My tribute to Justice Ginsburg

For the Jewish Women’s Archive (and along with my friends Dahlia Lithwick, Nikki Horberg Decter, and Martha Minow, with thanks to Judith Rosenbaum), here:

It may be hard to remember or imagine, but when I was a college student and a law student in the 1990s, Justice Ruth Bader Ginsburg introduced herself to the world as a moderate incrementalist. We were taught how her groundbreaking litigation strategy, for the ACLU’s Women’s Rights Project which she founded in 1972, succeeded precisely because it was so cautious and incrementalist. Her strategy was first to take men’s cases for sex discrimination: men who were denied benefits that were reserved for women as caregivers or widows, for men who had later drinking ages, men who had mandatory jury duty while women’s jury duty was only voluntary. Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court, and she won five. She savvily attacked gender stereotypes when they benefited women to lay the constitutional groundwork for challenging all sex stereotypes. It was carefully and quietly brilliant, like her.

After President Carter named her to the DC Court of Appeals, she continued to make her mark as a moderate. In law school, we were taught to appreciate her balance, her moderation, her incrementalism, her view of trusting democracy over judicial activism. As a moderate liberal who shied away from the scary label “feminist” in the “Backlash” 1990s, I appreciated Justice Ginsburg.

But then something happened around 2000. First, Bush v. Gore. She called out the hypocrisy of the Court’s ostensible federalists, who ordinarily defer to state governments, but not here: “Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.” While colleagues wrote they dissented “respectfully,” as Ginsburg usually did, too, she concluded with only: “I dissent.”

Then the Court turned further right over the next decade. The quiet and moderate Justice Ginsburg dissented more, and more forcefully and eloquently. There are many examples, but here is my favorite, in arguably the worst decision of the Roberts Court, striking down a key part of the Voting Rights Act of 1965 based on absurd reasoning and remarkable factual and demographic errors: “The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective,” Ginsburg wrote. “Throwing out pre-clearance [review of states’ changes by the Department of Justice] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The Roberts Court has systematically undermined voting rights, and Ginsburg was right: We are now in a storm of anti-democratic attacks. And it was in this storm that the quiet moderate Justice Ginsburg became the Notorious RBG. I did not always agree with her, but I changed from appreciating her to loving her as a hero. I look back at how I—and many of us—changed along with her, from patient moderates in the 1980s and 1990s to more outspoken, fierce, dissenters and resisters today. In the decades RBG became a feminist icon, I became more proudly a self-identified feminist. On some level, there was a connection. RBG dissented for all of us when she had a voice that many of us felt we had been losing.

The last thing I’ll share is a defense of her retirement timing. Many liberals have criticized her decision not to retire under President Obama while the Democrats had a narrow Senate majority. First, I’d note that few people criticized men on the Court the same age for not retiring, even though women have a longer life expectancy. Second, it’s easy to forget the politics of 2012–2014. President Obama was running for re-election as a cautious moderate, adding names to his judicial shortlist from conservative states and with no record on women’s rights. Ginsburg knew how to recognize such moderation from her own life, and she would have been understandably cautious. The Democrats’ Senate majority remained narrow in 2013–14, and it was apparent that the decisive conservative Democrats wanted a moderate without a clear record on Roe. If Ginsburg cared more about her life’s work, her passion for women’s rights more than simply getting a “Democrat” on the Court, can she really be blamed? But finally, the critique is unfair in a time of partisanship. Yes, conservative Justices have been better, and luckier, at timing their retirements in obviously partisan ways, eroding the legitimacy of the Supreme Court.

One can argue that if she were more partisan, she should have retired earlier. But we should at least take a step back, be as generous to her as she was to all of us with her life of public service, and appreciate that she was more than just a partisan, that she believed her life, the law, and perhaps judicial legitimacy was something bigger than party politics. Maybe she was right, maybe she was wrong, but she was Notoriously, gloriously independent. Thank you, Ruth.

A Voting+Census Bureaucratic Problem: Yet Another Reason to Vote EARLY IN-PERSON

I voted early in-person for our primary, and I need to share a surprising bureaucratic problem that confirmed why voting EARLY IN-PERSON is worth the risks this year.

