Tuesday, January 24, 2023

Three Modalities of (Originalist) Fiduciary Constitutionalism

I have posted my forthcoming paper in the American Journal of Legal History here.  The title is "Three Modalities of (Originalist) Fiduciary Constitutionalism" and an abstract follows:

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

 

 

Posted by Ethan Leib on January 24, 2023 at 10:08 AM | Permalink | Comments (0)

Monday, January 23, 2023

Easter Egg in the Omnibus Bill

The bill to name the Post Office in Cadiz, Ohio after John Bingham was enacted. Here is the enrolled bill.

This marks the one (and probably only) time that one of my ideas became law. I hope to be at the ceremony this summer.

Posted by Gerard Magliocca on January 23, 2023 at 07:35 PM | Permalink | Comments (0)

Saturday, January 21, 2023

"They Cite Baude, Not Balkin"

This is an enjoyable post by David Pozen, written as part of a 20th anniversary series on Balkinization. (Happy anniversary!) I appreciated both its reminder of Balkinization's role during the War on Terror and its discussion of the role of means-of-production and technological questions in the rise or fall in influence of something like Balkinization. I also agree with him that you should continue reading the blog.

But I did wonder about the aptness of this passage: "The Court’s controlling conservative bloc has no appetite for arguments promoted by left-liberal academic elites, even when framed in ostensibly congenial originalist terms. They cite Baude, not Balkin." I'm not sure this can or should be laid at the feet of "the Court's controlling conservative bloc." I do not say this to be rude. (Deflationary, perhaps.) But the reality is that none of the Justices cite Balkin--nor, as far as I can tell, have they ever, pre-or post "conservative bloc." They do cite Baude an awful lot. But Baude has been cited more often (that is, once, I believe) by current liberal Justices than Balkin has. And I would add that, on the whole and holding Justice Jackson in abeyance, based on the kinds of articles they cite, the Democratic appointees to the Supreme Court don't seem to have any particular interest in "left-liberal academic elites" either. Certainly that's true if you emphasize the "left" in "left-liberal academic elites." When they are not using academic citations to fight fire with fire, their interest, which is tepid at best, is mostly in "liberal academic elites, either centrist or writing in centrist mode, offering fairly staid and conventional doctrinal arguments of the sort that could have been written at any time in the last 70 years." The Democrats on the Court are not a "Nomos and Narrative"-citing bunch. (Mark Tushnet, who is as interesting as Cover, has been cited a couple of times in this era--for doctrinal criticisms of Roe and of the Lemon test. ) 

I don't mean this as a criticism of Balkin, God knows. For one thing, he is influential; for another, my own cite count at the Supreme Court stands at a steady and reliable zero. Most importantly, I don't see not being cited by the Supreme Court as cause for criticism. But I think the clarification is worth making, both because it suggests that this is not just about the indifference of "conservatives" and because it suggests that there might be a broader disconnect between the current state of the "academic legal left" and anyone on the Court--not just because its attentions have turned to projects like political economy, but more fundamentally because none of the sitting Justices particularly share the politics, commitments, or worldview that Pozen describes as characterizing the "academic legal left." I seriously doubt a Justice Garland would change that.

Nothing about this should be surprising; elite judges and elite academics are two different sectors of the establishment with a widening gap between them. But it does suggest limitations for the model that Pozen discerns and praises in the blog: "marrying moral commitment to legal craft" in the cause of "establish[ing], in real time, shared understandings, narratives, and positions about the biggest threats to the constitutional order." Pozen, to be fair, only suggests that the Court was or might be one "plausible part of the blog’s imagined audience or praxis." But perhaps it was always more accurate to think of it, and most legal academic blogs (this one included), as serving the more modest function of providing elite commentary that seeks to influence other elite commentators. 

Posted by Paul Horwitz on January 21, 2023 at 09:48 PM in Paul Horwitz | Permalink | Comments (0)

A Dissertation Idea

I have a great dissertation topic for anyone who is interested. The National Archives holds hundreds of Section Three amnesty petitions that were sent to Congress during Reconstruction. I've been looking at some of them, but there are far too many for me to examine. And most of them are not digitized. The National Archives catalog entry is here.

Here is one digitized example. The petitions are interesting in that they contain personal narratives from those requesting relief. Some of these narratives are quite detailed, and they come from states and jurisdictions inside and outside of the Confederacy. They also shed light on the original public meaning of Section Three, as I'll explain after I've gone though more of them.

Posted by Gerard Magliocca on January 21, 2023 at 11:25 AM | Permalink | Comments (0)

Friday, January 20, 2023

GPT, write something funny about Academia

happy friday all. Something light and interesting for the weekend. I prompted our pal GPT to "write something funny about academia" and here is what is had to say:

"Sure, here is an example of something that could be considered funny about academia:

"Why did the academic cross the road? To get to the other side of the grant application deadline."

This is a play on the classic joke "Why did the chicken cross the road?" and it pokes fun at the often-stressful process of applying for funding in the academic world.

Another one is: "Why do academics never get anything done? They are too busy writing about it."

This is a light-hearted way to acknowledge the irony of the fact that academics are often focused on research and writing, rather than actually completing projects or making tangible progress.

Please note that these jokes are in good humor, and it's not meant to mock or belittle the hard work and dedication of academics, but to lighten up the stress of the academic life."

