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April 8, 2018

King Hall Faculty Perform at Annual Aokirama

On Friday, April 6, UC Davis School of Law professors took the stage during the Aokirama (formerly Cardozorama) law school talent show! The student-organized Aokirama, named for the late Professor Keith Aoki, brings together students (and faculty cameos) for a night of skits, talent, and musical performances. One of the biggest hits of the evening was the band Negotiable Instruments, featuring:

  • Professors Angela "Malice Aforethought" Harris, Anupam "Crime Against Humanity" Chander and Madhavi "Patent Infringement"Sunder (faculty vocalists)
  • Professor Rose "Adverse and Hostile" Cuison Villazor (drums)
  • Professor Cappy "Boycott" White (guitar)
  • Professor Carlton "Treason" Larson (piano)   
  • Guest student vocalist, Tyler "So-Not-a-Gunner" Moran (2L)

Professors Lisa Ikemoto and Irene Joe were on stage, as well as Professor Cuison Villazor's daughters.

View the full performance on YouTube

Several King Hall faculty members attended Aokirama 2018

March 26, 2018

Dean Johnson Files Amici Brief in Ninth Circuit DACA Rescission Appeal

Several immigration law professors, including Dean Kevin R. Johnson, filed an amici curiae brief, in the U.S. Court of Appeals for Ninth Circuit appeal by the Trump administration of a district court injunction barring the rescission of the Deferred Action for Childhood Arrivals policy. 

The amici, in alphabetical order included:

The Ninth Circuit will hear oral arguments in the case in May. Steptoe Johnson LLP was counsel for the professors and filed the brief.

March 26, 2018

Digital Realty Trust, Inc. v. Somers: Bad News for Employers, Lawyers and Internal Compliance

by Dennis J. Ventry, Jr.

[Cross-posted from JURIST]

In Digital Realty Trust Inc. v. Somers, the U.S. Supreme Court voted 9-0 to narrow the definition of "whistleblower" under the Dodd-Frank Act of 2010. In particular, the Court ruled that whistleblowers are only protected against retaliation from employers under Dodd-Frank if they report allegations of an employer's securities law violations to the Securities and Exchange Commission (SEC or Commission). Alternatively, whistleblowers who report alleged violations through an employer's internal compliance program without also reporting to the SEC, like Mr. Somers, cannot avail themselves of Dodd-Frank's protections against retaliation.

To date, commentary on the Court's decision has focused on (i) how it will reduce both the absolute number of whistleblowers (by removing the assurance of legal protections against retaliation ) and the percentage of whistleblowers protected against employer retaliation (because the vast majority of whistleblowers report wrongdoing internally before, if ever, reporting to the SEC ); (ii) how the Court refused to defer to the SEC's rulemaking authority pursuant to which it had defined "whistleblower" differently for persons seeking a monetary award under the Dodd-Frank whistleblower statute (which expressly requires reporting to the Commission) versus seeking protection from employer retaliation under the statute (which does not expressly require such reporting) ; and (iii) how the Court summarily declared the statute unambiguousness in a short, two-sentence paragraph.

While these implications of the Court's ruling in Digital Realty Trust deserve highlighting, this blog post explores two unexamined, though no less important, aspects of the Court's ruling. First, while the decision was a win for the employer-defendant in this particular case, it will negatively affect employers more generally and undercut companies' internal compliance programs. Second, the ruling unequivocally harms employee whistleblowers who are obligated by law to report legal violations of employers internally before reporting outside the organization. Chief among these employees are lawyers, duty-bound to report legal violations up the ladder before, if ever, reporting to outside authorities.

Harms Employers and Legal Compliance Programs

The SEC and the companies it regulates have long expressed support for robust internal compliance programs to which employees can report suspected securities law violations.

From the SEC's perspective, deputizing regulated companies to police internal misconduct and promote internal reporting makes eminent sense. Internal reporting, the government argued in Digital Realty Trust, "enables the private sector to screen out meritless claims, and thereby improves the quality of whistleblower tips later brought to the Commission"; it "gives business the opportunity to self-correct without the need for intrusive Commission investigations"; and it "promotes efficient use of both corporate and government resources." The SEC felt so strongly about the benefits of internal reporting that its regulations provided larger awards for whistleblowers who utilize internal compliance procedures, and smaller awards for whistleblowers who interfere with those procedures.

