Monday, March 27, 2023

Call for Papers - Sixth Junior Faculty Forum on Law and STEM

from Mark Lemley, David Schwartz, and Christopher Yoo:

 The Northwestern, Penn and Stanford Law Schools are pleased to announce a Call for Papers for the Sixth Junior Faculty Forum on Law and STEM, which will be held at Stanford on October 27-28, 2023. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM). The forum is currently seeking submissions from junior faculty in any discipline interested in presenting papers at the forum. The deadline for submissions is May 31, 2023.

Continue reading "Call for Papers - Sixth Junior Faculty Forum on Law and STEM"

Posted by Sarah Lawsky on March 27, 2023 at 12:04 PM | Permalink | Comments (0)

Judge Duncan still does not get it

I was not at Judge Duncan's talk at Notre Dame last week, have not seen video, and have not read a transcript. I have only Bloomberg's with-a-gain-of-salt reporting. Whatever the sins of the most-disruptive Stanford students at Stanford, Duncan continues to recast the protest (and perhaps all criticism of him) as something other than the exercise of free speech the First Amendment envisions.

According to Bloomberg, the students acted wrongly because they "'staged a public shaming.'" Duncan had "harsh words for the Stanford protesters on Friday, saying they were there to 'heckle' and to 'shame.' 'Let’s say the quiet part out loud. The mob came to target me because they hated my work and my ideas,' said Duncan."

Yes, and? Heckling and responding negatively to a speaker is counter-speech. Public shaming is counter-speech. Targeting a government official for criticism because they hate his work and ideas is counter-speech. In fact, it seems to me exactly what people are supposed to do in response to a government official's disagreeable actions. Note Duncan's move here--criticizing his work and ideas, least in anything other than a polite conversation in which he is under no obligation (or inclination) to engage, is mob behavior. To criticize ideas is to censor those ideas.

Duncan continues to harp on "civil discourse" as the only form of appropriate discourse. But that encounters two problems. First, it ignores the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (Maybe this is why conservatives are so hot to overrule New York Times). Civil discourse is perhaps an ideal; it is not the limit of the First Amendment. Second, Duncan concedes it appropriate to abandon civil discourse at times; writing in the WSJ, he justified his in-the-moment rudeness towards the students because sometimes anger is the appropriate response to “vicious behavior.” But that is a fancy way of saying "they started it." And, of course, the students would say he started it through a judicial decision rejecting, in dismissive tones, concerns about how the government addresses trans people. The students viewed that decision as an example of vicious governmental behavior, therefore, on Duncan's argument, anger should be the appropriate response.

Duncan is not talking to me or trying to convince me. But like many other "free-speech warriors," he cannot help but reveal the thinness of his actual support for free speech other than his or the speech he likes.

Posted by Howard Wasserman on March 27, 2023 at 10:40 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

NYC/New Haven - today and tomorrow

Quick note because I want to see all you friends in the neighborhood - 

Today Monday March 27 at 530 at the Meatpacking District in NYC I am giving a public talk at Dentons - spanning tech policy and competition policy and recent developments with FTC rule on noncompetes. Come if you can!

Tomorrow at 5 - Tuesday March 28 - Equality Machine book talk at Yale (Horchow Hall) - would love to see New Haven friends!


Posted by Orly Lobel on March 27, 2023 at 10:07 AM | Permalink | Comments (0)

Should Law Students Get Paid for Their Work on Law Reviews?

My new essay at Washington Monthly is about a recent proposal to pay law students for their work as law journal editors. I am in favor, although not entirely for the reasons the students put forward.

Here is the gist:

Washington Monthly

Should Law Students Get Paid for Their Work on Law Reviews?

A group of NYU law students recently raised the novel proposition that they should be paid for their work as law journal editors. The students pointed out that they do a job “performed by full-time staff and tenured faculty in other academic disciplines.” 

It is a bargain that the great majority of law professors have been ready to make, receiving almost guaranteed publication somewhere and freedom from tedious work, in return for empowering students with editorial control, for nearly all scholarly publications.

