can be affected by the legislative, executive, or judicial departments, acting individually or in concert. A "strip" occurs whenever the scope of legal rights (and the legal duties those rights impose on others) falls below some baseline of preexisting law or normative preference. Unfortunately, courts and commentators often conflate merits stripping with true jurisdiction stripping. But they are necessarily distinct concepts and such conflation confounds our ability to understand both. Three differences loom. First, while jurisdiction strips shift litigation out of federal court and into another forum (presumably state courts), merits strips eliminate enforceable rights altogether, in any forum. Second, the manner of litigating and resolving legal and factual issues will be different, depending on whether the "stripping enactment" being applied in court targets merits or jurisdiction; this distinction between merits stripping and jurisdiction stripping is a sub-category of the broader differences between judicial jurisdiction and substantive merits. Third, and most importantly, the structural and constitutional controversy surrounding the power to jurisdiction strip does not apply to merits stripping. Congress clearly has the power to redefine statutory rights, including narrowing those rights; courts clearly have the power to define constitutional rights, including narrowing those rights. One might disagree with the resulting scope of federal rights. But one cannot question the basic power to define those rights. This article defines and examines multiple examples of merits stripping of federal statutory and constitutional rights. It then considers the differences between merits stripping and jurisdiction stripping and how those differences play out in court. Ultimately, distinguishing these concepts is essential to understanding the operation of federal law in the federal courts.
Jurisdiction, Stripping, Merits, Procedure, Substance
Abstract: In 'In Search of Removal Jurisdiction', in NORTHWESTERN UNIVERSITY LAW REVIEW, Scott Dodson attempts to delineate appropriate boundaries between rules of subject matter jurisdiction and rules of judicial procedure, in the context of removal time limits. My recent work, on the other hand, has sought to define, clearly and cleanly, distinct boundaries between subject matter jurisdiction and the substantive merits of federal claims of right. Dodson argues that we must develop a 'broader understanding of the interrelationship and boundaries among the trichotomy of jurisdiction, procedure, and merits.' I agree and this essay is an initial move towards that understanding. It examines each pair in the conceptual triangle and considers the connections among each pair and how to distinguish and disentangle each pair of concepts.
Jurisdiction, Procedure, Federal Courts, Rights
Abstract: This paper, prepared for Tulsa Law Review's 2005 Supreme Court Review, comments on Arbaugh v. Y&H Corp. (2006), which held that the employee-numerosity requirement of Title VII was an element of the merits of a claim, not the subject matter jurisdiction of the Court. But the Court cited, thus supporting the continued validity of, Bell v. Hood (1946), its long-standing, but oft-questioned, decision holding that a court may lack federal-question jurisdiction if a plainly federal claim is insubstantial or frivolous. This comment analyzes the many problems that Bell creates in drawing lines between jurisdiction and merits and explains why the Arbaugh Court should not have relied on the rule and why it should eliminate the jurisdictional doctrine of substantiality.
Jurisdiction, Merits, Procedure
Abstract: The hours and days after an attack on the national government will be dominated by the President and executive branch first-responders, acting under existing laws and appropriations to maintain peace and order and begin the national recovery. But Congress has a role to play in this time period, symbolic as well as practical. This reminds us that separation of powers remains the dominant structural precept under the Constitution and we do not truly have continuity of the national government unless all three branches are functioning in a constitutionally and structurally valid manner, with both a complete bicameral Congress and a President to enact legislation. Continuity of Congress is best understood as a three-stage process, with each stage demanding different rules and procedures. The first stage is Immediate Continuity, covering the days and first week after the attack, during which the scope of the damage to Congress remains unclear and the seats whose members have been killed or incapacitated cannot yet be filled. The next step is Repopulation, which can be divided into two stages: Interim Repopulation and Final Repopulation. Final Repopulation is the end goal of continuity of Congress, when both houses of Congress have been returned to full working capacity with all members selected by the preferred mechanism of direct popular election. Interim Repopulation bridges the gap between the first week and the point at which popular elections can be held and elected members can take their seats. The question of how to handle this middle stage in the House of Representatives has generated the greatest controversy among commentators and legislators, with disagreements about how quickly elections (that bring us to final repopulation) can take place and whether even temporary House appointments (even with a constitutional amendment) ever could be a permissible option. There also is the unique problem of a large number of incapacitated members of Congress, in which there are no vacancies that can be filled by any selection procedure, but also not enough able-bodied members to allow one or both houses to obtain a quorum to do business. This paper is part of a symposium, "Ensuring the Continuity of Government in Times of Crisis," sponsored by Catholic University Law Review in January 2004.
Government, continuity, congress, succession, elections, appointments
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