Dean Chemerinsky discusses "Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable"

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Dean Chemerinsky discusses his latest book, interviewed by UCI Law Prof. Rick Hasen. Recorded March 13, 2017 at UCI Law event. More about the book and event >

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Erwin Chemerinsky Erwin Chemerinsky, Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
Expertise: Constitutional law, federal practice, civil rights and civil liberties, appellate litigation


Rick Hasen Rick Hasen, Chancellor's Professor of Law and Political Science
Expertise: Election law, legislation, remedies, torts
Election Law Blog | ELB Podcast | Book: Plutocrats United

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting both perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter at UCI #UCILawTalks

[Erwin Chemerinsky] Good afternoon. Thank you so much for coming. I always say that when we begin, but I especially mean it today that you’ve come to hear about my book. It's a little bit embarrassing, so I'm very appreciative to Colleen Taricani for suggesting that we do this, for Marina Harrison for taking care of so many of the mechanics, for the library for letting us do a book signing there, to the UCI Bookstore for selling books, and particular thankful to my colleague Rick Hasen for agreeing to do this. I think this is the third time we've done this together. You did this for an earlier book. I got to do it for your book. We're doing this now and you promised we could do it next year on your book on Justice Scalia, where I get to be the one asking the questions.

[Rick Hasen] Next year we'll see.

[EC] Well, I look forward to it. Most of all, I'm very grateful to all of you for coming. What we thought we would do is have a conversation where Rick would ask questions and I'd do my best to answer about my new book, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable, and I think we were going to do this for about a half hour or so and then take your questions. Then I know there's a reception and food afterwards.

[RH] Well, thank you. Let's just move a little closer here. If we both stay in these chairs and don't fall out, that'll be enough of a victory for this event. It's really an honor to be here and to talk about Erwin's book, especially because Erwin has been so helpful in my writing and giving me feedback, that this is just a small way for me to pay back and really a pleasure to talk about this wonderful book, which ... You can all see what it looks like. My daughter saw this, said, "Great cover." And I said that well, "You should try reading the book, cause ... "

[EC] I think everybody knows the author gets no credit for the cover at all. Yale University Press gets 100 percent of the credit for designing the cover. I would be terrible at that.

[RH] Well, I did notice from your acknowledgements that, like me, you also had no control over the title of your book. Your title would have been Enforcing the Constitution, I believe.

[EC] It was Enforcing the Constitution: The Role of the Federal Court, and they said "No, the title is Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable." And they were right.

[RH] Well, I wanted to name my book The Voting Wars: The Election Administration Wars: Causes, Consequences, and Cures in the Internet Era, and I was told, "Why don't you write a book people will actually read?" When I was a student in federal courts a long time ago at UCLA, I had the great Kenneth Karst as my federal courts teacher. It was the hardest course in law school by far. If my memory is correct, he recalled taking federal courts at Harvard with Henry Hart, who wrote the leading casebook on federal courts for decades. Karst said that someone in the class remarked one day that Hart was speaking at such a high level that you could only see the soles of his shoes. That's it. I was reminded of the story in reading Erwin's wonderful book, Closing the Courthouse Door. The book covers much of the same territory as we covered in the federal courts class ... The Eleventh Amendment, the abstention doctrine standing ... But the first thing that's so notable about the book is, and you all know this from having heard Erwin speak before, is his uncanny ability to make everything clear and straightforward. There's no need to look way up at the master's shoes to struggle to make sense of what's going on. Instead, we have the master every bit as capable as Henry Hart and Kenneth Karst, but we can look the master in the eye and understand what he's saying, taking the most difficult issues of law and making them comprehensible for the average reader, so someone who has no legal training could pick up this book, read it, and understand it in a way that I wish I had this book as a law student. Then maybe I would have understood federal courts when I took it. One technique you use in the book to make difficult concepts comprehensible is to take these cases which are much more esoteric than in your last book ... The last book covered Citizens United, covered abortion cases, covered cases that are in the headlines. You're covering cases that most people, even many lawyers, have never heard of, or not dealt with, and you humanize them. I thought perhaps we could start a discussion by having you tell one of these stories. Maybe the story of Ariana Klay, which starts your book, so that everyone who has not yet read the book can understand the connection between these lofty and esoteric doctrines and their effects on real people. And also if you could reflect on if it's harder to write a book like this than it is to write a book about cases that everybody's heard of.