Companies, too, have a vested interest in employees reporting internally before reporting to the Commission. Internal reporting allows employers to (i) remedy improper conduct at an early stage, perhaps before it rises to the level of a violation; (ii) self-report actual violations to the SEC, which can result in leniency in subsequent enforcement actions; (iii) gather sufficient information of the alleged violation in the eventuality of an enforcement action; (iv) promote and reinforce a culture of compliance within organizations; and (v) highlight the significant value that whistleblowers can add to organizations.

As Congress crafted Dodd-Frank and as the SEC drafted regulations to effectuate Congressional intent, support for internal compliance regimes reached a fever pitch. In part, support among regulated entities reflected concern that Dodd-Frank's financial incentives to report wrongdoing would motivate employees to bypass internal reporting channels and go directly to the SEC. Whether motivated by fear of employees reporting out suspected securities-law violations without first alerting the company or a genuine desire to bolster the effectiveness of internal compliance programs, companies rallied around Dodd-Frank's protections against retaliation.

In fact, regulated entities and their representatives urged Congress and the SEC to reinforce internal reporting by providing explicit comfort to whistleblowers that the law would protect them from retaliation. "We recognize the valid concern that some employees will fear retaliation for blowing the whistle," the Association of Corporate Counsel told the SEC. "The solution to that problem is not, however, a scheme to undermine important and effective internal compliance and reporting systems; rather, employees who fear retaliation may rely on the anti-retaliation provision contemporaneously enacted by Congress."

Companies backed internal reporting to such an extent - and Dodd-Frank's complementary anti-retaliation protections - that they pressed Congress and the SEC to make internal reporting mandatory before an employee could report to the Commission. "An internal reporting requirement is unlikely to have a negative effect on the proposed rules," a prominent law firm wrote on behalf of its corporate clients, "as companies would be given a more immediate opportunity to cure or mitigate potential violations and the whistleblower would remain protected by the anti-retaliation provisions in the Dodd-Frank Act."

Ultimately, Congress and the SEC decided not to make internal reporting mandatory. But they included robust protections against retaliation in the Dodd-Frank whistleblower statute.

Or so they thought. The Court's ruling in Digital Realty Trust delivered a blow to internal reporting and internal compliance programs. Its decision that Dodd-Frank whistleblowers must report out allegations of securities-law violations to the SEC to be covered by the statute's anti-retaliation provisions will result in untold numbers of whistleblowers bypassing internal reporting systems and going straight to the Commission.

From the government's perspective, less internal reporting will reduce voluntary compliance and require more enforcement actions. It will also result in over-reporting of alleged violations to the SEC, including a surge in meritless claims that were previously screened out by internal compliance systems. In turn, over-reporting to the SEC will squander precious government resources.

Companies regulated by the SEC are harmed even more directly by the Court's ruling. Indeed, the decision will render companies' internal compliance programs ineffective, undermine the demonstrative benefits of self-policing, increase the number of resource-intensive and intrusive government investigations, and expose employers to rising costs and liability due to undetected securities-law violations.

Harms Employees Duty-Bound to Report Internally

Employees report misconduct through their employers' internal compliance programs for various reasons. Many employees act out of loyalty and want to give their employer an opportunity to vigorously investigate, root out, and remedy the perceived legal violation. Some of these employees are either unaware of or unmotivated by potential financial rewards for reporting legal violations outside their organization. Other employees are required to report internally under their company's code of conduct. And still others are duty-bound to report internally by law and professional ethics.

In the context of U.S. securities law, this last category of employees--those obligated to report legal violations up the corporate ladder--is expansive. Lawyers representing public companies, for example, must report up evidence of a material violation of federal or state securities law or a material breach of fiduciary duty ; registered public accounting firms and their employees must report illegal acts discovered during audits to the audited public company's management ; a mutual fund's chief compliance officer must report material compliance matters to fund's board ; a broker-dealer's auditor must report material inadequacies to the broker-dealer's chief financial officer ; and investment advisers must adopt code of ethics requiring supervised persons to report violations to the chief compliance officer.

