Thursday, July 17, 2025
Viewpoint diversity in law schools, once again
Kudos to Dean Paul Caron for assembling a good collection of recent posts on the perennial subject of whether and to what extent universities should become more intentional about viewpoint diversity. These interesting posts were spurred by what appears to be a commitment by Harvard to deliberately pursue faculty hiring of conservatives (resources permitting, a big caveat in these troubled times), and perhaps doing so, at least the reporting suggests, through the development of institutes and initiatives that would channel such efforts into these organizational rubrics.
My own views align with those who regard it as important -- perhaps short of an imperative, but still really important -- to pursue actively viewpoint diversity in law school hiring. This ought not, imho, be about quotas, and not really even about measuring with inherently flawed tools the pertinent comprehensive ideologies of faculty. That is not really possible, for all sorts of reasons, nor is it appealing as a normative matter. That it is not obviously illegal is small comfort. We are talking here about best practices, not about what taking advantage of the latitude available by the law's agnosticism on the subject of the viewpoints of our teachers.
What is possible, and desirable as a best practice, is to be intentional and strategic about how we scour the relevant universes for folks who have views different from the majority, from the common views of those who are working in legal academia and at our own institutions on subjects in which they have expertise and a developed research agenda. Further, relevant faculty (and with special attention to deans and those in other positions of institutional influence and power) should aspire to be truly ecumenical in how they read and evaluate work. Maybe, to quote my good friend and leading constitutional law scholar Mitch Berman, "originalism is bunk." But folks who hire faculty should be dead set on bracketing this view when evaluating folks who are committed originalists. I am not naive in supposing that such reviews will cause the scales to fall from one's eyes, but I can attest to the fact that one can examine carefully scholarship that has both results and methodology that one ultimately finds utterly unconvincing. There are many examples of this that have nothing to do with originalism, but I trust you get this (admittedly un-novel) point.
Deans are big parts of the culture, and of the enterprise. To be sure, their experience will differ from institution to institution and also by style and temperament. I have seen deans whose own work is conspicuously liberal be fairly successful in setting a tone and also standards (if not necessarily rules) that encourage colleagues to be ecumenical and charitable in their evaluation of scholars with whose work they disagree, often vehemently. Indeed, I have aspired to be such a dean myself. This can admittedly be difficult, both with regard to one's own self-discipline and, especially, one's ability to use soft power and respectful influence to help move the needle. Further, I have had the good fortune to serve as dean two institutions (San Diego and Northwestern) who have long enjoyed a tradition, for sure not beginning with me, of welcoming more conservative scholars and ensuring that such voices are amply respected and even encouraged within the law school. Our students have benefitted from such diversity, as have our colleagues. But let me not exaggerate where these and other institutions are with regard to a true condition of viewpoint diversity. Conservative and libertarian viewpoints remain distinctly in the minority in law schools and this reflects our collective failure.
Remedying these deficiencies requires constructive efforts. These efforts should be steadily purposive and, in my opinion, mostly organic. Number counting will be no more successful here than it is with regard to the kind of DEI-focused hiring that is currently under assault. Despite what one spate of ill-intentioned, evidence-free, and ultimately baseless recent assertions suggest, the goal of ensuring that faculty recruitment should be based principally on one's race or gender has never been a priority of mine, nor would I suggest it should be a priority of other deans and faculty members, even before the Court's recent affirmative action decision. And so it defies sense that we would and should replicate such efforts with regard to viewpoint diversity.
That said, external threats to punish law schools unless they scramble to assemble a much more conservative law faculty are not the answer. And hyperbole about either facts on the ground or what the world should quickly look like is seldom helpful. Instead, we should undertake the effort as shepherds of our institutions to simply do our level best to improve on this dimension. The tall task of increasing viewpoint diversity -- more specifically, bringing in more avowedly conservative and libertarian perspectives, defined in nuanced and contemporarily relevant ways -- should be embraced by faculties at law schools across the spectrum of missions and of resources.
Off my soap box, to admit that the difficulty in all this lies mainly in the strategic details. Focusing on such strategies is really essential, but is presaged by what I hope is a broad scale agreement that we are not nearly where we ought to be.
Posted by Dan Rodriguez on July 17, 2025 at 03:54 PM in Daniel Rodriguez | Permalink | Comments (0)
Dick Fallon, remembering
Many tributes have been pouring in on the passing of Prof. Richard Fallon of Harvard Law School. The tributes tell a consistent story of a renowned teacher-scholar, whose impact on his fields, legions of students, and colleagues across legal academia. A life in legal education very well lived indeed! I add here a comment about my own experience with Dick and also a more general comment.
I knew Prof. Fallon first as a student in his Fed Courts class at HLS, in what was still his pre-tenure period. Prof. Carol Steiker (HLS '86) has written about the rigor and excitement of that course (we may have been in exactly the same class, with Elena Kagan, but memories fade). Yes to everything she says! It was a thrill, even if the ensuing decades since continue to leave me, as I say to the annoyance of my fed courts colleagues at Northwestern, with a sense that some of the subject is intense dancing on the head of a pin. But, no matter, Fallon's precision in thinking and explaining, including to those struggling at times to follow (like me!), was memorable and meaningful. He was even back then a master teacher. He remained so afterward.
At about the same time, I had the opportunity to work as an editor on what was his big tenure-piece, "A Constructivist Coherence Theory of Constitutional Interpretation." From the age in which (thankfully!) Harvard Law Review memos were not maintained forever, I can tell you that there was much battling in Gannett House about whether to accept the article for publication. It was a densely argued piece, unconventional in its framing of some of the leading debates, breathlessly ambitious for a young academic, and envelope-pushing in a way rather unfamiliar to us neophytes. Further, it was unpopular in many of my fellow editors' eyes. It wasn't part of the zeitgeist of the times -- those times seeing us publish articles, e.g., comparing Posner with Franz Kafka, early efforts at narrative legal scholarship, and other pieces now best forgotten. Fallon's article wasn't trendy, it was big picture constitutional theory, with a vein of an argument that, looking back nearly four decades afterward, was rather ahead of its times.
