Thursday, April 06, 2023
Pico as Derelict
Dissenting, in Lambert v. California (1957), Justice Frankfurter predicted that the 5-4 ruling would "turn out to be . . . a derelict on the waters of the law." Whatever the merits of Justice Frankfurter's prediction, I was reminded of it by Howard's recent post about a federal district court order in Texas that invoked Pico to require (quoting the post) "Llano County to return twelve books to the public library shelves and enjoined further book removals."
Let's put aside debates about the Marks rule, or about the semantic content of the Pico opinions by Justices White and Blackmun, or about the wisdom of the Llano County removal decision, or about the tiresome-ness of newspaper reports that refer to the removed books as "banned." It seems to me that Pico is the among the most derelict-ish rulings of my lifetime. (Lopez and Morrison, bless their hearts, might be the most, but put them aside, too!)
The federal court in Texas invoked, from a Fifth Circuit case quoting the Pico plurality, a “First Amendment right to receive information” which prevents libraries from “remov[ing] books from school library shelves ‘simply because they dislike the ideas contained in these books.’” But . . . there is no general "First Amendment right to receive information" and libraries are entirely free to roam through their collections and ditch stuff they have decided isn't worth keeping. If a local librarian in Llano County were to decide (correctly) that Ayn Rand's novels are not only badly written, but pernicious, there is no constitutional prohibition on tossing them all to make room for more Piketty. (Yes, I realize that the preceding two sentences are inconsistent with, well, Pico.)
Whatever rule or principle the Brennan opinion in Pico might be applying -- besides "this seems hinky" -- has not been consistently applied (if it has been applied at all) to "government decisions about what it does with its stuff." No one really thinkgs that federal courts are authorized by the First Amendment to review the shelf-culling decisions of 2023 librarians regarding the shelf-stocking decisions of their 1953 predecessors. If the "Pico principle" were taken seriously, I suppose the government would be obligated -- not merely in a nondiscrimination, Carson-type sense, but in a positive, obligatory sense -- to fund parents' decisions to send their kids to parochial schools. [Ed.: Sounds good, Rick. What's your point?]
Posted by Rick Garnett on April 6, 2023 at 06:44 PM in Rick Garnett | Permalink | Comments (0)
Wednesday, April 05, 2023
Pico and public libraries
Judge Pitman (W.D. Tex.) ordered Llano County to return twelve books to the public library shelves and enjoined further book removals. The court said Pico applies with greater force to public school libraries, because schools receive uniquely great deference and public libraries are "designed for freewheeling inquiry." The county has appealed.
During law school, I interned at the American Library Association's Office of Intellectual Freedom. One of my tasks was drafting letters to library boards about limits on the power to remove stuff from the library because of disagreement with content (back then, we worried about internet filters). The letter was usually enough and we never litigated these cases. We are in new times.
Posted by Howard Wasserman on April 5, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)
SCOTUS Gift Disclosures
If you are looking for a break from indictment and election news, you may be interested in my essay on the new gift disclosure rules for the Supreme Court, and why the justices may not comply with them.
Here is the gist:
Will the Supreme Court justices comply with new rules on gift disclosure?
By Steven Lubet, Opinion Contributor – 4/05/23
Sen. Sheldon Whitehouse (D-RI) recently claimed a small victory, when, as he put it, the Judicial Conference of the United States “adopted new, stricter rules requiring far more disclosure of free trips, meals, and other ‘hospitality’ accepted by federal judges and Supreme Court justices.”
Under the old Judicial Conference rule, “judicial officers” were required to report the receipt of gifts worth over $415, with a broad exception for “personal hospitality.” The term “personal” had apparently been interpreted to mean something like “extended by an individual” rather than by a business or corporation, thus allowing the undisclosed acceptance of resort vacations and private jet travel, so long as the invitations were made by acquaintances, even if some other entity was underwriting the expense.
Whitehouse may have spoken too soon.
Chief Justice John Roberts has made it clear that the justices are jealous of their individual prerogatives and do not feel bound by outside constraints.
In his 2011 Year-End Report on the Federal Judiciary, Roberts denied the authority of the Judicial Conference, stating that its “committees have no mandate to prescribe rules or standards” for the Supreme Court.
There is no record, of course, of privately funded travel or vacations that the justices have withheld under a loose interpretation of the “personal hospitality” exemption.
Whitehouse deserves congratulations for prompting the new gift rule, but he has much work ahead of him. The Supreme Court needs its own ethical code, with no hedging or reservations, and the sooner the better.
You can read the full essay at The Hill.
