Friday, May 16, 2025
Advisor or Adviser?
Where do people come down on this? I use advisor. The copyeditor on my new book insisted on adviser. That's fine, though (unlike a rule of grammar) I'm not sure how you can determine the correct spelling of a word when two seem acceptable.
Posted by Gerard Magliocca on May 16, 2025 at 09:50 AM | Permalink | Comments (0)
Thursday, May 15, 2025
The ABA standards and regulatory modesty
This post is from Prof. David Yellen of the University of Miami Law School. Yellen has served as the dean at Miami, Loyola-Chicago, and Hofstra law schools. He has served on the ABA's Standards Review Committee and on the ABA Task Force on Legal Education, in addition to other leadership positions.
I’d like to add a few thoughts to Dan Rodriguez’s recent posts about the accreditation work of the Council of the ABA Section on Legal Education. Like Dan, I have viewed calls for the replacement of the Council as law school accreditor as misguided. As Barry Currier argues compellingly, having a national “approver” for bar licensing purposes is essential. https://barrycurrier.substack.com/. Despite what I view as a very mixed record by the Council, I have no reason to think that a newly constituted entity would represent a significant improvement, to say nothing of the enormous transition costs involved. And I certainly have no confidence in the Trump Administration’s approach to accreditation “reform”.
That said, some of the Council’s recent actions makes defending it difficult. Derek Muller has explored some of the Council’s overreach. https://excessofdemocracy.com/blog/2025/5/inside-the-abas-relentless-quest-to-make-law-school-accreditation-more-tedious-and-more-expensive . Most notably, the Council has sent out for notice and comment two proposals that, taken together, would represent the most radical intrusion into the operation of law schools that I can recall. One is a proposal to double the number of required experiential learning credits from 6 to 12. The other is to mandate tenure or tenure-like protections for all full time law faculty, including clinical faculty, legal writing faculty and academic support/bar preparation instructors.
To start with the “terms of employment,” while I personally support long term contracts and voting participation for clinicians and legal writing faculty (to be honest, I have not thought much about the issue regarding academic support/bar instructors), I have never seen this a legitimate accreditation issue. It is worth noting that no other accrediting body in the U.S. has any similar provision. And the proposal may be counterproductive: to maintain flexibility, I can see law schools switching from full time to part time faculty in some of these areas, even if they do not believe that makes sense pedagogically.
It is more appropriate for the Council to consider regulations regarding the academic program itself. I share the view that experiential learning is essential and believe that requiring 12 credits as a school-based goal is desirable and attainable (by way of disclosure, a bit over a decade ago, as a member of the ABA’s Standards Review Committee, I voted in favor of the current 6 credit requirement). But the case for a uniform national mandate doubling the current requirement has not been made.
The Council claims that “legal education is significantly behind other professions that require experiential learning.” As a matter of accreditation policy, however, this is not correct. It is true that student doctors, dentists and veterinarians, for example, are required to engage in much more experiential learning than are law students. But this is not because of accreditation rules, and the sources cited by the Council memo do not support their position. Instead, other professional schools require more experiential learning because of culture and licensing requirements.
This is not a small point. There are many reasons, both good and bad, that legal education developed in a way that did not originally emphasize practical training. In recent years, law schools have been evolving to place greater value on experiential learning and I hope that trend continues. Others may disagree. And perhaps bar licensing agencies should/will require more practical training. In fact, there are some wonderfully creative alternative licensing paths being tried that may eventually send the bar exam to the ignominious end it deserves. But these developments are happening as the result of thoughtful advocacy and discussion, as well as market forces, not the heavy hand of an accreditor.
What is the impetus behind the Council’s accelerating overreach? Some consider it to be “regulatory capture." I resist that label. I greatly respect most of the people I have known who have served on the Council. I am confident that they sincerely believe that they are helping to improve legal education.
However, in my view, the Council too often seems to disregard the limited nature of the accreditation function. As someone who serves on another accrediting body and who has worked with a handful of other accreditors at the university level, I urge the Council to adopt a posture of regulatory modesty and restraint. The Standards should be limited to rules that are reasonably necessary to ensure a quality legal education experience. They should not be a formalization of what some believe to be best practices. Judged on that basis, the Standards are dramatically more detailed and intrusive than the rules governing any other professional education field. The ABA Task Force on the Future of Legal Education, on which I served, had it right over a decade ago when it urged that “a number of the Standards be repealed or dramatically changed.” The Standards too often burden law schools in ways that raise costs and inhibit innovation. They need to change direction before it is too late.
Posted by Dan Rodriguez on May 15, 2025 at 08:46 PM in Life of Law Schools | Permalink | Comments (0)
A different scope-of-injunction puzzle
Florida made it a state crime for an undocumented person to enter the state. Plaintiffs obtained a TRO against Attorney General James Uthmeier, the appointed statewide prosecutor, and the state' attorneys for each of Florida's 67 counties, as well as their agents and officers and anyone in "active concert or participation" with them (standard language from FRCP 65(d)(2)). Uthmeier sent a letter to law enforcement agencies, stating that he interpreted the court order not to prohibit law enforcement from arresting and detaining people for violating the law (and presumably turning them over to ICE). The judge then extended the TRO to specify that it reached "any officer or other personnel within any municipal or county police department within Florida, the Florida Department of Law Enforcement, or the Florida Highway Patrol, and any other law enforcement officer with power to enforce" the challenged law. The court then entered a preliminary injunction matching the scope of the extended TRO. And she ordered Uthmeier to show cause why he should not be held in contempt for his cramped reading of the original TRO. For his part, Uthmeier insists that the court's injunction is impermissibly overbroad.