The Court's ruling in Digital Realty Trust harms all of these professionals. Specifically, it prohibits them from invoking the anti-retaliation provisions contained in Dodd-Frank in the event they are retaliated against for reporting legal violations internally but before they have a chance to report the violations to the SEC.

For lawyers, the harm is conspicuous and significant. Under the Sarbanes-Oxley Act of 2002 [PDF], lawyers are not just obligated to report certain legal violations up the corporate ladder. They are also required, in the event they receive an inadequate and untimely response from higher-ups, to report to the company's audit committee, an independent committee of the board of directors, or the board itself. Such exhaustive internal reporting takes time. Indeed, plenty of time to be fired for reporting--and continuing to report - the perceived illegal conduct. Worse, studies indicate that retaliation against whistleblowers occurs quickly, typically immediately after whistleblowers report internally.

Meanwhile, lawyers must wait for their clients to respond. And wait. And sometimes wait some more. Even then, their options are limited. Under Sarbanes-Oxley, lawyers can report out evidence of an employer's legal violation only after exhausting all reporting up obligations and, furthermore, only in the event the lawyer reasonably believes necessary to prevent or rectify substantial injury to the employer or investors. Moreover, ethics rules for lawyers in a majority of states provide similar procedures and requirements before a lawyer can disclose a client's legal violation.

In addition, the ethics rules in a minority of jurisdictions further restrict lawyers' reporting out options. In fact, some jurisdictions prohibit lawyers from reporting out financial crimes or non-criminal frauds, leaving lawyers the sole option of withdrawing from the representation. And while there is a good argument (indeed, from the perspective of this commentator, a winning argument) that the rules for attorneys promulgated under Sarbanes-Oxley preempt state ethics rules, that still-unsettled question might offer inadequate assurance for lawyers wishing to blow the whistle on a client's illegal acts by reporting to the SEC.

In the end, the decision in Digital Realty Trust harms lawyers for fulfilling their legal and ethical obligations. By removing statutory remedial protections against retaliation for reporting legal violations internally, it exposes lawyers to retaliatory acts without legal recourse. It thereby undermines Congress's mandate in Sarbanes-Oxley that lawyers report up "evidence of a material violation of securities law or breach of fiduciary duty or similar violation." And it undermines the Dodd-Frank whistleblower statute, which, by way of SEC rulemaking authority, explicitly incorporates Congress's mandate that lawyers report up certain legal violations.

Dennis J. Ventry, Jr., is a Professor of Law at the UC Davis School of Law. His research and academic specialties include tax policy, tax practice, tax filing and administration, legal and professional ethics, whistleblower law, family taxation, and U.S. economic and legal history. Professor Ventry also serves as the chairman for the Internal Revenue Service Advisory Council (IRSAC).

March 13, 2018

Elite hypocrisy about working class white and rural folks? The case of the West Virginia teachers strike

I've been keeping an eye on elite bashing of working class and rural whites for years now, and I published my first article about it as long ago as 2011.  But the election of 2016 brought the disdainful badmouthing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, including here and here.  

 

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common  preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."

 

Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

 

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."

 

Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way--both cartoonist and paper), has referred to Trump's "idiot followers."  I could provide many more illustrations of this phenomenon.  

 

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an

independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.

Despite the "nonpartisan" billing, I see Center for American Progress as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:

The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them. 

 

Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's fine by me.  It's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016, and I sent off some angry, pejorative Tweets about Trump supporters as a monolithic group).  I now readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017,  The Women Feminism Forgot:  Rural and Working Class White Women in the Era of Trump.  I hope to have the text posted soon on my ssrn.com page).

 

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

 

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the teachers picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is here) 

 

Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,

teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.

Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:

 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  

Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in that forthcoming Toledo Law Review article. 