Posted by Steve Lubet on April 5, 2023 at 08:40 AM | Permalink | Comments (0)
At Least He Didn't Claim It Was Rigged
In Wisconsin, Milwaukee County judge Janet Protasiewicz defeated former Supreme Court Justice Dan Kelly for an open seat on the state supreme court. It was the second double-digit defeat in two years for Kelly, who was appointed to the court by former governor Scott Walker, as he lost to now-justice Jill Karofsky in 2020. He has not taken it well.
As reported by the Milwaukee Journal-Sentinel:
After the race was called for Protasiewicz, Kelly refused to call his opponent to concede the race, saying he respected the voters' decision but not her.
"I wish in a circumstance like this I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which I can concede," Kelly told supporters at a campaign event in Green Lake, calling Protasiewicz a "serial liar." "I wish Wisconsin the best of luck, because I think it’s going to need it."
He called Protasiewicz's campaign "dishonorable and despicable," and said he was concerned for the future of the state.
"She's demeaned the judiciary with her behavior," he said, referring to Protasiewicz's partisan appeals to voters on the issues of abortion and redistricting. "This is the future we have to look forward to in Wisconsin."
The Wisconsin Supreme Court will now have a 4-3 liberal majority for the first time in 15 years. Issues facing the court include abortion and partisan gerrymandering.
The Journal-Sentinel story is here.
Posted by Steve Lubet on April 5, 2023 at 06:38 AM | Permalink | Comments (0)
Tuesday, April 04, 2023
Old anti-Semitism and current anti-Semitism
Dara Horn, who has a book and podcast about how people think and talk about dead Jews, argues in The Atlantic that focusing on Holocaust education makes current anti-Semitism worse. The piece is long, but here is a money quotation:
One problem with using the Holocaust as a morality play is exactly its appeal: It flatters everyone. We can all congratulate ourselves for not committing mass murder. This approach excuses current anti-Semitism by defining anti-Semitism as genocide in the past. When anti-Semitism is reduced to the Holocaust, anything short of murdering 6 million Jews—like, say, ramming somebody with a shopping cart, or taunting kids at school, or shooting up a Jewish nonprofit, or hounding Jews out of entire countries—seems minor by comparison.
And she closes thus:
I want to mandate this for every student in this fractured and siloed America, even if it makes them much, much more uncomfortable than seeing piles of dead Jews does. There is no empathy without curiosity, no respect without knowledge, no other way to learn what Jews first taught the world: love your neighbor. Until then, we will remain trapped in our sealed virtual boxcars, following unseen tracks into the future.
I serve on a Temple committee working on anti-Semitism programming. In choosing (for this year) to do a program for Yom Hashoah, we had a form of this conversation. Modern U.S. anti-Semitism, however much on the rise and however bad, is unlikely to lead to a repeat of the Holocaust. How we speak, educate, and push back against modern U.S. anti-Semitism should reflect that.
Posted by Howard Wasserman on April 4, 2023 at 07:59 PM in Culture, Howard Wasserman, Religion | Permalink | Comments (0)
District Court gets defensive/offensive right--standing still sucks
In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.
The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.
Posted by Howard Wasserman on April 4, 2023 at 02:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)
Steven R. Smith on COVID and Bar Admissions
The state of the discussion cycle being what it is, it may be hard to remember just how much talk and advocacy there was in spaces like this and elsewhere about bar admissions around the first year and a half of the pandemic. Quite understandable, of course. But the problem with moments of advocacy around urgent situations is that it's like love, futurism, and news commentary: it means never having to say you're sorry. So I'm happy to spotlight this paper by Steven R. Smith, titled COVID and Bar Admissions. Its goal is to take a retrospective look at activities and advocacy around bar admissions in the summer of 2020 and 2021, to look at the various options that states went with (with a particular focus on the diploma privilege), and to note "the 'disconnect' between some law schools and bar admission authorities" during that period.
The paper is less normative than evaluative. But it does insist on one general descriptive and normative baseline: that "[t]he core purpose of licensing is public protection" [I would have been happier if he had added the word "ostensible" somewhere in there], and that the relevant question in considering law school and state bar responses to the pandemic, and licensing reforms going forward, is the public interest. I suggested at the time that too often, discussions focused instead, and often solely, on law students, whose interests are important but must take second place to the needs and interests of clients and the public. (Arguments were made at the time that rushing graduates into practice would serve the public interest for access-to-justice reasons, because those students would somehow get funneled into serving people in pandemic-related need or free up other lawyers to serve those people. I think that was more makeweight advocacy on behalf of students than serious or plausible argument. Smith notes that there are limited data on this point but suggests that the argument does not appear to have been borne out in fact.) The interest of clients and the public, not law students, is indeed the correct measure of any short-term accommodations or longer-term reforms, and it is useful to have an evaluative paper that proceeds with that standard in mind. Smith most certainly does not reject reforms to the admissions process in this article. But he does argue that any such reforms must be about the ultimate and not the intermediate beneficiaries of bar admission: the non-lawyer, non-law-student, non-law-school public.