In any event, I did my best as an editor to not screw it up too much. The editing experience enabled me to work with Prof. Fallon and to become ever more impressed with his care and consideration. Nothing I did really contributed to making the article better; but the experience contributed in small ways to my burgeoning interest in becoming a legal academic. (I can also mention two other youngish HLS profs who had that same effect on me -- Dan Meltzer, his collaborator, and Cass Sunstein, who was visiting then at HLS and whom I worked as an RA). I will add only as a footnote that I had the great opportunity to reengage with Dick F. when I spent a semester in Spring '19 as a visitor. His office was across from mine in Areeda Hall and he was, as expected, kind and helpful. He was thoughtful in saying he remembered me as a student, but that was much more generous than accurate, I suspect.
The general comment: Dick Fallon was, at his death, an increasingly rare example of someone whose imprint was deeply felt at one single institution, made possible by the sheer fact of consistency and longevity as one of its full-time professors. He was at HLS for four uninterrupted decades! He didn't spend time in government service and I couldn't locate easily from his resume evidence that he spent substantial time (a semester or more) working outside of Cambridge. He was devoted in his efforts and his sheer time to Harvard Law School. Colleagues can speak to this better of course, but I can imagine that his impact on that institution was extraordinary, and even epic in scope and in endurance. Having moved around over my career, like so many others (some even more than I have!), it is an experience that is often missed by profs. And from an institutional perspective, this is an experience that the law school certainly can cherish for the unique contributions that consistent, long service as a teacher and institutional citizen permits. Maybe there is a small lesson in here for those (of us) with the all-too-common wanderlust. The grass is often greener, but, for Dick Fallon, "the green pastures of Harvard University," as I recall Bob Dylan once noting in comments beginning one of his song performances, were plenty good enough.
Posted by Dan Rodriguez on July 17, 2025 at 01:07 PM in Daniel Rodriguez | Permalink | Comments (0)
What Is the Buck?
As Gerard's post reminds us, Pres. Harry Truman famously kept a sign on his desk announcing that "The Buck Stops Here," meaning that he wouldn't deflect responsibility by passing the buck. That may or may not have been his actual practice, but what is said buck that either did or didn't stop at Truman's desk?
In fact, it is a poker term, dating from the nineteenth century, when players passed a piece of horn (in some versions, buckshot) around the table to indicate the dealer. Passing the buck was a shift of responsibility, but not in a dodgy or irresponsible way. Eventually, and repeatedly, the buck stopped at every seat at the table.
I don't know when the idiom changed to mean an evasion of accountability, but I do know that Truman was a confirmed poker player.
Posted by Steve Lubet on July 17, 2025 at 08:31 AM | Permalink | Comments (0)
The Buck Doesn't Stop Here
Everybody knows that Harry Truman had a sign on his desk that said "The Buck Stops Here." It became his trademark.
What I didn't know until I looked into it the other day is that this fact only became well-known as a criticism of Dwight Eisenhower. Eisenhower was a delegator. He gave his aides a lot of responsibility, in part to shield himself from blame if things went bad. When President-Elect Eisenhower met with Truman in November 1952, the headline was that Truman told Ike that "The Buck Stops Here." In other words, you can't get away with that as President in the way that you did in the Army.
In 1956, Truman and Adlai Stevenson attacked Ike for shirking his responsibilities with the slogan "The Buck Stops Here." In a nutshell, Truman's argument was that Eisenhower couldn't get away with blaming his subordinates for various mistakes. Put another way, Eisenhower ran his Administration on the principle that "The Buck Doesn't Stop Here." He acted more like a head of state, as befitted his apolitical military image.
Another wrinkle is that I wonder (though I don't know) to what extent Truman actually followed "The Buck Stops Here." Surely he must have passed some hot potatoes to his Cabinet officials. On the other hand, maybe he didn't do that and that explains why he left office with a record-low approval rating.
Posted by Gerard Magliocca on July 17, 2025 at 08:01 AM | Permalink | Comments (0)
Wednesday, July 16, 2025
Why the TROs will Keep Coming
Imagine that you are a federal district judge. You don't get all that many constitutional cases. One is filed before you challenging an executive action. The issues presented are novel and complex. The plaintiffs ask for a TRO. Your natural instinct, I think, would be to say "I'm going to put the challenged action on hold for a little while until I can figure out what the hell is going on."
The Supreme Court's reversal of some or even most of these TROs won't change this dynamic. The only thing that might be helpful would be if TROs were time limited to say, two weeks. Part of the problem is that there is no uniform standard. Plus, some may suspect that a "temporary" order is not so temporary because its duration is indefinite. But admittedly there are cases in which even a two-week TRO might seem unreasonable.
Posted by Gerard Magliocca on July 16, 2025 at 11:03 AM | Permalink | Comments (0)
Contingent Elections and Electoral College Reform
Today when you ask people why they don't like the Electoral College, their #1 answer would probably be "Because it can allow the person with fewer votes to win." This concern was discussed in the 1960s by the Bayh Subcommittee, but skeptics (including RFK) pointed out that we had not had a minority President since 1888. Maybe that was a long-shot possibility, they thought. Turned out they were wrong, but that's just another example of a poor structural prediction.
The #1 concern in the 1960s was that we would have contingent elections in the House of Representative. Strom Thurmond tried to achieve this with his third-party run in 1948. This then triggered some state reforms that led to Ray v. Blair, a significant Supreme Court case on presidential electors. In 1960, some Southern states tried choosing "unpledged" electors to trigger a contingent election. And in 1968, George Wallace ran a third-party candidacy to do the same.
It's no surprise, therefore, that high tide for Electoral College reform was 1969. People worried that we could have an acting President on Inauguration Day if the House was deadlocked. People worried about whether a President who was elected despite being a clear loser in the popular vote (John Quincy Adams in 1824) could govern modern America or be an example of democracy in the Cold War. People worried about faithless electors. People worried about a contingent election giving us Nixon/Muskie instead of Nixon/Agnew because of the party balance in the Senate. Finally, people worried that a contingent election triggered by the white South would kill civil rights. In this respect, I wonder to what extent the assassination attempt that crippled Wallace's 1972 campaign might have mattered.
