Monday, August 31, 2020

Introduction to Remedies (organizational)

35 minutes


Trump Judge Neomi Rao’s attempt to bail out Michael Flynn ends in defeat - Vox

Trump Judge Neomi Rao’s attempt to bail out Michael Flynn ends in defeat - Vox: Federal Judge Emmett Sullivan, before whom former National Security Adviser Michael Flynn twice pleaded guilty to lying to the FBI, refused to dismiss the indictment.  Flynn appealed. Today the D.C. Circuit Court of Appeals en banc affirmed Sullivan's authority to determine if dismissal is in the public interest.  Ian Milhiser reports.

Saturday, August 29, 2020

Colfax| The Massacre That Emboldened White Supremacists - The New York Times

A marker in Colfax, La.

The defeat by the U.S. Supreme Court of the prosecutions of the killers at Colfax is the subjct of a brilliant article by Rutgers Law School's James Gray Pope in his 2004 Harvard Civil Rights and Liberties Law Review article: Snubbed Landmark: Why U.S. v. Cruikshank belongs at the heart of the American Constitutional Canon.

Opinion | The Massacre That Emboldened White Supremacists - The New York Times

by William Briggs and Jon Krakauer

An hour after sunset on Easter Sunday in 1873, a stern-wheel riverboat put ashore at Colfax, La., a ramshackle settlement surrounded by cotton plantations on the east bank of the Red River. Rain was falling. As passengers disembarked, they found themselves stumbling in the dark over what turned out to be the lifeless bodies of African-Americans who had been freed from slavery eight years earlier at the conclusion of the Civil War.
Most of the dead were lying facedown in the grass “and had been shot almost to pieces,” according to Charles Lane in his book “The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction.” Others had been bludgeoned or mutilated, and some had burned to death. Flames rose from the ruins of the parish courthouse. The stench of charred human flesh was inescapable.
As Americans debate the merit of tearing down monuments to founding fathers, a monument to the men who massacred Black Americans in Colfax 147 years ago stands unopposed and largely unnoticed. Two blocks off Main Street, a 12-foot marble obelisk is the focal point of the Colfax cemetery. An inscription carved into its base declares it was “erected to the memory of the heroes” who “fell in the Colfax Riot fighting for white supremacy.” On the north side of the present-day courthouse, a historical marker reads, “On this site occurred the Colfax Riot in which three white men and 150 negroes were slain” and added that the episode “marked the end of carpetbag misrule in the South.”
These memorials to the perpetrators of mass murder are disturbing enough in their own right. But the impact of the Colfax massacre extended far beyond this flyspeck town. The damage is still felt acutely throughout our entire nation, and the tragedy must not be forgotten.

OTHERWISE: Vance: Trump presses for immunity from NY grand ju...

OTHERWISE: Vance: Trump presses for immunity from NY grand ju...:     Donald Trump and his lawyers are at it again.  Having firmly lost in the Supreme Court they have moved for an emergency stay on appeal from an order dismissing his second amended complaint.

"...although Appellant describes the relief he seeks as a “stay pending appeal,”  the substance of his request seeks the injunction of a presumptively legitimate subpoena issued by a New York County grand jury."...

How Decades of Racist Housing Policy Left Neighborhoods Sweltering - The New York Times

How Decades of Racist Housing Policy Left Neighborhoods Sweltering - The New York Times

Tuesday, August 25, 2020

Opinion | How to reform police liability without involving McConnell or Trump - The Washington Post

Opinion | How to reform police liability without involving McConnell or Trump - The Washington Post

Fordham and harvard law professors point to state tort law.

Supreme Court will decide: Is Catholic Social Services exempt from anti-discrimination laws?

 Becket Fund Gives 'Award' to Humanist Group Suing School for ...Image result for philadelphia catholic social services

The flood of amicus briefs continues to mount in Fulton and Catholic Social Services v. PhiladelphiaThe Supreme Court agreed in February to review the decision of the Third Circuit that Philadelphia was not obligated to contract with Catholic Social Services for adoption services. CSS refuses as a matter of religious doctrine to refer any child for adoption or foster care to an unmarried couple.  It does not recognize as married same sex couples. 

