Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

The United States Supreme Court's 2015 ruling in Obergefell v. Hodges put to rest the issue of whether same sex couples had a right to marry.  A Kentucky County Clerk Kim Davis responded by refusing to issue any marriage licenses.She was briefly jailed for contempt of court - defiance of a preliminary injunction.  Judge David L. Bunning has now rejected the Magistrate's recommendation to deny counsel fees on the ground that April Miller was not a prevailing party because the case resolved short of the permanent injunction plaintiff had sought in her complaint. The court allowed counsel fees of $222, 695, plus costs.  - gwc
Bunning, D.J. Memorandum and Order awarding counsel fees to plaintiff, July 21, 2017 and rejecting
Recommended Disposition and Order of Magistrate denying motion for counsel fees

Monday, July 3, 2017

Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times


The history of "white flight" and suburban segregation.

THE COLOR OF LAW A Forgotten History of How Our Government Segregated America
By Richard Rothstein
Illustrated. 345 pp. Liveright Publishing. $27.95.
Reviewed by David Oshinsky
In the summer of 1950, with Americans reeling from the news of North Korea’s invasion of South Korea and Senator Joseph McCarthy’s ever expanding “Red hunt” in Washington, Time magazine ran a disarmingly cheerful cover story about the nation’s housing boom, titled: “For Sale: A New Way of Life.” Featuring the builder William Levitt, who had recently transformed some Long Island potato fields into a sprawling complex of starter homes — two bedrooms, one bath and an extension attic for $7,990 — it spoke reverentially of the development’s parks and playgrounds and many rules. “Fences are not allowed,” Time noted. “The plot of grass around each house must be cut at least once a week,” and laundry couldn’t be hung outside “on weekends and holidays.”
One rule, however, was conveniently absent from the piece. Homeowners in Levittown were forbidden to rent or sell to persons “other than members of the Caucasian race.” Asked about this so-called “racial covenant,” Levitt blamed society at large. “As a Jew, I have no room in my mind or heart for racial prejudice,” he said. “But I have come to know that if we sell one house to a Negro family, then 90 or 95 percent of our white customers will not buy into the community. This is their attitude, not ours. As a company, our position is simply this: We can solve a housing problem, or we can try to solve a racial problem, but we cannot combine the two.”
At first glance, Levittown stands as a prime example of de facto segregation, which results from private activity, as opposed to de jure segregation, which derives from government policy or law. Levitt, after all, appeared to be an independent businessman responding to the prejudices of the home buyers he hoped to attract. In truth, it wasn’t that simple. As Richard Rothstein contends in “The Color of Law,” a powerful and disturbing history of residential segregation in America, the government at all levels and in all branches abetted this injustice. “We have created a caste system in this country, with African-Americans kept exploited and geographically separate by racially explicit government policies,” he writes. “Although most of these policies are now off the books, they have never been remedied and their effects endure.”
Levittown reflected this dynamic. Popular with World War II veterans and their families, its 17,500 houses required no down payment. The federal government guaranteed low-interest bank loans for Levitt to build them, and low-interest mortgages for veterans to buy them. The government also made clear that developers receiving these incentives must sell to whites only.
It didn’t stop there. In the 1950s, following a Supreme Court decision that restricted the scope of racial covenants, an African-American veteran bought a house in a second Levitt development outside Philadelphia. A white mob formed, the house was pelted with rocks and crosses were burned on the lawn. Amazingly, the black family held out for several years before moving back to a segregated neighborhood. Rothstein sees this incident, and dozens like it, as an insidious form of de jure segregation — the failure of racially biased police and public officials to protect African-Americans from unlawful intimidation
KEEP READING REVIEW
Continue reading the main stor
Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times 

by 

HOUSTON — A mural on the wall of an elementary school here proclaimed, “All the world is all of us,” but the hundreds of people packing the auditorium one night were determined to stop a low-income housing project from coming to their upscale neighborhood.

The proposed 233-unit building, which was to be funded with federal tax credits, would burden their already overcrowded elementary school with new children, many people argued during a lively meeting last year. Some urged the Houston Housing Authority to pursue cheaper sites elsewhere.

As cheers rang out over nearly three hours for every objection raised, Chrishelle Palay, a fair-housing advocate, confronted the mostly white crowd.

“It’s time to face your fears,” Ms. Palay said as boos rang out. “Stop succumbing to misleading rhetoric, and begin practicing the inclusive lifestyles that many of you claim to lead.”

Continue reading the main story
RETRO REPORT
Housing Bias and the Roots of Segregation September 2016

Advocates of Fair Housing Face a Tough Four Years - January 2017

Wednesday, June 28, 2017

Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

Unlocking the mysteries of Trump v. International Refugee Assistance

by Marty Lederman

Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why.  With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.***



KEEP READING



It's All About that Stay (and Its Surprising Limits) | Take Care

by Marty Lederman



Preliminary thoughts (reserving the right to add more as the day goes on!):
The Court nominally granted certiorari in the two "travel ban" cases today, but for reasons I've already explained--reasons the Court implies in its opinion--that's likely to have very little, if any, legal significance, because the case will almost certainly be mooted out by the time oral argument rolls around--and not because of the original March 14 expiration date, which the Court asked the parties to address, and which is no longer a real issue in light of the President's amended Executive Order changing the expiration date of the entry ban.
No, the case will be moot for two other reasons:  For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27.  Moreover, as the Court explains, by October the Section 2 "internal review" should be completed ("[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.
To be sure, it is very possible that at the end of the internal agency review, the Administration might impose a new entry ban, or something similar, with respect to aliens who are nationals of particular countries (perhaps a subset of the six now covered; perhaps some different countries altogether--who knows?).  But if and when it does so, it will be based on a very different factual record, different national security assessments, and, presumably, it will have different terms.  Accordingly, the legality of such a ban (or other entry restrictions) would have to be adjudicated in new lawsuits, beginning at the start, in district courts.  I will therefore be very surprised if the Court issues a merits opinion in these cases--indeed, it's very possible there won't be any oral argument.

