Saturday, March 02, 2024

Saturday Music Post: R-E-S-P-E-C-T

Otis Redding's release of "Respect" was a hit in 1965, and it was an even bigger hit for Aretha Franklin in 1967, winning two Grammies. Franklin's version, with a slightly slower tempo and feminist lyrics, has been more frequently covered in the following 50+ years. Steve Cropper produced and played guitar on Redding's cut, along with the rest of the Stax session musicians. I always thought I recognized Cropper's signature guitar style on the Franklin release as well (on Atlantic, which had a distribution agreement and often recorded at the Stax studio in Memphis), but it turns out that it was Chips Moman.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on March 2, 2024 at 05:57 AM | Permalink | Comments (0)

Thursday, February 29, 2024

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Posted by Howard Wasserman on February 29, 2024 at 10:29 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The “One Big Question” Shaping Legal Culture

Last week, I had the honor of giving the keynote address at the National Conference of Constitutional Law Scholars, which was hosted by the University of Arizona James E. Rogers College of Law and its Rehnquist Center.

My topic was “the One Big Question” currently shaping legal culture. 

I’ve now posted my prepared remarks. Here’s the abstract I wrote for SSRN:

Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy. 

Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing. 

This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration.

Here’s an excerpt from the address:

[I]t turns out that many legal issues are downstream of the One Big Question. Both the Left and the Right are accordingly shifting positions in light of their new answers to that question. 

Let me give you a few examples, all centering on Justices Scalia and Kagan.

First, textualism. When Justice Scalia was an insurgent force in the federal judiciary, being a textualist meant shackling the purposive judicial activism characteristic of the 1970s. Today, by contrast, Justice Kagan often invokes textualism to take the Supreme Court’s conservative majority to task. Meanwhile, conservative legal intellectuals are increasing talking about moving “beyond textualism.” Unwritten law is now hot in conservative legal circles. 

Second, agency deference. Justice Scalia supported judicial deference to agencies, not just under Chevron but also under principles like Auer deference. But that process started when conservatives were a minority force on the judiciary and President Carter’s appointees led the DC Circuit. Today, with conservatives in command of the courts, Scalia’s successors have turned sharply against agency deference. Meanwhile Justice Kagan fights to preserve agency deference in cases like Kisor and, this term, in Relentless and Loper Bright

Finally, standing. Scalia strove to tighten up standing as a way to curb liberal judicial activity. Profligate standing rules in Establishment Clause cases were perhaps his central example, as they facilitated what Scalia viewed as overly vigilant restrictions on religiosity. But conservative litigants now want access to the federal courts. They know that, under new case law, they can receive relief or exemptions from many regulations. So it is now the Left who has a special interest in enforcing or tightening up justiciability principles. Conservatives, by contrast, are tempted to fling open the courthouse doors. 

A single Supreme Court case recently illustrated all three of these trends. In the student loan case Biden v. Nebraska, several states argued that the U.S. Secretary of Education lacked statutory authority to cancel certain student debt. Three questions arose. What did the statute mean? What attitude should the Court take toward the Secretary’s exercise of administrative authority? And, should the states have standing to challenge the loan forgiveness measure—even though student debt relief had no direct effect on the states’ treasuries?

The Court ended up divided 6 to 3. Far from deferring to the Secretary, all six conservative justices invoked the atextual “major questions doctrine” to give narrow meaning to the statutory text. The conservatives also found standing on the theory that a loan service provider with no objection to the loan forgiveness plan was really part of a state; therefore, the servicer’s lost business gave the state standing to challenge the entire nationwide loan forgiveness program.

By contrast, all three liberal justices invoked textualism, exhibited respect bordering on deference toward the executive agency’s work, and rejected standing as too attenuated and artificial to justify nationwide relief. In other words, the liberal justices were much more textualist, far more deferential to the executive branch, and markedly stricter when it came to standing than their conservative colleagues. This alignment of votes and views represents an almost complete inversion of the 1980s.