CSS is driven by its embrace of the Catholic Catechism which holds that homosexuals are "intrinsically disordered".  And so it would be scandalous by this logic for CSS to refer a child to the care of a same sex couple, a view repudiated by many such as Congressman Sean Patrick Maloney, a married gay man and father of three.

The Supreme Court has agreed to answer this question as posed by the Becket Fund for Religious Liberty, which represents CSS.

Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs? 

The City's foster care and adoption needs are served by thirty agencies all of which agree to abide by local anti-discrimination law.  In the Supreme Court some three dozen amicus briefs have been filed.  Many argue that anti-discrimination laws of general application provide important protections to LGBT children and afford children the opportunity for stable homes.

The State of Massachusetts, joined by 31 states and the District of Columbia, argues as friends of the court that "the First Amendment does not require governments to use contractors which refuse to provide contracted services on a non-discriminatory basis."

Catholic Social Services, represented by the conservative Becket Fund for religious Liberty embraces Chief Justice John Roberts's dissent in the same-sex marriage case Obergefell v. Hodges (2015).  Roberts, a conservative Catholic, there lamented that “[t]hese apparent assaults on the character of fair minded people will have an effect, in society and in court,” and it would be a mistake “to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.” 135 S. Ct. at 2626.  The court should therefore revisit, CSS and the Becket Fund argue, the principle that a religious organization's right to contract for public services can be conditioned on general principles of civil law.

New York v. Trump | Brennan Center for Justice

Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit on August 10 pursuant to 28 USC 2284  appointed Circuit Judges   Richard C. Wesley and Peter W. Hall to serve on a three judge District Court panel .  The statute provides a right of direct appeal to the United States District court from final judgments of the panel.

The link below will take you to the key documents on the docket which has attracted an array of amicus briefs.  A parallel action is pending in the U.S. District Court for the District of Columbia. 


New York v. Trump | Brennan Center for Justice

The State of New York is leading a coalition of 20 states, cities, and localities suing President Donald Trump, Secretary of Commerce Wilbur Ross, the Department of Commerce, the Census Bureau, and Census Bureau Director Steven Dillingham, arguing that the exclusion of undocumented immigrants from the 2020 Census state-population totals used for apportioning congressional seats and Electoral College votes is unconstitutional and otherwise illegal.
The plaintiffs contend that the President’s July 21, 2020 memorandum on excluding undocumented immigrants from the state-population totals used to calculate the state apportionments violates constitutional and statutory requirements that the President include all persons in the congressional apportionment base, irrespective of citizenship or immigration status. The plaintiffs also contend that the memorandum violates the Fifth Amendment’s Equal Protection Clause because the memorandum is “motivated by discriminatory animus toward Hispanics and immigrant communities of color.”                 
The suit further argues that the President’s decision to exclude undocumented immigrants from the apportionment base without reliable data to do so is “arbitrary and capricious” under the Administrative Procedure Act.
The plaintiffs are asking the court to declare that the exclusion of undocumented immigrants from congressional apportionment violates the Constitution and federal law. The plaintiffs are also asking the court to bar the Commerce Department and the Census Bureau from transmitting any data regarding citizenship or immigration status to the President for apportionment purposes and to order the President to include all residents of the states, including  undocumented immigrants, when he calculates the apportionments.