Nobody that I know of defends the contingent election procedure. Acceptance of the Electoral College today rests on the assumption that this is not a threat. But that could just be another poor structural prediction.
Posted by Gerard Magliocca on July 16, 2025 at 08:54 AM | Permalink | Comments (0)
Tuesday, July 15, 2025
"In Russia, Attorneys Identify *You*"
Pardon the old-fashioned joke. The item is a little more serious. We are used to this being the least transparent administration in modern American history, and in the immigration enforcement area recent months have seen, in no particular order, secrecy about FOIA disclosures, secrecy (abetted by the congressional leadership) about oversight, secrecy about the identity of detainees, and the unwarranted (and unacceptable in any case) conversion of federal immigration enforcement authorities into a masked paramilitary form of secret police, a thuggish practice that is proliferating and which is part of a congeries of practices--enforcement quotas, making deals with countries like El Salvador, egging on or winking at abusive conduct, and so on--that could not be more authoritarian and less conservative.
But this looks like a new one: The Intercept, a publication whose politics I don't remotely share but one that does an excellent job of putting reporters on the ground for shoe-leather journalism, reports on government attorneys withholding their names in immigration proceedings that are open to the public, behavior that in the two separate cases noted had the full compliance of the ALJ. One hopes this is not happening in other immigration courts.
I am not a name-and-shame type and would rather not encourage conditions that drive law- and oath-abiding, sane Americans from the ranks of federal government employees in or out of law enforcement. But there is no anti-doxxing exception to the conditions of basic transparency that constitute one of the bulwarks of the rule of law. The justification for such behavior is surely even more questionable than the already inadequate justification for the ongoing formation of our masked secret police--not that the government responded to the Intercept’s request for comment. We do not and cannot have a secret-police-style arrangement for lawyers, in and out of the courts. The remedy for the mostly nonexistent concerns the government has used to justify itself is better security and more fortitude--not the casual piecemeal establishment of a USNKVD.
I tend to think, as I've said before, that comparisons to Hitler are inapt for this regime. They are not somehow categorically impermissible in the way that comparisons to, say, Russia, China, El Salvador, or a banana republic would be; there is no logic to such a suggestion. They're just not the best fit. Comparisons to Hitler's supporters, defenders, and apologists, on the other hand, are another matter. That comparison is appropriate, and appropriate in spades for lawyers. To casuistically defend conduct like this, or to selectively defend conduct of which one approves while ignoring or remaining painstakingly silent about (or indifferent to) the many abuses before one's eyes, does indeed put a lawyer, or indeed any citizen, in the position of colossal, consequential moral failure or cowardice of those who allowed Hitler's regime, or other authoritarian regimes, to spread and flourish.
Posted by Paul Horwitz on July 15, 2025 at 03:40 PM in Paul Horwitz | Permalink | Comments (0)
"Erinnere dich an das Erbe deiner Heimat!"
It is unfortunate, at least for our literacy and dignity, that our national government's communications and propaganda operations have since 2008 been placed largely in the hands of 22-year-olds with an ever-plummeting level of facility in the language, just as it is unfortunate that our current regime's aesthetic runs from kitsch to donated kitsch to full-on Atlantic City whorehouse, and from a wee bit fascist to paramilitary chic to "Say what you will about the tenets of National Socialism, Dude, at least they knew graphic design." But one saving grace is that the combination of, variously, naive enthusiasm and cunning enthusiasm with a lack of education and taste yield frequent ironies to be enjoyed by the cynical, jaded, educated elites. (No, not those elites. No, not those elites either. Not those ones. Definitely not these ones! I meant the other elites. One begins to suspect that the word "elite" is not an especially sharp analytical tool.)
Thus, this gem from the 22-year-old assistant secretaries at Homeland Security--the kids who also brought you these greatest hits. You may see it as a paean to J.D. Vance's Blut und Boden-esque heritage Americanism, a Stephen Miller-style pictorial ode to white nationalism, a fond departmental sendoff to Paul Ingrassia, or something of the sort. And you would be right to do so! I prefer to see it as a tribute to the numerous non-English-speaking enclaves that were a key feature of westward expansion. Nyte! It pairs nicely with music.
Posted by Paul Horwitz on July 15, 2025 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)
JOTWELL: Bookman on Gilles on Arbitration Exceptionalism
The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Myriam Gilles, Arbitration Exceptionalism, arguing that the Court may be pulling back on its overwhelming preference for arbitration.
Posted by Howard Wasserman on July 15, 2025 at 11:05 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Legitimating the Warren Court
The Bayh Subcommittee served as a safety valve for the Warren Court. What I mean is that controversial decisions during the 1960s were often followed by hearings in the Subcommittee and proposals for action. These hearings ventilated the issues and sometimes reconciled people to the ruling. Consider some examples:
- Miranda. The Subcommittee held multiple hearings on the case. One was in DC and others occurred across the country to allow local police to express their views on this dramatic change. Congress responded with a statute in 1968 that purported to overrule Miranda in federal prosecutions, though the law was not enforced. In a sense, the decision was criticized and embraced at the same time in a way that solidified its authority over time.
- Reynolds. The Subcommittee held hearings on the question of state legislative reapportionment. Proposals were introduced to modify the Court's ruling, but none could gain sufficient support in Congress.
- The School Prayer Cases. There were hearings on these cases as well. Bayh then proposed a Sense of the Senate resolution stating (along other things) that voluntary prayer was permitted in public schools. The resolution passed, but a proposed constitutional amendment came up short. This was again a delicate dance that ended up consolidating the Court's rulings.
Now the Subcommittee also held lengthy hearings on Roe v. Wade in 1974. Did they have the same effect? Well, only partly. But more on that another time.
