PrawfsBlawg

Tuesday, January 21, 2025

Review of "Interrogating Ethnography" by Andrew Gelman

Andrew Gelman is a highly regarded statistics and political science professor at Columbia, and the force behind the widely-read "Statistical Modeling, Causal Inference, and Social Science" blog. I was delighted to see that he has posted a short review of my book Interrogating Ethnography. It is a little unusual to have a book noticed over six years since publication, but a positive review from Gelman is welcome any time. He has given me permission to reproduce it below:

I came across this book from 2018, Interrogating Ethnography: Why Evidence Matters, by law professor Steven Lubet. It’s a crisp (137 pages) and fascinating discussion of the role of evidence in qualitative social science, and I think it should be of interest to many of you, as it parallels so many discussions we’ve had over the years regarding the role of evidence in quantitative research.

Sometimes I’ve had negative reactions to writings by law professors on social science, but in this case Lubet’s expertise is relevant, as so many legal cases turn on evidence.

Lubet discusses several examples, focusing on sociologist Alice Goffman’s controversial 2015 book On the Run. As we discussed a few years ago, it’s a problem of trust. Goffman offers no documentation for her extraordinary claims and thus must rely on her readers and colleagues to trust her statements and treat them as fact. In this case, trust is brittle, and once the trust is gone, not much remains.

One reason Lubet’s book is interesting is that he gets into the details and presents things very carefully. Just for example, from page 131:

It is unfortunate that ethnographers have so seldom essayed revisits to others’ research sites. Despite the obvious difficulties, there are cases in which the impediments can be readily overcome. It would not take long for an ethnographer to interview personnel at the hospitals in West Philadelphia where Alice Goffman claims to have seen police cordons at the entrances. Moreover, there are only six hospitals in Philadelphia with maternity services, so it would be possible, even now, to fact-check Goffman’s story of having observed the arrests of three new fathers on the same ward in a single evening.

I’m guessing that this maternity ward falls into the same category as Marc Hauser’s monkey tapes, Brian Wansink’s bottomless soup bowl and his 80-pound rock, Diederik Stapel’s survey forms, Mary Rosh’s survey forms, Michael Bellesiles’s probate inventories, Matthew Walker’s National Geographic video, the Surgisphere dataset, and Dan Ariely’s paper shredder. But all things are possible.

The other thing notable about Lubet’s book is its even tone. Some of the stories in the book are funny, others are kinda shocking, and Lubet manages to convey all this without himself ever expressing amusement or outrage. There’s nothing wrong with expressing amusement or outrage—I do it all the time!—; it’s just impressive to me how he wrote this entire book with a straight face. I recommend it.

There are also 12 comments on his post, which can be read here.

 

Posted by Steve Lubet on January 21, 2025 at 06:16 PM | Permalink | Comments (0)

Monday, January 20, 2025

In Support of the American Historical Association's Executive Council Veto of Gaza "Scholasticide" Resolution

On January 6, the annual business meeting of the American Historical Association passed a resolution condemning Israel's so-called "scholasticide" in Gaza. The AHA Executive Council, however, exercised its authority to veto the resolution because it contravened the association's bylaws. Members of the Executive Council and staff have since been subjected to harassment and abuse for their principled decision. In support of their principled action, I am posting the explanation here:

Update as of January 17, 2025: The AHA Council deplores any intentional destruction of Palestinian educational institutions, libraries, universities, and archives in Gaza. The Council considers the “Resolution to Oppose Scholasticide in Gaza,” however, to contravene the Association’s Constitution and Bylaws, because it lies outside the scope of the Association’s mission and purpose, defined in its Constitution as “the promotion of historical studies through the encouragement of research, teaching, and publication; the collection and preservation of historical documents and artifacts; the dissemination of historical records and information; the broadening of historical knowledge among the general public; and the pursuit of kindred activities in the interest of history.” After careful deliberation and consideration, the AHA Council vetoes the resolution. The AHA Council appreciates the work of Historians for Peace and Democracy and recognizes the diversity of perspectives, concerns, and commitments among AHA members.

Update as of January 6, 2025: The “Resolution to Oppose Scholasticide in Gaza” was passed by members attending the business meeting. As per the AHA’s Constitution, article 7(3–5), all measures passed by the business meeting shall come before the AHA Council for acceptance, nonconcurrence, or veto. The AHA Council has begun a thoughtful and vigorous conversation and will make a decision at its next meeting, which will take place within the month.

The vote on the Executive Council was 11-4 with one abstention. New York Times coverage is here.

Posted by Steve Lubet on January 20, 2025 at 12:21 PM | Permalink | Comments (0)

[Guest Post]: Markey call to extend Tik Tok deadline, annotated

This document is from my FIU colleague Hannibal Travis; he annotated Ed Markey's speech. The annotations are for law students, legal journalists, scholars, and members of the public.