New York Sues President Trump Over Attempt To Exclude Undocumented Immigrants From Census Count - Gothamist

New York Sues President Trump Over Attempt To Exclude Undocumented Immigrants From Census Count - Gothamist July 25. 2020

Judges Casey Cooper, Dabney Friedrich and Gregory Katsas to Rule on Trump's Latest Census Action | National Law Journal

Judges Casey Cooper, Dabney Friedrich and Gregory Katsas to Rule on Trump's Latest Census Action | National Law Journal

Washington, D.C.’s federal court has set a three-judge court to preside over a challenge to President Donald Trump’s recent executive action meant to exclude undocumented immigrants from the total census count used for congressional seats.
In an order Tuesday, Chief Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit said U.S. District Judge Christopher “Casey” Cooper—who was originally assigned to the case—will be joined by U.S. District Judge Dabney Friedrich and Judge Gregory Katsas of the D.C. Circuit in deciding the case. Katsas will preside over the matter, according to Srinivasan’s order.
The three-judge court is a rare occurrence, but federal law allows for the panels to be assigned for lawsuits challenging the constitutionality of the apportionment of congressional districts. A separate three-judge court has been set to preside over parallel litigation in the Southern District of New York, challenging Trump’s executive action last month that seeks to prevent undocumented immigrants from being included from the total population count used to determine how many congressional seats a state gets.
Attorneys with Patterson Belknap Webb & Tyler; McDermott Will & Emery and Atlanta-based firm Bondurant Mixson & Elmore filed a complaint in D.C. last month challenging the order, alleging it was part of a broader conservative movement to undercount Latino populations and boost white and Republican representation. The firms are representing the group Common Cause, several cities including Atlanta, and individuals in the suit.

Saturday, August 22, 2020

The facts about Trump’s policy of separating families at the border - The Washington Post

Immigrant Children Separated From Parents At The Border: What We ...
“I hate the children being taken away. The Democrats have to change their law. That’s their law.”
— President Trump, in remarks to reporters at the White House, June 15
“We have the worst immigration laws in the entire world. Nobody has such sad, such bad and, actually, in many cases, such horrible and tough — you see about child separation, you see what’s going on there.”
— Trump, in remarks at the White House, June 18
“Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time.”
— Attorney General Jeff Sessions, in a speech in Bozeman, Mont., June 7
“It’s the law, and that’s what the law states.”
— White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14
“We do not have a policy of separating families at the border. Period.”
— Homeland Security Secretary Kirstjen Nielsen, on Twitter, June 17
The facts about Trump’s policy of separating families at the border - The Washington Post

By Salvador Rizzo

The president and top administration officials say U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border.
These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This “zero-tolerance policy” applies to all adults, regardless of whether they cross alone or with their children.
The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.

CDC report: Mass testing req'd - Prisons are super spreaders: Eric Topol, MD

 A new CDC report analyzing prison data looks at testing for Covid19.  It shows the gross inadequacy of symptomatic testing.  Only mass testing is capable of identifying positive cases - and thus enabling isolation to break the chain of transmission.

OTHERWISE: Judge Greenlights Trump Tax Probe by NY DA // Courthouse News

OTHERWISE: Judge Greenlights Trump Tax Probe by NY DA // Courthouse News: Judge Green lights Trump Tax Probe by NY DA  // Courthouse News by Adam Klasfeld   MANHATTAN (CN) — Describing the White House’s expansive view as dangerous to democracy, a federal judge on Thursday rejected President Donald Trump’s second attempt to scuttle the probe of his finances in New York...

Saturday, August 15, 2020

Nancy Leong: How to write a law school paper or law review note

Professor Nancy Leong (University of Denver) has a good video on the rudiments of writing a law school paper or law review article..

I'll add here a few things:

* write about something YOU care about, not what you think the Professor cares about

* have an objective: what you think the law should be

* learn what the law is

* explain why you are right 

*  You should be able to state your point in four concise sentences in your opening paragraph.

* Your conclusion restates your opening paragrpah - and assesses the prospect for success.

* You should be able to state your point in four concise sentences in your opening paragraph

Friday, August 14, 2020

Kentucky: anti-LGBT photographer wins protection from Louisville ordinance

 Justin Walker, an ambitious and  controversial young federal judge, first gained attention when he enjoined the Louisville , Kentucky Mayor's directive limiting drive-in church services.  Walker's opinion in On Fire Christian Center could be said to be on fire itself as its rhetoric was super-heated.