A similar dynamic is visible in many other legal debates. …

I got a lot of helpful feedback—and some criticism!—from participants at the Conference. I hope to build on these themes, so added comments are most welcome.

This post is belatedly cross-posted from Re's Judicata. The video of the talk is over at Balkanization.

Posted by Richard M. Re on February 29, 2024 at 06:26 AM | Permalink | Comments (1)

Wednesday, February 28, 2024

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Crystal Clanton

Many Prawfs readers no know know of Crystal Clanton. She has just been hired by Clarence Thomas for a SCOTUS clerkship, despite her notoriety for writing a blatantly racist text, at age 20, when she worked for Turning Point USA. Although many liberals are outraged that Clanton has gotten a series of plum jobs, I think it is unfair to pillory her for youthful bad behavior, as I explain in my article on Slate.

Here is the gist:

In a classic demonstration of punching down, the Washington Post’s Ruth Marcus wrote a series of columns about Clanton—beginning when she was still in law school—that read like a campaign to make her an unemployable pariah. Thomas’ decision to hire Clanton, she said, is a “stain” on the entire federal judiciary.

Marcus got her metaphor backward. Thomas probably wasn’t intentionally channeling Joseph Welch, but he had gotten it right when he responded to the judicial ethics complaint. “We have reached a sorry state of affairs,” he said, “when a young adult can be indelibly marked with today’s ‘scarlet letter’ of defamation.”

Character attacks have been a recurrent feature of American politics since at least the time of Thomas Jefferson. They have often been effective, even if false (see: Clinton, Hillary, 2016), and they can be salutary when true (see: Moore, Roy, 2017). Office seekers know that character attacks come with the territory. But that should not be true of young people who find themselves involuntarily embroiled in controversies, and it is especially unfair when the attacks are based on youthful incidents, from years earlier, that have dubious bearing on whom they have become.

Donald Trump’s Republicans have abandoned decency as a value, with no concern for collateral damage. Liberals could set a far better example by allowing Crystal Clanton to get on with her life.

You can read the entire essay on Slate.

And as a reminder that this sort of thing keeps happening:


Posted by Steve Lubet on February 28, 2024 at 10:37 AM | Permalink | Comments (2)

Tuesday, February 27, 2024

The Disqualification of John Rust

Yesterday the Indiana Electoral Commission voted to remove John Rust, a Republican U.S. Senate candidate, from the primary ballot. Rust ran afoul of a state law that says a person cannot run in a primary without either voting in one of the past two party primary elections or being certified by the county party chair where the person/candidate resides. Rust did neither.

A state is disqualifying a candidate for national office without an Act of Congress. Stop the press! Even worse, a state is adding to the qualifications listed in the Constitution for a U.S. Senator. Where's the outrage? I'm sure that Rust will obtain prompt review in the United States Supreme Court, which will rule that states cannot disqualify candidates for national office and disenfranchise their voters. 

P.S. The Commission ruled (3-1) that Donald Trump was eligible for the ballot.

Posted by Gerard Magliocca on February 27, 2024 at 07:56 PM | Permalink | Comments (0)

Monday, February 26, 2024

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

Posted by Paul Horwitz on February 26, 2024 at 11:14 PM in Paul Horwitz | Permalink | Comments (0)

The medical gaslighting of long COVID patients could be nearing its end 

My new essay in The Hill is about some encouraging developments for long Covid and ME/CFS patients, as both Congress and the medical profession have become less skeptical and more attentive to the conditions. Here is the gist:

The medical gaslighting of long COVID patients could be nearing its end 


Presiding last month at a hearing of the Senate Committee on Health, Education, Labor and Pensions, Sen. Bernie Sanders (I-Vt.), addressed the many issues faced by patients suffering from long COVID, an often debilitating condition that can persist for months or years following a SARS-CoV-2 infection. 

In addition to inadequate research funding and the difficulty of accessing quality care, Sanders observed that “far too many patients have struggled to get their symptoms taken seriously” because “far too many medical professionals have either dismissed or misdiagnosed their serious health problems.”