 

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guessed it, all discussed in that Toledo Law Review article!), I was struck that the women Goldberg identified and interviewed did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

 

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown (third largest city in the state, home of WVU):

Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers.

Goldberg quotes Craig:  

You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone.

Goldberg also quotes Garvin:

As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 

Oh how I LOVE that quote, not least because it evinces a feminist consciousness.  In the wake of Trump’s election, Garvin added, women are standing up to say: 

No. We’re equal here.

I sure hope Garvin is right that the sentiment and movement are as widespread as she suggests--and as Goldberg implies.  If this is accurate, liberal elites--including feminists--will have to give Craig, Garvin and so many more like them their due.  (Indeed, teacher strikes may be in the works in the equally "red" states of Oklahoma and Kentucky, too).  That will challenge deeply entrenched stereotypes about folks from this region (read more here and here), which will in turn serve all of us quite well.  

 

By the way, the strike succeeded, with the teachers getting what they held out for.  You can find more exciting coverage of the West Virginia teachers strike herehere and here.  And don't miss this by WVU Law Professor and education law expert, Joshua Weishart.  

 

The question that all of this leaves me with is this:  What can the WV teachers strike teach us about how to build and sustain cross-class coalitions, including among whites?  How can these intra-racial coalitions interface with cross-race coalitions for even stronger pacts among progressives? And what role will gender play in that coalition building?  

 

Other hopeful news of change in relation to women and the national political landscape is herehere and here.  

 

March 9, 2018

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[Cross-posted from Opinio Juris.)

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

 

March 5, 2018

Court Tees up Issue of the Constitutionality of Indefinite Immigration Detention for the 9th Circuit

[Cross-posted from SCOTUS Blog]

On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a class-action challenge to provisions of the immigration laws allowing for immigrant detention. After hearing oral argument in the case last term, the court asked for further briefing on the constitutionality of the detention of immigrants. At the end of the term, still shorthanded after Justice Antonin Scalia’s death the previous year, the court ordered reargument. With President Donald Trump’s administration promising to increase the use of detention as a form of immigration enforcement, the case has great practical significance.

As discussed in my preview of the argument, two Supreme Court cases decided at the dawn of the new millennium offer contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim refused to disturb a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that, in the words of the appeals court, avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees.

I noted in my argument analysis that during the reargument, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. Such concerns carried the day.

Justice Samuel Alito wrote for a 5-3 court. (Justice Elena Kagan recused herself, in all likelihood because she was involved in the case while serving as U.S. solicitor general.) Using a textual approach to interpreting the immigration statute, the majority found that nothing in the statute supports the imposition of periodic bond hearings as mandated by the court of appeals. The court held that, because the statute was clear, the 9th Circuit had misapplied the doctrine of constitutional avoidance. Alito emphasized that “a court relying on that canon … must interpret the statute, not rewrite it.”

In Part II of the opinion, not joined by Justices Clarence Thomas and Neil Gorsuch, a plurality of the court found that the statute (8 U.S.C. §§ 1252(b)(9), 1226(c)) did not preclude the court from exercising jurisdiction over the case. Although not engaging in “a comprehensive interpretation” of Section 1252, the plurality suggested that it only applied to individual removal orders. Because the detention is not a part of the U.S. government’s discretionary authority, Section 1226(e), which limits review of discretionary judgments, does not apply.

The court next reiterated the doctrine of constitutional avoidance as a tool of statutory construction. Ultimately, the court found that the 9th Circuit had misapplied the canon “because its interpretations of the three provisions at issue here are implausible.” As the court emphasized, “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”

In Part IV, the court challenged Justice Stephen Breyer’s dissent for “ignoring the statutory language” and asserted that his interpretation of the statute was “implausible.”

In the last part of the opinion, the court remanded the case to the 9th Circuit, instructing it to address the constitutional challenges to the statute in the first instance. In so doing, it raised statutory jurisdictional questions that were not raised by the parties, questioned “whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for  respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes,” and directed the court of appeals to consider whether a class action is the appropriate tool for resolving due process clams that often are fact-specific.

