Thursday, January 21, 2021

Job Posting - Federal Judicial Center

From Timothy Lau, Federal Judicial Center:

The Research Division of the Federal Judicial Center is currently seeking Research Associate(s). Candidates ideally would have both a Ph.D. and a JD. The Federal Judicial Center is the research and education agency of the United States federal courts, and, unlike chamber law clerks, the research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries. The precise job listing can be found at:

Interested persons can contact Timothy Lau with questions at tlau at fjc dot gov.

Posted by Sarah Lawsky on January 21, 2021 at 08:29 PM | Permalink | Comments (0)

Wednesday, January 20, 2021

Future Avenues of Section Three Research

Josh Blackman and Seth Tillman have written a thoughtful post laying out one of the issues that will be debated if Section Three of the Fourteenth Amendment is ever invoked against ex-President Trump:  Is the President an "officer of the United States" as required by Section Three?

I want to suggest that there are three sources particular to Section Three that should receive closer scrutiny. One is what, if anything, members of the 39th Congress said about Section Three on the campaign trail in 1866. People look at that campaign to understand the original public meaning of Section One. I used one speech that John Bingham gave on the stump in my draft paper, but that was because I retained a copy of the speech from my research on Bingham. There are probably many more speeches from leading drafters or ratifiers of the Fourteenth Amendment that address Section Three. I'm confident that I looked through the debates in Congress thoroughly, but I did not do so for what occurred outside of Congress.

Second, what did members of Congress say about Section Three when amnesty was debated in 1872? This is not as useful because they were four years removed from ratification. Still, people do use what Congress said in this period of Reconstruction to construe the Fourteenth Amendment. And the debate on amnesty in 1872 was much longer than the debate on Section Three in 1866. I went through those discussions pretty carefully, but I'm not as sure that I squeezed out all of the juice that is there.

Third, Pennsylvania is the only state that kept detailed records of its ratification debates on the Fourteenth Amendment. Perhaps there is Section Three material in those records.

I hope people start diving in so that we can learn more. If I learn more, then I'll be sure to share. 

Posted by Gerard Magliocca on January 20, 2021 at 09:46 PM | Permalink | Comments (1)

Northwestern Law Review 2021 Symposium – Now Accepting Proposals

From the editors of the Northwestern University Law Review:

The Northwestern University Law Review is excited to be accepting proposals for its 2021 Symposium.

Continue reading "Northwestern Law Review 2021 Symposium – Now Accepting Proposals"

Posted by Sarah Lawsky on January 20, 2021 at 08:23 PM in Law Review Review | Permalink | Comments (0)

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Posted by Howard Wasserman on January 20, 2021 at 04:36 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Painting Constitutional Law


I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Posted by Howard Wasserman on January 20, 2021 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 19, 2021

A Zone of Twilight

I did a podcast  with Daniel Hemel on Section Three for Lawfare. As we were recording, I was struck by the fact that we really are in Robert Jackson's metaphorical zone of twilight here. There are few, if any, helpful authorities and we have to reason in a more general way on a very important question.

Couple of highlights as you listen. First, Dan pointed out that there are insurance cases on the definition of insurrection (presumably with respect to coverage issues in foreign nations). Second, he made the excellent point that there is a deep connection between the Section Three enforcement power that was in the First Ku Klux Klan Act (since repealed) and a reassertion of that power in response to a mob that contained white supremacists and carried the Confederate Flag. Third, I played around with the idea that Section Two and Section Three of the Fourteenth Amendment are linked (as I explained in my paper) but "insurrection" does not appear in Section Two. Can we draw any conclusion from that? I'm not sure. (Dictionaries back then, by the way, tended to define an insurrection as a brief rebellion, which is not a bad fit with what occurred at the Capitol and suggests that the difference between an insurrection and a rebellion is just a matter of degree.)

UPDATE: Here is an essay I've written on Lawfare about Section Three.

Posted by Gerard Magliocca on January 19, 2021 at 12:29 PM | Permalink | Comments (8)

Monday, January 18, 2021

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Posted by Howard Wasserman on January 18, 2021 at 11:02 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 16, 2021

Who Decides Who Presides?

This is uncertainty about who will preside over the Senate impeachment trial. Chief Justice Roberts, Vice President Harris, and Senator Leahy are all candidates. My initial question is who decides this when there is doubt?

One thought is that Chief Justice Roberts decides. If he thinks that he can preside and decides that he wants to do so, then he does. A second thought is that the Senate decides. If they do not invite the Chief Justice to preside, then he cannot do so. If they do, then he must. A third thought is the Senate and the Chief Justice must agree that he can and should preside for him to do so. If not, then the Senate must go with the Vice President. Then if she recuses, they must go with Senator Leahy.