[EC] I think you've put your finger on this, and it's very important to me about this book. If the Supreme Court were to say that the government can give unlimited amounts of money to parochial schools, that would be the headline of every newspaper in the country. But if the Supreme Court says no one has standing to challenge the government giving money to parochial schools, it is exactly the same effect, but no newspaper is going to cover it, because it's about the standing. The reality is, rights in the Constitution are meaningful only if they can be enforced. Access to the courts is crucial to that. What I wanted to do was to come up with stories to get people to see that these seemingly dry, even abstract, procedural doctrines really matter in terms of people's lives. I intentionally chose to begin Chapter 1 with the story that Rick alludes to. It's a story of a couple of women in the military. One was Ariana Klay. She’d been in the Marines for a long time. She was stationed in Washington, DC. She was subjected to constant sexual harassment. At one point, about 5:00 in the morning, two of her fellow Marines came to her apartment, she let them in, and they raped her. She believed that they did this in part for retaliation of her complaining about their sexual harassment. Ultimately, nothing was done to the Marines who raped her, but she was subjected to intensified sexual harassment. There's also the story told of Janet Gallup. She was in the Navy. She was in a ship in close confines. She was raped there. She immediately reported the rape, and then she was subjected to extreme sexual harassment. These two women and ten others sued the highest levels of the Defense Department and the military for creating a culture that was responsible for their rapes and their sexual harassment. The United States Court of Appeals for the District of Columbia Circuit said that their case had to be dismissed. In fact, the DC Circuit said this was "an easy case," that those who are injured in military service cannot bring suits for money damages. Couldn't sue the Secretary of Defense. Couldn't sue the Head of the Joint Chiefs of Staff. Couldn't sue those who were in charge of the Navy Marines, because those who were injured in military service aren't able to bring such civil suits. When you think about why we allow suits ... To compensate injured victims, to deter wrongdoing ... All of that is lost in these instances. I chose to begin with a case that never made it to the Supreme Court because it's probably not familiar with people. Didn't make any headlines, but think of what it means for all of the women who served in the armed services who are left with no remedy, and there's no deterrent against wrongdoing into the future.

[RH] I have some broad questions about the theme of the book, but before I turn to those, I want to ask a question about each of the chapters of the book. The chapters are, after the introduction, Sovereign Immunity, Immunity for Government Officers, Standing Habeas Corpus, and a final chapter that covers Pleading Abstention Doctrines and Class Action Requirements.

[EC] And now you've put everyone in the room to sleep-

[RH] I was going to say ...

[EC] By telling the titles.

[RH] For non-lawyers, and even for lawyers, these are foreign and esoteric subjects, so I thought we could flesh them out, humanize them a little bit through these questions. Turning first to the question of sovereign immunity, which is the doctrine that says a person cannot sue a state, at least for damages, without the state's consent, let me throw a bit of a softball question for you to get things going. You are my dean, after all. Then we'll get tougher since I have tenure, after all. Can you explain what the Constitution's Eleventh Amendment says about suits brought against states that may have committed constitutional violations, and whether or not the Supreme Court's Eleventh Amendment jurisprudence follows originalist ideas, that is the original public understanding of the scope of the Eleventh Amendment when it was adopted?

[EC] Yes, I will answer your question, but let me tell a story first, because I think if we just start talking about the Eleventh Amendment, again, it's so abstract. I begin this chapter with a story of a woman named Patricia Garrett. She was the head of nursing at the University of Alabama Birmingham Hospital. She was diagnosed with breast cancer. She had surgery, radiation, and chemotherapy. She had to take time off work, especially during the end stages of her chemotherapy, and when she came back to work, she was told there was no longer a job for her. This clearly violates Title I of the Americans with Disabilities Act, that says there cannot be employment discrimination against people with disabilities, and there has to be reasonable accommodation to people with disabilities. She decides she's going to sue the University of Alabama for violating this important federal statute, the Americans with Disabilities Act, but the Supreme Court ruled 5 to 4 that Patricia Garret couldn't sue the University of Alabama. She couldn't sue the University of Alabama because its part of the state of Alabama, and the state of Alabama can't be sued in federal court because of the Eleventh Amendment. That then gets me to answering your question. The Eleventh Amendment in its text is seemingly innocuous. It says, "The judicial power of the United States shall not extend to a suit against the state by citizens of another state or a foreign country." You ask, "Well, Patricia Garret lived in Alabama. Why couldn't she sue the University of Alabama?" That's because in 1890, the Supreme Court said it would be anomalous to allow a state to be sued by its own citizens if it can't be sued by citizens of other states. In fact, the Supreme Court has said there's this broad principle of sovereign immunity that means states can't be sued anywhere. Not in state court, not in federal court. With very limited exceptions. Now I can get to the latter part of your question. Is this originalist? The irony here is that it's the most conservative originalist justices who are responsible for the great expansion of sovereign immunity, but none of it can be justified in terms of the text of the Constitution or even in terms of the original understanding. The text says a federal court can't enter a suit against a state when jurisdiction is based on the fact that it's somebody from another state or a foreign country, but the Supreme Court says a person can't sue his or her own state government. Not in federal court, not in state court. And I think that scholars, in fact federal judges like John Gibbons and William Fletcher have done a great job of showing that this can't be reconciled with the framers' intent. Why does this matter? Think of all the ways that state governments can inflict injuries on people. And then means the victim can't sue the state. Again, there's no compensation for wrongdoing. There's no deterrence for wrongdoing in these instances. The Supreme Court has said, for instance, that state governments can't be sued for patent and copyright infringement. Not long ago, I was preparing material for another state's judges’ conference, and I said, "This is copyrighted material. I'll get you a copyright release." The person in charge of judicial education said, "Oh, we don't ask for that anymore, because no, we know we can't be sued for copyright infringement." Now, law professors don't get very much for what they copyright, but there have been cases where state universities were alleged to engage in patent infringement with hundreds of millions of dollars, and they can't be sued for patent infringement because of sovereign immunity. This is the real-world consequence of the jurisdictional doctrine.