While some physicians did grasp the problems presented by long COVID, many others were dismissive and disbelieving. 

In a Wall Street Journal opinion piece, a young psychiatrist ridiculed the condition as “largely an invention of vocal patient activist groups,” insisting instead that it was a “psychosomatic-symptom disorder.” 

The disease once known as chronic fatigue syndrome, and now generally called myalgic encephalomyelitis, or ME/CFS, with devastating symptoms strikingly similar to long COVID, was investigated by the Centers for Disease Control and Prevention in the mid-1980s, and almost immediately discounted as “yuppie flu” and even a “fashionable form of hypochondria.”

Just last week, the National Institute of Health published the encouraging results of a seven-year study of ME/CFS. The study determined that the condition is not a psychiatric disorder, but instead there are “clear biological markers” of the disease,

Although there is still no cure for long COVID or ME/CFS, it has already been a good year for patients of these chronic diseases, with deep dives into both conditions. The U.S. Senate appears ready to increase research funding and accountability for long COVID, and the NIH appears to be on a path to untangling the nature of ME/CFS. 

You can read the entire essay in The Hill.

Posted by Steve Lubet on February 26, 2024 at 12:08 PM | Permalink | Comments (1)

The Supreme Court Never Was What It Was

Today's NYT article on the crisis in constitutional law teaching is a classic example of the "back in the good old days" fallacy. Back in the good old days, the Supreme Court rendered principled decisions in constitutional cases. The Justices were not making political judgments. They were not imposing their own policy views. They were careful and thoughtful. Constitutional law was an internally consistent set of rules and principle driven by logic and reasoned debate.

When was this golden age? I have no idea. Was it when Learned Hand called the Justices the "9 fools in Washington?" Was it when Willam Howard Taft was Solicitor General and called them "a bunch of mummies?" I could go on and on. The common law process and Article V amendments can give us a more coherent framework over time, but in any given period it's a Jekyll and Hyde situation.

Take the Section 3 case. The way I've been discussing Trump v. Anderson with my students is to say that the Court will probably rule for Trump in some fashion. Why is that? What are the alternative rationales? It's easy for them to see that politics plays an important role in that case. Then you can feed that back into older decisions when the politics are less familiar now (like Marbury).

It's a great time to teach constitutional law. Or at least as great as any other time.


Posted by Gerard Magliocca on February 26, 2024 at 08:29 AM | Permalink | Comments (0)

Sunday, February 25, 2024

"...Growing Interest in..."

The Atlantic, which, with Slate rendered more or less irrelevant, retains its almost 170-year title as the Mecca of American Midcult, has this interesting story titled, "I Went to a Rave With the 46-Year-Old Millionaire Who Claims to Have the Body of a Teenager." (For the sake of clarity: He claims that his body is the equivalent of a teenager's, not that he has failed to dispose of a teenager's body.) "Interesting" is a strong claim, and words in the headline like "millionaire" and "rave" suggest that a better word would be "quaint," in an 80s-in-"Madchester" kind of way. The subject--yet another person who a) comes from Silicon Valley, b) would prefer not to die, and c) would very much like to sell you something--is not at all interesting. But the story is interesting.    

Specifically, the obligatory passage in which the piece attempts to rise above the noise of the crowd, and to justify its own existence and significance, runs:

Johnson told me wants to create a Don’t Die nation of 20 million people. This may sound unhinged, but people are listening. Johnson’s societal ambition echoes that of growing numbers of tech executives and venture capitalists trying to build alternative cities and states. His quest for immortality has been the subject of features and interviews in Time, Bloomberg, Vice, The New York Times, Trevor Noah’s new podcast, and more over the past year or so. The Blueprint Discord channel has more than 14,000 members, whom he calls the “Don’t Die Army.” In addition to the meetups Johnson hosted in New York on Saturday, there have been more than 200 Blueprint gatherings in 75 countries this year. Some 5,000 people recently enrolled in a self-experimentation study to see how well the Blueprint protocol works on a broader population.