Now Walker has enjoined enforcement of a Louisville ordinance which demands equal treatment of people regardless of  sexual orientation.  Chelsey Nelson, a wedding photographer, claimed violation of her rights by an ordinance that barred her from advertising that she does not accept same-sex wedding assignments..  Although she had no such customers or prospects Walker found the matter ripe and issued a preliminary injunction on behalf of Nelson enjoining enforcement of the Louisville ordinance.

fn 133 Nelson’s suit does not present two questions that would undoubtedly be more difficult for a plaintiff to prevail on — questions on which the Court takes no position. The first is a hypothetical with all the same facts as Nelson’s case, except the same-sex couple lives in a small town without another photographer. See Oral Argument, August 7, 2020 (Court: “So maybe in that small town [where there is only one vendor for a wedding service, you think] the government would survive the strict scrutiny analysis. Is that what you’re saying?” Nelson: “I’d say perhaps, Your Honor.”).

The second is a hypothetical case with all the same facts as Nelson’s case, except the photographer refuses to photograph an interracial wedding. See id. (Nelson: “I think that would be different. . . . Loving said that objections to interracial marriage are inherently based on invidious racial discrimination designed to maintain white superiority. That’s a quote. Versus we look at Obergefell where it said that objections to same-sex marriage are based on decent and honorable religious and philosophical principles. . . . [T]hen you go to . . . Peña-Rodriguez versus Colorado, where it specifically said racial bias is a unique constitutional harm. . . . So I think the interest analysis would be much stronger for the state . . . .”); see also id. (Louisville: “It would be erroneous to suggest that somebody like Miss Nelson, who has the views that she has, should be viewed in the same way as somebody who opposed mixed-race marriage. So the position of [Louisville] Metro is not to build up any type of equivalence there or to cast aspersions and say that you’re as bad as a racist if you believe in traditional marriage. That’s not a position that we need to endorse here.”); but see id. (Louisville: “I don’t think there’s any principled basis to distinguish how compelling is the state interest in rooting out invidious racial discrimination versus evaluating how compelling is a state or local government’s interest in eradicating invidious discrimination against sexual orientation.”).

Protect Our Defenders and Black Veterans Project urge SCOTUS to extend Title VII to military

 IN Jackson v. Braithwaite, secretary of the Navy, the military claims it is exempt from Title VII of the Civil Rights Act of 1964.  In an amicus brief detailing the history of racism in the military the Black Veterans Project and Protect Our Defenders urge the high court to deploy title VII to attack the problem.  In the recent decision in Bostock v. Clayton County the Supreme Court found that Title VII's employee protections  extended to any discrimination based on gender identity or distinctions.  Although it is the nation's largest single employer the federal government has never been reached by the 1964 Civil Rights Act. - GWC

Thursday, August 13, 2020

Pandemic Emergency Spending: $9.9B Bond Issue Upheld by New Jersey Supreme Court

Biden may have forced Murphy's hand on Supreme Court pick - New ...

Justices Solomon, Paterson, Fernandez-Vina, 

Timpone, Lavecchia, Rabner (C.J.), Albin

Many questions are presented about the role of courts in the pandemic emergency.  One of the great challenges is the catastrophic fall in state and local government revenue.  New Jersey's state Constitution of 1947, Article VIII, Section II,  requires a balanced budget but permits voter-approval of bond issues typically issued for major infrastructure projects. 

Faced with an apparent conflict between the balanced budget requirement and the `debt limitation' clause the Court concluded 

"The Framers did not intend for the Appropriations Clause to bar what the Debt Limitation Clause allows; their purpose was to enable the government to act to “meet an emergency caused by disaster.”"

 There is an exception in the `Debt Limitation Clause' for emergency and Acts of God.  State Supreme Court precedent suggested that without voter approval such funds could not be treated as revenue for the purpose of meeting the balanced budget requirement.  This is a familiar concept - borrowed money is not income for tax purposes.