Posted by Gerard Magliocca on July 15, 2025 at 09:35 AM | Permalink | Comments (0)
Undermining district courts
Speaking of SCOTUS' Order staying the injunction in McMahon, a WH spokesperson said the Court "once again recognized what radical district court judges refuse to accept--President Trump, as head of the executive branch, has absolute constitutional authority to direct and manage its agencies and officers." Not that the majority cares--obviously--but this statement illustrates every problem with the Court's approach to these cases and orders.
The top of the judicial hierarchy is actively undermining the lower levels it is designed to lead. By summarily rejecting district judges' hard work, the Court tees up the administration to criticize district judges as radicals who disobey or try to make-up law out of personal opposition to Donald Trump and whose orders the government therefore can disregard because only SCOTUS matters. This is not new. Despite John Roberts's peans to district judges in the occasional year-end report, a tenor of disrespect for (beyond mere disagreement with) district judges burbles under the surface with SCOTUS. Many legal doctrines (especially procedural stuff, such as pleading rules or everything surrounding qualified immunity) reflect an unstated disrespect for district judges, or at least their ability to achieve what SCOTUS wants.* Some of this enhances the Court's power (the theme of Lemley's Imperial Supreme Court and of Justice Kavanaugh's CASA concurrence). But it is leaking out to the executive--SCOTUS is giving its imprimatur to those outside the judiciary to criticize and ignore lower courts as out of control. And despite Roberts' umbrage when law professors criticize judges, he remains silent when the President--who, according to his spokesperson, has "absolute" power in certain areas--does it.
[*] I always return to Scalia's snark about "the discretionary decision of a single district judge" preventing the AG and FBI director from doing their jobs.
The Court exacerbates this by not explaining or justifying the order. The failure to explain obviously gives the administration opportunities to score propaganda points by inventing an explanation. The Court did not say the President has absolute authority over agencies, which is not a true statement of law. But the absence of a counter-narrative from the Court allows the executive to fill the space with a justification that becomes true.* But SCOTUS' silence allows the Administration to use those false reasons as the basis for criticizing and ignoring district judges--district courts refuse to accept or respect the law and rightful presidential power as SCOTUS understands it.
[*] Sure, the statement may prove if the Court eventually rules against the administration. But by then we will not have a functioning Department of Education, so no one will care.
Posted by Howard Wasserman on July 15, 2025 at 07:45 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, July 14, 2025
SCOTUS: Trump can burn down the government, for now . . . and later (Updated)
I have not particularly celebrated lower-court decisions preliminarily enjoining enforcement of Trump's various unlawful stuff. Because I have anticipated that SCOTUS will stay the PI and allow Trump to follow through on whatever plans the district court has held violate the Constitution and federal law pending a final judgment. And that has proven the case, according to Steve Vladeck, in all 15 of the Administration's requests for emergency relief on which the Court has ruled.* The latest is McMahon v. New York, an unsigned unexplained ruling staying an injunction preventing DOE from firing half the agency employees, expressly as the "first step on the road to a total shutdown" of the department and despite district court findings that the cuts mean the department cannot carry out its statutory duties.
[*] The Court has provided a majority opinion in three (including CASA, in which the Court took the unusual step of holding argument) and offered no explanation at all in seven.
So this is over; Trump can do what he wants, for now. And since the damage now is irreparable, he can do what he wants forever. The courts cannot stop anything because SCOTUS has made itself the only court that matters at the earliest possible moment and it is not inclined to stop the Administration from doing anything until and unless the case ends in a final loss for the government. The status quo to be preserved with the balance of equities is "the administration can carry out whatever policies it chooses until a final judgment declaring those policies invalid." That it will be too late to unwind the damage if the administration's actions prove unlawful seems to be beside the point. I assume the majority has made a back-of-the-napkin merits calculation that government will win, so there is no need to wait. Of course, by not even trying to explain (depriving us of the opportunity to, in Justice Barrett's words, "read the opinion") we have no clue. All that remains is inconsistency between this case (stay the injunction of a Trump policy) and the student-loan case (allow the injunction of a Biden policy to remain in place pending SCOTUS resolution).
Some things to watch:
• Will district judges continue to do the hard work of holding evidentiary hearings and issuing TROs and preliminary injunctions against obviously unlawful actions, knowing what is overwhelmingly likely to happen? Or will they leave the government action in place and proceed (as quickly as possible) to summary judgment and a final judgment? Will plaintiffs stop seeking preliminary relief, knowing all of this? This may reflect the final fallout of the imperial Supreme Court--SCOTUS "is hamstringing them by bypassing longstanding procedural and substantive rules and its own doctrine in order to reach out, take, and decide major legal questions that either are not presented at all or have not proceeded through the courts to establish a record." Update: Alternatively, maybe they follow Ann Lipton: "My vague hope is that lower courts hearing these cases will, when awarding interim relief, flat out say words to the effect of, "I get SCt has been rejecting these injunctions but they haven't explained their reasoning, so I remain guided by existing precedent."
• I wonder what Sam Bray makes of this. He argues that preliminary injunctions should not be merits previews but a way to protect a court's "remedial options," with a rebuttable presumption in favor of the plaintiffs. Clearly if DOE no longer functions (or even exists) by the time of final judgment, the courts have lost remedial options.
• Garrett West argues that purely nullifying constitutional provisions should not form the basis for offensive litigation (because they do not impose constitutional duties); these provisions nullify and thus exist only as defenses. In a soon-to-be-submitted article, I consider the problem of structural provisions that never trigger adjudicative proceedings and thus the opportunity for defensive nullification. This case illustrates that situation: The separation-of-powers and Take Care violations here play out in the real world--delays in processing paperwork to accept students receiving student loans, causing schools to be unable to enroll students or provide services; delays in receiving necessary funds and thus being able to provide services; etc. None of this happens within an adjudicative proceeding and an opportunity to raise the Constitution as a defense.