Without reasonable compensation, many economically disadvantaged students must forgo the resume enhancement of journal membership in favor of a part-time job, creating an uneven playing field in recruiting interviews. And the idea may have other virtues as well, although not the ones put forward by the NYU students.

The New York University Law Review, for example, has over 60 senior editors and about 80 staff editors. And NYU has eight other journals, with probably at least 400 more editors. Even just $5,000 per semester—covering only about two hours daily at $25 per hour—would come to over $5 million annually.

NYU could, however, agree to pay for, say, 10 or 20 editors for each journal—at an annual cost of perhaps $200,000—while eliminating all other positions. That would quickly reveal just how important payment really is for the disappointed 400 students.

Without the near guarantee of publication somewhere, law professors would be motivated to improve their submissions, and many would probably give up writing altogether.

So, paying student editors seems like a win-win outcome for the quality of legal scholarship, although it would be a lose-lose for the students who would no longer have the opportunity to serve on journals and for the professors who may find themselves with nowhere to publish their completed articles.

You can read the entire essay at Washington Monthly.

Posted by Steve Lubet on March 27, 2023 at 10:06 AM | Permalink | Comments (0)

Sunday, March 26, 2023

"Inflection Point, noun"

Interestingly, in the revised edition of his Devil's Dictionary, Ambrose Bierce defined "inflection point" as: "A thing whose two common traits are that it is both widely observed and nonexistent. Said to relate etymologically to a frolicsome mythical animal that appeared often on the editorial page but never in nature." 

Posted by Paul Horwitz on March 26, 2023 at 11:27 PM in Paul Horwitz | Permalink | Comments (0)

SG to the Court: Originalism Requires Jury Lawfinding

A month ago, the Solicitor General reported to the Court that defendants have been denied the right to the full jury trial intended by the Framers in every case, state and federal, which has been tried at least since the end of the 19th century. Smith v. United States  is a venue case; I wrote about the venue issue at SCOTUSBlog. But in addressing the venue question, the SG revived a controversy with comprehensive implications. The SG explained that one of the “original purpose[s]” of venue, and “one at the center of the Framers’ debates on the issue, was to allow the jurors to serve as the conscience of the community through interpretation of law.” (Br. at 9) Quoting Drew Kershen’s work Vicinage Part II, the SG explained that venue provisions were designed to “enable the jury to ‘serve as the conscience of the community.’ That concept included ‘not simply [the jury’s] interpreting the law’ to apply to the facts, but the jury’s potential ‘to disregard clearly applicable law’ with which it disagreed.” (Br. at 29). The Framers’ juries, in the SG’s view, had not only the raw power of nullification against the law, but the institutional duty and responsibility to mitigate application of laws which would otherwise be unduly harsh. To be sure, as the SG pointed out, the Supreme Court rejected that role for the jury in the 7-2 decision in Sparf & Hansen v. United States, 156 U.S. 51 (1895). But while the majority marshalled much judicial authority, it was the dissent which was most interested in the views of the Framers and the leading authorities at the time the Constitution was adopted. The SG’s brief declared, in effect, that the dissenters were right.

Continue reading "SG to the Court: Originalism Requires Jury Lawfinding"

Posted by Jack Chin on March 26, 2023 at 07:03 PM in Criminal Law, Judicial Process, Legal History | Permalink | Comments (2)

Two Jews in the starting rotation?

The Atlanta Braves placed started Kyle Wright on the IL and announced that rookie Jared Shuster will begin the season in the starting rotation. Shuster is Jewish. Which means 2/5 of the Braves starting rotation--Shuster and staff ace Max Fried--is Jewish. Since most Jewish pitchers in recent history have been relievers, I am pretty sure this is a historical first. Gilten Alter indeed.