I have voted in every primary and general election, sometimes early, sometimes absentee when I have worked as a poll watcher. When I asked for my ballot, I discovered I was officially an “inactive voter” because I “had not completed the census.”
I defintely filed my federal census online last spring, so I was confused, but the volunteer poll worker couldn’t explain what was going on, and in Covid-19, I was not looking for a long in-person conversation. I just immediately filled out additional paperwork so I could vote.

It turns out that this “inactive” designation was not because of the federal census, but a local census for household/address confirmation, and a state rule that localities can declare you ineligible to vote until you complete it. If I had tried to vote by mail, I suspect my application or my ballot would have been rejected. I have no idea how I or anyone in my position could have fixed this in time. It turns out that many local govts have this rule, but this hasn’t been on anyone’s radar as a widespread problem for mail/absentee voting.

The notion that I was officially an ineligible “inactive voter” would be funny if it weren’t scary.
I am a hyperactive voter.
An obsessive-compulsive voter. I am certain I completed the local census, and almost certain that I put it in the mail on time. But I don’t know anyone who knew that this survey could make you ineligible to vote.

The triple-whammy of Trump sabotaging of the mail, underfunding of the state governments during an economic crisis, and this being a census year could mean disaster.
Vote EARLY IN-Person!
Please share this post with more detail.

Massachusetts Primary, Sept 1: Mermell and Markey

Voting in the Mass primary for 4th cong. district to replace Joe Kennedy? Many of us want to make sure recently-Republican Auchincloss doesn’t get the nomination, but the rest of the field is divided among a half-dozen solid candidates.

Recent polling and endorsements show momentum towards Jesse Mermell. A Data for Progress poll last week, w/o leaners:

Auchincloss 12
Mermell 12
Grossman 8
Linos 8
Leckey 7
Khazei 5

Plus endorsements for Mermell from Ayanna Pressley, Maura Healey. I really like Linos, Leckey, and Khazei, too, but Auchincloss should not become a Congressman by switching parties and taking advantage of divided field with a 20% plurality.

Also: Vote Markey.

Markey is an outstanding Senator. There was no reason to challenge him except for dynastic entitlement. My thread here on Kennedy’s answers in 2018 on the war on drugs, defending the criminalization of marijuana so that police have a pretext to search cars. It’s the older candidate who is more in tune with 2020, while the younger candidate is relying on 1960s nostalgia and a dynastic name.

Reform police liability through state tort law

My colleagues Ben Zipursky and Bennett Capers, together with John Goldberg, have an important op-ed in today’s Washington Post:

“How to reform police liability without involving McConnell or Trump”

“Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability.

“The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject.

“The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law.”

See the rest here.

My Torts Syllabus, Fall 2020

As promised, my Torts syllabus from Goldberg, Sebok, Zipursky’s casebook:

Email: jshugerman@law.fordham.edu

Overview: Tort law, to put it simply, concerns the legal protection through civil proceedings to protect bodily autonomy, emotional integrity, and property. It is the law of personal injuries and accidents, but it is also the law that protects the broadest range of private rights and public goods. We begin with intentional torts as an introduction to the subject. Then we proceed step by step through the elements of a tort: duty, breach, causation, damage, and defenses. We will focus on the purposes of the tort system, including corrective or moral justice (and civil recourse), deterrence, compensation, and social justice, as well as secondary factors like judicial economy/institutional efficiencies.

The course focuses chiefly on the law of negligence and strict liability. We conclude by exploring alternatives to the tort system, such as regulation, workers compensation, insurance, and no-fault programs.

Goals of the class:

  1. Learn how to read a case for a) the key facts, b) the procedural posture, c) the legal question or issue, d) the rule, and e) the reasoning and analysis.
  2. Learn common law reasoning, focusing on the role of precedent and synthesis.
  3. Learn to engage in legal argument. What are the arguments on both sides?
  4. Understand fundamental concepts in torts that arise frequently in many areas of law, such as causation, rules and standards, strict liability, the harm within the risk, judicial economy, private attorney general
  5. Learn the structure and principles of tort law, including the purposes of corrective justice, deterrence/efficiency, compensation, loss spreading, and social redress.  These topics will introduce a variety of perspectives on American law: doctrine, policy, politics, history, theory, economics, and psychology.

