Saturday, April 13, 2024

Saturday Music Post - Santiano

It's been a while since we've had a sea shanty, and this one -- also known as "Santiana," "Santy Anna," "The Plains of Mexico," and other variations -- is especially rousing. The older version, which dates to the 1850s or earlier, seems to commemorate a victory of Mexican General Antonio Lopez de Santa Anna over U.S. forces in the Mexican-American War on the "plains of Mexico," which is something that did not actually happen. One theory is that it was sung by British deserters from the Royal Navy who had joined the Mexicans resisting U.S. aggression. A later version completely changed the lyrics, making no mention of Mexico and referring instead to a voyage "around Cape Horn" to California. Yet other versions changed the lyrics completely.

Did I mention that it is especially rousing? I've found renditions in French, German, and Polish, which says something about the appeal of the melody. And there is a true surprise at the bottom of today's post, which is at The Faculty Lounge.

Posted by Steve Lubet on April 13, 2024 at 05:49 AM | Permalink | Comments (0)

Friday, April 12, 2024

Will There Be Discipline at Berkeley?

Paul questions whether the students who disrupted Erwin Chemerinsky's dinner will face disciplinary action:

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

According to David Lat:

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

My guess is that there will be no disciplinary proceedings because (1) it is very late in the school year and the student, Malak Afaneh, is about to graduate; and (2) Erwin probably wants to put the issue behind him.

On the other hand, Afaneh may face employment consequences, depending on her post-graduation plans. A public interest job is probably safe, if she has one, but a law firm might have second thoughts about hiring her. I am not advocating consequences, but I am not a Biglaw management partner.

Posted by Steve Lubet on April 12, 2024 at 11:09 AM | Permalink | Comments (0)

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

Posted by Paul Horwitz on April 12, 2024 at 08:38 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 11, 2024

National Lawyers' Guild (Updated)

I am curious how the National Lawyers' Guild feels about being dragged into the Erwin Chemerinsky mess, cited as legal authority and counsel to tell Erin Chemerinsky that she had a First Amendment right to give her speech at Chemerinsky's home. Did someone from NLG give the advice? And how do they feel about being ridiculed nationwide for how wrong they are about the First Amendment?

Update: David Schraub (Lewis & Clark) shares the answer. NLG acknowledges that the student said it had advised her that she had a First Amendment right to pull this stunt, it does not confirm doing so or the content of the advice. It says a person's First Amendment rights may extend into non-public forums and that the government actors' suppression of speech in those spaces may violate rights. While true as a legal principle, most commentators agree it does not apply to this situation.

Posted by Howard Wasserman on April 11, 2024 at 07:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Posted by Howard Wasserman on April 11, 2024 at 01:42 PM in First Amendment, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)

Wednesday, April 10, 2024

Dean Erwin Chemerinsky Responds to Antisemitism

On Tuesday evening, April 9, Berkeley Law Dean Erwin Chemerinsky attempted to host a dinner at his home for graduating students. Sadly, the celebratory event was disrupted by a student with a megaphone -- reported by the Washington Free Beacon to be the head of Berkeley Law Students for Justice in Palestine -- representing a group that had earlier proclaimed "No dinner with Zionist Chem while Gaza starves." The student refused to leave or stop the disruption when requested. 

Erwin is an old friend, and I am deeply sympathetic to his situation, especially because I am a Berkeley Law alumnus. In the past, he has supported Jewish students at Berkeley knowing that it would be unpopular in some quarters, while adhering to his nearly absolutist view of free speech.

His statement below, posted on the Berkeley Law website, describes the events is sorrowful detail.

Statement from Dean Erwin Chemerinsky

April 10, 2024

I write this with profound sadness. Since I became a dean, my wife and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights – April 9, 10, 11 – that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.


Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Let me just expand a bit on the antisemitic nature of the poster and disruption. As Erwin explained, the vicious image of Jews as blood-drinkers dates back to at least Medieval times, and has been used as an excuse for pogroms and expulsions. There is no question that the poster was aimed at Erwin because he is Jewish, as there was no other reason to target him. Blaming all Jews for the real or perceived wrongdoing of others is likewise a classic example of antisemitism. Erwin has had nothing to do with the Gaza war. He has opposed the Netanyahu government and called for Palestinian rights (as have I) for many decades. But he is visibly and proudly Jewish, which appears to have been reason enough to violate his home.

The poster is after the jump:

Continue reading "Dean Erwin Chemerinsky Responds to Antisemitism"

Posted by Steve Lubet on April 10, 2024 at 06:24 PM | Permalink | Comments (0)

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

Posted by Howard Wasserman on April 10, 2024 at 12:41 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, April 08, 2024

Trump's Meritless Motion to Disqualify the "Hush Money" Judge

My new essay in The Hill explains why Trump’s latest delaying tactic, seeking to recuse the judge in his upcoming hush money trial, is bound to fail. Here is the gist:

Don’t buy Trump’s baseless motion for a new hush money judge

The latest episode in creative obstruction is a meritless last-minute motion to recuse Judge Juan Merchan, who presiding over Trump’s “hush money” case in Manhattan.

The disqualification motion, filed only two weeks before the scheduled beginning of the trial, is based on the political activity of the judge’s adult daughter, Lauren Merchan — the owner of a consulting firm that exclusively serves numerous Democratic Party clients, including “Kamala Harris, Adam Schiff and others.”