Posted by Howard Wasserman on July 14, 2025 at 07:47 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Dick Fallon, RIP
From HLS Dean John Goldberg (H/T: Mike Dorf):
Dear Members of the HLS Community,
I am heartbroken to write with news that our dear colleague and friend Richard Fallon, Story Professor of Law, passed away yesterday. For many of you, this news will come as a shock – he was diagnosed earlier this summer with an aggressive cancer and preferred not to make this information widely known.
Continue reading "Dick Fallon, RIP"
Posted by Howard Wasserman on July 14, 2025 at 04:37 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)
Not Your Typical Campaign Ad
Birch Bayh from 1974. Imagine the ads that Bingham or Madison could have run.
Posted by Gerard Magliocca on July 14, 2025 at 02:55 PM | Permalink | Comments (0)
Conscription's Constitution
This is my new draft paper. It's more rough than my typical draft, so I would appreciate any and all comments. Thanks.
Posted by Gerard Magliocca on July 14, 2025 at 11:32 AM | Permalink | Comments (0)
Sunday, July 13, 2025
Maybe This Isn't Antisemitism
But it is indistinguishable, especially this line about Jews and money: "One people enriched, one people erased."
There is much to condemn about the Israeli destruction of Gaza, but the supposed profit motive for the war could come straight out of Stormfront.
Posted by Steve Lubet on July 13, 2025 at 11:21 AM | Permalink | Comments (0)
Saturday, July 12, 2025
Interpleader and exclusive private enforcement
In the early days of S.B. 8 and all it has wrought, Teddy Rave (Texas) proposed a creative path to federal court for potential S.B. 8 defendants--statutory interpleader. The holder of a definite fund or res places the fund in the court, which litigates and resolves disputes over proper ownership among competing claimants to that fund. Dr. Alan Braid--a Texas doctor who announced in the Washington Post that he had performed a post-heartbeat abortion, triggering three lawsuits--tried it. He deposited $ 10,000 (the minimum amount recoverable for one violative abortion) in the Northern District of Illinois (where one of the S.B. 8 plaintiffs resides) and asked the Court to decide which of the three claimants should get the money--or to decide that none should get it, because S.B. 8 is constitutionally invalid.*
[*] Dobbs complicated the case, since the substantive ban on early abortions now is valid. Braid shifted his constitutional arguments to challenge S.B. 8's procedural mechanisms, which I am not sure should be litigated in this posture.
The Seventh Circuit approved the process, sort of.*
The court acknowledge that this is not the typical interpleader, which involves a disinterested stakeholder and a fund such as an insurance fund or bank or estate assets. But Braid's claim fits the deliberately broad statutory language for claims "in the nature of interpleader." This can include money arising from a tort or statutory violation on which the stakeholder is not neutral-and-disinterested and on which the stakeholder resists any liability to any of the claimants on the fund. Braid's potential liability was definite enough (even if not-yet determined)--he has a single pot of $10,000 which only one of three competing claimants can recover, on which claims exceed the value of the fund (since all seek at least $ 10,000 but only one shot of $10,000 is recoverable), and on which Braid contests his liability and responsibility to pay anyone.
Of course, it did not matter that this could fit interpleader--the court of appeals sua sponte raised and abstained under Colorado River. The federal action lacked "formal symmetry" with the state action--only one federal defendant had an ongoing state claim, the federal action is more efficient, and S.B. 8 imposes problematic procedures in state court. But they were parallel enough--similar parties litigating similar issues (the validity of S.B. 8). And enough of the 10 Colorado River factors weighed heavily in favor of abstention--the centrality of Texas-law issues to both actions, the fact that state courts obtained jurisdiction first, the risks of piecemeal litigation and conflicting judgments, and the appearance of forum-shopping. The court was not swayed, nor should it have been, by arguments about S.B. 8's defective procedures.
Final thoughts:
1) I still think this is wrong as to interpleader. That process is designed to resolve competing claims over an existing fund, not to litigate liability on a state-law claim that might cause the fund to come into existence (or not). Otherwise, every tort defendant facing multiple damages actions in state court would try this move.
2) The limiting principle here might involve an S.B. 8 quirk. Multiple "any person" plaintiffs can sue over one abortion but a defendant can pay only one judgment for one violative procedure. Thus, unlike three tort plaintiffs recovering for their damages, three S.B. 8 plaintiffs fight over one statutory damage amount. Ironically, that limiting principle allows a state to enact S.B. 8 copycat and preempt this strategy by allowing multiple recoveries for one violation--cutting off interpleader (because the fund is less definitive) and making life more difficult for the targets of the law.
3) A further irony: Rocky and I argued that singular recovery was one (of three) keys to the argument that S.B. 8 plaintiffs act under color and are subject to § 1983 suit. Singular monetary recovery means the process looks more like criminal prosecution (a traditional-and-exclusive government function) than ordinary tort litigation--a singular sanction against the wrongdoer rather than damages to make an injured person whole. So a state shifting the recovery scheme to avoid interpleader might also avoid the under-color problem, all while making life worse for the targets of the law.
4) It is hard to imagine any attempted interpleader action that will not satisfy the same Colorado River factors, requiring the federal court to abstain. The interpleader requires the same initial steps--individual violates the statute and gets sued in state court under state law. There always will be parallel litigation to the federal action. State law always controls these parallel actions and the state-court action always will have been first-filed, two factors pushing towards abstention. The court thus opened the door to interpleader as a response to exclusive-private-enforcement regimes, but Colorado River makes it unlikely any person can avail themselves of that move.
Posted by Howard Wasserman on July 12, 2025 at 02:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
How Should the "Only Nationally Elected Official" Behave?