Thomas, joined by Gorsuch, concurred in all but the jurisdictional part of Alito’s opinion. Thomas read the statute as preventing judicial review “except in a petition for review from a final removal order or in other circumstances not present here.” He went on to conclude that the bar on jurisdiction is constitutional.

Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented, reading portions of his opinion from the bench. Breyer would have applied the doctrine of constitutional avoidance because “the majority’s interpretation of the statute would likely render the statute unconstitutional,” and he addressed the constitutional question in detail. In the course of a thorough review of the cases, Breyer observed that the Supreme Court “generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary.” His conclusion: The decisions “tell us that an interpretation of the statute … would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution.” Breyer also read the statute as requiring “bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.” Finally, Breyer disputed the majority’s suggestions that the statute bars review and that the case was inappropriately brought as a class action.

In some respects, the court’s decision in Jennings v. Rodriguez takes us back to the drawing board. After sparring among themselves over two terms, the justices remanded the case to the 9th Circuit to decide a meaty constitutional question — whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional.

February 21, 2018

Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

By William S. Dodge

[Cross-posted from Opinio Juris.]

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.

February 20, 2018

United States v. Microsoft: Why the Government Should Win the Statutory Interpretation Argument

By William S. Dodge

[Cross-posted from Just Security.]

In United States v. Microsoft, the U.S. Supreme Court will determine the geographic scope of Section 2703 of the Stored Communications Act (SCA), which allows the government to obtain disclosure of communications in electronic storage upon a showing of probable cause. Three canons of statutory interpretation are potentially relevant: (1) the presumption against extraterritoriality; (2) the principle of reasonableness in interpretation; and (3) the Charming Betsy canon of avoiding conflicts with international law. The Fourth Restatement of Foreign Relations Law, to be published later this year, restates these three canons in Sections 404, 405, and 406.

(The provisions appear as Sections 203, 204, and 205 in the Tentative Drafts of the Fourth Restatement approved by the membership of the American Law Institute [ALI]. Although I served as a co-reporter for the Fourth Restatement, I write here in my personal capacity and the views expressed do not necessarily represent the views of the ALI.)

Applying these three canons leads to the conclusion that Section 2703 reaches the electronically stored communications that the government seeks in this case.

The Presumption Against Extraterritoriality

Section 404 restates the presumption against extraterritoriality: “Courts in the United States interpret federal statutory provisions to apply only within the territorial jurisdiction of the United States unless there is a clear indication of congressional intent to the contrary.” In RJR Nabisco, Inc. v. European Community, the Supreme Court articulated a two-step framework for applying the presumption. At RJR step one, a court looks to see if the presumption has been rebutted by “a clear, affirmative indication” that the provision applies extraterritorially. If so, the court does not proceed to step two but rather applies the provision according to its terms. If the presumption against extraterritoriality has not been rebutted at step one, then a court must determine at RJR step two “whether the case involves a domestic application of the statute . . . by looking to the statute’s ‘focus.’” If whatever is the focus of the provision occurred in the United States, then the case involves a “permissible domestic application even if other conduct occurred abroad.”

The brief for the United States concedes that there is no clear indication of extraterritoriality at RJR step one (p. 16). Microsoft sees a clear indication of non-extraterritoriality in Section 2703’s use of the word “warrant,” which it claims is “a legal term of art that carries a territorial limitation” (p. 15). When Congress has clearly indicated the geographic scope of a provision, the analysis should end there and a court should apply the provision as Congress directed. But there is no clear indication of geographic scope in Section 2703. As the United States persuasively argues, Congress used the word “warrant” in Section 2703 not to indicate its geographic scope but to require a rigorous showing of probable cause (p. 39).

At RJR step two, a court must determine the focus of the provision. The Second Circuit “conclude[d] that the relevant provisions of the SCA focus on protecting the privacy of the content of a user’s stored electronic communications.” The United States argues instead that the focus of Section 2703 is “disclosure” (pp. 21-26), while Microsoft says that its focus is “communications in electronic storage” (pp. 11-12). Determining the “focus” of a statute is more an art than a science, and courts should undertake it with an eye towards reaching sensible results.