I leave it to my betters to evaluate Smith's paper and its strengths and weaknesses more fully. I cannot say how it will fare upon a more critical look. I assume there are other data out there. But I wanted to call attention to this paper because it deserves that more careful look. There was so much commentary at the time, but there has been virtually no acknowledgment or mention of Smith's article so far. (It is easy to forget that there was a whole Facebook page, with hundreds of law professor members, devoted to law school pedagogy during the pandemic. It's still going--and COVID gets mentioned in passing maybe once every dozen posts or so, if that. It would be nice if the die-hards on that page mentioned a paper like this, which actually addresses the topic.) Mutual flattery, sometimes misdescribed as "support," is the order of the day on social media when law professors promote each others' papers. Occasionally the word "brave" will be used, generally to describe papers displaying no particular signs of bravery. Inasmuch as Smith's paper calmly examines an issue on which there was much strong feeling, and does so in a way that "centers" (to use a currently popular abuse of the language) the interests of people other than law students, it deserves the label more than much scholarship I see in our discipline.
Posted by Paul Horwitz on April 4, 2023 at 10:46 AM in Paul Horwitz | Permalink | Comments (0)
Monday, April 03, 2023
Class Action Settlements as Contracts?
Howie Erichson and I have uploaded our collaboration "Class Action Settlements as Contracts?" here. It is forthcoming in the North Carolina Law Review. An abstract follows:
Courts routinely declare that class action settlement agreements are contracts, and when called on to interpret and enforce such settlements, courts invoke principles of contract law. But is a class action settlement really a contract? The relevant agreement in a class settlement is struck between a defendant and class counsel or class representatives; it is not an agreement with class members. What binds class members to the deal is not that they agreed to it, nor even that they agreed to be represented, but rather that a judge found the matter suitable for class treatment and entered judgment approving the proposed settlement terms. It is the law of judgments, not the law of contracts, that prevents class members from pursuing claims released in a class action settlement. Although certain aspects of contract law are apt, the nature of class settlements calls for an interpretive regime that places less emphasis on intent of the parties and more emphasis on the scope of the deal that a judge saw fit to approve. This Article explores how courts should interpret the language of class action settlement agreements. It offers a framework that attends to the dual nature of class settlements and the agency risks that inhere in their negotiation. It encourages courts to stop reflexively treating class settlement disputes as contract disputes, but ultimately, whether courts call a class settlement a “contract” is less important than whether they understand the nature of these instruments and the modes of enforcement, interpretation, and construction that are appropriate to their implementation. Just as courts have deployed distinctive interpretive frameworks to shape contract law for other transactional contexts, they can similarly bring more thoughtful justice to the domain of class action settlement agreements.
Comments welcome!
Posted by Ethan Leib on April 3, 2023 at 05:43 PM | Permalink | Comments (0)
Dr. Glaucomflecken on Academic Publishing, Part Two
Posted by Steve Lubet on April 3, 2023 at 01:14 PM | Permalink | Comments (1)
Saturday, April 01, 2023
More thoughts on the ideological divide on free speech
Three stories and cases that illustrate the ideological/political divides over free speech.
• The trial court in Dominion v. Fox denied summary judgment for Fox; granted summary judgment for Dominion on falsity, defamation per se, factual, and certain affirmative defenses (such as neutral report); and denied summary judgment for Dominion on actual malice. So the case goes to trial, but Dominion has to prove only malice and damages; everything else is established. I have focused on (and taught about) the process in this case--how unusual it is for a plaintiff to get SJ on its claim absent burden shifting. Courts do not lightly relieve plaintiffs of their burden of persuasion at trial.
On the substance, the case illustrates the strangeness of the right-wing desire to overrule New York Times. Were Dominion required to prove negligence by a preponderance, the only issue at trial would be how much money Fox must pay Dominion. Does Fox somehow think that legal change will not blow up on them and similar outlets?