So the question is whether law enforcement necessarily act in active concert or participation with prosecutors. Two issues in this case turn on that: 1) Whether the extended injunction is valid at all and 2) Whether Uthmeier's initial interpretation was so unreasonable as to be contemptuous.
On one hand, stopping "enforcement" of the law means stopping prosecutions; police are not part of the prosecution process. In theory police will not arrest anyone under the law, knowing that the prosecutors cannot pursue charges and thus the arrest is pointless. On the other hand, that is not true in this case. The point of the law is to authorize state enforcement of federal immigration law; police thus are happy to arrest people under the law not for state prosecution but to turn them over to ICE. And even outside this case, police have an incentive to arrest and detain people even if the case will not go anywhere; there is a harassing and chilling effect I am sure they welcome.
Posted by Howard Wasserman on May 15, 2025 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thoughts on the universal injunction argument (Updated)
Transcript here. Lee Kovarsky live-Blueskied the argument and gave a quick end-of-argument summary. I agree with Lee that Justice Gorsuch seemed more open to some universal relief in some cases than expected and that he and Barrett might join Sotomayor, Kagan, and Jackson to allow universal relief in some situations. But it really was impossible to predict. Lee is also adamant that Rule 23 cannot bear the weight non-universalists would put on it.
Other thoughts after the jump:
Continue reading "Thoughts on the universal injunction argument (Updated)"
Posted by Howard Wasserman on May 15, 2025 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, May 14, 2025
State action on remand
The Ninth Circuit decided Garnier v. O'Connor-Ratliff, holding that the school board member acted under color in blocking people from her Facebook and Twitter feeds. This was the companion to Lindke v. Freed, where SCOTUS set the (in my view too narrow) approach to public officials' social-media pages. The Court GVRed this case in March 2024.
Lindke adopted a two-step approach: 1) Whether the official had formal authority to speak for the government and 2) Whether it did so on that page; the Ninth Circuit found both prongs satisfied as to O'Connor-Ratliff's pages. Board members (especially the Board President) possessed authority to make public pronouncements about the Board's activities. O'Connor-Ratliff's pages looked official, as she identified herself as a Board member and did not include any indicia or disclaimers of the pages being private (as in Lindke). And she regularly made official announcements on there, including the announcements on which plaintiffs sought to comment and for which O'Connor-Ratliff blocked them.
The opinion suggests more play in Lindke's joints than I thought. See if it holds up.
Posted by Howard Wasserman on May 14, 2025 at 05:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
ABA proposed accreditation rule on increasing experiential learning requirements: An idea whose time has not come
Less than a week after a short post urging the ABA Section on Legal Education to keep up its generally good work and encouraging external folks to avoid major changes that could well throw out the baby with the bathwater, the Section has announced its intention to consider a very bad idea from the Standards Committee. This “very bad idea” is the doubling of the required number of credits of so-called “experiential learning” for students to graduate. While I associate myself squarely with those who value the curricular programs, run mainly through law school clinics, and who encourage students to pursue opportunities for experiential learning during my time in law school, the insistence on this once-size-fits all requirement is a bad idea coming at a bad time. First, the imposition of curricular mandates is to be usually disfavored, and especially disfavored in our current times of turmoil. Such mandates are expensive, clinical programs being especially so, given how the labor-intensive work that typically goes into such courses. Given the pressures faced by legal education and, more to the point, by students embarking on their legal careers with the prospects of high levels of debt to meet the tuition demands of law schools, adding to the costs of legal education seems, in a word, foolish. Second, and as has been pointed out before, there are myriad goals law students have in their curricular choices, not limited to bulking up on courses that give students experience in advising and representing clients in traditional criminal and civil disputes. For example, building skills through cumulative learning in a particular subject matter, given their particular professional goals, might be a priority. So too might be following their plan of fashioning an academic career or some sort of career that is not ordinary legal practice, so maybe a business-centered career for which legal education is a major asset, but one not mainly about client representation. Law student curricular choices are zero-sum choices. Curricular mandates have the effect of limiting student options; they simultaneously have the effect of driving law schools to configure their curriculum to meet the conditions of these mandates, with the effect of limiting the supply of other, non-experiential courses.
One potential area left on the chopping block — anticipating a post I have in the works for later — is the area of law & technology, this made up of courses (some experiential, but not all, and maybe not most). This is a burgeoning area of importance and interest and, to a commendable extent, law schools have been introducing into their curriculum courses and opportunities focusing on AI, machine learning, law-tech as part of modern schemes of research, and, interestingly, the ways in which technology can be deployed to help close the access to justice gap. One fears that the insistence on experiential learning which, as the Section has explicitly said, is focused on client representation in a rather traditional sense, will crowd out these novel courses, leaving law schools to play catch up as developments in AI and other aspects of law-tech are changing the way in which law is practiced.
Taking this somewhat away from political strategy, there is the added good sense that would come from reshaping the accreditation system from command-and-control to an iterative dialogue with various stakeholders, starting first with the law schools themselves and including others with whom the ABA Section needs and should want to work with on redesigning its accreditation system for this modern world. And let’s be frank, “this modern world” is one in which there is major skepticism about how educational institutions are managing their business and making their choices. We can believe (as I do) that law schools and universities are for the most part well-intentioned; they design and implement their programs with the best interests of the students and of the profession at heart. At least most of us do and at most times. But we should still believe that there is room for improvement in our programs and there is much room for improvement in how we communicate our values, processes, and strategies to an external world that sees and highlights our mistakes and would hold us accountable for certain choices made and roads not taken. In this hothouse of skepticism, it is exactly the wrong time for the ABA Section to be doubling down on controversial, and I would say essentially misguided, curricular mandates.