Here's why this matters. Suppose the Chief Justice does not preside. Under the first theory, he should explain why decided not to do so. Otherwise, people could reasonably construe his absence as his conclusion that the Senate cannot hold an impeachment trial of an ex-President. Under the second theory, he need not say anything. If the Senate does not ask him to preside, then that the reason for his absence. Under the third theory, the Senate's lack of invitation would still be sufficient and he can be silent. (Note that the Senate will probably not invite him in this instance without first asking if he will accept. That way, there need be no disagreement between them.)

I'm not sure which of these three theories is correct. I'm inclined to say the third one. The Senate has the sole power of impeachment, which must include some power over determining the presiding officer in doubtful cases. At the same time, I'm not sure that the Chief Justice must accept the Senate's view of his own duty to preside if he thinks that the trial is unconstitutional. 

Posted by Gerard Magliocca on January 16, 2021 at 07:43 PM | Permalink | Comments (9)

Friday, January 15, 2021

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Continue reading "Facts, epithets, exams, and anti-racism (Amended)"

Posted by Howard Wasserman on January 15, 2021 at 05:25 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (22)

Couple of Thoughts About the Impeachment Trial

The upcoming trial will look rather different from last year's version in a couple of respects.

  1. There will a lengthy argument about whether the trial can occur at all. This is because of the argument that an ex-President cannot be tried by the Senate. If more than one-third of the Senate agrees with this legal argument, then the outcome will be certain--acquittal. This will therefore be an early tell for where things are going.
  2. If the trial goes forward, there will be witnesses. They will testify about what occurred at the Capitol. In theory, the ex-President himself could be a witness. Watching Chief Justice Roberts rule on objections to questions from counsel will be interesting, to say the least. As I pointed out in a post last year, he has never presided over a real trial before.
  3. Last year the Chief Justice commented at one point that he did not think that he had the power to break tie-votes, as Chief Justice Chase did in 1868. That seemed like a bit of trivia then, but that precedent will presumably bind the Chief Justice in this trial.

More broadly, there will probably more of an ebb-and-flow to this trial. Last year both parties were dug into their trenches. This time more Republicans will vote to convict, though probably not enough.

Posted by Gerard Magliocca on January 15, 2021 at 10:29 AM | Permalink | Comments (6)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (10)

Wednesday, January 13, 2021

Seminar with Educational Testing Service on the GRE and other issues

Working with ETS, we have put together an information seminar on Tuesday during which ETS leadership will discuss the GRE and law school admissions and a panel of deans and admissions directors will discuss key issues. There will be ample time for Q & A and for exchange among schools and ETS professionals. 

Here is the summary from the invitation:

As the GRE® General Test becomes a more significant part of law school admissions, ETS is committed to engaging with law schools, providing insight into the empirical basis for the test’s efficacy in law school admissions, and to explore the ways in which ETS can support the law school community. 

Please join David Payne, Vice President and Chief Operating Officer of ETS’s Global Education Division as we open a conversation with law schools about ETS and the GRE® Program, allowing for a dialogue with participants.  Julie Shurts, Associate Director, Global Higher Education at ETS, will share an overview of the GRE General Test, including its content, format and validity, and GRE score use best practices. 

I can testify first-hand that ETS has been developing really interesting and innovative strategies to enhance law school admissions, including expanding diversity (race/ethnicity, gender, and academic background) and developing tailored strategies that improve our work.  The GRE is at the fulcrum of this, but there are other initiatives underway.  2021 promises to be a great year for these partnerships.

All of which is to say that I hope interested folks will join with us next Tuesday, 1pm EST.

Posted by Dan Rodriguez on January 13, 2021 at 07:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

Continue reading "Mootness and nominal damages"

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Some Reflections

Writing a paper on an obscure topic and then seeing that paper go viral (at least for an academic paper) is surreal, to say the least. One happy feature of this experience is that I know that I did not say anything in the paper with the events of last week in mind, because I wrote the entire draft before those events occurred. Bias along those lines is therefore impossible. Not so for the edits that I make between now and whenever the paper is published. This creates something of a dilemma about how (and how much) I should edit the paper, but I'll think about that later.

I am grateful for all of the thoughtful emails, questions, criticisms, and follow-up posts that I've received or seen about the paper. It's the academic and legal community at its best. Let me add that this all supports the idea that everyone should pursue the research that they want to do and that there is tremendous value in that. Not just for its own sake, but because you never know when what you are studying may become important for a contemporary issue.  

Posted by Gerard Magliocca on January 12, 2021 at 03:46 PM | Permalink | Comments (0)