Wednesday, May 29, 2024

COSELL Registration Now Open!

Dear Colleagues,


The 19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be co-hosted by the University of San Diego School of Law (USD) and California Western School of Law (CWSL) in San Diego, California on Friday, September 13 and Saturday, September 14, 2024. This is a works-in-progress event. We do not require the submission of papers.


We plan a full day of panels with continental breakfast, lunch, and dinner at USD on September 13. A half day of panels with continental breakfast and lunch is planned at CWSL on September 14. There is no charge for registration. Meals are provided. Speakers must pay for travel and accommodations. Our colloquium webpage is now live, and contains links for paper/topic registration and hotel reservations. Please register as early as possible but at the latest by Friday, July 19, 2024. The link to the 19th Annual COSELL webpage appears below.


19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL)


Looking forward to seeing you in San Diego! Questions can be addressed to Susan ([email protected]) or Orly ([email protected])


Posted by Orly Lobel on May 29, 2024 at 09:05 PM | Permalink | Comments (0)

Tuesday, May 28, 2024

A Requiem for "Workable Government"

One of the famous passages in Justice Robert Jackson's Youngstown concurrence is about the functional nature of separation of powers.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

The Court first quoted from this passage in United States v. Nixon and did so many time afterwards. Since 1996, though, the Court has not cited or quoted these lines favorably. In Selia Law, the Court said that the arguments being rejected drew inspiration from Jackson's view.

Of course, this makes sense given the formalist turn in separation of powers law. One point that I will discuss in the Conclusion of my book on the concurrence is whether the entire opinion will fade out over the next few decades.

Posted by Gerard Magliocca on May 28, 2024 at 03:53 PM | Permalink | Comments (0)

Trump on Closing Arguments

Trump on argument sequence

He happens to be right. It is quite unfair that the prosecution gets to argue last, although I have never known a Republican to complain about that in the trials of anyone else.

I actually know something about the origins of the sequence, at least in some jurisdictions. In the late nineteenth century there was a great trial lawyer named Daniel Voorhees, who was a major figure in my book, John Brown's Spy.

He was also a senator from Indiana, who had been a Copperhead during the Civil War and, as a congressman, had been one of the major opponents of the Thirteenth Amendment.

In those days, senators could practice law, and Voorhees had been almost unbeatable in a series of high-profile trials, especially because the argument sequence had the prosecutor arguing first, then the defense, with no rebuttal. The sequence was specifically changed to add rebuttal in order to give the over matched prosecutors a chance at winning convictions.

(In 1859, before he was elected to congress, Voorhees was defense counsel for John E. Cook, who was arrested following his participation in John Brown's raid at Harper's Ferry. It was one of the few trials he lost. Cook was convicted and hanged, even though Voorhees had convinced him to provide a confession implicating others, thinking he had a deal.)


Posted by Steve Lubet on May 28, 2024 at 02:04 PM | Permalink | Comments (0)

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

Continue reading "Erie and the source of multi-part tests"

Posted by Howard Wasserman on May 28, 2024 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, May 27, 2024

The Ten Commandments in Louisiana

My new essay for The Hill explains that Louisiana's Ten Commandments law is unconstitutional for more reasons than you might think. Here is the gist:

Louisiana wants the Ten Commandments in schools. But which version?

Once it is signed by Republican Gov. Jeff Landry, Louisiana will be the only state to mandate displaying the Ten Commandments, “on a poster or framed document that is at least 11 inches by 14 inches” in every classroom, “printed in a large, easily readable font.” 

The very specificity of the bill, which includes a governmentally endorsed religious text, may prove its undoing.

Posting the Ten Commandments is an essentially religious act — not only because it favors religion over non-religion, but also because it invariably favors one faith tradition over others.

The Louisiana statute requires a distinctly Protestant text, with Elizabethan language based on the King James Bible, which differs significantly from the versions used by Catholics, Jews and others. Some differences are inconsequential, but others have deep theological implications.

That is where the Louisiana legislature went badly wrong. Even the simple act of posting the Ten Commandments in schoolrooms can signify centuries-old religious discord.

You can read the full essay at The Hill.

Posted by Steve Lubet on May 27, 2024 at 10:25 AM | Permalink | Comments (0)

Saturday, May 25, 2024

Saturday Music Post - Gimme Shelter

The clips, for which no introduction is needed, are at The Faculty Lounge.