As has been the case all year--and indeed is generally the case--most of the interesting developments in constitutional law in the last few weeks, especially those involving separation of powers and unitary executive "theory," have had little or nothing to do with the Supreme Court. Even in corners where people discuss these things, most of the interesting and pressing questions about unitary executive "theory" simply haven't happened. I put quotes around "theory" not to reject the concept or the outlines of the argument as a textual or logical matter, but because there is so little of it. Most of the discussion seems to me to be focused on historical justifications for a unitary executive, and on questions of power--always everyone's favorite topic and generally a tedious one. But much less has been said about the broader implications that a theory might supply. In particular, the discussions rarely dig into the essential concomitant to power: the moral, ethical, political, and philosophical duties and obligations that must accompany that power. This is unsurprising on Donald Trump's part--he is not a knowledgeable or reflective man, and what little reflection he engages in doesn't run toward questions of moral duty--but a failing on the part of others. (Any statement so broad invites the usual "honorable exceptions" boilerplate, which applies here, viz. Thomas Crocker and Alan Rozenshtein. I surely have missed others. But, having gone looking for such discussions, I stand by the general statement.)
Here's one case in point from the past week. Virtually the entire theory of this regime, such as it is, has been summed up by Stephen Miller, one of about a half dozen people effectively serving as acting President. (Which is not at all to say that Trump does nothing. We know, for example, that he likes tariffs, bribery, and revenge. And he has some thoughts about Cats, interior decoration, and the Baseball Hall of Fame. But the Trumpian cult of personality and media presence should not obscure the fact that a good deal of the time, Trump is far from the most active or influential member of the Trump regime. More on this anon.) As Miller says, "A president is elected by the whole American people. He's the only official in the entire government that is elected by the entire nation....The whole will of democracy is imbued into the elected president." He ties this to unitary executive theory on the view that since he is the one elected official, his Article II powers must be within his control.
I have no special objection to this, allowing for its imprecision, whether I ultimately agree with it or not. Of course, the pseudo-corollary positions the regime also takes--that there is only one "will of democracy" that belongs to the largest voting unit; citizens don't or can't have varied views, some of them in tension, that seek expression through votes for different offices; that those offices are in some sense subordinate rather than coordinate; and that elected representatives who do not fall in line with the president's desires are somehow acting improperly--are bunk. But I'm not concerned with that here. (This president also appears to believe--like most modern presidents but way more so, as is customary with him--that he has a "mandate," although mandates are as mythical and elusive as chupacabras. The fact that presidents are so gripped by this delusion, and have so many enablers-at-large in this, provides one more occasion to marvel at the extent to which American culture and history are just one long, sublimated urge for monarchy.)
It is characteristic that Miller's focus here is on power. And it's not just characteristic of Miller. Academics have suffered through a good decade or so (not to speak of the decades before that) of workshop talk reducing everything to questions of power (and treating the point as insightful). This usually comes from the left but is hardly exclusive to it. Indeed, a great deal of the thinking of the current right, as opposed to that of actual conservatives, is essentially ersatz leftish theory with a bit of theocracy, a Frank Frazetta drawing or two, and some outré takes on history and anthropology sprinkled on top.
But it would be more interesting and worthwhile to ask: If that's your basic theory, what obligations, as opposed to powers, does it entail? Beyond the usual, trivial "If the people don't like it, they can vote" argument, what internal constraint or conception of duty should guide the unitary executive--as well as his constitutional-oath-bound subordinates, state and federal officers outside the federal executive branch, and the people, who have a duty to monitor and judge the actions of the executive? What would the behavior of a president be if he acted more or less in accord with Miller's description of the president as representing and serving all the people--as opposed to, say, a view that he is obligated only to those who support him, or only those who "won"; or that he is not so much the people's representative as a Dear Leader-ish cult-of-personality figure, blessed by the occasional election, whose will is precedent in importance and authority to that of the people; or that he has been given power, not constrained much (if at all) by moral duty, to dispense or withhold favor to those he considers either good Americans or enemies?
Trump's words and actions suggest that he falls on the right side of that hyphen, despite justificatory verbiage like Miller's. And this week's prominent example involves disaster relief. As is almost invariably the case--see, for example, the aptly named DOJ Weaponization Working Group, whose mission is to centralize and supersize the use of law as a tool to punish personal and political enemies--Trump's goals are always best understood by assuming that what he criticizes in others is exactly what he plans to do. In this case, last year Trump accused President Biden of letting politics affect disaster relief last year in North Carolina. And so we could have guessed that he would take office with the goal of making disaster relief even more sectional and political.
Which he did. As this story notes, the administration has taken a starkly different approach to disaster relief in California, a state with which he is at barely undeclared war, than it is now in Texas. (The justifications offered by the administration--not counting those offered by Caroline Leavitt, for obvious reasons--must be viewed with skepticism. They should be evaluated skeptically in light of a longer pattern of Trumpian planning for targeted federal hostility to California, as well as his singling out of what he considers enemy cities with respect to illegal immigration while saying little about cities, like Houston and Charlotte, with equally significant populations. It's striking that Trump, whose ego and conception of the presidency both depend on the notion that he was chosen by the whole people, is so clearly, often explicitly, at war with vast swaths of the American people.)
Trump's plan to shutter FEMA appears to be undergoing revision, both because he has discovered that Texas has weather and because Trump mostly has impulses, not policies. But I doubt that one element of his general plan will change: his desire to have disaster relief funds distributed directly from the White House. As virtually every decision in the last six months indicates, this is hardly about ensuring that Americans, no matter where, receive the same level (or lack thereof) of federal disaster relief. It's about treating it as a political tool, a political weapon, and a form of lordly, personalist-authoritarian favor, handing out such relief where and how he pleases while insisting that the knee be bent and the Nobel nominations be kept handy.
I raise this example--a prominent one but, of course, only one of many--not to suggest that it refutes unitary executive theory, but to suggest that this, far more than questions such as who fired whom in 1807, is the kind of thing those interested in the unitary executive should be asking about. It raises the kinds of questions--about what obligations and duties should guide and constrain a unitary or powerful executive, and what implications the nationally-elected status of the president have for how he governs and how he may not govern--that demand urgent attention. In particular, they demand urgent attention from those who advocate and accept the premises of the unitary executive.