The state faced a dilemma: it needed money soon and November was far away.  Further the State Supreme Court might reject the use of emergency bond funds for current revenues precipitating draconian cuts.  And such a threat might impair the marketability of the bonds.  So the Legislature's Democratic majority approved the bond issue knowing that it would be challenged.  The usual course of litigation did not promise a prompt answer.

Many questions are presented - a few are:

Is it proper for a high court to bypass the usual course of litigation, and arrogate to itself the power to decide on an expedited basis complex issues of great import?

How should lawmakers choose between voter approval by referendum and government mandated large scale borrowing?  Has the Court disenfranchised the voters?

How does a court resolve apparently inconsistent language in statutes and constitutions?

Elected leaders differ regarding the desirability of government spending, especially for education, health, and social welfare.  What role should a judge's own values play in passing on an emergency measure like this to sustain funding rather than cut expenses?

When legislators are divided by party should courts seek a middle ground? Was unanimity wise?

-  GWC

New Jersey Supreme Court upholds emergency bond issue in Republican State Committee vs. Governor Philip Murphy 

On July 16 a $9.9 billion pandemic emergency bond issue was approved by the Democratic majority of the Legislature and promptly signed by New Jersey's Democratic Governor Philip Murphy.  It was challenged immediately upon passage by the New Jersey Republican State Committee as lead plaintiff.  The GOP asserted that borrowed money is not income and therefore violates the balanced budget clause of the State's Constitution.  It was bolstered by a May 8 GOP-solicited opinion of the state's Office of Legislative Services that although an emergency bond issue need not be submitted for voter approval, its proceeds would not count as "revenue" to satisfy the state's constituional balanced budget clause.

In an unprecedented move the next day the state Supreme Court issued an Order removing the case from the Superior Court, ordered a teleconference that afternoon at 3:00, set a briefing schedule (including for amici) and set oral argument in Trenton for 10:00 AM August 5.  Seven days later Chief Justice Stuart Rabner issued a 62 page opinion for a unanimous court upholding the measure:

This appeal addresses whether the State’s plan to issue bonds and borrow funds from the federal government in response to the emergency caused by COVID-19, in an amount up to $9.9 billion, is constitutional. To make up for the tax revenue shortfall COVID-19 has created and to maintain the State’s fiscal integrity, the Legislature passed and the Governor signed into law a bill that authorizes the State to borrow up to $9.9 billion. Under the new law, the “New Jersey COVID-19 Emergency Bond Act” (Bond Act or Act), the State can issue bonds for private sale or borrow funds from the federal government. Up to $2.7 billion in borrowing can be used for the period from July 1, 2019 through September 30, 2020, and up to $7.2 billion for the period from October 1, 2020 through June 30, 2021. The law represents a policy choice made by the Legislative and Executive branches to address the current crisis. It is not for the Judiciary to assess the wisdom of that decision. The only question here is whether the borrowing scheme violates the State Constitution.

Thursday, August 6, 2020

Sotomayor Blasts Court For Again Backing Jail In Virus Case - Law360

District Judge Jesus Bernal on May 26 Ordered that persons jailed in the Orange County California county jail were entitled to an injunction because their rights were endangered by covid19:

Plaintiffs have established a likelihood of irreparable harm.  There are at least 369 cases
of COVID‐19 in the Jail.  Without additional measures to abate the spread, more inmates will
contract the disease.   Undoubtedly some will die.  Certainly, there is no greater irreparable
harm than death.  Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that the Constitution
protects those in detention against “a condition of confinement that is sure or very likely to
cause serious illness and needless suffering the next week or month or year.” );
The conservative majority of the United States Supreme Court - the court of last resort - has become a court of early resort.  Spurning the principle that justice must pass through reflection the conservative majority of the high court has been frequently blocking injunctions issued by courts below in cases that have gone against the preferences of the Trump administration.

The latest - a District Court order protecting prisoners from covid19 - has been stayed by 5-4 vote over a vigorous dissent by Justice Sonia Sotomayor, joined by Justice Ginsburg.