Posted by Howard Wasserman on March 26, 2023 at 04:21 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, March 25, 2023

Ruth Markel (Dan's Mom) on Unorthodox Podcast

Ruth Markel (Dan's Mom) appears on the latest episode of the Unorthodox podcast (around 15:00 mark), talking about Dan, grieving, her book, and her efforts on grandparents'-rights legislation.

Posted by Howard Wasserman on March 25, 2023 at 03:17 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Still more on Stanford (Updated)

 Steve (welcome!) reports (with a copy of Dean Jenny Martinez's letter) on the for-the-moment resolution of the Stanford-Kyle Duncan debacle. A couple of points.

Martinez recognizes that some protesters--those who waved signs, those who snapped or hissed, those who asked provocative or even obnoxious questions--engaged in protected counter-speech for which they should not be punished. The letter also references a "non-disruptive level of audience reaction" as protected and appropriate in the forum, an important recognition of the gradations at work. Within the space reserved for a speaker event, it is not a simple binary between silently listen, display signs, and ask questions on the one hand and complete chaos on the other; oral counter-speech remains permissible prior to the point of disruption (wherever that begins). FWIW, Judge Duncan has not made similar distinctions; he expressed particular annoyance with the snapping.

As to my point about asymmetry: The President of West Texas A&M prohibited student organizations from putting on a drag show (scheduled for next Monday), calling it "derisive, divisive and demoralizing misogyny" and akin to blackface, and insisting that, despite the adult audience, drag shows cannot be harmless. The student group has sued and should win the TRO allowing them to hold the event. (Interestingly, the President recognizes that his decision violates the First Amendment but says he does not care). So again--obnoxious counter-speech v. formal state prohibition on student speech. Yes, there are counter-examples on both sides. But a trend is developing. Plus, I wonder how Judge Duncan--and his insistence that speakers be allowed to speak without interruption no matter how offensive the speech--would rule if he is on the Fifth Circuit panel for any appeal in that case.

Update: Popehat weighs in and again gets everything right.

Posted by Howard Wasserman on March 25, 2023 at 10:17 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Puttin' on the Ritz

This week's Saturday Music Post is "Puttin' on the Ritz," written by Irving Berlin in 1927 and introduced by Harry Richman in a 1930 film of the same name. That was only three years after the "The Jazz Singer," so "Puttin' on the Ritz" was one of the first songs to become famous from a movie. It has been more closely associated with Fred Astaire, who also recorded it in 1930, and sang and danced to it in the 1946 film "Blue Skies." And of course, Gene Wilder and many others. The clips are at The Faculty Lounge.

Posted by Steve Lubet on March 25, 2023 at 05:24 AM | Permalink | Comments (0)

Friday, March 24, 2023

How else are you supposed to do it?

Journalist Jason Garcia is upset that the Speaker of the Florida House acknowledged that the bill altering state defamation law is "intentionally unconstitutional" and designed to trigger litigation and provide SCOTUS an opportunity to overrule New York Times and other defamation precedent.

Put aside that "intentionally unconstitutional" should mean, at most, "unconstitutional as judicial precedent understands the First Amendment" and that a legislature can hold and act on competing constitutional understandings. But even at the most judicial supremacist, what else is a legislature supposed to do if it believes judicial precedent wrong and wants to challenge (and change) it? If a state cannot do what Florida is trying here,  judicial supremacy means the popular branches lack the power to disagree with the judicial understanding or to create mechanisms to express that disagreement and urge the court to change path. The Court's word is not only final but unchanging and irrevocable.

Posted by Howard Wasserman on March 24, 2023 at 06:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More Stanford

Stanford's DEI Dean Tirien Steinbach (currently on leave) has responded to Judge Kyle Duncan with her own oped in the Wall Street Journal, titled "Diversity and Free Speech Can Coexist at Stanford."

Here are some key passages:

Some protesters heckled the judge and peppered him with questions and comments. Judge Duncan answered in turn. Regardless of where you stand politically, none of this heated exchange was helpful for civil discourse or productive dialogue.

[T]he administration and I welcomed Judge Duncan to speak while supporting the right of students to protest within the bounds of university policy.