I do think it needs to be taught that you are funnier when you don''t feel the need to explain your humor....

happily, when I asked it to write something funny about women's experience in academia, it rejected the prompt writing: "it would not be appropriate to make jokes about a person's experiences, particularly if it is related to discrimination, bias, and harassment they may have faced. Making light of these issues minimizes the gravity of the situation and can be hurtful and disrespectful. As a language model, my goal is to provide accurate and respectful information, and it would not be in line with that goal"

Posted by Orly Lobel on January 20, 2023 at 05:59 PM | Permalink | Comments (2)

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

Posted by Howard Wasserman on January 20, 2023 at 03:07 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Apocryphal Quote Alert

Justice Louis Brandeis said that Robert Jackson "should be Solicitor General for life." Or did he? I don't know.

I can't locate the original source for this quote, which often appears in accounts of Jackson's career. (Indeed, I once quoted this line in something that I published about Jackson.) Now I'm wondering if this is a false quote. If anyone knows the original source, I would be much obliged. 

UPDATE: The evidence is mixed. Justice Frankfurter and Tommie "The Cork" Corcoran both told Jackson that Brandeis told them that he made this comment to FDR. That's not totally convincing, but it's not unconvincing.

Posted by Gerard Magliocca on January 20, 2023 at 08:31 AM | Permalink | Comments (0)

Thursday, January 19, 2023

Silber, Outside In: The Oral History of Guido Calabresi

This seems like a fine and worthwhile project from Professor Norman Silber (who has also done fine oral histories of Philip Elman and Herbert Wechsler). Here's a description from the publisher, OUP:

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

 

Posted by Paul Horwitz on January 19, 2023 at 02:00 PM in Paul Horwitz | Permalink | Comments (0)

Thanks to Michael Ariens

Thanks to Michael Ariens (St. Mary's) for blogging about The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press) the past two week. His posts can be found here, here, here, here, and here.

Posted by Howard Wasserman on January 19, 2023 at 01:03 PM in Howard Wasserman | Permalink | Comments (0)

Linguistic Canon Use in Contract Cases

I was asked to summarize my new paper The Textual Canons in Contract Cases on the Oxford Business Law Blog.  I've done so for those interested here.

Posted by Ethan Leib on January 19, 2023 at 09:52 AM | Permalink | Comments (0)

Wednesday, January 18, 2023

The Trustworthiness of American Lawyers (Part V)

The following post comes from Michael Ariens (St. Mary's), the final in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).

Part of the reason for the rejection of social trustee professionalism was ideological. Lawyers had long believed that zealously representing one’s (private) clients was essential to fulfilling the rule of law. The zealous advocate was, in the liberal imagination, opposed by another (and equally capable) zealous advocate. After assessing the evidence presented (and tested on cross-examination) by the lawyers for both parties, and hearing the closing arguments made by opposing counsel, a neutral decision maker (judge or jury) issued a verdict. The lawyer thus served an amoral and modest role within a larger justice system. The instrumental justification rejecting social trustee professionalism was economic; in 1980, median lawyer income, in real dollars, was less than it had been in 1970. This decline in income was related in part to a great expansion in the number of lawyers, as Baby Boomers headed to law schools in record numbers. It was also partly a result of high inflation during many of those years, and partly a consequence of changes in the private practice of law.

Continue reading "The Trustworthiness of American Lawyers (Part V)"

Posted by Howard Wasserman on January 18, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Monday, January 16, 2023

The Trustworthiness of American Lawyers (Part IV)

The following post comes from Michael Ariens (St. Mary's), the fourth in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).

In a 1906 essay, lawyer Charles F. Chamberlayne noted increasing numbers of lawyers warned “that the client’s money too largely dominates professional morale; that rising tides of commercialism stifle the cry of its outraged conscience.” Did the ABA’s 1908 code of ethics alleviate this problem? In a 1909 essay, Chamberlayne thought not. The “panacea” for “low idealism” within the profession was a code of professional ethics. This would not do: “To the fervent cry for the bread of moral life a stone of formalism and negation … has apparently been given.” It was “ideals,” not “thou-shalt-nots,” that lawyers needed. Despite Chamberlayne’s critique, the ABA’s code of ethics, consisting of an oath and thirty-two Canons, was quickly adopted by many state and local bar associations. By 1924 an ABA committee concluded “almost all” state bar associations had adopted the ABA’s Code. In practice, this success meant little. From its adoption beyond the end of World War II in 1945, the ABA Code had little influence on the ineffectual and haphazard lawyer discipline process among the states.

Continue reading "The Trustworthiness of American Lawyers (Part IV)"

Posted by Howard Wasserman on January 16, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Saturday, January 14, 2023

GEICO can intervene over sex-in-car case

The story of the woman who sued her former partner for infecting her with HPV during a sexual encounter in his car gained attention in June. I offered the case as the latest example of journalistic malpractice in covering the court, where stories snickered about the prospect of a multi-million judgment over car sex, ignoring that the case involved a narrow procedural question--whether GEICO should have been allowed to intervene in the state action to affirm the arbitration award, without (at this point) considering whether sex is an ordinary use of a car triggering coverage..

The story returned to the news last week, when the Supreme Court of Missouri ruled that the trial court erred in denying intervention. GEICO moved within 30 days of receiving notice that it (rather than its insured) was the litigation target and before the trial court entered judgment; state law grants intervention as of right.

The case returns to the trial court, with GEICO able to argue that it is not required to cover. GEICO's federal DJ action, also seeking to avoid coverage, remains pending. Both courts must decide whether sex constitutes an ordinary-and-expected use of a car triggering insurance. Let the snickering resume.

Posted by Howard Wasserman on January 14, 2023 at 02:41 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)