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

By Andrew Kent
 Tuesday, June 27, 2017, 2:23 PM
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits. 

Tuesday, June 27, 2017

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

by Josh Marshall

Pretending that both parties just have very different approaches to solving a commonly agreed upon problem is really just a lie. It’s not true. One side is looking for ways to increase the number of people who have real health insurance and thus reasonable access to health care and the other is trying to get the government out of the health care provision business with the inevitable result that the opposite will be the case.

If you’re not clear on this fundamental point, the whole thing does get really confusing. How can it be that both sides flatly refuse to work together at all? As Bash puts it, “Why can’t these parties work together on something that is such a huge part of the economy, that is something that is so vital to everybody’s lives, all of their constituents’ lives, [it’s] mind boggling.”

Monday, June 26, 2017

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

In David Elliot v. Google, Inc. the Ninth Circuit last month rejected the argument that Google is a victim of genericide: that as a verb google it is synonymous with search on the internet.  In such cases - Murphy beds are a prime example - the term loses its ability to identify the source.



Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

Friday, June 23, 2017

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Rebecca Tushnet's 43(B)log: Slightly cooler take on Tam


Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]


Marty Lederman

 The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan).   Here are a few preliminary reactions to those opinions.

The Torturers Speak - The New York Times

OTHERWISE: The Torturers Speak - The New York Times


Tuesday, June 20, 2017

Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

OTHERWISE: Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

Deborah Pearlstein
The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

 It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none.  Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention.  The result, however wrong, was in no sense surprising.  It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted.  Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation.  Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.

Fair enough, one might respond, but among several reasons Justice Kennedy’s opinion identifies for not recognizing a right to sue here is the argument that plaintiffs’ suit challenged not only the abusive conduct of particular law enforcement officials, but also “elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.”  The opinion then offers a few boilerplate paragraphs (written as if a clerk had been instructed to hit the “Alt-F7” Executive Deference key) invoking historic (and substantively unrelated) cases in which the Court has recognized (among other things) the President’s entitlement to deference on questions of national security.  Had the opinion left it there, notwithstanding the uniquely disfavored doctrinal context, I might have wondered more whether this language signaled a return to an era of more judicial deference to presidential decision-making.  Happily (in one sense, for no one should welcome a Supreme Court opinion this weakly argued), the very next paragraph hits the “Alt-F8” key, listing cases in which the Court has insisted (in Justice O’Connor’s popular terms) that “[w]hatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Having put the two conflicting canons on the table, even the modestly sage law student exam writer knows the money paragraph must follow. That is, the opinion’s next move must be to explain why the present case more directly implicates the one set of concerns rather than the other.  Herewith, the Ziglar opinion’s money paragraph (on this topic) in its entirety.

Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.

In other words, notwithstanding any question of the executive’s entitlement to deference on questions of national security policy nominally invoked in the preceding paragraphs, what we’re really basing our decision on here is something else entirely – namely, as best I can make out, that it is more reasonable to interpret congressional silence as congressional opposition when it comes to the availability of remedies for unconstitutional government conduct ostensibly carried out for the purpose of protecting national security.  One could set aside I suppose the long list of dangers associated with trying to intuit the intent of a collective body at all, much less a collective body whose relevant action here is to have said nothing one way or another.  One might equally wonder whether precisely the opposite presumption is required about congressional views when it comes to matters of national security – for example, because Congress’ established political incentives against taking any action on any question of national security are by now so apparent, it should be assumed Congress approves of another branch’s conduct (whether the use of force against ISIS or the implication of judicial remedy for a violation of individual rights) unless Congress says otherwise.  One might set all this aside in rejecting the decision’s import for executive deference, because this reasoning has nothing to do with the Executive at all, but rather to how the Court should interpret Congress’ failure to enact a statutory cause of action on which plaintiffs could otherwise rely.  



Ziglar is a bad outcome for judicial enforcement of constitutional rights, no doubt. But grounds for celebration that the Court might look more favorably on Trump’s immigration justification after all?  That I don’t see.

Wednesday, May 3, 2017

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

by Andrew Rosenthal

Not only did [FBI Director James] Comey probably tip the election to Donald Trump; he also handled the investigations of Clinton’s emails and Trump’s strange relationship with the Kremlin in entirely different ways. He treated Trump with the Federal Bureau of Investigation’s customary silence about ongoing probes. He talked about the Clinton investigation in extremely public and damaging ways.
When Comey decided to announce the reopening of the Clinton email probe, he had no solid evidence that there was any significant new information on the newly discovered computer, belonging to the disgraced former congressman Anthony Weiner, that sparked the renewed investigation.