I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people. My intention wasn’t to confront Judge Duncan or the protesters but to give voice to the students so that they could stop shouting and engage in respectful dialogue. I wanted Judge Duncan to understand why some students were protesting his presence on campus and for the students to understand why it was important that the judge be not only allowed but welcomed to speak.

This explanation will be persuasive only to those who have not listened to the full audio recording of the event or watched the video of Steinbach scolding Duncan and expressing her approval to the hecklers of "what is going on here." To put it as plainly as possible, it was not Steinbach's job to get Duncan to understand the protesters (which was a pointless undertaking in any case, given what we all know about Duncan). It was her job to enforce Stanford's policy against disruptions so that the Federalist Society members could hear their guest.

The WSJ essay is here. It is paywalled, but most universities have subscriptions.


Posted by Steve Lubet on March 24, 2023 at 07:31 AM | Permalink | Comments (0)

Wednesday, March 22, 2023

Stanford Update

Stanford Dean Jenny Martinez has distributed a 10-page letter to the law school community, with a thorough discussion of the recent disruption of Judge Kyle Duncan's lecture. Unlike the earlier apologies from Martinez and President Marc Tessier-Lavigne, the new letter unequivocally condemns the disruption and calls administrators to account for failing to intervene when the heckling became intense. 

Some key passages:

The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed.

The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

Associate Dean Tirien Steinbach is currently on leave.

[I]t should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard (boldface original).

[W]ith respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction (boldface original).

Dean Martinez also commented on the hateful and perhaps threatening messages that students and administrators, including Dean Steinbach, have received, promising an investigation and referrals to law enforcement if warranted.

You can read the letter here.


Posted by Steve Lubet on March 22, 2023 at 03:43 PM in 2018 End of Term | Permalink | Comments (0)

Tuesday, March 21, 2023

Name Calling at Stanford

The Hill has published my take on the recent incident at Stanford, where students shouted down a federal judge who returned the rudeness in kind.

Here is the gist:

The Hill

Chaos and rudeness at Stanford 


It is unusual for a controversial event to end with absolutely everybody looking bad, but that is what happened on March 9 at Stanford University Law School, when the Federalist Society chapter sponsored a talk by Judge Stuart Kyle Duncan, an ultra-conservative firebrand appointed by President Trump to the Fifth Circuit Court of Appeals. The judge, the student protesters and an on-scene administrator all played to type, exhibiting arrogance, intolerance, and irresponsibility, respectively, that combined to make the afternoon a fiasco for all concerned.

The loud heckling started almost as soon as Duncan began speaking, frequently drowning him out and making it impossible for the Federalist Society members to hear their guest. The insults ranged from pointed to shockingly vulgar, continuing almost nonstop for about 12 minutes until Duncan asked for an administrator to intervene.

Up stepped Tirien Steinbach, the associate dean of diversity, equity and inclusion (DEI).

She commended the protesters for “what is going on here,” took a few more jabs at Duncan, and finally reminded the students that “you do not need to stay” and asked them to “give space” for Duncan to answer questions.

Although the heckling had abated and the most exercised students were gone, Duncan called the remaining questioners “infantile,” “ridiculous” and “a bunch of hypocrites,” singling out one as an “appalling idiot.”

In later interviews, Duncan continued to call the protesters idiots, their tactics “dogshit” and DEI Dean Steinbach “creepy.”

Going forward, perhaps we can hope that students will learn to exercise better judgment. We ought to expect it from administrators. We must demand it from judges.

You can read the entire essay in The Hill (no paywall).

Posted by Steve Lubet on March 21, 2023 at 10:02 AM | Permalink | Comments (0)

Monday, March 20, 2023

President Debs

Let's try out a fun constitutional counterfactual. Suppose Eugene Debs had won the 1920 presidential election from prison. (He received 1,000,000 votes.) What would have be the appropriate resolution?