[RH] Not only is it difficult for individuals to sue states, even their own states, in state or federal court, it's difficult to sue state officers as well. As you explained, in some circumstances state officers are given absolutely immunity no matter what they do, and you give an example of a judge in the Stump v. Sparkman case, who was sued for allowing a mother to obtain a sterilization order against her daughter without the daughter even having a chance for a hearing. Other officers, such as police officers, often get qualified immunity, which makes it hard to sue unless the officer has violated clearly established law at the time. You say in your book that you think some immunity might be required, but this goes too far. I wanted to ask you in terms of immunity for judges and prosecutors, I worry that there are abuses, but if you make it too easy to sue judges and prosecutors, you'd end up with a lot of suits, probably many of them non-meritorious, from people who are disgruntled with the decisions of judges, especially in criminal cases. That would take a huge amount of effort to counteract, and that in turn could deter good and smart people from becoming judges and prosecutors. How would you strike the balance different from what we currently see?

[EC] Again I'll answer, but again I want to put this in human terms. You mentioned the example of a woman named Linda Sparkman. When she was a teenager in Indiana, her mother went to a judge in his chambers. She asked the judge to sign an order to have the girl subjected to an involuntary surgical sterilization, a tubal ligation. She went to the judge and said, "I don't think my daughter is very bright," though she was at grade level and always had been. She said to the judge, "My daughter's staying out at night. I think she's going get in trouble." No case was ever filed in the judge's court. No docket number was ever assigned. No notice was ever given to Linda Sparkman. She was told she had to have an appendectomy, and only later, when she was married and couldn't conceive a child, did she learn that a tubal ligation was performed. No semblance of due process was provided. In fact, the judge had no authority under Indiana law to order such a sterilization. She sued the judge for money damages, and the Supreme Court ruled 5 to 4 that the judge was protected by absolute judicial immunity. There's another case that happened later called Mireles v. Waco where a man was subpoenaed to appear in court, and he didn't come. The judge said to the bailiff, "Go find him and rough him up. Teach him a lesson that he can't ignore subpoenas in this court." The bailiff went and really beat the man up and inflicted serious injuries. The man sued the judge. The Supreme Court said the judge has absolute immunity and can't be sued at all, even for ordering this beating. Or prosecutors. There was a case, Imbler v. Pachtman, where a prosecutor knowingly used perjured testimony that led to an innocent person being convicted and spent nine years in prison. The Supreme Court said prosecutors had absolute immunity for their prosecutorial acts. Or a case that happened here in Southern California, involving a man by the name of Tommy Lee Goldstein, who spent 23 and a half years in prison for murders he didn't commit. There was serious prosecutorial misconduct in not turning over key evidence to the defense, and the Supreme Court ruled that the prosecutors were protected by absolute immunity and couldn't be sued. I could give so many other example of this. Now, I could also talk to other areas. My guess is unless you focus on this area of law, you don't realize if a police officer lies on the witness stand, commits perjury, the police officer cannot be sued for money damages even if intentional lies are proven. Now, the police officer might be administratively disciplined, might be criminally prosecuted, but a police officer's absolute immunity to civil suits for money damages for any testimony given on the witness stand, even perjurious testimony. Now I can get to your question. I don't think there should ever be absolute immunity. We could certainly decide what's the standard we need in order to protect judges and prosecutors and police. We can have what the appropriate standard is to screen out the non-meritorious suit. But when judges and prosecutors and police are using their power to inflict such great injuries, there should be the ability of the injured person to recover.

[RH] What do you think about the deterrence concern?

[EC] Well, it's exactly because of the deterrence concern that I think civil liability is so important. We want civil liability in part to compensate the injured victim, but in part to deter wrongdoing. I think that if judges are liable, and we can, say, for their intentional violation of Constitutional rights, I think that we will deter ... I'm not worried about over-deterring the judges. I'm worried about the situations like Stump v. Sparkman and Mireles v. Waco, or the prosecutors Imbler v. Pachtman.

