Blog Updates
One of the Supreme Court’s cert grants yesterday was Putnam Investments, LLC v. Brotherston, a case about the burden of proving causation losses in ERISA suits. There is a 6-4 circuit split about whether the ERISA plaintiff or the fiduciary defendant has the burden of persuasion regarding whether the fiduciary defendant’s breach caused the loss. Here is how the first Question Presented reads:
The cert petition presents the ordinary rule in U.S. law (i.e., outside of ERISA) as being that the plaintiff has the burden of showing causation. The cert petition notes, however, that the court below recognized “that it ‘has long been the rule in trust law’ that 'the burden of disproving causation [rests] on the fiduciary.’ Pet. App. 32a-33a (citing Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 363 (4th Cir. 2014)).” How could it possibly be that the fiduciary defendant has the burden of disproving causation? With the caveat that I haven’t yet explored this case in detail, there are at least three reasons to think the fiduciary defendant has this burden. (Note that these reasons aren’t truly independent as much as overlapping and reinforcing.) First, ERISA relies on, and in significant respects incorporates, the common law of trusts. (For a careful statement of this point, with qualifications, see John H. Langbein, What ERISA Means by “Equitable”: The Supreme Court’s Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1324-1329 (2003).) By “common law” in this paragraph I don’t mean “common law vs. equity,” since the law of trusts is and was equitable—rather, “common law” in the sense of law recognized, developed, and formulated by judges. Second, equity has different rules for “damages,” i.e., loss-based monetary remedies. This is something I address in my Fiduciary Remedies chapter in the Oxford Handbook of Fiduciary Law (2019). Here is my discussion of “equitable compensation,” minus the footnotes, and with emphasis added to highlight a point of relevance for Putnam:
Finally, there is a point I raise in a footnote in the passage just quoted. After saying that one difference between legal “damages” and equitable compensation “is that a rigorous showing of causation is not required in equitable compensation, at least if it is seen as a kind of direct 'negative accounting’"—a proposition for which I quote the world’s leading equity treatise, Meagher, Gummow & Lehane—I then add this sentence: "The explanation for this may not be specific to equity, but instead may be due to the fact that the plaintiff is enforcing the primary right, rather than seeking damages for loss caused by a wrong.” via Tumblr [Samuel Bray] New on the Supreme Court docket: ERISA and “damages” in equity
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Massachusetts Senator and Democratic presidential candidate Elizabeth Warren is a big fan of Game of Thrones characterDaenerys Targaryen. So am I! It’s one of the few things Warren and I have in common (other than support for marijuana legalization, a love of golden retrievers, and both having been law professors). Still, I have several bones to pick with this recent article Warren wrote in praise of the Dragon Queen. Dany is a lot more problematic than Warren suggests—sometimes in ways that reveal flaws in Warren’s own worldview. Before reading further, you should know the rest of this post contains spoilers for Game of Thrones. Yes, SPOILERS. Those who dare complain about the spoilers despite being duly warned will suffer a dire fate similar to that of the Dragon Queen’s enemies: Dracarys! Back to Warren and Daenerys: Warren writes that Daenerys “doesn’t want to be a slave owner or a dictator—and she definitely doesn’t want to become her murderous father.” One of these things is not like the others. It’s too her credit that Daenerys opposes slavery, and has in fact freed many thousands of slaves during her time raising any army on the continent Essos. She isn’t called the Breaker of Chains for nothing. She also has a genuine desire to avoid repeating the horrific errors of her father, “Mad King” Aerys. But Daenerys pretty clearly does want to be a “dictator."As she herself notes in the most recent episode of the final season of Game of Thrones, the "one goal” of her life has been to retake the Iron Throne of Westeros. She doesn’t seem to have any objection to the vast scope of powers of monarch’s powers (it’s an absolute monarchy), nor does she believe that the legitimacy of her claim to the throne is dependent on the will of the people. To the contrary, she’s more than willing to use heavyhanded coercion to force resisters to “bend the knee.” She also rules as a despot during her time governing the territories she conquers in Essos (though somewhat less so in the books by George R.R. Martin than in the HBO show based on them). Perhaps Daenerys cannot be blamed too much for this. Almost everyone in Westeros favors authoritarianism of one kind or another. The cities of Essos are ruled by narrow oligarchies. But Dany is not an exception to the dominant worldview of her society in this respect. Moreover, she clearly does have a strong love of power, even though she is often able to impose some restraint on the selfish impulses that stem from it. Warren is right to point out that Dany says she wants to “break the wheel” rather than just continue the same old struggle for power that has devastated Westerosi society. But it’s also true she seems to have no notion that doing so requires institutional change, not merely replacing a bad monarch with a good one (preferably herself). I discuss this flaw in her thinking (another she shares with nearly all the other characters on the show) here:
Daenerys’ indifference to the need for institutional constraints on government power is, to a great degree, shared by Elizabeth Warren herself. The latter advocates policies that wouldmassively expand government power over the economy and society, and over online speech, while imposing few if any new institutional constraints. Warren’s shortcomings in this respect are much less excusable than Daenerys’. Unlike the Dragon Queen, Warren has the benefit of centuries of political and economic theory outlining the need to impose limits on government power and explaining how it can be done. Warren praises Daenerys’ recognition of the threat to humanity from the zombie-like White Walkers and willingness to prioritize it over her personal goal of taking the Iron Throne. The praise is partly justified. But in the most recent episode of GOT, Dany says she made this decision out of love for Jon Snow, the King of the North, who urges her to deal with the Night Walkers first. Making this sacrifice out of love for her new boyfriend is not quite the same thing as doing it out of a sense of duty to the people of Westeros (though, in fairness, the latter is probably not completely absent). One wonders whether Dany would have made the same decision if she was not attracted to Jon. Finally, Warren is also right to note that Dany is a much better person, with more admirable motives, than Cersei Lannister, the current occupant of the Iron Throne. But that is damning with faint praise. It is a little like saying Warren herself deserves credit for being a better person than Donald Trump. She is. But Trump and Cersei are ridiculously low standards of comparison. Despite her flaws, I still think that Dany is probably the least bad plausible contender for the Iron Throne (assuming the institution of the monarchy continues). Jon Snow, the understandable favorite of many fans, is—to my mind—disqualified by his egregious incompetence as a political and military leader. In that sense, Warren is right to cheer Daenerys’ bid for the throne. But, ultimately, we would do better to place our faith in institutional constraints on government power rather than in seemingly heroic leaders—or in politicians who promise to solve all our problems if only we bend the knee. UPDATE: Reason’s Robby Soave has some related thoughts on Warren and Game of Thrones here. via Tumblr [Ilya Somin] What Elizabeth Warren Gets Wrong About Daenerys Targaryen [I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.] A. The Hybrid Preliminary Injunction If I am right that the hybrid permanent injunction is constitutional—because it gives defendants all the First Amendment protections offered by valid criminal libel laws, and does so with less of a chilling effect on nonlibelous speech—then hybrid preliminary injunctions should be constitutional, too. They would adequately protect defendants, while giving plaintiffs the opportunity to deter libels starting shortly after they file a lawsuit, rather than having to wait until after the lawsuit is adjudicated. Let us return to Paula and Don, and imagine that Paula gets a preliminary injunction. Shortly after she files her lawsuit, a judge concludes that she is likely to succeed on the merits: Don’s statement that Paula cheated him is likely true. This is just a tentative decision, the judge acknowledges, based on limited time for briefing and likely no discovery. But that’s what the judge thinks, so the judge issues an injunction: “Don shall not libelously state that Paula cheated him”; and, as with the hybrid permanent injunction, the injunction provides that any criminal contempt trial for violating it shall be before a jury, Like the hybrid permanent injunction, the hybrid preliminary injunction would provide all the procedural protections offered by criminal libel law: Don can’t be convicted of criminal contempt unless the criminal jury finds, beyond a reasonable doubt, that his post-injunction statements about Paula are indeed libelous; and Don would be entitled to a court-appointed defense lawyer to argue that the statements weren’t libelous. They thus lack the primary defect of specific preliminary injunctions—the punishment of speech without a prior finding on the merits that the speech is actually constitutionally unprotected. Also like with the hybrid permanent injunction, Don would also be exposed to criminal punishment only for repeating specific statements. Unlike with the hybrid permanent injunction, those would be statements that the judge found libelous based on the abbreviated preliminary injunction process rather than after a full trial. But despite that, the hybrid preliminary injunction would still have less of a chilling effect than a catchall injunction or than a criminal libel law, which would put Don in jeopardy as to any libelous statements. But unlike with the hybrid permanent injunction, the hybrid preliminary injunctions opens the door to criminal punishment—and therefore helps deter future libels—near the start of the lawsuit, rather than years later. Hybrid preliminary injunctions, like hybrid permanent injunctions, haven’t yet been tested in appellate courts, or even issued by trial courts. But I think they would be consistent with the First Amendment, and often a good idea. Indeed, one recent preliminary injunction does seem to lean in this direction. In 2 Sons Plumbing, LLC v. Herring, 2 Sons claimed that Romare Harring had criticized 2 Sons only while falsely claiming to be a customer (in some places) and a former employee (in others); they sued for, among other things, violating California law that bars such impersonation. The District Court concluded that there was enough to their claim to justify a temporary restraining order. But it crafted the injunction so that any impersonation would still have to be shown at a criminal contempt hearing, rather than treating his preliminary conclusion as binding in such a hearing:
If it turns out that Herring is indeed affiliated with 2 Sons or Joe’s, and he repeats that statement, the terms of provision (4) wouldn’t make him liable; likewise if he was indeed a customer, and posts reviews of 2 Sons or Joes so stating. The order isn’t as precise as it could be; for instance, the “when” in (2), unlike the “if” in (4), could be read as a statement that the court is conclusively finding that Herring wasn’t actually a customer, rather than a provision that the order applies only under the circumstances (to be found conclusively later) that Herring wasn’t a customer. Moreover, provisions (1) and (3) require the takedown of earlier posts without any such condition. Still, the order, and especially provision (4), points towards the approach that I describe here. B, The Hybrid Ex Parte Temporary Restraining Order In principle, even temporary restraining orders—including ones obtained ex parte—could be permissible so long as they only ban libelously repeating certain statements. Such an order would, as with the hybrid preliminary injunction, punish no more speech than a criminal libel law would, since any criminal contempt punishment would be contingent on the jury finding (after a full trial) that the statements were indeed libelous. By its very terms, it would be limited to constitutionally unprotected speech; and whether any particular statement is unprotected and therefore forbidden would have to be determined at an adversary criminal contempt hearing. [Footnote: This makes such hybrid orders unlike the ex parte order in Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968), which by its terms prohibited speech that would generally be constitutionally protected, without an adversarial hearing at which the defendants could respond to the plaintiffs’ arguments that this protection should be lost on the facts of the case.] But while such hybrid ex parte TROs may be constitutional, they should be avoided. The advantage of hybrid injunctions over catchall injunctions is that they are limited to speech that a judge has concluded is likely false and defamatory. This judicial conclusion doesn’t itself suffice for forbidding the speech outright, since the defendant should have an opportunity to argue his case to a jury (which is the advantage of hybrid injunctions over specific injunctions); but the conclusion is still an important protection for speakers. Any injunction should be entered based on the judge’s hearing both sides’ factual theories, both sides’ legal analyses, and both sides’ analyses of how the injunction should be crafted. Sometimes, of course, such an adversary presentation is impossible, for instance if the defendants are anonymous and can’t be identified using reasonable pre-injunction discovery, or if they simply refuse to show up. But plaintiffs should be required to at least try to serve defendants and give them an opportunity to be heard before even a hybrid injunction is issued. [You might also read my earlier posts on the subject,
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.] via Tumblr [Eugene Volokh] The First Amendment and the Hybrid Preliminary Injunction The title of this post is the headline of this lengthy and effective Vox piece from last week. I call the piece effective in part because, in addition to being well-structured and well-written, it includes lots and lots of links. Here is how the piece starts (with links retained):
via Tumblr "The case against solitary confinement" The Supreme Court granted cert on some notable cases via this order list list morning, the most notable involving questions of how federal employment discrimination laws apply to LGBT employees. But, for the second Monday in a row, there is little of interest on this list for those of us who obsess over (just) criminal law matters. However, all is not lost for the week as the Court has on tap for oral argument three criminal justice cases over the next two days. Via SCOTUSblog:
Of course, the SCOTUS oral argument on census questions scheduled for tomorrow will be sure to overshadow everything else on the docket this week. But, importantly, the Court has also indicated that it will be releasing opinions tomorrow morning, and that means we might get the long-awaited ruling in Gundy v. US concerning federal SORNA and the application of the nondelegation doctrine in this context. The long wait for Gundy has me thinking something big is afoot in that case (though that might also mean we do not get the opinion for still a few more months). via Tumblr No new criminal law cert grants, but still possibilities for a notable SCOTUS week ahead With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court’s scheduled oral argument this morning in United States v. Davis . Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title “Who’s afraid of the categorical approach?,” and it provides some context for my pop-culture reference:
Another preview of this case and today’s argument is available here from Jordan Rubin at Bloomberg Law under the headline “Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute.” Because Justice Gorsuch was the key swing vote in Dimaya , these previews sensibly highlight his importance in the resolution in Davis . But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson . But you never know how his extended history as a circuit judge might shape his views on these kinds of cases. via Tumblr Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess? The following post on the use of alternative sentences to blend restorative and retributive justice in Colombia was written by Luke Moffett. Luke is a senior lecturer at Queen’s University Belfast and the Principal Investigator on the ‘Reparations, Responsibility and Victimhood in Transitional Societies‘ project. How do you deliver peace and justice after fifty years of conflict that saw millions of civilians victimised? This has been the core issue Colombia has been grappling with as part of the peace agreement between the FARC and the Colombian government in 2016. One of its main bodies of the comprehensive transitional justice system is the Special Jurisdiction for Peace (JEP), established to investigate and prosecute international crimes. The JEP is attempting to tackle the perennial challenge of how to square the circle of doing justice, ascertain the truth and achieving peace in a post-conflict society that is facing ongoing violence and insecurity. It hasn’t been easy and has required compromise, especially on the question of combining restorative and retributive justice through its alternative sentences for those who perpetrated crimes during the civil war. The JEP It began its work in March 2018 and currently has seven cases including kidnappings, forced disappearances, use of child soldiers and a range of violations in different territories. The JEP has only recently received approval for its governing law from the lower house, but awaits the Senate vote later this year, reflecting the continuing and contested transition in Colombia since the peace agreement. Beyond political contestation, the JEP also faces the legal challenge of attenuating punishment to encourage perpetrators to tell the truth, contribute to community service, and provide symbolic reparations to victims. In return for being truthful and expressing remorse, perpetrators in the FARC and Colombian government could benefit from reduced sentences of 5-8 years through alternative punishment arrangements, such as house arrest or other restricted freedoms. There are some who view these alternative sanctions as impunity. However, this overlooks the experience of transitional justice, the demands of victims and human rights jurisprudence that doing nothing and remaining silentis impunity. Providing a space to coax perpetrators to confront, acknowledge and remedy some of the harm they have caused can go a long way to reconstituting the dignity of victims and their lived experience. More broadly, courts in post-conflict societies play an important expressive role through prosecution and punishment in re-establishing the rule of law and reaffirming moral values. In light of these challenges, over the past few months our project team have been engaging the JEP and drawing from international practice in order to inform the alternative sanction regime. In our recently released report on alternative sanctions at the JEP, we outline the experiences of other states and international jurisprudence on matters of restorative justice, victim participation, sentencing and the contribution of ex-combatants. This report in part draws from our ongoing research project on reparations in post-conflict transitional societies, in particular the contribution of non-state armed groups. Restorative Justice Victims are a central part of the peace agreement and restorative justice is the paradigm under which their rights and restoration is key. Restorative justice in transitional justice is nothing new, it was used in the South African Truth and Reconciliation Commission along with ubuntu. The Community Reconciliation Process in Timor Leste, paramilitary punishment attacks in Northern Ireland and to a lesser extent the gacaca courts in Rwanda, have used more measured forms of retributive justice informed by restorative principles to adjudicate on international crimes. This is the compromise that the JEP is also seeking to make in trying to break new ground in addressing international crimes by evoking the notion of restorative justice, by bringing the victims and perpetrators together to acknowledge, and by finding appropriate responses to the crimes through community service and symbolic reparations. Given the scale of victimisation and perpetrators as well as the lack of a relationship between the parties to be repaired, contexts have struggled to apply the precepts of restorative justice practices to address international crimes. The experience of using restorative justice for responding to atrocities have found that perpetrators can be falsely implicated, do not make full confessions or their apologies lack sincerity, whereas victims can feel apprehension, be silenced from publicly speaking about their suffering or instrumentalised to fulfil the external goals of the state, rather than micro- or meso-level reconciliation. These are likely to