  1. The outgoing President (Woodrow Wilson) should have pardoned Debs so that he could serve.
  2. The presidential electors pledged to Debs should have voted for his running mate, Seymour Steadman, who was not in prison.
  3. Debs should have resigned after being sworn in.
  4. Debs should have pardoned himself after being sworn in.
  5. Debs should have just served as President from prison.

Note that today you could imagine a 25th Amendment solution to this problem. But that was not an option in 1920.

UPDATE: Warren Harding did pardon Debs in 1921. Wilson refused to do so.

Posted by Gerard Magliocca on March 20, 2023 at 03:16 PM | Permalink | Comments (0)

Match Day for Med Students

Last Friday was "Match Day," when senior medical students learned whether they had matched with their preferred residency program. With over 43,000 applicants rank ordering programs, which in turn rank ordered the applications, the process generates plenty of data about the medical profession, given that today's residencies affect the distribution of physicians for decades to come.

According to MedPage, three of the most in-demand programs were in surgery -- orthopedic, plastic, and thoracic -- and the fourth was radiology. In contrast, the programs left with unfilled positions -- more openings than applicants -- were all forms of primary care, mostly those with frequent patient contact: family medicine, internal medicine, emergency medicine, pediatrics, and psychiatry. Not coincidentally, no doubt, those are also the lowest-paying specialties, even though they account for the most common patient interactions. This is not a good trend.

There is also some interestingly encouraging news. It appears that the Dobbs decision may have had an impact on med students' preferences. As reported in the Journal of General Internal Medicine:

In a survey of more than 2,000 current and future physicians on social media, we found that most (82.3%) would prefer to work or train in states with preserved abortion access. In fact, more than three-quarters (76.4%) of respondents would not even apply to states with legal consequences for providing abortion care. The same holds true for states with early or complete bans on abortion or Plan B. In other words, many qualified candidates would no longer even consider working or training in more than half of U.S. states.

[These] preferences persisted across medical specialties and subspecialties, underscoring the essential truth that abortion rights and access affect the entire physician workforce and, thus, the whole healthcare system.

While 77.8% of respondents report that their preferences are influenced by patient access to abortion care, others also prioritize preserved access for themselves or their partner (56.1%) or other family members (42.5%). This should not surprise us: physicians are human beings, too, with healthcare needsopens in a new tab or window and personal lives that are not wholly defined by their career choices.
Of course, it remains to be seen whether stated preferences will be reflected in actual choices. It is hard to imagine that many aspiring oncologists will turn down residencies at Houston's MD Anderson Cancer Center, for example, although they may still decide to practice elsewhere post-training. Dobbs was only decided last year, so the longer term effect on physician supply will take a while to develop.

Posted by Steve Lubet on March 20, 2023 at 10:00 AM | Permalink | Comments (0)

Northwestern University Law Review Exclusive Empirical Cycle - 2023

The Northwestern University Law Review is pleased to announce its sixth annual issue dedicated to empirical legal scholarship, to be published in Spring 2024. The exclusive empirical submission window will be open from March 20 to April 30.

Continue reading "Northwestern University Law Review Exclusive Empirical Cycle - 2023"

Posted by Sarah Lawsky on March 20, 2023 at 09:30 AM | Permalink | Comments (0)

Saturday, March 18, 2023

The Draft in Youngstown

In prior posts, I've mentioned that a staple of constitutional argument is: "We can draft you, therefore we can do blank to you." Another example of this is Chief Justice Vinson's dissent in Youngstown:

"Seizure of plaintiff's property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization, and allocation of materials."

Posted by Gerard Magliocca on March 18, 2023 at 01:36 PM | Permalink | Comments (0)

Is the ham green?

A break for something non-serious. Although Rick and Paul still might believe me wrong:

"I do not like green eggs and ham." What color is the ham on the dish that Sam-I-Am does not like?

The cover shows both as green--he does not green eggs together with green ham. But in my mind, I always have read green to modify eggs, while ham is unmodified--he does not like green eggs together with ham, regardless of the color of the ham.