[RH] You know, Article III of the Constitution limits federal courts to deciding cases and controversies. As I just told my remedy students, the courts are not going to settle a disagreement that you and I have over the scope of the partisan gerrymandering claims. They're not going to resolve academic questions, because an academic question means it's something nobody cares about but academics. But courts have imposed much stricter standing requirements, requiring showing that the person suing has an actual stake in their resolution, and in recent years this kept many potentially strong cases out of court, in large part thanks to Justice Scalia's three-part test in a case called Lujan. I'm wondering if you think that federal courts should not be in the business of resolving law professor hypotheticals. I didn't know where your line was. It seemed to me that you would pretty much let anyone in court with any kind of complaint about the understanding of the Constitution.

[EC] No I wouldn't. There has to be a legal claim, or what we would call a cause of action. If somebody has a legal entitlement to a remedy, they should be able to sue. Again, this all sounds too abstract, so let me give you an example, and one that has a real effect on how policing is done in the United States. It's a case called City of Los Angeles v. Lyons about 30 years ago. Involved a man by the name of Adolph Lyons. At the time he was 24 years old. About 2:00 in the morning, he was stopped by Los Angeles police officers for having a burnt out taillight. The officer ordered Lyons out of his car and slammed Lyons hands above his head on to the roof of the car.Lyons had his keys in his hand, and then he complained to the officer that the keys were cutting into the skin of his palm. The officer then administered a chokehold on Lyons and rendered Lyons unconscious. Lyons awoke. He urinated and defecated. He was spitting blood and dirt. He was given a traffic citation and allowed to go. Lyons did some research and discovered at that point, 16 people in Los Angeles had died from police use of the chokehold, most all like him, African American men. Lyons sued the City of Los Angeles for an injunction to stop the police from being able to use the chokehold except when necessary to protect the officer's life or safety. But the Supreme Court ruled, again 5 to 4, that Lyons lacked standing to sue. The Supreme Court said Lyons could not show that it was likely that he personally would be choked again in the future. The Supreme Court said a plaintiff like Lyons has to show a likelihood that he personally will suffer the injury. This makes it very difficult to bring suits against police departments, very difficult to bring suits against the government, even when we know there's an unconstitutional policy. We don't know exactly who is going to be hurt by it; that's very different than two law professors talking about an academic issue. This is somebody who did personally suffer an injury, and Lyons would continue to suffer an injury as long as this was the policy, even if he wasn't re-choked again, because every time he would go out, given the Los Angeles Police Department, he'd have reason to fear he might get stopped and might have that horrifying experience that would even result in his death. I think the question is does the person have what the law calls a cause of action? A legal entitlement to relief on proof of specific act? And I think what's the problem is that the Supreme Court too often has kept people with real injuries from being able to sue.

[RH] Would anyone ... Should anyone who, if LAPD still had this policy, be able to sue?

[EC] Certainly I think, given that at that point 16 black men had died from it and countless others, I think certainly any African American man in the city should have been able to say, "I am in fear that I'm going to be stopped by the police and I'm going to be subjected to the chokehold." If nothing else, Lyons, who's been subjected to it, has the injury that's sufficient for standing.

[RH] I want to turn to habeas corpus, which stands out as different from other doctrines, the one I know the least about and learned the most from in the book. It involves people who have either been convicted of crimes or, even worse, held without being convicted of crimes for an indefinite period. Habeas at least in theory gives federal courts a chance to take a look at Constitutional violations occurring at the state or federal level and to remedy them. It's no secret that in Congress, criminals and criminal defendants don't have strong lobbies, and Congress has passed some laws regulating habeas practice that have made it harder for defendants to raise the claim. My question here is who's more to blame? Is lack of access primarily a problem of how the courts have interpreted the Constitution and statutes, or is it more a problem caused by Congress through the passage of laws such as the Antiterrorism and Effective Death Penalty Act of 1996? Who's to blame and what's to be done about it?

