Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 12, 2024

Justice Thomas's Amended Disclosure Is Still Wrong

My new essay at The Daily Beast explains that Justice Clarence Thomas’s amended financial disclosure is still inconsistent, incomplete, and inaccurate. Here is the gist:

The two explanations cannot both be true. Either Thomas had intentionally excluded Crow’s largesse because he believed it to be “unreportable,” or he had somehow “inadvertently” (hastily? carelessly?) forgotten to include it.

As a cross-examiner might ask, was he fooling us then, or is he fooling us now?

But it is worse than that. The amended disclosure lists only “food and lodging” for a single night in a Bali hotel, with no mention of transportation to the destination on Crow’s private jet or on the extended cruise through the islands, both of which were thoroughly documented by ProPublica.

Although I seldom agree with Thomas’ jurisprudence, I can still appreciate the clarity of his written opinions. When it comes to his financial disclosures, however, it is all omission, contradiction, and obfuscation.

You can read the full essay at The Daily Beast.

Posted by Steve Lubet on June 12, 2024 at 07:19 AM | Permalink | Comments (0)

Tuesday, June 11, 2024

Hiring Plans and Hiring Committees 2024-2025

I am collecting information about (1) whether a particular school plans to hire in 2024-2025, and (2) if so, information about the school's hiring committee and hiring interests. Due to some technical difficulties with comments, I'm having to move to a different approach this year for collecting the information.

Please fill out a Google form or email me to provide information about your school's hiring committee and hiring interests for 2024-2025 (scroll down for the list of specific information I'm hoping to collect). Any responses to the Google form can be viewed by anyone.

I will aggregate cleaned, standardized information submitted through the form, emailed to me, or gathered from other sources (such as public hiring ads, posts on the web, social media, etc.) in a downloadable, sortable spreadsheet. You cannot edit this spreadsheet directly. To provide this information, fill out the Google form or email me.

Use a web tool available on the Lawsky Projects website to filter the information in the spreadsheet by subject area, location, and lateral/entry level. All that the tool on the Lawsky Projects website does is sort and filter what is in the spreadsheet; it is therefore only as useful as the spreadsheet is complete.

Here is the specific information I'm hoping to collect. You can submit this information through the Google form or by emailing me:

First:

(a) your school;
 
(b) whether your school is pursuing entry-level hiring in 2024-2025;
 
(c) whether your school is pursuing lateral hiring in 2024-2025.

If your school does plan on pursuing hiring in 2024-2025:

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--I hope that this information will be useful for both entry level and lateral candidates);
 
(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) whether you are open to direct applications/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(h) your committee's preferred way to be contacted; 
 
(i) the website, if any, that candidates should use to obtain information about the position or to apply; and
 
(j) the number of available faculty positions at your school.

The form also provides a space to provide additional information, such as pasting in a hiring ad.

Again, comments are not reliably working, so to submit this information, please use the Google Form or email me directly.

Posted by Sarah Lawsky on June 11, 2024 at 08:34 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Can Governor Hochul Use Federal Law to Stall New York’s Congestion Pricing Program?

NY Governor Hochul surprised just about everyone last week by declaring that she would “delay” New York City’s congestion pricing program on account of its impacts on the city’s central business district. This announcement was surprising because of Hochul’s long-standing support for the program. Just last December, for example, the same Gov. Hochul touted congestion pricing as a “nation-leading” component of her “New New York Plan” that would “Make it Easier for New Yorkers to Get to Work,” “generate billions in revenue for the MTA and improve overall regional air quality.” Hochul is not only contradicting herself but also ignoring state law. The congestion pricing policy that Hochul so casually put on hold had been painstakingly planned for five years since New York’s legislature enacted the Central Business District Tolling Program (codified as Vehicle and Traffic Law Chapter 44-C) in 2019. VTL Chapter 44-C commanded the Metro Transit Authority and New York City — not the Governor — to design tolls for roads, bridges, and tunnels leading into New York City’s central business district. Since 2019, thousands of pages of environmental assessment have been approved. Gantries and transponders have been installed. Contracts had been awarded to vendors. Hochul’s announcement, therefore, risked hundreds of millions in wasted expenditures. Even worse, the announcement carved a $15 billion hole into MTA’s capital plan. The consensus reaction to Hochul’s announcement was most accurately captured by Politco’s headline: “dumpster fire.”