Take a beat; take some time for considered reflection on the values and purposes of accreditation; and look for creative ways to work with diverse stakeholders. And in this time, give heavy-handed mandates for what some constituencies insist its The Only and Best Way Forward a rest.
(Reprinted from Daniel B. Rodriguez Substack. You can subscribe for free on that site)
Posted by Dan Rodriguez on May 14, 2025 at 04:17 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)
Do the Justices Have CVs?
Here's a question I've long pondered. At what point are you so well-known in your field that you no longer have or need a resume? For instance, does the President have a CV? A former President? How about Supreme Court Justices or federal Circuit Judges? You could ask the same question about, say, Steven Spielberg, Yo-Yo Ma, or Tom Brady.
And how do more modest government officials handle this? Did Todd Blanche update his CV the other day to say "Acting Librarian of Congress?" Does Marco Rubio list "Acting National Security Adviser" and "Acting Archivist of the United States" on his resume now?
This is what I do when I want a break from grading exams.
Posted by Gerard Magliocca on May 14, 2025 at 11:40 AM | Permalink | Comments (0)
More on State Ratification Records
I noted yesterday the poor coverage of state legislative debates on federal constitutional amendments. Couple of more thoughts on that point:
To some extent, there is a nationalist bias in the ratification sources after 1787. People focus on what was said in Congress. Of course, people also look at newspaper commentary and other sources. But the most state-centered source is generally missing.
The Twenty-First Amendment is a partial exception to my observation about the incompleteness of the state sources. The conventions that ratified Prohibition's repeal did generally keep transcripts. Indeed, this was an advantage of the convention method under Article V that I had overlooked until now. That wouldn't matter today, though, as all state legislatures comprehensively record their debates.
In any event, I'm still going to go through what there is to see what I can find.
Posted by Gerard Magliocca on May 14, 2025 at 08:29 AM | Permalink | Comments (0)
Tuesday, May 13, 2025
Score One For A.G. Sulzberger
I don't read many book-length works by newspaper reporters, for the same reason I read fewer law review articles than I used to: At my age, I consider it reasonable not to suffer through more bad writing than is strictly necessary. Even so, I have long had a pre-order in for Jake Tapper and Alex Thompson's book Original Sin, and today's review in the Times is certainly a nice amuse-bouche before the main event. Discussion of the book takes my recollection back to a briefly popular media-centered discussion from Biden's presidency, centering on whether the Times was being tough on Biden about his age because its publisher, A.G. Sulzberger, refused to give the Times a sit-down interview. Although the whole thing will befuddle those who think, with or without specific reasons, that the Times was always easy on Biden, the Biden administration and some of its apologists were convinced otherwise.
This Politico story gives much of the background. It is relevant, perhaps, to both current criticism of the press for "covering up" problems with Biden and retrospective understanding of how and why the administration did its own covering up, to note that the Politico story, which was published a couple of months before the disastrous June debate, describes administration anger at the Times for Peter Baker's "unrelenting focus on Biden’s advanced age." It is likewise now noteworthy that the story notes Biden staffers' view that the Times's perceived harshness was especially wrong given an upcoming election that they viewed as "a matter of democracy’s survival." So did I, more or less, and I sure do now--and Biden and his staffers could not have failed that test more completely.
One striking element of the so-called feud between Biden and the Times was the Times's push for a sit-down, on-the-record interview with Biden and the Times. As the Politico piece notes, every president since Roosevelt had sat for such an interview--except Biden, who had "sat for interviews with only two print reporters in more than three years" and never did so for the Times. The story notes:
Getting the president on the record with the paper of record is a top priority for publisher A.G. Sulzberger....But the pleas for an interview have gone nowhere. As Sulzberger often tells colleagues and as he and Kahn have stressed in private conversations with the administration, every modern president since Franklin Delano Roosevelt has done an interview with the Times. That, however, is an argument deemed uncompelling by Biden aides and one that, to some White House officials, smacks of entitlement....In Sulzberger’s view, according to two people familiar with his private comments on the subject, only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.
The whole story is worth reading or rereading, for those who are litigating or relitigating all the Biden/age/press issues. Much press criticism is like most cultural and political debate: it starts with the desired conclusion and works backwards. So views on the contretemps tended to follow political lines. But it's certainly worth noting that a great many people took the Biden administration's side, thinking it hoity-toity of the Times to insist on an interview and accusing Sulzberger of bending coverage against him because of it. (Unsurprisingly, one of those people was Margaret Sullivan, a former Times public editor and a terrible press critic. And here's a two-fer, with Sullivan and Dahlia Lithwick. And one from another terrible press critic, Dan Froomkin. Pardon the pun, but those views didn't age well.) Sulzberger denied directing coverage, while insisting that, "For anyone who understands the role of the free press in a democracy, it should be troubling that President Biden has so actively and effectively avoided questions from independent journalists during his term....Mr. Biden has granted far fewer press conferences and sit-down interviews with independent journalists than virtually all of his predecessors." (Another bad press critic, Jeff Jarvis, called the first sentence a "hissy-fit.")
I'm not a big fan of Sulzberger; the Times is not the paper it should be, and Sulzberger dishonored the paper when he caved to pressure and fired James Bennet. But one must give him his due on this one. The Times and other media outlets will get their share of criticism for possible failings to more aggressively investigate Biden's condition, just as they do and will for failing to more aggressively investigate Trump's condition. But it's hard to do a good job investigating the condition of a man who deliberately shielded himself, and was shielded, from public exposure to anyone who might be unfriendly, or at least indifferent to his wants. Sulzberger was right to push.