[For rest of syllabus, click on “page 2” below]

Vote EARLY IN-PERSON, not MAIL.

If you use a “mail” or “absentee” ballot, even if you drop it off directly at the designated county drop-box or polling center, it most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality. If you can, please vote EARLY IN-PERSON with a regular ballot, not a mail-in ballot that depends on envelopes and signatures.

A must-read article by Greg Sargent in the Washington Post on how Trump can slow down mail service to steal the election. He found that the key swing states have a rule: mail/absentee ballots that arrive late (even if they are post-marked before the election) will not be counted.

My long-standing concern is that each mailed ballot is its own hanging chad, its own built-in legal delay. A mailed ballot can be challenged based on postmark, arrival, signature, etc. Lawyers can use these challenges in bad faith (like they did in Florida 2000) to grind any count to a halt. That was going to be the Republican strategy now that we all know that mailed ballots are going to be much more heavily Democratic, leaving Election Day votes more heavily Republican (and counted immediately). If you can grind the vote count down to a halt, states can miss the Electoral College deadlines, no candidate gets to 270 votes as states are blocked from certifying their Electors, and the election can get thrown to the House (like in Jefferson v. Burr in 1800). Under both the original Constitution and the 12th Amendment, the House vote is by state delegation, not by number of representatives. [Non-partisan factual observation: The Republicans will have at least 26 state delegations in 2021, because there are more Montanas and Mississippis than Californias and New Yorks.]

I hate to say this, but I think it is time to shift our focus from mail/absentee voting…

to EARLY IN-PERSON voting.
Obviously, in-person voting has Covid-19 risks.
But:
*No long lines on election day.
*No deliberate or accidental mail delays.
*No bad-faith legal challenges on postmarks/signatures to slow down vote count.

[Update Aug. 17: Jamelle Bouie in his NY Times op-ed adds another reason: Early in-person votes will be counted on election day, and election night momentum is crucial. It is important for public opinion to have more votes counted on election night. Even if you’re not in a swing state, it is important to have more votes counted on election night. The media are bad at setting expectations.]

The bottom line is that the swing states (including IA and TX but not NH) all have some kind of early voting. PA is county-by-county, but counties that offer a mail option also provide direct drop-off at county office (these mail votes still need signatures and are thus vulnerable to legal tactics, but at least the drop-off avoids any mail sabotage).

[Update: I’ve been asked to explain my concerns about legal delays of mail and absentee ballots a bit more clearly. Let’s start with Florida 2000: Florida used hold-punched ballots, and any ballot that wasn’t fully punched (generally because of old machinery or uncleaned machines) had a “hanging chad” piece of paper. In the recount, any hole-punched ballot with a “hanging chad” could be challenged and scrutinized for “voter intent.” Even ballots that were mostly punched for Bush or Gore could be checked for several minutes. The Bush campaign had the lead and had a majority of states in the House, so they had a strategy to delay. In 2020, there may be even more of a strategy to delay and run out the clock on the electoral college.

EVERY mailed vote is a hanging chad, because every mailed vote has an envelope with signatures on it. Lawyers can challenge every signature, meaning a delay of several minutes or longer for each mailed vote. Now what if we’re talking about Pennsylvania, a state with 6 million votes, and 3 million mailed ballots, 3 million signatures, 3 million postmarks. Imagine counting 3 million hanging chads. This is a recipe for running out the clock on Pennsylvania’s votes and the next thing you know, no one has 270 electoral votes, and arguably the House will choose. If lawyers challenge enough states to stop their votes, the candidate who actually lost the real vote might have a temporary lead by blocking his opponent’s states from certifying. By the time January rolls around, the loser may have more electors due to this legal strategy: a “rump” electoral college lead by legal delay. Guess what the Supreme Court would say? “Political question,” let the House decide. [And non-partisan FYI, Republicans are likely to have a 26-24 lead among House state delegations].