Hochul’s pulling the brake on congestion pricing so abruptly — indeed, chaotically — is certainly terrible policy and likely lousy politics as well. But this is a legal blog, so the question we must ask is: Is it legal? Given that state law seems to give the decision to MTA and New York City, where does the governor get the power to scuttle this state policy?

The answer to this question rests on federal law, not state law. Because New York is imposing tolls on federally aided highways, it must abide by federal rules pertaining to tolls. One of those rules, codified at 23 U.S.C. section 129(a)(3), requires the “public authority with jurisdiction over a toll facility” to “ensure that all toll revenues received from…the toll facility are used only for” federally permitted purposes, The Federal Highway Administration (FHWA) has issued a 2012 guidance requiring the state’s “public authority” to enter into a tolling agreement with the federal government governing this and other federal requirements. From a legal standpoint, Hochul presumably hopes to scuttle the congestion pricing program by refusing to sign such an agreement with the FHWA. She apparently reasons that she is the “public authority” whose consent is needed for congestion pricing to go forward.

After the jump, I will explain that Hochul is wrong to think that she speaks for New York on congestion pricing. Moreover, even if she were right, she would have to give a better reason than her claim (ridiculed here by Jeff Maurer) that working-class drivers would otherwise be paying tolls to eat at Manhattan diners and shop at Manhattan hardware stores. But behind these legal technicalities lies a larger issue of federalism: As a matter of constitutional principle, it is perverse to construe a federal statute to give governors the power to shut down state law. Giving such federal vetoes to state officials will just add to the policy-making gridlock that is now discrediting democracy in America.

Continue reading "Can Governor Hochul Use Federal Law to Stall New York’s Congestion Pricing Program?"

Posted by Rick Hills on June 11, 2024 at 05:22 PM | Permalink | Comments (0)

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

Posted by Paul Horwitz on June 11, 2024 at 12:30 PM in Paul Horwitz | Permalink | Comments (0)

Monday, June 10, 2024

Alito, Recusal, and Court Expansion

My new essay at The Hill explains why Supreme Court expansion is the only way to fix the justices’ broken recusal practice, building on Justice Alito's upside-down flag display and his explanation of non-recusal. Here is the gist:

The Supreme Court is broken. More justices can fix it.

by Steven Lubet, opinion contributor - 06/10/24 11:30 AM ET

Alito declared, no reasonable person would doubt his impartiality, unless “motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.”

But Alito himself evidently realized that the flag created an appearance of impropriety. Otherwise, why persist in asking his wife to take it down over a period of days?

But no matter. Under Supreme Court practice, Alito himself served as the subject, key witness and exclusive judge of his own impartiality, secure from all further inquiry or review.

There is not much reason to expect the current justices to reform their solipsistic recusal practice, which they jointly reaffirmed just last year.

There are sincere arguments for and against court expansion, which I will not repeat here. 

One nonpartisan benefit, however, is that adding four justices in a relatively short time might enable the newcomers, with no commitment to the recusal status quo, to initiate a review of Supreme Court disqualification practices.

Perhaps that is too much to hope for. But Alito has demonstrated that the Supreme Court’s recusal process is broken beyond repair, and it may take a radical personnel change to address it.

You can read the full essay at The Hill.

Posted by Steve Lubet on June 10, 2024 at 06:25 PM | Permalink | Comments (0)

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

Posted by Paul Horwitz on June 10, 2024 at 05:15 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, June 08, 2024

Saturday Music Post - Before the Next Teardrop Falls

"Before the Next Teardrop Falls" was written by Vivian Keith and Ben Peters in 1967 and was recorded a couple of dozen times by various artists over the next six or seven years. It charted briefly twice, without much notice. Then along came Baldemar Garza Huerta, better known as Freddy Fender, in 1975. Fender had been performing under various names and nicknames -- including El Bebop Kid and Eddie con los Shades -- since the late '50s, with some success, including a hit with "Wasted Days and Wasted Nights," but he'd spent three years in a Louisiana prison on drug charges, leaving his career in doubt. (He was pardoned by Gov. Jimmie Davis, who was also a musician most famous for the first recording of "You Are My Sunshine" in 1940.)