I hope this adds a nail to the coffin with regard to the usual euphoric writing about why the partisan, under-resourced, and under-trained "citizen press," or "non-corporate journalists," or whatever you want to call them are a fine and fitting successor to the more staid but more professional standard-issue press. More importantly, I hope it is a useful reminder that every time administrations, from Obama on, have talked about wanting to "speak directly to the people" and not have to communicate through an arrogant, non-substantive, or old-fashioned press, what they actually mean is that they prefer to propagandize in an unmediated fashion. (This is why, although I give Trump favorable marks for speaking to the press regularly, despite his administration's general lack of transparency, I take a star back for his administration's elevation of social-media worshippers, whose fawning questions embarrass even his fans.)
Posted by Paul Horwitz on May 13, 2025 at 08:33 PM in Paul Horwitz | Permalink | Comments (0)
MLB removes deceased players from permanent ineligible list
General announcement here and letter from MLB Commissioner Rob Manfred to Pete Rose's attorney here. The decision covers Pete Rose, Shoeless Joe and the other Black Sox, and eight other players.
MLB's position has been that permanent ineligibility ends upon death. In the letter to Rose's attorney, Manfred explained that a dead person no longer threatens the integrity of the game and thus his continuance on the list does not serve the purposes of Rule 21. His new move was affirmatively removing Rose and other dead persons from the list, a move to align MLB's rules with the Hall of Fame rule regarding Hall eligibility of people on MLB's list. Because Rose, Jackson, et al. no longer on MLB's list, they are eligible for Hall consideration. The Hall announced that the players would be considered by Classic Baseball Era Committee (pre-1980) for 2027 voting and 2028 induction.
I remained in the no-Hall camp for Rose until his death last fall. But I can live with posthumous induction: "Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize--being a living Hall Member."
Posted by Howard Wasserman on May 13, 2025 at 07:12 PM in Howard Wasserman, Sports | Permalink | Comments (0)
A Note From Justice Souter
In 1999, I had a clerkship interview with Justice Souter. Some time later, I received a thoughtful note from him explaining that he did not pick me.
Until the other day, I assumed that all or most Justices did this for clerkship interviewees who were not selected. But now I'm wondering if Justice Souter was unusual in this respect. I'd be curious to know if other Justices send or sent rejection notes.
Posted by Gerard Magliocca on May 13, 2025 at 02:54 PM | Permalink | Comments (0)
Same-sex marriage and universal injunctions
A further thought on universal injunctions: Sam's first post unpacks the question of when universal injunctions started, both for the historical pedigree (whether non-party relief has some basis in historic equity or common law) and for when the issue burst on the modern scene.
I cannot prove causation. But I want to make a pitch for the same-sex marriage litigation from 2012-15 as a turning point. Although those cases involved challenges to state law, this was a nationwide litigation campaign of challenges in multiple states. And it exposed the atomized nature of constitutional litigation.
An injunction enjoining enforcement of one state's SSM ban guaranteed marriage licenses to the three or four couples who brought the suit but did nothing for non-party couples. Many states agreed to grant licenses to non-parties, voluntarily complying with judicial precedent giving the injunction universal effect if not force. Alternatively, new couples sought to join cases as plaintiffs and to expand the existing injunction to protect them and guarantee them licenses. Either required steps beyond the original injunction.*
[*] Either move suggested chaos had SCOTUS resolved marriage equality the other way--states undoing valid-at-the-time marriages or states having a small class of married same-sex couples while able to deny licenses to such couples going forward.
The marriage-equality campaign also introduced zombie laws into the mix. The Eighth Circuit affirming the invalidity of Oklahoma's SSM ban did nothing to stop Kansas officials from enforcing that state's ban as to anyone--the decision zombified Kansas' law but did not produce (yet) a judgment prohibiting Kansas officials from enforcing its ban. Binding precedent dictated the result of that litigation--a district court in Kansas would declare that law invalid. But its injunction guaranteed licenses only to the named couples and not beyond. The cycle repeats--other couples must undertake new-or-expanded litigation or states must voluntarily comply with new precedent.
All of this raised the complaints of inequality and unfairness that universalists fear and that drive current calls for universality in some contexts--officials must grant licenses to the plaintiff couples but could deny them to other couples without violating the court order; Kansas officials could continue to deny licenses despite binding court of appeals precedent (based on Oklahoma's law).
Posted by Howard Wasserman on May 13, 2025 at 12:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Judicial departmentalism and universal injunctions
Sam Bray has a series of posts on universal injunctions in advance of Thursday's arguments on the emergency motions in the birthright-citizenship cases, which are likely to focus mostly on scope-of-remedy. I agree with Sam on pretty much all of this. But I want to riff on one thing. He writes:
In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.
SCOTUS's resolution is not "universal" in the sense of protecting all people. It resolves one case, affirming or reversing lower courts and compelling them to enter some judgment--a remedy that, per Bray's arguments, is limited to the parties. SCOTUS's declaration of the law establishes universal precedent for lower federal and state courts. In a judicial-supremacist world, it also establishes universal precedent for other actors, having "resolved" the constitutional issue.
Judicial departmentalism complicates this story. Its key premise is that SCOTUS precedent does not bind non-judicial actors; the executive can continue to act contrary to SCOTUS precedent. And because SCOTUS' judgment (or the judgment it orders the lower court to enter) is non-universal, the executive does not violate a court order in acting contrary to that prior case. In effect, we start over--new litigation from the new (actual or potential) enforcement targets, new non-universal judgments from the lower courts (bound to apply SCOTUS precedent), new non-universal SCOTUS affirmance (also applying its precedent). The executive keeps losing, of course (barring a change in precedent). But people must litigate to get there. And we do this as long as the executive has unprotected people to target.