Posted by Howard Wasserman on January 20, 2025 at 11:31 AM in Law and Politics | Permalink | Comments (0)

MLK Day and Inauguration Day

Random trivia: Today marks the second time that a presidential inauguration has fallen on MLK Day.  Bill Clinton's Second Inauguration in 1997, eleven years after it became a holiday, was the first time. It will next happen in 2081. So maybe today is also the last time they coincide.

Posted by Howard Wasserman on January 20, 2025 at 10:31 AM in Howard Wasserman | Permalink | Comments (0)

What Did You Learn in School?

Tom Paxton wrote this song in 1963. Pete Seeger popularized it, and it was covered by many others 60 years ago.

Turns out that Paxton was pretty prescient, as we wait for the Trump/McMahon takeover of the department of education.

Here is Paxton's 2000 update, also prescient:

Pete Seeger's long introduction in interesting, for those who are interested in that sort of thing:

 

Posted by Steve Lubet on January 20, 2025 at 06:58 AM | Permalink | Comments (0)

Saturday, January 18, 2025

Poor Richard's Almanac--1737. Or 2025?

 

Posted by Gerard Magliocca on January 18, 2025 at 09:06 PM | Permalink | Comments (0)

Settlement and New York Times v. Sullivan

It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.

[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.

Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**

[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.

We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview  injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.

This post provides an opportunity to promote two pieces of scholarship: Samantha Barbas' Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which uses the Times' internal files to explore the case as one about civil rights, and Thomas Healy's review of the book in Michigan Law Review.

Posted by Howard Wasserman on January 18, 2025 at 11:36 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday Music Post - Before Elvis

Before he became a movie idol and Las Vegas headliner, Elvis Presley was heavily influenced by African American blues artists, who are the subjects of a great new book: Before Elvis: The African American Musicians Who Made the King, by Preston Lauterbach. Big Mama Thornton is the most well-known, having recorded "Hound Dog" in 1953, three years before Elvis. It was written by Jerry Leiber and Mike Stoller, who were teenagers at the time, at the request of Johnny Otis. Today's post at The Faculty Lounge has some tracks (mostly audio) by a few of those classic performers.

Posted by Steve Lubet on January 18, 2025 at 06:20 AM | Permalink | Comments (1)

Friday, January 17, 2025

Polarization, and what to do about it

This is the third post in the series from Chad Oldfather on his book, Judges, Judging, and Judgment.

                In my last post I outlined the diagnostic portions of Judges, Judging, and Judgment (use code JJJ2024 for a discount). The problem, as I see it, is not just polarization, but that many of the mechanisms that have traditionally served to channel judicial behavior toward adherence to law (again, however we might conceive of that) have weakened. The result is more space for the operation of the sorts of influences—usually imagined as raw politics--that we’d prefer to shield against.

                So what do we do about it?

Continue reading "Polarization, and what to do about it"

Posted by Howard Wasserman on January 17, 2025 at 10:49 AM in Books, Judicial Process | Permalink | Comments (0)

Thursday, January 16, 2025

No, Katherine Franke Was Not Fired by Columbia Law School

You may have read about Prof. Katherine Franke’s “termination” from her tenured position at the Columbia University Law School, but it turns out there is more to the story. My new essay in the Chronicle of Higher Education takes a deeper dive into the case, concluding that she was not fired at all. Here is the gist:

Katherine Franke announced earlier this month that she had been forced out of her tenured position at Columbia University’s law school because of her pro-Palestine activism. The Center for Constitutional Rights, where Franke once served as board chair, called it an “egregious attack on both academic freedom and Palestinian-rights advocacy.” The president of the American Association of University Professors said Columbia’s actions were “truly shameful,” declaring that the organization “stands with “Professor Franke and against this repression of pro-Palestinian speech.”

These and other expressions of solidarity, however, all appear to have been based solely on Franke’s side of the story, which she posted in a two-page statement on January 10. Franke detailed what she called her “termination,” following an “unjustified finding” that her “public comments condemning attacks against student protesters violated university nondiscrimination policy.”

Franke’s statement is, at best, misleading. It contains substantial omissions. She was not terminated by Columbia, although she was found responsible for harassing Israeli students on the basis of national origin.

You can read the entire piece in the Chronicle of Higher Education. (Paywalled, but most university libraries have subscriptions.)

Posted by Steve Lubet on January 16, 2025 at 06:00 PM | Permalink | Comments (0)

Polarization, but not just polarization

This is the second installment of Chad Oldfather's series of posts on his new book, Judges, Judging, and Judgment.

                As I mentioned in my first post, Judges, Judging, and Judgment (out today!) arose generally out work I’ve been doing for the entirety of my time in legal academia, and more directly out of materials I developed and continually refined for the Judging and the Judicial Process course I’ve consistently taught for over fifteen years. What resulted is thus very much a work of synthesis, a weaving together of strands of in law, philosophy, political science, and psychology in an effort to tease out what ails us.