[EC] Most of the book is about Supreme Court-created doctrines. What we've talked about so far, like with regard to sovereign immunity with regard to standing, is judicially created. For habeas corpus, both Congress and the Supreme Court deserve the blame. The Supreme Court even before 1996 had adopted a number of decisions, number of doctrines that made it very difficult for those who had been unconstitutionally convicted to get in Federal Court. Congress then made it much worse with the statute that you mentioned. If you listen to the title, it's called the Antiterrorism and Effective Death Penalty Act, and then the Supreme Court made it even worse by interpreting that statute to really bar people from getting into court. Again, this all sounds so abstract, but let me give you an example. This is actually the first case that I ever got to argue in the Supreme Court. It's on behalf of a man by the name of Leandro Andrade. He was sentenced to life in prison with no possibility of parole for 50 years for stealing $153 worth of video tapes from Kmart stores in San Bernardino, California. He received this sentence under California's Three Strikes law even though he'd never committed a violent crime. He received this sentence under California's Three Strikes law even though prior to California's Three Strikes law, no one in the history of the United States had ever received a life sentence for shoplifting. Now, in order to get habeas corpus under a specific statutory provision, because of this 1996 law, 2896 Code 2254(d), a person has to show that a state court decision is contrary to or an unreasonable application of clearly established laws articulated by the Supreme Court. What we need to show is that the state court decision is inconsistent with the Supreme Court precedent. I had a Supreme Court precedent. It was a case called Solem v. Helm where a man was given a sentence of life without parole for passing a bad check worth $100. The Supreme Court said that's cruel and unusual punishment. I could say "My client should get habeas corpus because I have a case just like this." In fact, these factual similarities between Solem v. Helm, and my case Lockyer v. Andrade, were striking. Andrade and the person in Solem v. Helm were the same age. They both served in the military. They both got addicted to drugs while in the military. They each had three children. You can't get a case that's more on point than this. I was appointed by the United States Court of Appeals to the Ninth Circuit in this case, and won there, with the Ninth Circuit saying "This is cruel and unusual punishment," and we can get relief under the habeas corpus statute. I lost in the Supreme Court 5 to 4. Justice O'Connor wrote ... It was an ideologically divided court, and she said I don't get relief because of the habeas corpus statute. She said, "Solem v. Helms is distinguishable. His sentence was life without the possibility of parole. Andrade is eligible for parole in the year 2046 when he'll be 87 years old. Therefore, you can't say that there's a Supreme Court case on point." I'm not caricaturing her. That's what the decision said. Now, anything we know about prisoner life expectancy is that he wasn't going to live to be 87 years old and make the year 2046. It was life without possibility of parole. After this case, and it's really an aside for our purposes, I brought another habeas corpus petition on behalf of somebody who was given a sentence of 225 years to life. Only a lawyer can use an expression like "225 to life." I said, "This really is life without possibility of parole." The Federal Court denied habeas corpus based on Lockyer v. Andrade.

[RH] Well, do you want to tell what happened to Andrade?

[EC] Well, the good story is you might remember that four years ago, California voters amended the Three Strikes Law to say that the third strike had to be a serious or a violent crime, and that it applied retroactively, and Andrade then got out because of that, so he won't have to remain in prison. But he spent another decade in prison, because I lost this case in 2003, and he ultimately got out in 2013, so thankfully it's not until the year 2046 but he did spend another ten years in prison because of the habeas corpus statute and the way the Supreme Courts interpreted it.

[RH] In your final substantive chapter, we get to the potpourri section.

[EC] That's exactly right.

[RH] Hitting on pleading rules, abstention, and class actions. I wanted to ask you here ... It's a different kind of question, an empirical question to the extent that you can venture an estimation – How many people are being denied remedies because of these doctrines? My sense is that if we talk about just consumer class action alone, these accounts from millions of people, and you tell the story and you may want to tell more, but of just the AT&T mobility case involving a company taking a little bit of money from many, many people and not being able to get an effective remedy there. But it's hard for me to get a sense of the harder pleading rules and all these things. How many people are actually affected on a day-to-day basis by these rules?

[EC] I don't know any way you can count. I can certainly talk about the case you mentioned. It was a Supreme Court decision about five years ago, AT&T Mobility v. Concepcion. AT&T was advertising free cell phones for those who signed up for its service. The Concepcions, a married couple, went to sign up for the service. They, like all of us, had to sign an agreement. They, probably like most of us, didn't read the agreement they were signing. They were surprised when they got their first monthly statement. They were each charged $32.80. This was the sales tax. They thought that since AT&T promised free cell phones, it should have to absorb the cost of the sales tax. Decided they wanted to bring a class action suit against AT&T for fraud. Well, there's a clause in their agreement that said that any dispute with AT&T arising on the service, they'd have to go to arbitration. They couldn't go to court. There's a federal statute, Federal Arbitration Act of 1925, that says that arbitration clauses in contracts that are part of interstate commerce shall be enforced. Unless they're revocable under state law. And the California Supreme Court had specifically ruled that such arbitration clauses aren't enforceable in California. That there's no real contract there. There's no bargain for exchange. In the law, they're called contracts of adhesion. The Federal Court of Appeals ruled in favor of the Concepcions, saying the Federal Arbitration Act doesn't apply. The Supreme Court reversed 5 to 4. Justice Scalia wrote the opinion and said that the Concepcions had to go to arbitration. They couldn't go to court. Justice Breyer in his dissent said, "Be clear about what this means. It's not going to mean hundreds of thousands of millions of claims against AT&T. It's going to mean no claims against AT&T." 'Because no one's going to sue or go to arbitration for $32.80. That's where we need class action suits. In fact, people have done studies and found there have been virtually no arbitrations against AT&T for this reason. Now again, I want you to think of this in terms of human impact. These arbitration clauses are increasingly common in employment contracts, in consumer contracts, in medical contracts. Not too long ago, I went to see a new eye doctor for the first time. I was given a big stack of papers to fill out, and in the middle was a form that I was asked to sign that if any claims against the doctor, I couldn't go to court. I'd have to go to arbitration. I said to the receptionist, "Will the doctor still see me if I don't sign?" She said, "I don't know. Nobody's ever asked me that question before." Twice in the last six weeks I've been told by individuals, one a Federal Court judge, and one a leading plaintiff-side lawyer, that they had had doctors who would not treat them without signing the arbitration clauses. Around the same time this happened, I bought a new Dell computer. As you know, in order to use a computer and iPad for the first time, you have to click that you've read the terms and agree to them. I usually just click and use the machine. For the iPad the terms are 46 single-spaced pages long. But when I got my new Dell computer, I decided to read the conditions, and sure enough, there was a clause that said if I had any claims against Dell arising under the computer, I couldn't sue Dell. I'd have to go to arbitration. I wrote Dell a letter saying I did not agree to that clause, and by opening the envelope of my letter, they agreed I could sue them if we had a dispute. Dell did not write back. The computer sort of works, still.