This complicated process might offer a further justification for universality. The federal courts (or at least SCOTUS) must be able to grant universal remedies, otherwise no one is safe from an executive willing to pursue new enforcement against new people (not protected by the existing judgment) in the face of certain judicial defeat. At a minimum, the process is the punishment--the executive achieves something by forcing new and repeated litigation, even if he loses at the end of the day. Especially if some enforcement succeeds (in the moment) against those who are not party to any round of litigation.
On the other hand, non-universality helps prevent judicial departmentalism from collapsing into supremacy. The courts get the final word in any case--the judicial view of the Constitution prevails and the executive loses under existing precedent. But nothing stops the other departments from creating and pursuing new cases.
Posted by Howard Wasserman on May 13, 2025 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
The Dismal State of State Legislative Records
In 1970, Illinois wrote a new state constitution (the current one). Article IV, Section 7(b) states:
"Each house shall keep a journal of its proceedings and a transcript of its debates. The journal shall be published and the transcript shall be available
to the public."
Before this change, the Illinois Legislature did not keep transcripts of its debates. This only started in the latter half of 1971. This leads to a
rather astonishing conclusion: We have no official records on how the Illinois Legislature viewed any constitutional amendment that was ratified.
When I said the other day that I would start looking at the ratification debates on the modern amendments, I didn't realize that the record-keeping was this bad.
I shouldn't have been surprised, I suppose. Many state legislatures even now are part-time. Transcribing the proceedings was much more expensive before video
(let alone) artificial intelligence. Still, I thought that since a few states did keep more detailed records in the nineteenth century, surely more would have done so
in the twentieth century.
State legislatures kept journals, of course. But these rarely included speeches. For example, I looked at the Hawaii Legislature's Journal from 1971. One speech on the
26th Amendment is there (Was that the only speech? Maybe.) How many states fully recorded legislative debates in 1971? I don't know yet.
Posted by Gerard Magliocca on May 13, 2025 at 07:28 AM | Permalink | Comments (0)
Monday, May 12, 2025
Why Trump Is Going to Lose on Birthright Citizenship
Trump’s executive order purportedly denying birthright citizenship to the children of “unlawful” immigrants comes before the Supreme Court on Thursday on a procedural issue. My new column for The Hill explains why Trump’s lawyer will not be able to defend it.
Here is the gist:
Supreme failure: Trump’s lawyers will flop in arguments against birthright citizenship
by Steven Lubet, Opinion Contributor - 05/12/25 8:30 AM ET
The government’s pleadings repeatedly assert that the children of unlawful entrants are excluded from birthright citizenship under the Fourteenth Amendment’s “original public meaning,” which, according to recent Supreme Court decisions, was “fixed according to the understandings of those who ratified it.”
In 1868, the ratifiers of the Fourteenth Amendment could not possibly have understood birthright citizenship, even under an “allegiance” theory, to exclude the children of “illegal aliens,” because that category simply did not exist at the time.
The first general restriction on immigration, the racist Chinese Exclusion Act, was not passed until 1882. Thus, when the meaning of the Fourteenth Amendment was fixed by its ratification, there was no distinction between lawful and unlawful immigrants. There was only one class of entrants, to whose children birthright citizenship applied without differentiation.
Postscript: Yes, I know that the attorneys defending Trump’s order are not “his lawyers,” but that is regrettably how they see themselves.
You can read the full essay at The Hill.
Posted by Steve Lubet on May 12, 2025 at 02:29 PM | Permalink | Comments (0)
Sunday, May 11, 2025
More Local Issues for Self-Driving Cars
Just to round out this line of thought, let me make a few more points.
First, the irony is that San Francisco does not want to be Ground Zero for the introduction of robot taxis. The City recently sued California (unsuccessfully) arguing that the state improperly overrode the City's concerns about the public safety in giving a broad regulatory authorization to Waymo. The State, of course, can choose to adopt a uniform policy across, say, San Francisco, LA, and San Diego. My view is that each city should be free to fashion its own rules.
I've already mentioned traffic rules and enforcement as a local issue with special relevance to self-driving cars. Another municipal concern is crime. Sometimes a passenger in a Waymo may feel threatened by a pursuing car or a pedestrian at a stop. What's the policy or response for that? What if a passenger falls asleep in a Waymo at, say, 2AM? How should the vehicle respond? What about carjacking? Again, different cities should get to work out different policing solutions.
Then there's the business model for local taxis. Should cities partner with private operators? Run the robot taxis like a bus or subway service? Simply allow private companies to operate under a license. I don't know which of these is best. Let's try them all out.
Perhaps enough countries or states will adopt independent policies such that we can learn what we need to know without devolving power to the city level. The jury is still out on that one.
Posted by Gerard Magliocca on May 11, 2025 at 10:19 AM | Permalink | Comments (0)
Saturday, May 10, 2025
Constitutional Basic Research
When I can find the time, I like to read through some foundational sources to see if I notice something new. I did that earlier this year (with Richardson's Messages and Papers of the Presidents) and paused on TR's Vice-Presidential Inaugural Address. That was the start of my little VP Inaugural Address paper.
My next wander will be though state debates on the ratification of the modern constitutional amendments (XVI--XXVI). I may find nothing useful, but who knows.