Posted by Paul Horwitz on July 12, 2025 at 10:34 AM in Paul Horwitz | Permalink | Comments (0)
Saturday Music Post - It's Only Old Time Rock 'n' Roll Music
Is Rock 'n' Roll the most self-referential of all music genres? There are dozens of songs invoking or praising Rock 'n' Roll, but few if any in other genres. There are plenty of blues songs with "Blues" in the title, but the reference is almost always to having the blues, not to the music itself. Anyhow, there are a few Rock songs about Rock music in today's post at The Faculty Lounge.
Posted by Steve Lubet on July 12, 2025 at 06:16 AM | Permalink | Comments (0)
Friday, July 11, 2025
An Open-Source Free Contracts Casebook
After several years of working with Guy Rub, Jake Linford, Tal Kastner, Pam Bookman, and Matt Bodie, we are excited to release to the world a free contracts casebook. We announced it first on the ContractsProf Blog.
Here is the gist of it:
If you teach contracts and are looking for more affordable materials for your students or are simply seeking a more customizable way to structure the course, we hope you’ll take a close look.
We know there are already many contract law casebooks out there, and many of them are excellent. So why launch this project? Not because we had nothing better to do. But two core motivations made us feel this was worth our time.
First, the rising costs of legal education. We became increasingly uncomfortable asking our students to spend hundreds of dollars on casebooks, especially when most of the core content (judicial opinions) is in the public domain. Moreover, we were often asking students to pay for material there was no way we could cover as our teaching credits got trimmed in curricular reforms. On top of the price, the commercial options often come with strings attached, including limitations on access, usage, and formatting.
Second, like many professors, we’ve developed our own distinct ways of teaching contract law. Over time, we found ourselves assigning commercial casebooks with lengthy editorial notes, often skipping chapters, rearranging content, and supplementing them heavily with our own materials. The traditional casebook model made it hard to align the text with our teaching goals, priorities, and style. It also got messy for the students as materials from many different places had to be collated and read out of order.
The open-source casebook aims to address these issues. It’s free, customizable, modular, and flexible. It is thus designed to meet the evolving needs of our diverse community of contract law professors and students. Inspired by a similar initiative in property law, we believe legal education, especially in core courses like contract law, can be rigorous without being expensive, and collaborative without being one-size-fits-all.
That’s how this project began: we wanted a casebook that could be tailored to different teaching priorities, and we wanted to share it freely so others could do the same. On our website, we outline the ways you can use the open-source casebook. Here are a few highlight features of this project:
Modularity: The casebook is composed of discrete units that can, with minor exceptions, be covered in any order (or skipped entirely). You can tailor the text to fit your syllabus and preferences. Want to start with remedies (or consideration or offer and acceptance or something else)? Emphasize the UCC or the common law? Skip excuses? Go ahead. The project is built for it.
Flexibility: Use the casebook as-is or remix it. Add your own notes, swap in cases, create new hypotheticals, or emphasize the themes that matter most to you. Because it’s published under a Creative Commons license, you can do all of this (legally and freely).
Freedom from the external constraints: This isn’t just about saving money for students or having more pedagogical control. It’s also about avoiding a host of irritating, time-consuming, and, at times, harmful limitations. There are no convoluted platforms, no logins (other than for the teacher’s manuals and proposed slides, which we make available behind a password-protected part of the website), no DRMs, no proprietary formats. Just simple PDF and Word files. Consider, for example, a recent challenge: many professors now restrict internet access during exams due to generative-AI concerns, but then find that their students can’t access their digital casebooks. While this problem might (or might not) be solvable, it, and similar ones, are completely irrelevant when the casebook is free and available to download in unrestricted, straightforward formats.
If any of this sounds useful, we encourage you to take a deeper dive. On our site, you can browse individual units or explore full casebook builds. You can adopt them as-is or adapt them however you like. If you are anxious about whether the book treats some of your favorite cases, you can look at the Table of Principal Cases on the website to make sure we have you covered. We also hope to foster a growing community of teachers who share resources. If you’ve developed your own materials, we’d love for you to contribute (with credit, of course). This project has given us not just new tools, but also new ideas and connections, and we’d love to build on that momentum with your involvement.
If you’re intrigued, check it out: https://contractscasebook.org/. We have teacher's manuals and slides for many modules if you need them to adopt the book.
Huge thank you to Tom Kaczorowski of the Maloney Library at Fordham Law School for making so much of this book pretty to look at and functional for users.
Posted by Ethan Leib on July 11, 2025 at 01:48 PM | Permalink | Comments (0)
The Bayh Subcommittee and the 1960s--Let the Revisionism Begin
If you ask Americans what stood out in politics or law from the 1960s, what would they say? Most law professors would say the Warren Court and civil rights. Most people, though, would probably talk more about JFK's assassination, student protests against the Vietnam War, and the tumult of 1968.
The Bayh Subcommittee addressed all of these questions. The 25th Amendment was a direct response to JFK's death. The 26th Amendment was a response to youth discontent. The proposal to abolish the Electoral College was prompted by concerns about civil rights and the 1968 election (i.e. George Wallace). The Subcommittee held many hearings on many leading Warren Court decisions (Reynolds, Miranda, Schempp).
By contrast, the Warren Court played only a peripheral role in JFK's assassination (the Warren Commission), in student protests against Vietnam (cases like Tinker and O'Brian), and no role at all in responding to the chaos of 1968. Thus, using the Warren Court as shorthand for the 1960s Constitution is inaccurate. The Bayh Subcommittee is better shorthand, or so I will argue in my next book.
Of course, the Bayh Subcommittee also did important work in the 1970s (on ERA for example), so there's a broader story to tell. More on that next week.
Posted by Gerard Magliocca on July 11, 2025 at 08:28 AM | Permalink | Comments (0)
Thursday, July 10, 2025
Ted Cruz Is Not a Fourteenth Amendment Citizen
Ted Cruz opposes birthright citizenship, but he should be careful what he wishes for. My new essay for The Hill explains what can happen when someone’s citizenship history is excavated. Here is the gist:
Ted Cruz and birthright citizenship: Be careful what you wish for
by Steven Lubet, opinion contributor - 07/10/25
Cruz’s own citizenship derives not directly from the Constitution, but from Section 301 of the Immigration and Nationality Act, which applies to children born outside the U.S. to “parents one of whom is an alien, and the other a citizen of the United States.”