Continue reading "More thoughts on the ideological divide on free speech"
Posted by Howard Wasserman on April 1, 2023 at 11:56 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday Music Post - Richland Woman Blues
Mississippi John Hurt released "Richland Woman Blues," today's music post at The Faculty Lounge, on his 1963 album Folk Songs and Blues. I don't know whether he wrote it, or if it is traditional, but it is beautifully simple, especially with Hurt's gentle voice and his virtuoso cross-picking guitar. Jim Kweskin and the Jug Band covered it as "Richland Woman" in 1966 on See Reverse Side for Title, with Maria Muldaur's singing and Kweskin and Geoff Muldaur on guitar (it took two of them) in as perfect an arrangement as I have ever heard. The post is here.
Posted by Steve Lubet on April 1, 2023 at 06:09 AM | Permalink | Comments (0)
Friday, March 31, 2023
JOTWELL: Pfander on Elliott on SCOTUS original jurisdiction
The new Courts Law essay comes from James Pfander (Northwestern-Pritzker) reviewing Heather Elliott, Original Discrimination: How the Supreme Court Disadvantages Plaintiff States, 108 Iowa L. Rev. 175 (2022), a takedown of SCOTUS's exercise of discretion in original jurisdiction and some solutions.
Posted by Howard Wasserman on March 31, 2023 at 02:55 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Prosecutorial Discretion and the Indictment of Donald Trump
After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump. The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.
News of the indictment has sparked an outpouring of intense and diametrically different reactions. On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning. On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect. Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion. The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable. The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.
I don’t want to wade into the merits and demerits of these opposing views. Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct. People on the left are correct that powerful people often do not face consequences for acting illegally. Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart. Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray. Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought. But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.
Continue reading "Prosecutorial Discretion and the Indictment of Donald Trump"
Posted by Carissa Byrne Hessick on March 31, 2023 at 09:39 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (15)
Is Declaratory Judgment the Answer to Republican Forum Shopping?
UCLA Professor Jonathan Zasloff, my friend and coauthor, has an intriguing article today on The American Prospect, suggesting that the Biden administration can preempt Republican forum shopping by initiating declaratory judgment actions in the DC District Court. Here is the gist of his argument:
What is to be done? The best short-term answer is to beat the Republicans at their own game, and sue first.
As soon as the administration issues a controversial rule that it has reason to know will be challenged by abusive litigation, it should immediately bring an action in federal court in the District of Columbia that the rule passes legal muster. The defendants would be states with histories of filing abusive litigation, as well as groups like Stephen Miller’s America First Legal, which has already proclaimed its strategy of filing abusive suits in front of handpicked judges. No one’s rights are violated by such an action: If Republican AGs want to argue against a rule’s validity, they can always do so. What they can’t do is look for their favorite right-wing judge to give them a preordained ruling.
I am leaving comments open, but will screen for relevance.
Posted by Steve Lubet on March 31, 2023 at 08:58 AM | Permalink | Comments (5)
Thursday, March 30, 2023
Maybe Student Edited Law Reviews Aren't So Bad
Here is Dr. Glaucomflecken on academic publishing in medicine, which is dominated by for-profit journals:
Posted by Steve Lubet on March 30, 2023 at 05:09 AM | Permalink | Comments (3)
Wednesday, March 29, 2023
Do We Need to Expand the House of Representatives?
Danielle Allen, Harvard political theorist and Washington Post columnist, has an essay today on proposals to expand the House of Representatives. She argues,
To get our politics working again, we need a system that delivers energy (the ability for the government to get things done), republican safety (protection of our basic rights), popular sovereignty (adaptive responsiveness to the will of the people) and inclusion (all voices should be synthesized in the national voice of our House of Representatives). Real proximity of representatives to their constituents is necessary for delivering on all those design principles. For that, we need a bigger, and continuously growing, House of Representatives. We need smaller districts and fairer representation between more- and less-populous places.
This seems to make intuitive sense, given that the original House districts under the Constitution had only 30,000 people and the current 435 member House was established in 1929. Allen's column discusses proposals that would increase the House to somewhere between 574 and (fancifully) 9200.
There is a problem, however, that Allen does not address. Smaller districts would be easier to gerrymander; in some cases much easier. Far from getting "our politics working again," smaller districts would add to the logjams.
If you don't believe me, just look at state legislatures in places like Florida, North Carolina, and Wisconsin, where small districts have resulted in entrenched Republican majorities -- and in Florida, supermajorities -- even when the actual votes are almost evenly divided.
The computer-assisted art of drawing partisan districts becomes increasingly refined as districts become smaller, resulting in less democracy, not more.