Posted by Gerard Magliocca on May 10, 2025 at 10:20 AM | Permalink | Comments (0)
Saturday Music Post - Southern Gothic
"Delta Dawn," written by Larry Collins and Alex Harvey, is best known for then 13-year old Tanya Tucker's 1972 hit, but it was actually recorded a year earlier by Bette Midler on her first album The Divine Miss M. Midler grew up about as far from the Mississippi Delta as possible in the U.S., in a Jewish family in Honolulu; her professional debut was in Fiddler on the Roof. The Australian Helen Reddy, who grew up even farther from Mississippi, also had a hit with "Delta Dawn" in 1973. Bobbie Gentry wrote and released "Ode to Billie Joe" in 1967. A smash hit, it reached number one on Billboard's Hot 100; remarkably, it also charted on the Adult Contemporary, Country, and R&B lists. Gentry has never revealed what was thrown off the Tallahatchie Bridge. Tony Joe White's "Polk Salad Annie" (or sometimes "Poke Salad") charted at number 8 in 1969. It was a regular feature of Elvis Presley's live sets. Compare them today at The Faculty Lounge.
Posted by Steve Lubet on May 10, 2025 at 05:03 AM | Permalink | Comments (0)
Friday, May 09, 2025
The "Boy" Pope and the Continuing American Gerontocracy
One incidental observation about the new Pope: He is "young." Well, not actually young. But he is "only" 69, with, one hopes (but is far from guaranteed at that age) the energy, well-being, and sharpness of cognitive function to shoulder a burdensome office honorably. (I do not include here the aid of prayer and providence, which I take seriously but are out of my bailiwick.) Born in 1955, Leo XIV is younger at election than any Pope since John Paul II.
By contrast, Joe Biden, whose ongoing, self-negating effort to "burnish his legacy" shows his continuing failure to grasp that it was precisely the chip-shouldered effort to try to use his presidency to build a "legacy" that fatally damaged both the presidency and the election, was born in 1942. Donald Trump was born in 1946. The health and acuity of both is open to serious question. (Cognitive function being an iceberg most of which is beneath the surface, Trump's volubility should not be mistaken for proof to the contrary.) Both men were too old honorably to run or serve in 2016, 2020, 2024, and today. By my lights, two of the current Supreme Court justices ought to retire this year and another two, if they were acting honorably, would have retired several years ago. (I would be inclined to give Roberts and Sotomayor, who at 70 really ought to retire, a bye, given that the current president is an authoritarian, highly corrupt, and creepily obsessed with personal loyalty. But I would note that it's that attitude, combined with the justices' arrogance, the complicity of their family and friends, and the idolatry of their fans that led to this state of affairs in the first place.) Some 20 percent of the House and 30 percent of the Senate is 70 or older.
No wonder that the new Pope seems like a font of vitality next to these individuals.
Posted by Paul Horwitz on May 9, 2025 at 12:14 PM in Paul Horwitz | Permalink | Comments (0)
Thursday, May 08, 2025
More campus-speech narratives and problems
Inside Higher Ed (may be paywalled) reports on the latest Republican Converse Auto-Da-Fe.
• The hearing involved the Presidents of DePaul, Cal Poly San Luis Obispo, and Haverford. Haverford President Wendy Raymond--the only female witness (sensing a pattern on this)--bore the brunt of GOP attacks about donuts (read the story--this keeps getting more stupid) and her refusal to disclose any disciplinary action the college took against protesters (prompting one committee member to threaten the school's federal funding, which also requires schools not to disclose student disciplinary records).
• The Democrats invited Georgetown Prof and former ACLU Legal director David Cole to finally explain, for the record, the underlying First Amendment issues:
“The line between protected speech that is antisemitic and discrimination that is antisemitic is a hard line to draw, but it’s a line that our Constitution compels us to draw,” Cole said.
He added, “It’s not a line that I’ve heard a single Republican care about on this committee.”
To draw that line, Congress needed to engage in a fact-finding mission and “determine what actually happened based on often-competing accounts, and then you make a determination based upon those facts,” he said. Instead, the committee has seized upon various complaints, which they have not investigated, and then brought in college presidents to “berate them based on the committee’s version of the facts, which may or may not be true,” Cole said.
This did not stop Elise Stefanik from asking each president whether calls for genocide are protected speech and the presidents from saying that it is (it is not, at least in some contexts).
Cole likened these hearings to HUAC, which pissed off one Republican member who probably cannot see the connection.
• I wonder if these are running out of steam.
• Separate from that, Temple University has been dealing with some stuff, according to a kind-of-vague statement from President John Fry on Wednesday. As far as I can tell, we have: 1) Two students got a bar to put "Fuck the Jews" on a message board at an off-campus bar; 2) a student did an interview with a racist/antisemitic media personality, prompting the university to condemn his statements; and 3) another student, identified with Temple's SJP, in an online video makes "alarming statements related to the United States." The two students at the bar have been suspended; the other two are under investigation and threatened with expulsion; the letter reminds that the university Code of Conduct applies to off-campus conduct.
It is impossible to know what was said in the latter two situations. "Fuck the Jews" is so clearly constitutionally protected (it is not incitement or a true threat and unless the bar had been rented out for a Jewish celebration of some kind, not targeted harassment) that those suspensions cannot stand. Fry's letter reminded of this incident at University of Oklahoma from 2015, in which two frat members were expelled for singing a racist song during a fraternity event--I think the students walked away quietly rather than challenging their expulsions. I wonder if these students might do the same.
A recurring complaint since October 7 and the campus protests has been the failure of universities to punish antisemitic speech as they did racist or sexist or anti-immigrant campus speech. I had hoped that universities learned that they had taken the wrong approach previously and they would respect the First Amendment limits on codes of conduct (however ugly that might be). The Temple case shows at least one school going in the opposite direction.
To be clear--these people are assholes and should be shunned and derided and spoken back to and perhaps even rejected in private social and professional circles--what Republicans and FIRE would call cancel culture. But they should not suffer formal sanction by the state. We have gotten this entirely backwards.