[RH] Get a Mac. Now that we've gone through the different parts of the book, I want to ask you some bigger picture questions before opening up to the audience for their comments and their questions. Let me start with this, and this was the part of the book that I had the most trouble understanding your argument. You frame this as a fundamental dispute between you and your critics as one about what the purpose of the federal courts is. You say some people see the purpose of the federal courts is to resolve disputes, but you see that the more fundamental role is to enforce the Constitution. I wasn't sure I understood the distinction between the two, and I think this maybe ties into the question of is what you're really looking for, and you mentioned this in your response to counterarguments, that what you really want is for the courts to be empowered to give remedies towards more liberal ends? Aside from the Second Amendment context, which is an example you give, it looks like most of the kinds of claims would be more pro-consumer, pro-plaintiff, anti-government kinds of lawsuits. I'm just wondering if you could separate the ideology from the arguments in the book.

[EC] My premise is that the preeminent role of the federal courts is to enforce the Constitution. That the Constitution is about limiting government. Those limits have meaning only if they're enforced. That's not a liberal idea. That's what Chief Justice John Marshall said in Marbury v. Madison in explaining why it's the province and duty of the Judicial Department to say what the law is. Now, what I argue for in the book is that government and government officers should be able to be alliable when they violate the Constitution. That standing doctrine should facilitate it. That a prisoner who claims to be held in violation of the Constitution and laws of the United States should be able to have a remedy. I don't think those should be liberal or conservative ideas. But if they are liberal at this point in time, then I'm glad to say I wholeheartedly adopt them.

[RH] Finally, I want to turn to the "Why bother" portion of your conclusion. You said you wrote this book knowing it would be very difficult to get the Supreme Court or Congress to change some of these rules, such as requiring the overturning of precedents or rewriting of statutes. On this, I have a two-part question. I'll ask you the first part and then have you answer, and then come back to the second part. First, how has the election of Donald Trump and the likely solidification of a conservative majority on the Supreme Court for the next generation changed your thinking, if at all, about the issues in the book?

[EC] I sent this book to my editor at Yale in September of 2015. I then went through the copyediting process and production process over the course of last spring and maybe into the summer. I have to admit that when I wrote this book I was hopeful that the ideology of the Supreme Court would change. Since 1971, when Richard Nixon got his third and fourth justice to confirm for the court, until February 13th, 2016, when Justice Scalia died, there were always at least five and sometimes as many as eight justices appointed by Republican presidents. I was hopeful, even before Justice Scalia passed away, that there was going to be the opportunity for a majority appointed by Democratic presidents. These doctrines shouldn't be ideological, but all the cases that I've talked about were ideological, so I was hopeful that it would change. I was hopeful that Congress would change. It's not going to happen. There's going to be at least five Republican justices very soon on the Supreme Court. It's possible depending what happens with Justice Ginsburg or Justice Kennedy or Justice Breyer that Donald Trump might get one or more picks for the Supreme Court. To me, that doesn't make the book less important. It makes it just as important to point out what the Supreme Court has done, and as I said in response to your initial question, part of what makes this so insidious is people don't pay attention to doctrines like sovereign immunity and standing in habeas corpus, and our rights are meaningless unless we have a place to enforce them.

[RH] My final question is, for the lawyers in the room, the 12(b)(6) "So what" question. Imagine that tomorrow all of the doctrines that you want reversed are reversed.

[EC] My grandmother would use the phrase "from your lips to Gods ears."