Note the actual level of correspondence between the phrase "people are listening" and the evidence given. The largest number given is 14,000--the number of people on Johnson's Discord server. Of course, 14,000 ain't nothing. As Discord servers go, it's smaller than US Furries (19,000 members) and much smaller than virtually any Discord server related to sex or gaming, but larger than the membership roster of the Smooth Jazz Chill Out Lounge server. In any event, ultimately the evidence for "people are listening," which is a long way from people actually being convinced, or serious, or even particularly interested, consists of a) a small number of Discord server members, which already places them in a specialized population; b) a smaller number of people willing to "self-experiment," which probably overlaps with the number of Discord members; and--and surely most importantly--c) some number of reporters or editors for a small number of similar chattering-class-servicing publications, all of whom are pursuing the same standard-issue feature subjects, and all of whom would prefer that those be roughly the same subjects. (Being first to the subject is good if others soon follow; being alone in finding a subject interesting or newsworthy weakens the cash value of your work and opens you up to claims of unreliable eccentricity.)

References to "growing numbers" and "people" notwithstanding, then, the justification paragraph here does not really support the claim that the subject of the story is significant or that it will be of interest to many people. Indeed, it may well be of no interest to the vast majority of people. Rather, it suggests that the right sorts of people, people occupying roughly the same cultural milieu either directly (Silicon Valley) or indirectly (people willing to read features about rich tech culture in the Atlantic), are willing to treat it as interesting. The story could have said that to justify itself, of course. But apparently that sort of justification would be considered...what, exactly? Insufficient? Inappropriate? Déclassé? Too on-the-nose, too self-revealing? Nor, apparently, is it sufficient to offer no justification whatsoever, other than that one person found it interesting enough to write about. So one must have the usual recourse to flimsy numbers, vague claims of growth, and invocations of consensus on the part of similarly situated culture-and-status markers that the subject is important and the interest justified.

Nothing unusual here, of course. This sort of thing is the vast majority of what "we" read. Perhaps this serves as a reminder to be skeptical of the importance of such stories, even or especially if they engage in the usual exertions to demonstrate their own importance. It certainly serves as a reminder that how these stories justify their importance is usually fairly telling of their narrow class and cultural perspective, and of the narrow nature of the group whose interest counts to certify the story as important. And it leaves open the possibility that the vast majority of people out there would find the same story entirely unimportant, might find whatever is on offer there appalling if they did take any notice of it, and just might be able to identify other issues of vastly greater urgency and importance to them and their lives.

I offer this as a passing observation. It is wholly--well, perhaps not wholly--unrelated to the fact that it is law review submission season; that a great many papers offer almost exactly the same justifications for their own existence and for the importance of some particular subject; that these authors too would like to be first but definitely not alone; and that these authors rely on the knowledge or hope that the people doing the selecting will, in turn, fall within the same narrow class and cultural spectrum, and thus either agree with or gloss lightly over those justifications. 

Posted by Paul Horwitz on February 25, 2024 at 04:46 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, February 24, 2024

3rd Annual Law vs. Antisemitism Conference, Feb. 25-26 at FIU College of Law

Anti Semitism Conference poster_R4The 3rd Annual Law vs. Antisemitism Conference begins tomorrow and runs through Monday at FIU College of Law. We have more than 100 registrants from all disciplines and all over the country.

The program includes keynote speeches by Marc Stern of the AJC and Rabbi David Saperstein, formerly of the Union for Reform Judaism; a screening of the film Recipe for Change: Standing up to Antisemitism with producer Todd Shotz; and a Sunday evening reception at the Jewish Museum of Florida-FIU. And, of course, good food.

All panels and presentations will be livestreamed, for those who cannot make it to FIU. There is a link listed for each panel.