Posted by Howard Wasserman on May 8, 2025 at 04:17 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Pope Leo XIV and Diversity Jurisdiction (Updated)
Must the new Pope renounce his US citizenship, as he is now head of a foreign sovereign? Or can we replace Elizabeth Taylor and Kevin Spacey (whom current students do not recognize) for hypotheticals about diversity jurisdiction with US citizens domiciled overseas?
Update: Under 8 U.S.C. § 1481(a)(4), serving in a position in a foreign government can be an expatriating act if the position requires the person to adopt the nationality of the foreign state or to take an oath, affirmation, or declaration of allegiance. According to a State Department explainer, it requires an intent to expatriate and the Department will inquire into that intent when the position is head of state or head of government. The Foreign Affairs Manual states that "[h]olding a head-of-state, head-of-government, or foreign-minister position may be incompatible with maintaining U.S. citizenship, although the issue has not been expressly decided by the Department." Apparently Golda Meir did not relinquish her citizenship when she became Prime Minister of Israel, although a reader tells me that Israel required recent Americans to relinquish US citizenship before taking government positions).
Update on the Update: The Religious News Service reports that Leo has retained his Illinois residence and voting registration, although he lived in Peru beginning in 2014 and the Vatican since 2023. For diversity purposes, this would present a fun question whether he affected a change of domicile (demonstrated an intent to remain in his new residence). Voting is a big indicator of domicile, weighed against the fact that the Vatican is going to be Leo's new "community." Fun stuff.
Posted by Howard Wasserman on May 8, 2025 at 02:32 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Self-Driving Tickets
Here's a basic issue for self-driving vehicle regulation at the local level. Should they get traffic tickets? If so, should they be judged exactly like human drivers or given some leeway given the state of the technology?
Parking tickets are an easy case. The harder case is a moving violation. I am unclear on the extent to which a self-driving car can recognize that a police officer wants to pull the car over. That may make giving such a car a ticket practically impossible or not worth the effort.
Even assuming that such a ticket is possible simply by taking down a license plate number, how should enforcement discretion be exercised? Many driving situations flow from social cues. There's a funeral going by, so you pull over. An accident occurred and people are seeking to help, so you stop. Self-driving vehicles may not be able (or may not be as good at) identifying these out-of-the-ordinary circumstances. Should they be ticketed or cut some slack?
These are almost always local questions on which reasonable people could disagree. The same goes for many other aspects of self-driving car regulation, as I'll get into later.
Posted by Gerard Magliocca on May 8, 2025 at 07:46 AM | Permalink | Comments (0)
Wednesday, May 07, 2025
Nonsense lawsuits don't help
Eugene Volokh flags a decision dismissing suit by a Jewish UNLV student asserting IIED claims over pro-Palestin/anti-Israel campus protests. The court says the plaintiff failed to allege outrageous conduct or severe emotional distress and that the speech described is protected by the First Amendment. I agree with the analysis (as does Eugene), which should presage the fate for many similar lawsuits. Claudine was right--context does matter and in context a lot of antisemitic campus speech enjoys constitutional protection, however bad or uncomfortable it makes people feel. I am glad this view prevails in court if not in Congress.
The proceduralist in me flags to other pieces of the case. First, the court also dismissed for lack of personal jurisdiction claims against American Muslims for Palestine, which the complaint alleges is a propaganda arm of Hamas that controls SJP and the UNLV chapter of SJP--AMP did nothing to target Nevada.
Second, the court dismisses without prejudice and offers this:
If Gerwaski chooses to amend his complaint, he is advised to plead his claims against AMP and SJP-UNLV in accordance with the First Amendment principles I have described. He is also advised to comply with Federal Rule of Procedure 8(a), which requires only “a short and plain statement of the claim” showing he is entitled to relief and “a demand for the relief sought.” Gerwaski’s FAC contains 51 pages of background material before getting to a five-page “Statement of Facts” that actually pertains to Gerwaski. ECF No. 6 at 52-56. Althoughsome background and jurisdictional information may be helpful, Gerwaski also spends pages describing a national organization’s response to a congressional subpoena, repetitive allegations about the inner workings of various terrorist organizations, and activities at campuses other than UNLV. None of that seems relevant to this case.
Indeed.
Posted by Howard Wasserman on May 7, 2025 at 01:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Dear President Trump: Jealous Deep State Haters and Losers Want to Destroy YOUR Genius, Lifesaving, Nobel-Prize Winning Achievement. YOUR Vaccine.
Dr. Jonathan Howard, a neurologist and psychiatrist in New York City, regularly posts at the indispensable Science Based Medicine. In his most recent foray, he engages his formidable psychology skills to convince Pres. Trump to support broader uptake of Covid vaccines. Let me just say that Dr. Howard would also have made a fine lawyer. Reposted in full with his permission.
Dear President Trump: Jealous Deep State Haters and Losers Want to Destroy YOUR Genius, Lifesaving, Nobel-Prize Winning Achievement. YOUR Vaccine.
Dear President Trump,
I know you are busy working hard to make America great again, and so I will keep this short. In a previous article I wrote:
COVID vaccines are the greatest medical achievement of my lifetime, and Drs. Katalin Karikó and Drew Weissman deservedly won the Nobel Prize for their research.
I still believe that, and so does every doctor and scientist I know. One study from 2022 estimated that COVID vaccines prevented an estimated 14.4 million deaths around the world.
YOU gave this AMAZING, WONDERFUL vaccine to the world in record time through Operation Warp Speed. No one thought YOU could do it, but YOU proved your doubters wrong once again. Millions of people are alive today because of YOUR vision, courage, and leadership. The success of YOUR vaccine made grown men cry, and many people are saying it’s the best vaccine in history. YOUR name will be etched in the history books as a scientific GENIUS who saved more lives than just about anyone who ever lived. Your ENEMIES and HATERS will never give you credit for this, of course.