[RH] Yes. There's another Yiddish expression that I would say, but I can't say in public. If that happened ... I kept hearing you say, "and on a 5 to 4 vote, and on a 5 to 4 vote" ... When we get to the substance of Constitutional law and the substance of statutory interpretation, we have the same divide. How much of this is about access to the courts versus an ideological battle that's just being fought in a different arena or in a different set of cases? Would things really change if these cases could be heard on the merits by the Supreme Court, the same Supreme Court that's been dividing 5 to 4?

[EC] Often, yes. Take habeas corpus for example. I think if those who are wrongly convicted had access to the courts, it would make an enormous difference in their lives, and I believe in police and prosecutor practices. I believe if state governments and state offices could be sued when they violate the Constitution, it would change behavior as well as compensate those who were injured. Undoubtedly, these doctrines are tied to the Justices' views the merits. I think there's a reason why the conservatives who are restricting jurisdiction ... It's a way for them to achieve their substantive goals through procedural doctrines. If the procedures change, I hope the substance will change, but just changing these I think could make an enormous difference in people's lives. This is all about people's lives, often in the most important, the most intimate aspects of people's lives.

[RH] I suppose that if these doctrines changed, allowing access into the courts, that there would be a lot that could happen in the lower courts that the Supreme Court would not necessarily affect. All right, we have time for a few questions, if anyone has a question. Yes.

[Audience Member] I wanted to talk about the Lyons case that you mentioned with the police officers. It seemed like the court had reached some kind of a circular reference error. If he had gone through an incident that he was seeking relief, he was black and a citizen of L.A., and those three things on their own were insufficient for him to have a stake in the outcome, it's almost as if the court is saying the only way he has a stake in the outcome is if these police department are actively letting him know that they are coming after his life to do the same thing under the same circumstances, which just seems irrational. Did they offer any other kinds of guidelines to what they would accept if those three things, the fact that it happened to him before, his race, his citizenship in LA, were insufficient, do they offer any other guidelines as what-

[RH] Before you answer, I'm supposed to repeat the question for the web audience. I'm not going to repeat the whole question, but the question is about the circular reasoning in Lyons and whether or not the court offered any additional proof that could have been offered so that the case had a chance to be heard on the merits.

[EC] Justice Byron White wrote the opinion for the Court in Lyons, and this is just a suit for injunctive relief. Could he get an injunction to stop the Los Angeles Police from using the chokehold except when it’s to protect  the officer's life or safety. What Justice White said is it's not credible to believe that Lyons is likely to be stopped by the police and choked again in the future, and since he can't show that he personally would suffer the injury in the future, he can't sue for injunction. Or I'll give another example where this was applied. It was a lower court case in Chicago where women who were stopped for minor traffic violations were strip-searched by the police. They brought a lawsuit against the Chicago Police Department to stop this horrifying, degrading practice, and the Federal District Court said, "These women plaintiffs can't show that they're likely to be stopped for traffic violations again in the future and then be subjected to a strip search, so they lack standing to sue." I could take this out of the police context and give you that, but the answer to your question is I've presented to you exactly what Justice White said in the City of Los Angeles v. Lyons. Since Adolph Lyons couldn't show he personally was likely to be choked again in the future, he could not sue for an injunction.

[Audience Member] Do you see semblance of a political questions, doctrines seeping itself into these sort of decisions where the Supreme Court is sort of saying, "Look. These are political questions whether LAPD should be using a chokehold. They should be answered by the city council criminalizing it and then they have a criminal prosecution, but judges shouldn't be making these decisions in civil suit."

[RH] Don't answer.

[EC] Oh. Sorry.

[RH] Hold your fire. Is there something connected here to a kind of political question doctrine that these are issues that should really be resolved in the political process rather than be resolved in the courts? And I would just add on to that that Judge Gorsuch wrote a piece in 2005 in the National Review online where he made a similar point that the left relies too much on the courts for trying to get relief, and it should all be fought in the political process.

[EC] Let me answer in two ways. One is in terms of the role of the courts and the second is in terms of literally the political question doctrine. I've said here and I say in the book that the role of the court should be to enforce the Constitution. Now, Rick says there's a competing view that I take on, and it's a view that Justice Scalia often articulated, saying we need to limit the role of the Federal Court in the system of separation of powers. But that begs the question about what should be the system of separation of powers. If you begin with my premise, that the role of the court is to enforce the Constitution, then that's what separation of powers should provide with regard to judicial behavior. My answer is when there's an allegation of the Constitution being violated, we don't leave that to the political process. To me, that goes back to Marbury v. Madison. It's the province and duty of the judicial department to say what the law is, because otherwise the limits in the Constitution have no meaning. Now, the second thing is there is something called the political question doctrine where the Supreme Court says there are some allegations of Constitutional violations that the federal courts will not adjudicate. And in one of the chapters I discuss that and argue that it's also inconsistent with the idea that if there's a claim of a Constitutional violation, it's the Federal Court's job to interpret the Constitution and to enforce it.