It proved to be one of the great intersections of artist, song, and timing. Fender's release reached number one on the country chart, and then number one on Billboard's Hot 100. His recording included a verse in Spanish, and he later recorded an entire cut in Spanish.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on June 8, 2024 at 06:04 AM | Permalink | Comments (0)

Friday, June 07, 2024

The Missing Ingredient

I would suggest, in response to Gerard's post below, that if we ask why those actions succeeded with Nixon and failed with Trump, the missing ingredient is: an Establishment. A good, old-fashioned Establishment, a dominant elite that is enmeshed, to quote Henry Fairlie, in both "the centres of official power" and "the whole matrix of official and social relations within which power is exercised." It mattered that the Post, a well-connected newspaper in a well-connected city, opened the door to Watergate reporting and that the Times and other mainline papers and TV networks (remember them?) quickly followed suit. They had influence in large measure because those institutions were part of or important to the Establishment and taken seriously as such. It mattered when someone like Walter Cronkite spoke to a huge chunk of the nation at the same time. It mattered, too, that the other figures and institutions he mentions were part of that Establishment. Although in our popular histories and memories of the event we sometimes dramatize folks like Woodward and Bernstein and the young lawyers working for congressional committees as young rebels or outsiders, they were for the most part consummately inside, or worked for institutions that were taken seriously as Establishment organs: they were inside the barricades, not outside--and stayed there, sometimes pursuing power and sometimes wealth, for decades. It certainly mattered that Mark Felt was a member of the Establishment. It probably even mattered, despite his inexcusable conduct, that Nixon was a member of the Establishment. 

At best, we have two establishments now, but I doubt even that is an accurate description. In any event, once there are multiple establishments, and multiple avenues to success and notoriety outside any establishment, their power to include or exclude or enforce norms is greatly weakened if not wholly evaporated. Both Donald Trump and President Biden, in their ongoing willingness and ability to ignore, bypass, or freeze out the legacy papers, demonstrate that they no longer have the power they once did, however seriously some of their staff may take themselves. Nor does anyone take select committees or federal district court judges seriously anymore--and for good reason, often enough.

There are certainly still elites. I'm fond of observing and writing about them--their dreams, projects, and illusions, their games and their self-image, and their never-ending struggle with cognitive dissonance. And there are certainly still elite institutions; if Toward Nakba as a Legal Concept had been published and de-published by the Podunk Law Review, we would not have spilled so much ink about it. But the Establishment itself is now, for the most part, like Gertrude Stein's Oakland: there is no longer any there there. I would add that it's crucially important that Establishment mingling, in circumstances in which things can be hashed out by all hands on what passed in the Establishment for all sides, is neither possible nor especially welcome. 

An "Establishment" is also exclusionary, cozy and clubby, self-selecting and self-dealing, and so on. There are lots of reasons to oppose or question it and its structure. I certainly have, especially when it comes to what I think of as the Canadian mandarinate but also here. It's more than a little ridiculous that anyone ever treated any single figure like Cronkite as "the most trusted man in the nation." But the value of reposing trust, and having something in which to repose it, is not so absurd. Back when people thought the Internet was a good thing, they (I include myself) would talk, sometimes rhapsodically, about the democratizing power of moving from a "one-to-many" model of communication to a "many-to-many" model. (It's interesting to look back and think about how much that particular vintage of Internet still revolved around a relatively small number of both traditional and new speech institutions that were effectively Establishment publications. That was, in retrospect, really an era of "more-than-one to many" communication. It's long dead. Something like The Atlantic [est. 1857] exists largely vestigially, can be read or ignored quite safely and easily, and farms engagement like everyone else.) But a one-to-many model, and the social structure that undergirds it, has its benefits too, and any change in governing models has its costs.

Absent an Establishment, I am unsurprised that the Watergate model is ineffective. How can you be cast out of, or by, a social and political power elite that doesn't exist anymore? And I'm rather doubtful, for the same reasons, that the prosecution model will be effective either.      