Everyone knows that YOU are humble and don’t like to talk about YOUR many accomplishments. However, YOU have every right to boast about YOUR incredible vaccine and to remind people that YOU created it. Drs. Karikó and Weissman would not have won the Nobel Prize if it weren’t for YOU, and many people are saying that YOU should have won it too. YOUR vaccine also earned Pharma companies record profits, but everyone knows YOU are a business genius already.
I know that REAL AMERICANS are pissed off about vaccine mandates, but that had nothing to do with you. Sleepy Joe is to blame for that. You believe in American Freedom, and YOU would never force a vaccine on anyone.
Yet, the FREEDOM we both cherish, and YOUR great vaccine is currently under ATTACK from VANDALS and SABOTEURS in your own administration. The current heads of the FDA and NIH have repeatedly trashed YOUR amazing vaccine, and now they are trying to DESTROY it. These LOW IQ professors from RADICAL LEFT universities can’t match YOUR scientific accomplishments, and they are jealous of your GENIUS. Unlike YOU, their work will never lead to a Nobel Prize, and they’ll never create something worth billions of dollars. They have their own agenda, and they don’t care if YOU or YOUR vaccine get hurt along the way.
People who are supposed to work for YOU have BETRAYED you before, and I am sure YOU don’t want disloyal, ungrateful FRAUDS and LOSERS to undermine YOU once again. It’s bad enough that kids are dying of measles, but the last thing you need is for COVID to return to the headlines for the next 4 years. I know many MAGA Americans also quietly get YOUR vaccine, and YOUR poll numbers, which are the best in history, could suffer if it was taken away from them.
I also know that YOU will stand up for medical freedom and oppose the Deep State actors who want to take away the LIFESAVING, INCREDIBLE vaccine YOU gave the world. They are working against YOU once again. They think YOU are weak and unable to stand up for yourself.
But you’ve proven your haters wrong over and over again. As the most POWERFUL man in the world, and one of the most BRILLIANT men every to live, you can do it all with one quick phone call.
Posted by Steve Lubet on May 7, 2025 at 09:21 AM | Permalink | Comments (0)
Local Regulation of Self-Driving Cars
I want to do some posts about a topic far removed from what I usually discuss. In my Torts class and in some talks, I've developed an idea about how autonomous vehicle usage should be regulated. My argument is that cities should be given broad discretion to develop their own rules for self-driving cars. I mat write this up in a formal paper later this year.
Let's start by thinking about this problem broadly. Traffic regulation is generally a local function. Setting speed limits, thinking through parking rules, choosing where to put a stop sign or a traffic light, and so on. Enforcement is also generally local. Why is that? Because it's hard to have a one-size-fits-all traffic system given variations in weather, traffic patterns, road conditions, and many other factors.
Self-driving vehicles present an especially good case for local regulation in many respects. It's a classic example of an experimental technology where we need many different approaches tested. Permitting each city to set up its own regulatory framework would mimic how the market tests a new product by giving many variations a chance and seeing which one works best over time.
Finally, self-driving vehicle adoption depends in large part on earning the trust of the public. People will be uncomfortable with robot cars for many years, but that would be easier to manage if the community could limit or dictate how often and where they are used. The vehicles must interact with bike riders, with pedestrians, with other cars, and with first responders. State and national governments are not in a good position to set these sorts of policies to build trust and comfort.
Next time I'll talk about some specific issues with self-driving cars and local government authority.
Posted by Gerard Magliocca on May 7, 2025 at 07:08 AM | Permalink | Comments (0)
Tuesday, May 06, 2025
MAGA and the First Amendment
Trump during a press availability today: "I think people are allowed to protest. You have to do it in a reasonable manner. Not necessarily friendly, but reasonable. Otherwise Pam will come after you and you will have a big problem."
The reporters in attendance laughed. And the Professional Jewish Community cheered. And so did the people who broke into the Capitol as "tourists."
Posted by Howard Wasserman on May 6, 2025 at 05:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Warren Buffett and the Law
Warren Buffett recently announced his pending retirement. One of his many aphorisms about investing is that the stock market is a voting machine in the short run and a weighing machine in the long run.
I think that law can be understood in similar terms, though perhaps more so for constitutional law. Food for thought.
Posted by Gerard Magliocca on May 6, 2025 at 03:24 PM | Permalink | Comments (0)
Chaos and merits
SCOTUS stayed the injunction barring enforcement of Trump's plan to bar trans people from the military. Sotomayor, Kagan, and Jackson dissent. No statement from anyone. This is, in essence, the death knell for trans people currently in the military--they will have been discharged before any final resolution.
The case demonstrates the dominant role that the merits play on the shadow docket. The balance of equities should weigh against a stay because every trans person will be discharged before this case can be resolved in two years, clearly a greater burden than the government having to abide the status quo (trans people serving) for a couple more years. And rejecting the stay is less likely to create chaos if the injunction were affirmed and the military had to re-enlist (or provide backpay) to all the people it discharged. But the majority must believe the order constitutionally valid, so that wins out--there is no good reason to make the government wait to enforce (what the Court plans to find to be) valid policy.
The other question is what this means for other anti-trans orders. Was the majority so certain of validity because this involved the military and the deference that receives? Or does this reflect a more general position within the majority that anti-trans discrimination is rational and permissible?
Someone (sorry Paul, don't remember who) wrote that the Court's approach to stays pending appeal changes with the administration--Biden's Administration cannot enforce anything until SCOTUS finally declares them valid; Trump's Administration can enforce everything until SCOTUS finally declares them invalid. There might be some truth to that, at least in effect.
Posted by Howard Wasserman on May 6, 2025 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)