The following is a chart of states have “early in-person” voting (ballots that are automatically counted on election day) and “early absentee/mail drop-off” (which is a second-best because it avoids needing to use the USPS, but those ballots are often not counted on election day, as determined county-by-county, and have signatures that can be challenged):

Here are resources to check how you can vote early in-person (or by mail/absentee):

https://www.vote.org/early-voting-calendar/

https://www.usvotefoundation.org/vote/eoddomestic.htm

https://projects.fivethirtyeight.com/how-to-vote-2020/

https://protecttheresults.com

Bonus states: Massachusetts: Likely early voting Oct. 23 to Oct. 30. For Sept 1st primary, the early voting is Aug. 22-28. Find locations by town here.

New YorkStarts 10 days before the election.Ends 2 days before the election.

Spread the word: VOTE EARLY IN-PERSON, NOT MAIL.

We are contesting Trump’s commutation of Stone’s sentence.

My colleague, friend, and co-author Ethan Leib and I are working with Free Speech for People to contest Roger Stone’s commutation in the trial court. Ron Fein, John Bonifaz, and Ben Clements filed a motion yesterday before Judge Amy Berman Jackson. We argue that the Constitution limits the pardon power to uses that are in the public interest, not primarily for self-interest, self-dealing, or self-protection.

When the Framers added the phrase “faithful execution” to the Constitution, for the president to ‘take Care that the laws be faithfully executed’ and for the presidential oath, they were drawing on a long English tradition of this phrase signifying limited powers on behalf of the public interest, and rejecting the unlimited prerogatives of kings. These republican limits are similar to fiduciary duties against self-dealing. Thus, pardons and commutations that are in self-interest and against the public interest are unfaithful execution of the office and are constitutionally invalid.

The Free Speech for People public statement is here.

UPDATE July 31: You win some, you lose some… Motion denied, but I’ll take solace in Judge Jackson calling us “well-intentioned law professor[s].”

Our articles supporting this argument are:

Andrew Kent, Ethan Leib, and Jed Shugerman, “Faithful Execution and Article II,” 132 Harv. L. Rev. 2111 (2019)

Leib and Shugerman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation,” 17 Georgetown Journal of Law & Public Policy 463 (2019)

Shugerman and Leib, “This overlooked part of the Constitution could stop Trump from abusing his pardon power,” Washington Post, March 14, 2018

My Administrative Law Syllabus (Strauss Casebook)

There’s a discussion about whether law professors should share their syllabi.

The answer is yes.

Here is my Administrative Law syllabus for summer 2020:

ADMINISTRATIVE LAW, SUMMER 2020

MATERIALS AND RESOURCES

Gellhorn and Byse’s Administrative Law, Cases and Comments, eds. Peter Strauss, Todd Rakoff, Gillian E. Metzger, David Barron, Anne Joseph O’Connell (12th edition).

The Library has copies available on reserve and it is available for purchase at the Fordham Bookstore. I will use TWEN, Westlaw’s course management service, to distribute supplemental materials and class-related announcements. Please register for the course on TWEN (lawschool.westlaw.com/twen)

Week 1 (May 19, 21): Introduction

The introductory Tarmac problem, 3-31. Intro readings, 31-49.

Whitman v. American Trucking and Gundy v. United States (2019) are the two main cases. 790-830, Casebook supplement posted on TWEN, pages 35-46.

Boreali and Statewide Coalition v. NYC DHMH, 23 N.Y.3d 681 (2014)

3) Tuesday, May 26:
Chapter 3: Procedural Framework for Administrative Action
APA 1464-78
215-278
Londoner 218
Bi-Metallic 222
Chenery 249

4) Thursday, May 28:
Chapter 4: Rule-Making
279-342
Vermont Yankee 295
Veterans Justice 313
Nova Scotia 322

5) Tuesday, June 2
Notice-and-Comment continued:
U.S. v. Dean, 344-48
Texas v. U.S. 357-65