Posted by Paul Horwitz on June 7, 2024 at 03:31 PM in Paul Horwitz | Permalink | Comments (0)

The Repudiation of Watergate

One way of thinking about the Trump era in a more panoramic way is that we are witnessing the repudiation of the Watergate precedents. When people think about how institutions responded to Watergate, they probably come up with the following list: (1) intense press scrutiny from the likes of Woodward & Bernstein; (2) intense scrutiny from a District Court (Judge John Sirica); (3) a select congressional committee; (4) a special prosecutor; (5) an impeachment inquiry; and (6) Supreme Court action. The one missing tool was a criminal trial of Richard Nixon, due to President Ford's pardon.

To respond to President Trump's misconduct, all six options listed above were pursued. Up to now, though, they have all failed or, at least, cannot claim success. The only one that might is the criminal conviction of Trump (pending appeal). Thus, the takeaway might be that this should be the go-to choice in the future because it's the only effective remedy. I hope that's not the case, but we are on that path.

Posted by Gerard Magliocca on June 7, 2024 at 01:03 PM | Permalink | Comments (0)

Thursday, June 06, 2024

A Second and, Deo Volente, Last Post on the CLR Mishegoss

I won't try to follow and comment on every twist and turn (It's up! It's down! It's up! It's...whatever. I just want to know when the April issue of the Michigan Law Review will come along.). But new information came in not long after I put up my post the other day, and there has been some further news coverage since. I found this Inside Higher Ed piece useful, as well as this Times article (though points were deducted for the appearance of the phrase "speaking [one's] truth"). The Intercept has a second piece, and although I commend it for its work, that work continues to be tilted in its sourcing and to fail to provide links that might allow a reader to judge for himself. That includes not giving a link to the board's letter, which one can find here, if you'll pardon the X-ness of the source. I also found Mike Dorf's commentary useful, although I don't see eye to eye with him on everything. (I do agree with him on a lot of bottom-line stuff.) The new reporting and commentary occasions a couple of observations--few in number if, as always, excessive in length. 

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject--it super-charged it.   

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. (The tit-for-tat behavior includes the media coverage, of course; I don't blame the editors for taking to the press, but it should be understood as another strategic move in the game.)

The argument that there was no irregularity on the editors' part seems to be that a) the article was thoroughly edited and b) it's never the case that every editor on its overstuffed staff is involved in editing a given article. I have no reason to doubt either proposition. But the same editors make clear that they did act in an unusual fashion in various ways. One I count as minor, albeit perilous. That is that the selection process was unusual: seeking to "use the Columbia Law Review as a platform to discuss" some current event, as opposed to selecting articles from the pile while using the journal's online supplement to deal with shorter-fuse issues, is not the normal process, although it most certainly happens and I suspect it is becoming more common. As I wrote last time, I think it's not a bad thing in principle: the relative speed with which this piece went through a still-rigorous process suggests that law journals could be timelier than they are in selecting new and interesting issues. On the other hand, I don't trust editors to make those choices well (in fairness, I don't trust them to make any choices well), and I suspect that, absent better processes, it's an invitation to factionalism, politicking, and power plays on journal editorial boards.  

That wasn't the only departure (not counting the rush to publish online once the board got involved). The editors defending the piece emphasize how many people were involved in the approval and editing process, focusing one's eyes on the numerator. But they are also clear that they deliberately limited participation in at least the editing process, and just as deliberately kept the project under wraps. Thus, the normal number of editors worked on the article but, unlike with most articles, any news about it--apparently including its existence--was effectively firewalled. I say "apparently" because I'm really not sure, but it's certainly suggested by the fact that the editor in chief felt it necessary to alert her own staff to the existence and imminent publication of the article.

I also speculated in my post that there was likely another departure from normal processes--one involving editors opposed to the article. And so it seems, if the Inside Higher Ed story is accurate. That article says that one of those editors, once he or she discovered the existence and imminent publication of the piece, contacted the board, at which point we were off to the races. One wonders whether the initial secrecy was worth it; would any complaints have gotten anywhere, let alone to this extreme, if things had been aired more widely and the process had gone according to Hoyle in the first place? I can't say, but this would not be the first time that secrecy was either pointless or counter-productive. Clandestine maneuvering is, perhaps, cool more often than it's effective.