If Trump’s executive order or Cruz’s proposed statute had been in effect in 1934, [his mother’s] birth certificate would not even constitute proof of her own citizenship, upon which Cruz’s citizenship depends. Rather, he would have to establish that one of [her] parents had been a citizen or a permanent resident alien.
There is also some reason to wonder whether Cruz’s father had once violated immigration law. Raphael Cruz, Sr. came to the U.S. on a student visa in 1957, at age 18, speaking almost no English. Upon enrolling at the University of Texas, he worked washing dishes for “a mere 50 cents an hour.”
The minimum wage in 1957 was $1.00 an hour, which at least suggests that Rafael was working off the books, possibly for cash, which has never been unusual for newly arrived teenagers who speak no English.
I don’t mean to disparage the Cruz family, or to challenge the senator’s citizenship, but rather to show what happens when anyone’s immigration status is intensely questioned.
The genius of birthright citizenship is the simplicity of the 14th Amendment.
There is no need to investigate parents’ or grandparents’ immigration status or length of residency, or to search for decades-old documentation. The only relevant inquiry is place of birth, which is enough to make people Americans.
You can read the entire essay at The Hill.
Posted by Steve Lubet on July 10, 2025 at 02:57 PM | Permalink | Comments (0)
Off the Record on Miranda
The new issue of the Journal of Supreme Court History contains a remarkable article. Catherine Ladnier, then an undergraduate, managed to get off-the-record interviews with five of the Justices who sat in Miranda. (Black, Douglas, Clark, Harlan, & Stewart). The fact that she got them is amazing in and of itself. But the comments that she got (which are printed verbatim) give you a really vivid sense of the individual personalities involved. Definitely worth your time.
Posted by Gerard Magliocca on July 10, 2025 at 12:42 PM | Permalink | Comments (0)
CFP: Georgia Law Review: Polarized Courts: The New Private Enforcement
As the Executive Symposium Editors for Volume 60 of Georgia Law Review, it is our pleasure to announce our annual symposium for Spring 2026: Polarized Courts: The New Private Enforcement.
This year’s symposium will focus on the increasing use of private rights of action to perform enforcement traditionally done by state actors, the arms race among the states to enforce policy preferences through private rights of action, the ramifications for our union of these competing and polarizing uses of courts, and other similar topics. The symposium will include panels and a keynote address.
Continue reading "CFP: Georgia Law Review: Polarized Courts: The New Private Enforcement"
Posted by Howard Wasserman on July 10, 2025 at 10:25 AM in Teaching Law | Permalink | Comments (0)
Wednesday, July 09, 2025
Law School Faculty Hiring Posting Schedule 2025-2026
The usual posts will occur this year regarding law school faculty hiring.
The post collecting information about Hiring Committees is up.
On August 14, 2025, AALS will release the first distribution of FAR forms to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).
Also on August 14, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2025-2026 (last year's Hiring Spreadsheet and Clearinghouse Post).
Around September 5, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).
Posted by Sarah Lawsky on July 9, 2025 at 08:49 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Institutional Leadership and the 1980 Election
One reason I'm researching the Bayh Subcommittee is that this was an era where Congress dominated constitutional discourse. Each branch takes its turn as the constitutional engine. Today you'd have to say that the Presidency is on the leading edge (for better or worse). In the 1960s and 1970s, though, Congress was first among equals, especially when you combine the constitutional amendments proposed with the landmark statutes enacted and with the Watergate inquiry.
Why was Congress the leader then? First, the Presidency was more focused on foreign affairs (the Cold War and Vietnam). Second, Watergate weakened the executive branch and gave Congress a boost. Third, Birch Bayh was in the Senate. Fourth, Warren Burger was no Earl Warren.
Why did this change? In 1980, President Reagan was elected with a distinctive constitutional vision. He seasoned the Justice Department with lawyers like John Roberts, Ed Meese, and Steve Calabresi to carry that vision forward. But another key development in 1980 was that Birch Bayh lost his Senate seat.
Here I want to make a sports analogy that Howard will love. Sometimes a team is in a golden age. The Chicago Bulls in the 1990s. The Indianapolis Colts for a decade or so. Why? Because of one star player. Sure, other people were involved, but without the star the team would be just good. Sometimes the same is true in politics. The personality of the President matters. And there are key figures in Congress. Birch Bayh was that person in his era when it came to constitutional reform. Once he left, the energy was gone. Congress has proposed no constitutional amendments to the states since.
Tomorrow I'll start discussing a more controversial theme of my project, which is that the Warren Court is a poor way of describing the constitution of the 1960s.
Posted by Gerard Magliocca on July 9, 2025 at 07:57 AM | Permalink | Comments (0)
Tuesday, July 08, 2025
Structural Predictions
The Bayh Subcommittee spent more time and energy on abolishing the Electoral College than on any other subject. During the 1970s, one argument against that idea was that black voters would be put at a disadvantage by the direct popular election of the President. Alexander Bickel made this claim. So did Vernon Jordan. It was either wrong or not right, depending on how you want to look at it.
This raises a broader point that you see from the Founding, Reconstruction, and other parts of constitutional history. Predictions about how a structural change will play out in future tend to be inaccurate. The truth is that nobody really knows how those sorts of big reforms will play out over, say, 50 or a 100 years. But judges and commentators often make confident predictions along those lines. You see that in Supreme Court opinions all the time.
Predictions like this should be discounted or ignored. Direct popular election could have hurt black voters in a past election. But in other elections the opposite was true. There was and is no pattern over the long haul. Structural reforms should be made based on broader principles rather than on anticipated results that cannot be correctly anticipated.
Posted by Gerard Magliocca on July 8, 2025 at 10:42 AM | Permalink | Comments (0)