Sometimes, the validity of a motion can be best determined by its omissions and elisions. Tellingly, they make almost no mention of the actual New York law of recusal. When they finally get around to the specific legal provisions — totaling only about five pages of discussion — they quote them quite misleadingly.

For example, the motion claims that disqualification is required by a court rule when “the judge knows that a close relative ‘has an interest that could be substantially affected by the proceeding.’” This is a disingenuous misstatement of the rule itself, which limits the relationships mandating recusal to “the judge’s spouse or minor child residing in the judge’s household.” 

You can read the entire essay in The Hill.

Posted by Steve Lubet on April 8, 2024 at 11:10 AM | Permalink | Comments (0)

No Editors at the New York Times?

In a eulogy to Joe Lieberman, James Kirchick writes,

Though Mr. Lieberman lost the nomination to Mr. Lamont, he refused to let the Democratic primary electorate have the final say. He mounted an independent candidacy in the general election and became the first and only senator in American history to lose a party primary and regain his seat in the same cycle.

That's two mistakes in one sentence. Yes, Lieberman was the first senator to lose his primary and still win reelection, but he isn't the only one. Alaska's Lisa Murkowski did the same thing just four years later in 2010. Unlike Lieberman, who created an independent party and got his name on the ballot, Murkowski ran as a write-in. 

Also, Lieberman did not "regain" his seat; as a successful incumbent, he retained it.


Posted by Steve Lubet on April 8, 2024 at 06:12 AM | Permalink | Comments (0)

Saturday, April 06, 2024

How old is too old?

Josh Barro argues that Justice Sotomayor, aged 70, should retire following the end of the Term so Biden can appoint a younger successor. The merits of urging timed retirements aside, the question becomes how old is too old and how long Justices should serve.

Barros believed that the organized campaign to urge Breyer to retire in 2021 shows that Democrats learned the lesson of Ginsburg's 2014 non-retirement. He expresses disappointment that the resistance to Sotomayor retiring--some frame the resistance to Sotomayor being Latina, which pisses Barro off--shows they have have not learned that lesson.

But Ginsburg was 81 and a cancer survivor in 2014, whereas Sotomayor is 70. Barro downshifts to Scalia--he was 70 when he failed to retire in 2006 in the same circumstance as Ginsburg 8 years later (same-party President, party about to lose Senate) and Republicans avoided a similar fate because of Mitch McConnell and an inside-straight presidential victory. Barro also points to Thurgood Marshall not retiring in 1980, at 72, so Carter could appoint his successor and Obama could have appointed that successor, leaving the Court with a liberal majority through the '90s and '00s.

Sotomayor has been on the Court for 15 years, less than the 18 she would serve under most term-limits proposals (Ginsburg has been on the Court 21 years as of 2014). Marshall had been on the Court for 13 years in 1980. In the name of avoiding judges getting old and dying when the wrong party controls the political branches or being unable to "hold on" until an aligned President returns to office,* we force judges into ever-shorter terms--too short to figure out the job. Or we compel Presidents to appoint ever-younger judges--Barrett will have served 22 years by the time she reaches 70.

[*] For Marshall, the black swan event in terms of modern politics was Republicans getting 12 years in the White House from 1981-93, which Democrats could not pull off after Clinton and Obama. Here is a counter-factual--what if President Dukakis had been able to appoint successors for Brennan and Marshall in 1990?

If we are going to play this game, why stop with Sotomayor? Kagan turns 64 this month--why not urge her to retire so Biden can rewind the clock by an extra 10-15 years? Does 6 years make that big a difference? Sotomayor has some health problems (Kagan does not, as far as we know) but Barro limits them to a passing mention. He argues from age, not health. Maybe we should research justices' family and geneological histories.

Posted by Howard Wasserman on April 6, 2024 at 05:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday Music Post - Loving Her Was Easier (than Anything I’ll Ever Do Again)

"Loving Her Was Easier" was written and recorded by Kris Kristofferson in 1971. It was also released by Roger Miller the same year, which surprised me to learn because it is far more serious than was his usual stuff in those days. Tompall and the Glaser Brothers released it on an album in the '70s and as a single in 1981.

Covers and duets abound, as can be found today at The Faculty Lounge.



Posted by Steve Lubet on April 6, 2024 at 05:50 AM | Permalink | Comments (0)

Thursday, April 04, 2024

JOTWELL: Effron on Bookman on default judgments

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming 2025), on the rules for default judgments and how they harm defendants.

Posted by Howard Wasserman on April 4, 2024 at 04:12 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 03, 2024

Proposed Revision to Section 314(b) of ABA Accreditation Rules

I thought I'd post this comment that I submitted to a proposed change to the ABA's law school accreditation rules. I may elaborate in a future post. 

I am writing to urge the Council to reconsider the proposed Section 314(b) requiring every 1L course to include at least one formative assessment. As a regular teacher of 1L courses (Torts and Constitutional Law) over the past two decades, I have strong objections to the use of any assessment prior to the final exam. Students spend enough of their lives focusing on tests and assignments at the expense of gaining knowledge. Nothing in my experience supports the conclusion that a midterm or other formative assessment will be anything other than a distraction from learning. Others are free to disagree and use more frequent assessments, of course, but under the proposed 314(b) that disagreement could not extend to using the traditional law school assessment method of a single final exam in a 1L class. Adoption of 314(b) would be a serious mistake.

Posted by Gerard Magliocca on April 3, 2024 at 09:10 AM | Permalink | Comments (0)