[RH] Do you have any response in particular to Judge Gorsuch's ... I don't know if you had a chance to read that.

[EC] I had.

[RH] He said Brown v. Board of Education, that was great, but since then there's been too much resort to the courts for the expansion of rights.

[EC] I want to answer by comparing two Supreme Court decisions that came down one day after the other. I know you discussed them in your new book manuscript. One was Shelby County, Alabama v. Holder, which came down on June 25th, 2013, where the Supreme Court 5 to 4 declared unconstitutional a key provision of the Voting Rights Act. Chief Justice Roberts wrote, joined by Justices Scalia, Kennedy, Thomas, and Alito. The next day, the Supreme Court decided United States v. Windsor, where the Supreme Court 5 to 4 struck down Section 3 of the Defense of Marriage Act. There, Justice Kennedy wrote, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The reason I compare these two cases is that the conservatives in one case were striking down a federal law, and the liberals were saying "We need to defer to Congress as a guard to the Voting Rights Act." The other was the liberal justices were striking down a federal law and it was the conservatives who were saying, "We have to defer to Congress." The lesson that I draw from that is, both conservatives and liberals at times want the court to strike down laws, and at times they want deference. They just disagree about when. The conservatives were very happy when conservative justices struck down key provisions of the bipartisan Campaign Finance Reform Act and Citizens United v. Federal Election Commission, the focus of your last book. Conservatives are very happy to have the Supreme Court strike down gun laws. Conservatives are very happy to have the Supreme Court strike down a provision in the Voting Rights Act. It's not like conservatives are arguing that we’ve got to just defer to the political process. They want just as much judicial activism, they just want it in different areas.

[RH] Time for one more question. Yeah. 

[Audience Member] Since we have the dean in the room, let's get some free legal advice from him.

[RH] I'm going to turn to you then as my lawyer.

[Audience Member] Do the states of Washington and Hawaii have standing in your perception to challenge President Trump's new executive order immigration?

[RH] The question is, do the states of Washington and Hawaii have standing to challenge the new, revised executive order on travel that the Trump administration has released?

[EC] Your question, is in my conception of standing, that would be easy. Yes. I think the more important question is under current standing law do they have standing? I would say yes they do. In fact, the Ninth Circuit, its ruling maybe a month ago, three weeks ago, specifically held that the state of Washington had standing to sue, in part because it's suing on behalf of its students and its other residents who are affected by this. There is a doctrine that says that a party can raise the claims of a third party not for the court if there's a sufficient identity-of-interest, that the plaintiff can be trusted to represent the interest of the third party. The Ninth Circuit said that was present. There's also a doctrine that lets the states sue on behalf of its citizens, one that's called parens patriae, and that was present. I think the Ninth Circuit got it right with regard to that. I think the same analysis would apply with regard to the new suit by the state of Washington, and the state of Hawaii, which is also in the Ninth Circuit, so I don't think I need to expand standing to be able to do this. To me, this is why it's so important that we allow standing to sue in Federal Court. There is a serious claim here that the Constitution has been violated, that the Trump executive order is religious discrimination. There's serious claim that the Trump order is violating federal statute, a 1965 statute that says that visas and immigration policy, can't base on country of origin. There should be the ability to sue it, and the state of Washington I think is representing its citizens and noncitizens, documented and undocumented being able to bring this.

[RH] Last, last question.

[Audience Member] Sort of to follow up to the executive order question, I'm wondering what future you see as to foreseeing international law claims in U.S. courts. I know with the Medellin it's sort of pessimistic, but that also seems to me the worst possible set of facts and force it claims, and as it relates to the travel ban, there is the law such as the Refugee Protocol and Convention, which was integrated into U.S. Immigration law. I’m curious, do you see any future for international law being enforced in the courts, or is it sort of a lost cause at this point?

[RH] The question is about the enforcement of international law in the federal courts, especially after the Supreme Court's decision in the recent Medellin case.

[Audience Member] Unfortunately, the Supreme Court has been very hostile to enforcing international law in the United States courts. One area of this is there's a federal statute, the Alien Torts Statute, that allows victims of human rights abuses to sue in the American courts, and the Supreme Court in a couple of cases, Alvarez-Machain v. United States, Kiobel v. Dutch Petroleum, both argued by Paul Hoffman from our faculty, said such claims can't be brought. It's obviously a long story and we're short of time, but the simple answer is, I think with the current court and the court that's foreseeable, I don't see the Supreme Court being amenable to enforcing international law or international human rights in American courts.  I hope I'm wrong on that, but I don't see any indication from this court that it's going to change.

[RH] Let me remind you that there's going to be a book signing outside and a reception, and there will be people guiding you to the library. Is that right? But if everyone will join me in thanking Erwin for sharing with us.

[EC] And thanking Rick!

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.