be challenges for the JEP. Reparations and Sentencing The JEP strikes a balance between punishment and restoration by incentivising perpetrators to acknowledge the harm that they have caused and by providing a framework for perpetrators to engage with victims in repairing the harm caused. While the threat of the ICC opening an investigation in Colombia has been diluted by the recent Afghanistan decision, there remains little guidance on what amounts to sufficient sentence for the purposes of admissibility and complementarity under the Rome Statute for the JEP. In light of the ambiguity over sentencing, our report argues that reparations and other contributions by ex-combatants is part of international criminal justice sentencing. Reparations in international criminal proceedings are now becoming well settled at the ICC, but the JEP goes further by situating such measures within the framework of meting out a proportionate punishment. There are provisions within the Court to mitigate a sentence for international crimes based on a perpetrator’s contribution of reparations to victims. The JEP will not be for all victims. It is necessarily limited to territorial and thematic (macro) cases brought before the Court. The Victims Unit, responsible for reparations to the nearly 9 million victims, will be the main focal point for redress. But there remains a space for the JEP to nudge perpetrators to provide symbolic and collective reparations, such as acknowledgements of responsibility and apologies that speak to redressing the moral harm of victims. Some perpetrators at the JEP may seem contrite to get the benefits of an alternative sanction. Nonetheless, there are some small positive steps, such as the (limited) apology by General Torres in the false positive case. We should not expect or demand, as President Duque tried to do, for full reparations to be granted before the JEP. It lacks the jurisdiction and capacity to do so. Moreover, this overlooks the specialist role each mechanism of the comprehensive transitional justice system is supposed to deliver and how they are intended to complement each other. Role of Ex-Combatants Perhaps the most innovative part of the JEP is the role of ex-combatants in repairing the harm that they have caused. This continues to be a struggle given palpable distrust between the FARC and the Colombian government. Dissident FARC groups refuse to disarm and some have left the demobilisation process; 85 demobilised FARC have been killed since the peace agreement. The legal uncertainty of the JEP has encouraged little faith in the Colombian government, which under President Duque has preferred a more one-sided retributive approach to dealing with the past, one that focuses on crimes of the FARC, rather than other paramilitary and state actors. The experience of Northern Ireland demonstrates that ex-combatants can make a useful contribution to peacebuilding and transitional justice. Often these individuals provide political and moral leadership in their communities and can help to transform cultures of violence towards cultures of human rights. The JEP could provide a space for perpetrators to confront their own wrongdoing and provide symbolic reparations that could provide some closure for victims and affected communities. The JEP faces a gargantuan task in seeking to account for some of the numerous atrocities committed during the Colombian conflict. It also represents the best case study for positive complementarity of the ICC and the for transitional justice in a post-conflict society by trying to be holistic and complex. The future of addressing international crimes requires a broader construction of justice and a clever instrumentalisation of criminal processes to achieve justice for victims. via Tumblr Between Punishment and Mercy – Alternative Sanctions and the Special Jurisdiction for Peace Alan Greenblatt has this notable lengthy new piece at Governing under the headline “Why the Death Penalty Has Lost Support From Both Parties." I recommend the piece in full and here are excerpts:
This effectively review of the state of the capital mood in the United States will be interesting to revisit as we move into the 2020 election cycle. It seems quite possible that advocates and perhaps the base of the Democratic party will seek a Prez nominee who will actively embrace death penalty abolition. Prez Trump, who clearly likes to talk up his support for the death penalty, might well be eager to turn capital punishment into a wedge issue once again. via Tumblr Spotlighting how reduced support for the death penalty is now a bipartisan reality The title of this post is the title of this interesting-looking new paper recently posted to SSRN and authored by Alex Kornya, Danica Rodarmel, Brian Highsmith, Mel Gonzalez and Ted Mermin. Here is its abstract:
via Tumblr "Crimsumerism: Combating Consumer Abuses in the Criminal Legal System" Via email today, I learned of this notable lengthy letter signed by an array of criminal justice groups addressing key issues related to the implementation of the prison reform components of the FIRST STEP Act. Because the full letter runs seven pages, I will provide the summary that appeared in the email that I received:
Some of many prior related posts on FIRST STEP Act implementation:
via Tumblr Extended letter from criminal justice groups calling for robust implementation of the FIRST STEP Act's prison reforms |
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