For all of its design flaws, the U.S. Senate has one great advantage under the Seventeenth Amendment. Elections are statewide and cannot be gerrymandered.
Just take a look at Georgia, where votes have been almost evenly split: The House delegation has nine Republicans and five Democrats, an almost two-to-one division, while the non-gerrymandered Senate has two Democrats. Or Arizona, where the House delegation has six Republicans and three Democrats (two-to-one), while the non-gerrymandered Senate elections were won by two Democrats (one of whom is now Independent). Likewise, heavily gerrymandered Massachusetts and Maryland have recently elected two Republican governors in non-gerrymandered statewide elections.
Of course, constituent communication has greatly improved since 1929, when fewer than half of American households even had radios, so today's larger districts do not necessarily mean less responsiveness.
But the bottom line is that bigger districts = less gerrymandering, and smaller districts = more chicanery.
Comments are open, but will be screened for relevance.
Posted by Steve Lubet on March 29, 2023 at 07:21 AM | Permalink | Comments (5)
Tuesday, March 28, 2023
More on "Civil Discourse" and Judge Duncan
I was substantially offline for a while, and so missed a number of updates and posts -- scroll down, and read them all! -- regarding Judge Kyle Duncan's appearance at Stanford Law School. (For my earlier take on what I continue to regard as the very bad behavior of some SLS students and a SLS administrator, go here.) And, several Prawfs colleagues have weighed in on the follow-up news items, including Judge Duncan's recent talk at Notre Dame (which I did not attend), Dean Jenny Martinez's lengthy open letter (which I thought was very good), and Dean Tirien Steinbach's Wall Street Journal piece (which I thought presented a version of the SLS events that departed non-trivially from what took place).
It is often important and welcome to achieve disagreement, and Howard's recent post on Judge Duncan's Notre Dame speech suggests that we have. (Yay, us!) Although I generally endorse the all-in-free-speech-libertarianism vibe of the Sullivan quote, I continue to think Howard is wrong to characterize/frame disruption, insults, "public shaming," etc., during an invited lecture, organized in accord with normal procedures, in an academic setting as "counter-speech." Putting aside all state-action issues: To say that, in this particular context, the norm is that the invited speaker gets to speak without disruption is not to question, at all, the idea that "debate on public issues should be uninhibited" or to disagree that such debate may include "vehement, caustic, and sometimesly unpleasantly sharp attacks on . . . public officials."
I also think that the comparison suggested in an earlier post of Howard's doesn't work. The decision by a university administrator not to permit, in a particular setting, a student group's proposed drag show implicates, it seems to me, different norms than does the decision by various students (and Dean Steinbach) to disrupt a lecture that was -- again, in accord with regular, established procedures -- approved. The former is a determination (which might well be mistaken) that a particular event is not appropriate in a particular context; that latter is a determination to undermine an event that was found to be appropriate for that context.
Posted by Rick Garnett on March 28, 2023 at 03:55 PM in Rick Garnett | Permalink | Comments (21)
Dean Angela Onwuachi-Willig at FIU
FIU will host our Sixth Decanal Lecture (the first since COVID), with Angela Onwuachi-Willig (BU), on How To Build an Antiracist Profession, 12:30 p.m. EDT today (Tuesday). Livestream here.
Posted by Howard Wasserman on March 28, 2023 at 06:25 AM in Teaching Law | Permalink | Comments (0)
Did Robert Costello Breach Michael Cohen's Confidences?
My new essay is up at Law&Crime, discussing Robert Costello's grand jury testimony in the Stormy Daniels case. Here is the gist:
Attorney Robert Costello May Face Ethics Questions for 'Hatchet Job' on Michael Cohen
If Manhattan district attorney Alvin Bragg decides against indicting Donald Trump for the Stormy Daniels payoff, it will be at least in part thanks to the hatchet job attorney Robert Costello did on star prosecution witness Michael Cohen. Or so says Alan Dershowitz.
In a recent interview with Fox News host Maria Bartiromo, the acclaimed former Harvard law professor opined that Costello's testimony before the grand jury "has proved that the main witness is going to be a perjuring liar on the witness stand." Thus, according to Dershowitz, if Bragg "uses Cohen as a witness, he could actually lose his bar license. It's unethical to put a witness on the stand who you know is lying, and he has to know that Cohen will be lying."
Dershowitz is right that there is a lurking ethics issue, but it is Costello's problem, not Bragg's.
You can read the entire essay at Law&Crime (not paywalled).
Posted by Steve Lubet on March 28, 2023 at 04:52 AM | Permalink | Comments (0)