The gravamen of Justice Sotomayor's dissent - the most recent in a string of orders by the Supreme Court blocking injunctions issued by District Judges - is this.  Injunctions (a stay is an injunction) like other such relief is premised on a determination that the side seeking the relief is likely to ultimately prevail on the merits.  What alarms Sotomayor is that the Supreme Court is granting such relief after scant review of the record developed by the judge(s) below.

We all know that once a judge has declared the likely winner that the court is unlikely to reverse its first expressed decision.  The Supreme Court is therefore putting a heavy thumb on the cases it stays as they work their way through the trial court to the Courts of Appeals, and finally the Supreme Court.  When we look for partisanship in judicial decision-making this is a good place to start.

Ordinarily a court is most likely to grant a temporary restraining order or preliminary injunction to preserve the status quo - since an immediate order could render a contrary final decision pointless.

But what is the status quo?  For the five firm conservatives on the Supreme Court the status quo seems to be whatever the authorities are doing at the moment they are sued.  See, for example, the asylum cases where the status quo was long to hear all applications.  But the Trump administration blocked enforcement of the asylum laws.  That became the favored status quo for SCOTUS conservatives. - gwc

Sotomayor Blasts Court For Again Backing Jail In Virus Case - Law360

Law360 (August 6, 2020, 4:02 PM EDT) -- The U.S. Supreme Court on Wednesday lifted an order forcing a jail in Orange County, California, to take several measures to combat the spread of the novel coronavirus in their facility, triggering a dissent from Justice Sonia Sotomayor, who has sounded the alarm on the vulnerability of prisoners during the pandemic.

In a 5-4 vote, the Supreme Court's conservative majority stayed an injunction won by inmates for the jail to ramp up its efforts to contain the virus, which at the time had already infected 369 detainees. The district court's order called for increased social distancing, more protective equipment and hygiene protocols along with daily tests for class members.

Orange County had decried the injunction as overkill, arguing that it went beyond even what the Centers for Disease Control and Prevention recommend in their guidance for correctional facilities and "hamstrings" them from taking an "effective and fluid COVID-19 response."

The Republican appointees on the Supreme Court apparently agreed, temporarily blocking the injunction until the Ninth Circuit rules on the county's appeal in the case. The majority did not explain the reason behind their decision to grant the stay Wednesday.

All four liberal justices recorded dissents. Justice Sonia Sotomayor, however, went further and wrote an opinion spelling out her frustration with the majority's decision to lift the injunction. Only Justice Ruth Bader Ginsburg joined that opinion.

There was no reason for the Supreme Court's "extraordinary intervention" in the case, when the district court and Ninth Circuit applied "well-established law" to the facts of the case, Justice Sotomayor said. Specifically, there is no reason to second-guess the lower court's conclusions that the jail misrepresented its handling of the COVID-19 outbreak.

"The District Court found that, despite knowing the severe threat posed by COVID-19 and contrary to its own apparent policies, the jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease," Justice Sotomayor wrote. "Yet this court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the district court and failed to safeguard the health of the inmates in its care."

Orange County and the inmates painted a starkly different picture of the conditions in their filings to the Supreme Court. The county said that it has gone through extreme lengths to combat the disease, releasing 53% of the inmate population and improving hygiene protocols.

The inmates, however, say the jail is still gripped by the COVID-19 crisis and that they are crammed together in day rooms without social distancing, adequate soap, face masks or testing. The county's representations that it has contained the outbreak are false, and positive cases skyrocketed 1,400% from the end of June to the end of July, they said.

Justice Sotomayor has been sounding the alarm on the vulnerability of prisoners during the pandemic for months. In May, she issued a statement also joined by Justice Ruth Bader Ginsburg saying "the stakes could not be higher" for those who are incarcerated when it comes to protections against the disease.

"It has long been said that a society's worth can be judged by taking stock of its prisons," Sotomayor wrote. "That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales."

The parties could not be reached Thursday for comment.

The prisoners are represented by the American Civil Liberties Union, the University of California Irvine School of Law Civil Rights Litigation Clinic and Covington & Burling LLP.