Continue reading "Polarization, but not just polarization"

Posted by Howard Wasserman on January 16, 2025 at 10:36 AM in Books, Judicial Process | Permalink | Comments (0)

Wednesday, January 15, 2025

Judges, Judging and Judgment: An Origin Story

The following is the first of several posts from Chad Oldfather (Marquette) on his new book, Judges, Judging and Judgment (Cambridge University Press)

Greetings, all. I’m delighted to be reappearing at Prawfs after more than a decade away. Last time I was here I still imagined myself as young, perhaps even up-and-coming. That’s a harder story to sell these days, but sometimes the person in the mirror still buys it. Yet the years have unquestionably passed, and since it’s been so long a brief (re)introduction seems in order.

Continue reading "Judges, Judging and Judgment: An Origin Story"

Posted by Howard Wasserman on January 15, 2025 at 04:07 PM in Books | Permalink | Comments (0)

Federal Judges Shouldn’t Renege on Their Retirements

Continue reading "Federal Judges Shouldn’t Renege on Their Retirements"

Posted by Richard M. Re on January 15, 2025 at 01:51 PM | Permalink | Comments (4)

Tuesday, January 14, 2025

Job Posting - Federal Judicial Center - 2025

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 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 https://www.usajobs.gov/job/827523100

Posted by Sarah Lawsky on January 14, 2025 at 04:54 PM | Permalink | Comments (0)

Guest Blogger: Chad Oldfather on Judging, Judges, and Judgment

I am pleased to announce that Chad Oldfather (Marquette) will guest-blog on his new book, Judges, Judging, and Judgment (Cambridge University Press, forthcoming this week). His posts will begin tomorrow.

Posted by Howard Wasserman on January 14, 2025 at 12:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2025

Can Donald Trump block people on Twitter?

I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.

Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.

It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.

Curious to hear what others think. What's that definition of insanity everyone uses?

Posted by Howard Wasserman on January 13, 2025 at 02:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Pleading as press release, performative litigation, and good guys v. bad guys

I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.

I want to drill down on this because a range of ideas are floating here.

Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.

We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").

David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.

These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.

[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.

Posted by Howard Wasserman on January 13, 2025 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

No, you cannot sue legislators who vote for Israel funding

My new essay for The Hill explains why a lawsuit against two California representatives is frivolous, no matter how much the plaintiffs abhor funding for Israel. Here is the gist:

The class-action suit against Israel’s funding defies law and logic

The appalling devastation in Gaza, much of it wrought by U.S.-supplied weapons, certainly seems to have driven many of Israel’s critics, including otherwise reasonable people, to thoughtless measures, staking out extreme and unsupportable positions that will do nothing to end the war. 

One case in point is a bizarre federal class action lawsuit (Donnelly v. Thompson) recently filed in the Northern District of California, claiming that Reps. Mike Thompson (D-Calif.) and Jared Huffman (D-Calif.) had “exceeded the constitutional limitations on their tax and spend authority by voting to authorize the funding of the Israeli military.”  

Their case is entirely without legal merit. Their clients lack standing to bring the case. They sued the wrong defendants. No court can grant the relief they have requested. Their claims are barred by a specific provision of the Constitution. 

Attorneys are prohibited from filing cases merely to rally support or shine spotlights. A lawsuit demands more substance than a press release. There are rules against frivolous litigation, brought solely to attract attention, no matter how heartfelt the cause. 

You can read the entire piece at The Hill.

Posted by Steve Lubet on January 13, 2025 at 12:28 PM | Permalink | Comments (0)

Good Faith in U.S. Constitutional Law

I was invited to draft a chapter about US law for a book about the use of "good faith" standards in constitutional jurisprudence worldwide.  I've posted my draft on SSRN.  Here is the abstract:

The language of "good faith" and "bad faith" is rarely invoked directly with a specific legal meaning within the constitutional law of the United States. But it would be a mistake to ignore the work motivational analysis and faithfulness to role and the Constitution plays more broadly within constitutional law more capaciously conceived. Many domains of constitutional law interrogate the good faith or bad faith of government actors to test their compliance with constitutional norms--and constitutional practices routinely demand fidelity to the constitutional project itself. From the law of oaths and impeachments to the law of tiered scrutiny associated with the Equal Protection Clause under the Fourteenth Amendment among others, several features of U.S. constitutional law make important demands on public officeholders. More important, perhaps, than the pockets of direct enforcement of good faith norms to U.S. constitutional law, however, is the theory of public office they evince. That so often the Constitution of the United States demands as a primary rule of conduct that public officers act faithfully tells us that there is a fiduciary conception of office pervading the law even when it is not enforced directly as a rule of decision. That brings it closer to private law implementations of good faith than has thus far been appreciated.

 

 

Posted by Ethan Leib on January 13, 2025 at 10:47 AM | Permalink | Comments (0)