Making the applicability of Section 2703 turn on where the communication is stored, as Microsoft urges, would not be a sensible result. It would make it easy for criminals to evade the provision, raising the sort of “troubling consequences” that the Court found relevant to determining the geographic scope of RICO in RJR.

It does not really matter whether the Court concludes that the focus of Section 2703 is on privacy or on disclosure, for they just really just two sides of the same coin. As the United States notes, it is not the transfer of data from one Microsoft server to another that potentially invades a user’s privacy, but rather the disclosure of communications to the government (pp. 26-28). That disclosure occurs in the United States, making the application of Section 2703 a permissible domestic application at RJR step two.

Microsoft’s strongest argument is that because Section 2703 is an exception to the unauthorized access and unauthorized disclosure provisions of the SCA, its geographic scope cannot extend beyond the geographic scope of those provisions (p. 19). But there are precedents for a statutory exception to have a broader geographic scope than the substantive provisions of the same law. It is well settled that both the Copyright Act and the Patent Act do not apply extraterritorially. Yet in Kirtsaeng v. John Wiley & Sons, Inc. and then again in Impression Products, Inc. v. Lexmark International, Inc., the Supreme Court held that exceptions to each act, created by Congress’s adoption of the “first-sale doctrine,” applied to sales occurring outside the United States.

It is certainly open to the Supreme Court to conclude that ordering a provider of electronic communications in the United States, upon a showing of probable cause, to retrieve and disclose information in the United States is a domestic application of Section 2703, even if the provider stores the information outside the United States.

Reasonableness in Interpretation

The presumption against extraterritoriality does not preclude courts from interpreting a statute to include other limitations on its geographic scope if doing so is consistent with the text, history, and purpose of the provision. As Section 405 of the Fourth Restatement puts it, “[a]s a matter of prescriptive comity, courts in the United States may interpret federal statutory provisions to include other limitations on their applicability.”

To be clear, this principle of reasonableness in interpretation is not the multifactor-balancing test found in Section 403 of the Third Restatement. There are statutes under which multifactor balancing may be appropriate, like the Bankruptcy Code. But neither the Supreme Court nor the lower federal courts have adopted such an approach to extraterritoriality more generally.

The principle of reasonableness in interpretation is instead the principle that the Supreme Court articulated in F. Hoffmann-La Roche Ltd. v. Empagran S.A. of avoiding “unreasonable interference with the sovereign authority of other nations.” As Empagran made clear, however, not all interference with the sovereign authority of other nations is unreasonable. Extrapolating from Empagran, Section 405 says: “Interference with the sovereign authority of foreign states may be reasonable if application of federal law would serve the legitimate interests of the United States.”

There is no doubt that the United States has a legitimate interest in the disclosure of electronically stored communications where there is probable cause to believe that the communications relate to criminal activity. Even if this case risks some interference with Ireland’s sovereign authority, applying Section 2703 is clearly reasonable.

The Charming Betsy Canon

Finally, there is the Charming Betsy canon that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” But applying Section 2703 to require a U.S. internet-service provider to produce information in the United States violates no rule of international law, even if the information in question is stored abroad.

Customary international law limits the jurisdiction of States in certain respects. For a customary international law rule to exist, there must be a general and consistent practice of States followed out of a sense of legal obligation. As Section 401 of the Fourth Restatement (Section 101 in the Tentative Draft) explains, customary international law imposes different rules on different kinds of jurisdiction. Only jurisdiction to enforce is strictly territorial. Customary international law permits jurisdiction to prescribe if there is a genuine connection between the subject of the regulation and the State seeking to regulate. And customary international law does not limit jurisdiction to adjudicate at all, except for certain rules of immunity.

The amicus brief of International and Extraterritorial Law Scholars claims that “the electronic seizure of electronic records physically located in another country is an exercise of extraterritorial enforcement jurisdiction . . . no different than if FBI agents had set foot on Irish soil to retrieve the data themselves” (p. 3). That is simply wrong as matter of international law. States do not view orders to produce information located abroad as equivalent to physical searches by law enforcement officials.