If we focus on author intent, presumably Geisel signed off on the cover and his intent is that both food products are green. But is that the best interpretation of that language? What do ordinary rules of English and statutory construction tell us?Green_Eggs_and_Ham

Posted by Howard Wasserman on March 18, 2023 at 12:35 PM in Howard Wasserman | Permalink | Comments (8)

Saturday Music Post -- The Gambler

For about the past four years, I have been posting music clips every Saturday morning at The Faculty Lounge. The posts always have a theme. Sometimes it's a song, as interpreted by different musicians. Sometimes it is the work of a single artist or group. There have also been posts devoted to instruments, musical styles or eras, and sometimes just common words or ideas in the lyrics (sunshine, motherhood, birds).

Today's Saturday music post is "The Gambler," which you can find here.

Posted by Steve Lubet on March 18, 2023 at 06:47 AM | Permalink | Comments (0)

Friday, March 17, 2023

Just the Last Paragraph

I also think Howard's "asymmetrical censorship" post is wrong--I think! I am sure I disagree on some issues voiced there and in his post before that. But I wanted to focus solely on my disagreement with his last paragraph. Unfortunately, the more I wrote, the less sure I was of the meaning of that paragraph. I think the problem has to do with a sudden switch from one reasonably apt point (which is not to say I agree with it) to a different and inapt point. Here's that paragraph: 

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

The National Review piece  urges Stanford and other law schools to discipline disruptive behavior by students, up to and including reports to the bar. (Based on other recent extrajudicial writings by Judge Ho on this subject, the editorial may be "controversial" and might even be right, but I doubt it was interesting or deep.) For public law schools, of course, imposing discipline is indeed invoking the force of the state. For private law schools, imposing discipline is only a second-order invocation of state force, which does not enter into play unless and until a student refuses to accept the discipline. At that point, however, the recalcitrant offender will be subject to ejection, ultimately backed by state force. And because law is a licensed profession that draws on delegated state power, any character and fitness examination is also backed by the force of the state. Law schools that report students to the bar for cheating, for instance, or notify the bar that a student has flunked out, has no business serving clients, and thus should not even be considered for licensure, are also engaging in Coverian violence--justified Coverian violence, in that instance. (The judges also kind of urge Stanford to notify potential employers of disruptive students. I say "kind of" because they offer this suggestion only if universities are unwilling to enforce the speech policy the judges think they should have or already have in place. As written, it's a stupid and ill-thought-out suggestion. But it does not involve state force.)  

It is not clear to me from what I have read of the student protests exactly what they want, and it would be a mistake in any event to attribute a single motive to a potentially disparate group. But I take it that some of them want Stanford to take the position that certain would-be speakers should not be allowed to speak at their school. I imagine that some of those holding such a view think Stanford's policy should actually be enforced, so that a speaker barred by such a policy will be, you know, barred. In the limit case--say, a person who is refused access as a visiting speaker but shows up anyway and commandeers a room--I imagine they will desire that state force be applied to prevent the trespass. (I hope that's their desire, since the alternative would be private violence.) It is possible that some of the students do not want such a policy, and believe only that Stanford should have a policy that there are no rules governing any form of spoken response to visiting speakers, or that its policy should be that there are no rules for counterspeech for some speakers, whether designated by the university or chosen in the moment. I could imagine an unattractive but reasonably consistent anarchistic version of this view, in which the rule on campus is that there are no rules. Every other version, every version that involves any selectivity at all--for instance, the version that distinguishes sufficiently-bad-opinion-holding visiting speaker Duncan from unobjectionable-opinion-holding visiting speaker Whitebread, or the version that distinguishes Visiting Speaker Lopez from Regularly Scheduled Class Lecturer Professor Lopez-Prime, such that students may shout imprecations at Lopez during his or her talk but will face discipline for doing the same thing to Lopez-Prime while he or she is teaching a class--at some point relies on the knowledge of the availability, at the end of the road, of the use of state force. "This is our jurisdiction!" ain't just a slogan. If we're going to "unmask" state violence, or whatever the academic cliche of the day is, we might as well do so thoroughly.    