Posted by Howard Wasserman on February 24, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday Music Post - Old Whine

There was a time in the early sixties when some popular male vocalists almost seemed to whine their lyrics, which were sometimes, though not always, whiney as well. Maybe they (or their producers) were trying to distinguish themselves from contemporaries such as Elvis Presley, Chuck Berry, and Ray Charles. Or maybe they thought they were channeling Frankie Valli (they weren't).  I have no idea how or why the fad began, or exactly when it ended (which might have had something to do with the Beatles and the Stones, or Dylan). Some of the material was still really good; some really isn't. Once you've heard it, the vocal style is, well, memorable.

The clips are at The Faculty Lounge.


Posted by Steve Lubet on February 24, 2024 at 06:22 AM | Permalink | Comments (0)

Friday, February 23, 2024

January 3rd Comes Before January 6th

That sinking feeling you sense is the growing realization that the Supreme Court's opinion in Trump v. Anderson will probably not resolve Donald Trump's eligibility to be President. Instead, the Court is likely to say only that states cannot enforce Section 3 against a presidential candidate (at least before the election). This means that Trump's eligibility can be raised in the Joint Session of Congress on 1/6/25. And there is a decent chance that Democrats will control the next House of Representatives, simply because the numbers are so close now. If Democrats also hold the Senate (whatever likelihood you give that), then we could face a constitutional implosion.

But that's only the beginning. Before the Joint Session meets, the new Congress must be organized. Democrats in both Houses might raise Section 3 challenges against Republican members-elect. This could be done as a prelude to a Joint Session challenge, but another factor is that such challenges could increase their margin in the Joint Session. A challenged member cannot vote until the challenge is resolved. Is that likely within three days? Probably not.

There are some workarounds to these problems, but there will be time to consider them after we get the Court's opinion. I just hope that the Court is thinking what might happen if Trump wins and if the merits of the Section 3 challenge go unaddressed now.


Posted by Gerard Magliocca on February 23, 2024 at 09:53 PM | Permalink | Comments (0)

Wednesday, February 21, 2024

Take Back the Court on LePage v. Center for Reproductive Medicine

This essay is by Sarah Lipton-Lubet and Take Back the Court, reposted here with permission:

Another Shitty Day to be a Woman in America

The move from Dobbs to banning IVF was faster than even I imagined.

By Sarah Lipton-Lubet and Take Back the Court

We’ve all seen how the overturning of Roe has empowered radical judges to act out their reactionary fantasies as if they were writing dystopian fiction rather than adjudicating actual cases with incredibly serious consequences for millions of people.

Last week, the Alabama Supreme Court took the (latest) prize.

That court held – 7 to 2 – that embryos frozen in IVF procedures are “children” under state law. The court held that therefore children and unborn children – including frozen embryos (which are actually blastocysts, a pre-embryonic phase), or in the court’s parlance “extrauterine children” – are protected “equally” under the state’s Wrongful Death of a Minor law, which allows civil damages. 

The court based this conclusion on the 1872 Wrongful Death statute, and a 2018 ballot measure that amended the state constitution to “recognize and support the sanctity of unborn life,” and said that the amendment requires the court to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children.”

In its opinion, the court stated that “[u]nborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” And the court went out of its way to hypothesize additional future implications. I have to include this excerpt in full, partially to remind myself that it’s actually real:

“For instance, one latent implication of the defendants' position [that frozen blastocysts aren’t the same as actual children] -- though not one that the defendants seem to have anticipated -- is that, under the defendants' test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a "child" or "person," because such a child would both be (1) "unborn" (having never been delivered from a biological womb) and (2) not "in utero." And if such children “were not legal "children" or "persons," then their lives would be unprotected by Alabama law. The plaintiffs argue that this sort of unequal treatment would offend the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits states from withholding legal protection from people based on immutable features of their birth or ancestry. These are weighty concerns.”

Continue reading "Take Back the Court on LePage v. Center for Reproductive Medicine"

Posted by Steve Lubet on February 21, 2024 at 08:28 PM | Permalink | Comments (0)