6) Thursday, June 4

GE v. EPA, Center for Auto Safety 365-71
371-386
Note on ACA, supplement, p. 11-14
DACA and Kisor notes in supplement, p. 15-18

Rulemaking procedures, continued, 396-409
EO 12866, EO 13771, 409-43

Ex Parte contacts: HBO v. FCC, 444-448
Open-minded decisionmaker? C & W Fish, 455-57

7) Tuesday, June 9

Adjudication I
FTC v. Cement Institute, 464-69
Notes 470-77
Formal Adjudication 478-80
Citizens Awareness Network, 480-87
Lucia v. SEC, Supplement 23-24

Adjudication II: Informal adjudication:
Dominion Energy, 528-33
Pension Benefit 533-37
Olivares, 538-44

Due Process: Matthews 563-80

8) Thursday, June 11
Adjudication III: Applications
No-Fly List, 596-14

Transparency, 653-661
War on Terror, Leaks 669-71
FOIA, 672-82
Milner v. Dept of Navy, 683-93
Fox News v. Treasury, 698-716

9) Tuesday, June 16

The Structural Constitution: 775-90
Chadha, 831
Bowsher, 860
Youngstown, 871
Appointment and removal, Free Enterprise and selections from 882-1004
PHH v. CFPB, Supplement 46-47

Seila Law v. CFPB (June 2020)

Shugerman, “The Imaginary Unitary Executive,” Lawfare Blog.

10) Thursday, June 18

Judicial Review I:
Review APA, the 700s
Shaws’s 1037-40
Universal Camera, 1049-57
Motor Vehicle Manufacturers Ass’n v. State Farm, 1069-80

DHS v. Regents (DACA Cases, June 2020)

11) Tuesday, June 23:
Judicial Review II

State Farm notes, 1085-87
1093-1100
FCC v. Fox, 1100-14
Skidmore, 1125-28
Chevron, 1129-36
Chevron notes, 1136-71

12) Thursday, June 25:
Judicial Review III
MCI v. AT&T and notes, 1171-1202
Solid Waste, 1203-1215
Preemption, 1215-21
Mead, 1221-35 [and Auer notes to 1235-53]
Kisor, supplement at 90-96
Massachusetts v. EPA 1253-68
City of Arlington, 1279-97

13) Tuesday, July 7:
Justiciability and Standing
Lujan, 1300-09
Akins, 1317-21
Qui Tam, 1323-24
Allen v. Wright and notes, 1340-59
Emoluments, 98-99
Blumenthal v. Trump, DC Circuit per curiam Feb. 2020

14) Thursday, July 9: Paper Presentations

Standing, Cont.
Bowen, 1386-98
Webster v. Doe, 1399-1405
Finality, 1418-21
Ripeness, 1424-26
Remedies, 1430-43

15) Tuesday, July 14: Presentations

Major wrap-up cases:
Trump v. Hawaii (2018), Supplement, 96, 102. Read case
Department of Commerce v. NY (Census Case 2019), Supplement at 68
Review

(If time permit, King v. Burwell, Little Sisters, Preemption/Wyeth v. Levine)

The Imaginary Unitary Executive (Lawfare Essay)

I’ve posted on the Lawfare blog a long-form essay “The Imaginary Unitary Executive.” Link here.

Summary: “Contrary to The Decision of 1789 myth, which SCOTUS relied on to expand presidential power, the legislative record and a diary show that the first Congress rejected the exclusive unitary model.”

Big thanks to Ben Wittes and Quinta Jurecic for excellent editing over Independence Day weekend, in time for a big week on the Supreme Court: “Trump’s lawyers relied on unitary arguments & precedents to contest congressional and state prosecutor subpoenas. The Decision of 1789, properly understood, is no basis for such an argument. In fact, the first Congress’s record militates in favor of congressional oversight.”

This essay is based on two chapters from my book project The Imaginary Unitary Executive.

First: “The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive” on the Madison strategy, the House debate, & Senator Maclay’s diary.

Second: “The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive” focused on the Treasury Act of 1789 & many statutes from the first Congress and the early republic delegating removal power to judges & juries.