So: These two judges urge universities to have one policy enforced by schools: discipline students who are disruptive in ways that, on this account, prevent speakers from speaking their piece at an appointed time and place. And they think law students who are sufficiently disruptive in this fashion should be reported to the bar, just as other students who are disciplined for misconduct are potentially reported to the bar. And the students, or some of them, appear to want schools, or at least their school, to have a different policy, one with uncertain bounds but that ultimately consists of a policy about what is or is not allowed by way of response to speech they object to in a law school. Neither are thinking of the sheriff as such, but both ultimately rely on state enforcement of whatever policy is in place. Are they wildly disequivalent or asymmetrical? No. 

This is what confuses me, because Howard makes a different comparison in the paragraphs leading up to this one. He compares private or semi-private efforts to prevent people from speaking or to penalize them from speaking, which can range from the uncontroversially acceptable to the questionable but relatively trivial to the serious and wildly disproportionate, to organized legislative efforts, popular of late at least as public political tactics, and which sometimes make their way into generally applicable law, to regulate speech. One may reasonably think both are serious. But one may certainly think with some good reason that speech-suppressive legislation is more serious and different in kind from private enforcement of would-be speech norms, including those that speech to suppress speech, even if one thinks some or all of these forms of private enforcement are also bad and serious.

If that is the asymmetry he is talking about, well and good. One can argue over the particulars, but I am not disturbed as such by the view that more formal and public efforts to control disfavored speech are more serious than more informal and private efforts to control disfavored speech. (That's fine with me in part because I'm an old-fashioned civil libertarian, the sort that used to be a card-carrying member of the former version of the ACLU, with a healthy distrust of government power, who believes there is some value to the public-private distinction. I'm not sure that's the current view of the intelligentsia, both generally and within the legal academy. For those who believe that the distinction between public and private power, including in the area of speech, is vastly overstated or false or outdated, which I don't think includes Howard, I would think it should be much harder to make an argument for "asymmetry." If anything, people with those views should be drawn to the "symmetry" side of the argument.)

But the examples in his last paragraph, which he seems to present as continuous with or the culmination of his early paragraphs, strike me as entirely inapt on this point. What the last paragraph describes is two sets of stakeholders both urging law schools themselves to adopt and/or enforce particular speech policies. Neither set is urging a law, or that a policy be imposed on the law schools by someone or something else. Any serious state action in either case is only an indirect consequence of the law schools setting and enforcing their own policies about speech: it comes about only if students fail to comply with the speech policy urged by each. It is reasonable to say that it's a mistake to treat as equivalent a law requiring a particular set of speech policies, imposed on universities by legislatures, and a protest, however inconsistent with academic values it may be, attempting to deny a platform to disfavored speakers. But this is not the example he uses in his last paragraph, since this is not what Judges Ho and Branch demand in their editorial, which--like the students--is demanding that Stanford or other law schools, of their own volition, take a particular approach to campus speech. What he does discuss, if dissected a little more thoroughly, is equivalent, or at least far more equivalent than what he talks about elsewhere in his post. He simply takes a sudden wrong turn at the end.  

Incidentally, the solution to such a dilemma, when presented by the stakeholders as a policy demand and not imposed by the state, is obvious and easy. Law schools considering policies that affect the exchange of ideas on campus can listen to the views of stakeholders such as students, alumni, donors, practicing lawyers, and so on. Then, acting through faculty governance and not just administrative fiat, they should select the policy that is most consistent with their academic status, their academic mission and duty, the demands of their discipline, and the trans-disciplinary norms and duties that constitute the academic profession and environment as a whole. They should make that choice and that policy clear, and they should actually insist on enforcing it. Listening to other stakeholders may be informative. But once the time to choose actually arrives, they must choose and enforce the policy most consistent with the duties and values of the academy, without regard to what any other stakeholders, including students and alumni, think or want. A law school's speech policy is a matter of faculty governance and faculty governance is not shared with students, sympathetic or otherwise, or with Judges Ho and Branch. They're all free to argue against and about it. But we are not free to delegate that decision to them, and it must ultimately be based on what academic duty demands. A law school (or a university) that does otherwise has simply failed in its duty. So there's really no hard problem on that part of the issue.  