In both civil and criminal cases, U.S. courts have long ordered parties to produce information located abroad. Discussing these cases in the Reporters’ Notes to Section 431 (Section 401 in the Tentative Draft), the Fourth Restatement observes: “Such orders have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce. In the event of noncompliance with such an order, a court may impose sanctions constituting enforcement, but such sanctions are typically imposed within the territory of the United States in compliance with customary international law’s territorial limits on jurisdiction to enforce.”

Ireland, the United Kingdom, and the European Commission all filed amicus briefs in this case. None of them asserts that using Section 2703 to require the production of information located abroad violates international law. Indeed the United Kingdom says that it does not (p. 5). It notes that under U.K. law telecommunications providers may be required to disclose electronic communications without regard to where the data is stored (pp. 5-6). Ireland observes that Irish courts have the power to order the production of documents located abroad (pp. 5-7). And the brief for the United States identifies other countries that authorize access to data stored abroad (pp. 46-47). Without a general and consistent practice of states that treats accessing data stored abroad as an impermissible exercise of jurisdiction to enforce, there can be no customary international law rule prohibiting it.

The European Commission brief worries about the possibility of conflicts with the EU’s General Data Protection Regulation (GDPR), but it discusses a number of ways the GDPR might permit compliance with a Section 2703 warrant (pp. 8-16). In any event, the answer to these concerns is not found in international law, which does not prohibit conflicting sovereign commands, but rather in a doctrine of international comity. Specifically, the doctrine of foreign state compulsion—restated in Section 442 of the Fourth Restatement (Section 222 of the Tentative Draft)—allows a U.S. court to excuse violations of U.S. law, or to moderate the sanctions imposed for such violations, when a person’s conduct is compelled by foreign law. The Supreme Court recognized such a defense to orders requiring the production of information abroad almost 60 years ago in Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, and the brief for the United States concedes that such a defense would be available in cases where foreign law prohibited disclosure (pp. 51-52).

In sum, none of the canons of interpretation relevant to determining the geographic scope of a statute leads to the conclusion that Section 2703 is limited to electronic communications stored in the United States. Under the presumption against extraterritoriality, an order to a provider to produce information in the United States is a permissible domestic application, even if the information is stored abroad. Under the principle of reasonableness in interpretation, the legitimate law enforcement interests of the United States make the application of Section 2703 reasonable, even if it risks some interference with other nations’ sovereign authority. And the Charming Betsy canon simply is inapplicable because applying Section 2703 is not an extraterritorial exercise of jurisdiction to enforce. The government should win the statutory interpretation argument in United States v. Microsoft.

February 8, 2018

Water Law Students Visit the California Supreme Court

By Professor of Environmental Practice Rick Frank

On Tuesday, February 6th, I led my Spring 2018 Water Law students on a visit to the California Supreme Court to attend oral arguments in a major water law case pending before the justices. The Supreme Court session began with a warm welcome to our King Hall delegation from Chief Justice of California Tani Cantil-Sakauye, herself a proud King Hall alum. We then observed a lively hour of oral arguments, in a case in which the California building industry is challenging the State Water Resources Control Board's fee system adopted to finance the Board's statewide water pollution control program. The students observed the justices peppering the arguing attorneys with questions, and those attorneys demonstrating dramatically different styles of oral argument. This type of "experiential learning" outside the classroom is a most valuable part of my student's King Hall legal education.  And--also importantly--they had a thoroughly good time attending the California Supreme Court arguments.

 

 

January 27, 2018

The Constitutional Issues Driving the Events in the Hit Movie, The Post

By Vikram David Amar and Alan E. Brownstein

 

[Cross-posted from Verdict Justia]

 

The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.

 

Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.

 

In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.

 

Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.

 

The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.

 

The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.

 

The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.


Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.

 

To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.


Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.

 

The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.

 

But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.

 

What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.

 

The So-Called Collateral Bar Rule


The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.

 

Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.

 

According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”

 

Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.


Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.

 

But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.

 

Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?

 

Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.

 

Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.