Posted by Steve Lubet on May 25, 2024 at 05:08 AM | Permalink | Comments (0)

Friday, May 24, 2024

An Addendum: Language Matters

It strikes me that the last couple of posts I've written about campus speech issues--on the "it's not a protest if" assertion and on the difference between "peaceful protest and non-violent protest"--lean heavily on making a big deal about what others might consider semantic quibbles. As an academic I'm fine with making a big deal out of semantic quibbles. (In the book A Terribly Serious Adventure: Philosophy and War at Oxford, 1900-1960, Nikhil Krishnan recounts the story of a don describing the philological question on which he had been lecturing at great length: "Absolutely insoluble problem, of not the slightest importance." That sounds perfectly wonderful to me.) But I think such quibbles do matter. They clarify our thinking in such matters, especially when the subject is one with great immediacy and emotional impact. They better help us describe what it is we are arguing about when it comes time to argue about whether something is permitted or not, should be permitted or not, and so on. (Are we arguing about whether and when officials can break up "peaceful protests?" Non-violent but not truly peaceful protests? Protests that "defy the authorities?" What is the it that is the subject of our attention and our arguments about what is allowed?) They enable us to better guard against mere propaganda, the use of arguments, descriptions, tropes and memes, and pre-loaded definitions that are meant to make us think as someone else would have us think rather than think for ourselves--propaganda that is often swallowed whole, often repeated unthinkingly by journalists, and competing uses of which end up taking up more time, attention, and passion than arguments about the thing itself. And as I suggested in my last post, because there is often an imperfect boundary between free speech as a doctrinal and as a cultural matter, and because discussions and understandings of one often bleed into the other, they help us better identify which domain we're arguing in and about. This is good for clarifying discussion and prescription in both domains and, for that matter, in whatever "liminal" remainder there is. These kinds of improvements to or clarifications of general public discourse may be mere drops in a bucket. But after all, when it comes to public discourse, the depositing of individual drops in very large buckets is precisely and possibly solely what academics are here to do.   

Just by way of closing, let me offer an illustration that renders the point less abstract: If one is thinking clearly and using language clearly, one knows that a boycott is a purposeful relation to deal or associate, generally for political or moral reasons and generally in the form of a measure intended to inflict economic pain. On the other hand, a judge or law firm's insistence on selecting law clerks only from "top" law schools, however ill-advised, arrogant, and foolish it may be (and I tend to think such a policy are mistaken for these and other reasons), is not a boycott. Indeed, it bears no useful relation to it, and thus is useless for purposes of analogizing to boycotts. 

Posted by Paul Horwitz on May 24, 2024 at 03:16 PM in Paul Horwitz | Permalink | Comments (0)

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Posted by Paul Horwitz on May 24, 2024 at 01:21 PM in Paul Horwitz | Permalink | Comments (0)

Infield fly interference double play (Updated Twice)

A wild ending to last night's Orioles-White Sox game. It offers a new entry in the Berman/Friedman "jurisprudence of sports" canon and a nice example of all the problems when the public (including "the media") discusses law.

The White Sox have 1st/2d-one out in the bottom of the ninth. The batter hits a fly ball on the infield grass. Orioles shorstop Gunnar Henderson, stationed behind second base, moves to the ball. He momentarily stops and goes around Andrew Vaughn, the runner on 2d, as he retreats (slowly) to the bag; Henderson gets under and catches the ball. The second-base ump calls infield fly, putting the batter out. The third-base umpire calls Vaughn out for interference, ending the game on a double play. Chaos and nonsensical indignation from the Sox announcers ensue and continues onto the interwebs.

Continue reading "Infield fly interference double play (Updated Twice)"

Posted by Howard Wasserman on May 24, 2024 at 09:48 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 22, 2024

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Posted by Howard Wasserman on May 22, 2024 at 04:42 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 21, 2024

Leiter on Academic Boycotts

Brian Leiter is a long-time and often sharp critic of "US-funded Israeli crimes." Nonetheless, he opposes the renewed call for an academic boycott, with this cogent explanation:

The scale of the unfolding atrocities in Gaza has given renewed momentum for calls by academics to boycott Israel, including Israeli academia.  I won't do that, but I also won't sign the circulating petition denouncing academic boycotts of Israel:   individuals should retain the right to protest what is happening in Gaza in any lawful ways they choose to do so, including boycotts.  From where I sit, Israeli academia still represents the most reliable opposition to government policy that has brought Israel to this point, and I don't want to be party to a collective punishment of Israeli academia that will have zero impact on the current war criminals in power there (Netanyahu and company already hate academia, just like they hate the courts).

It is hard to understand why he won't sign the "circulating petition" (presumably this one, posted on Prawfs and elsewhere), on the ground that individuals should retain the right to boycott. There is nothing in the statement that remotely contradicts or challenges anybody's right to protest or boycott Israel. Instead, it says:

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions.

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community.

Of course, Leiter can sign or not sign anything he chooses, but the statement seems to coincide almost precisely with his own recognition that "Israeli academia still represents the most reliable opposition to government policy" and his opposition to "a collective punishment of Israeli academia." 

The statement now has over 5500 signatories, and is open for additional signatures here.

Posted by Steve Lubet on May 21, 2024 at 01:18 PM | Permalink | Comments (0)

Monday, May 20, 2024

Woodrow Wilson and the Senate

I came across an interesting bit of trivia today. President Wilson gave a speech to the Senate in 1918 urging them to ratify the Nineteenth Amendment after the House passed the proposal. As far as I can tell, this is the only time in modern history that a President gave a speech to only one House of Congress. Presidential speeches are, of course, usually to a Joint Session. George Washington did go to the Senate at the very beginning to get their "advice and consent" on something, but quickly realized that was not the right approach.

Posted by Gerard Magliocca on May 20, 2024 at 11:09 AM | Permalink | Comments (0)