Posted by Paul Horwitz on March 17, 2023 at 04:13 PM in Paul Horwitz | Permalink | Comments (0)

On why I think I am (mostly, generally) right

I appreciate Rick's response to my post on Stanford. I want to hit a few points.

• I said at the outset of my post that I vastly overgeneralized. To the extent I overstated the point or understated lefty's willingness to use state power to target speech, mea culpa. Yes, the left (often?) uses formal state power to suppress speech (and I oppose those efforts when they happen). But I stand by the point that in the current political-cultural narrative of "both sides suppress speech," the juxtaposition is young "social-justice warriors," often but not always on campus, making a lot of noise and complaining about "harmful" speech, compared with whoever Florida went after yesterday (the state is trying to strip the Miami Hyatt Regency of its liquor license over a drag show). I cannot think of a current Democratic-controlled state undertaking efforts mirroring what is happening in Republican-controlled states. Maybe campus speech codes? Maybe states using existing public-accommodations laws against expressive businesses? What else am I missing?

• I hope my post did not read as a defense of what the students or associate dean did; I am not sure I know enough to say. We might describe their conduct many ways--rude, obnoxious, unprofessional, counter-productive, many others. I do not believe we can describe it as falling outside of the First Amendment--especially the hostile signs and questions that created a nasty environment but did not prevent him from speaking. So I am troubled by the suggestion (to be clear, from Judges Ho and Branch, not from Rick) that the government should deny bar membership because of obnoxious-but-protected speech.

• I have read reports (yes, grain of salt and all that) that Judge Duncan was videoing protesters outside the building and the room and perhaps making negative comments to them (that is not clear). But it suggests that Duncan adopted an adversarial posture with people independent of the in-room disruption, people who I think we agree behaved in an appropriate manner towards a speaker this dislike. I admit I do not know how things would have gone had the protest remained silent or outside and he been able to give his prepared remarks and then respond to questions. I infer that his response to the question about the pronoun case would have gotten the same "read the opinion" response.

• Do we have a good sense of who did what among students in the room--who silently protested,* who asked questions,** who shouted and disrupted? And how does that affect how we evaluate the behavior of other audience members and of Judge Duncan. Video shows Duncan giving dismissive responses to some actual questions. Who asked those questions? If A acts like an idiot and interrupts, does that justify a non-response or dismissive response to a legitimate-if-challenging question from B, who did not join in the circus? In a mixed audience, how should we expect the speaker--especially a speaker who is an Article III judge--to engage with those who disagree  but attempt to engage?

[*] I believe silent, non-disruptive-if-distracting protest offers a fourth option to the three that Rick identifies.

[**] Can questions for an invited speaker be hostile? True, it may not be the best way to get a good answer. But does it fall outside expressive norms?

• At bottom, I think I come out that there is blame to go around here. It ought not fall on one side.

Posted by Howard Wasserman on March 17, 2023 at 01:43 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Equality Machine Symposium Essays on Yale Journal of Regulation are up

The essays are all here - except for my response essay which will appear tomorrow. I cannot even express how grateful I am to have this set of brilliant readers approach the book with a critical and constructive eye, which was exactly the goal of the book.

Symposium on Orly Lobel's "The Equality Machine"

Can We Build an Equality Machine? An Introduction, by Rachel Arnow-Richman

*This is the introduction to a symposium on Orly Lobel’s The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, selected by The Economist as a best book of 2022. All posts from this symposium can be found here. Further reviews can be found at Science, The Economist, and Kirkus. Consider these paradoxical […]

Posted by Orly Lobel on March 17, 2023 at 12:47 PM | Permalink | Comments (0)