Despite disagreeing with the board's actions and having criticized it twice now, I think it makes a reasonable case in its letter that the editors' actions ran contrary to "norms of respect, trust, and collegiality." I can imagine a few reasons it might have acted in a more secretive fashion, and I am sympathetic to one of them. That is the fear of having to run a gauntlet of more or less industrialized quasi-doxing and harassment. Interestingly, that concern is not mentioned in those terms in the stories. Rather, the editors quoted make clear that their concern was that early drafts might be leaked. Of course the two can overlap considerably, and insofar as they were worried about leaks because they would result in harassment and pressure to cancel the article, I am again sympathetic. Insofar as such leaks would have ultimately originated with editors on the journal--perhaps junior editors with no role in article selection--I can only say again that journals work best when all their members act regularly, and leaking articles because you want to capsize them is irregular--and reprehensible. I should add that it might have been possible to let everyone on the journal staff know that the article had been chosen and would run, while limiting access to drafts to the team editing the article. If the editors were only concerned about the leak of drafts--and this is the only thing they cite consistently as a concern in the news coverage--this would have addressed that problem without introducing an even larger degree of unusual secrecy and exclusion to the journal's usual operations. Oddly, this option does not seem to be mentioned anywhere in the news coverage.   

Even if I find some room for sympathy when it comes to acting with more confidentiality than usual, all this behavior also suggests the possibility of a kind of built-in distrust on the part of some editors of their own colleagues in the enterprise of putting out legal scholarship. That distrust is perhaps most likely to arise when editors on either side of the dispute mistake and melodramatize their function (melodrama, in particular, being a chronic ailment among American elites), seeing themselves as engaged in something of a crusade or mission rather than the workaday enterprise of shepherding a learned disciplinary journal for a year with a reasonable measure of seriousness and continuity. (The quotes from some of the editors in the Intercept pieces have an air of taking the more melodramatic, mission-driven perspective; in fairness, one has to imagine that some of those who contacted the board might have an equally melodramatic view and offer similar quotes.) Since editors on a general-purpose law journal are going to have a variety of views about both politics and scholarship, a more mission-driven perspective, along with an inflated view of what law reviews do, will naturally not command unanimity on the staff and just as naturally will encourage an equal and opposite reaction. While I still think the board was wrong in its actions, I am not inclined to dismiss its letter's concerns about "the atmosphere on the Review" or about some students "feeling excluded and unwelcome" on their own journal.

I would be happy to dispense with the therapeutic language of that quote and just say that if a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice. 

Posted by Paul Horwitz on June 6, 2024 at 06:47 PM in Paul Horwitz | Permalink | Comments (0)

Virtual CLE Panel--Section 2 of the Fourteenth Amendment

At Noon today, I'll be part of an Indianapolis Bar Association panel on voting rights and Section 2 of the Fourteenth Amendment. You can register here.

Posted by Gerard Magliocca on June 6, 2024 at 08:44 AM | Permalink | Comments (0)

Editorial Choice Is Not Censorship

I have only a little to add to Paul's excellent post on the Columbia Law Review situation. It seems certain that Rabea Eghbariah's article "Toward Nakba as a Legal Concept" will be published one way or another, so it makes little sense to shut down the website, which will only draw more attention to the piece (which is not itself a bad thing). 

On the other hand, the apparently secretive process for soliciting and editing the article was wrong and manipulative in the first instance. It is a clear example of the politicization of scholarship, which should not be used to circumvent previously agreed upon editorial processes. The justification for it, which has been repeated by Prof. Katherine Franke, is nonsense. Here is the description from the New York Times:

The editors on the Review did use a “somewhat irregular process” in editing the piece, “Toward Nakba as a Legal Concept,” because they were concerned about censorship, Professor Franke said. Students involved in the editing said that among the roughly 100 people involved with the journal, they had created a smaller committee to solicit and select the piece, a procedure the Review does not always use.

Editorial choice is not censorship. It just isn't, which law students and professors should all understand. If the regular editorial process would have nixed the article, well, that's how journals work. 

This is not an argument against publishing the Eghbariah article. It is not an argument in favor of intervention by the faculty and alumni board. It is only an argument against making unsupported and overstated claims, especially by those who should know better.

Posted by Steve Lubet on June 6, 2024 at 06:23 AM | Permalink | Comments (0)

Tuesday, June 04, 2024

Again With the Law Review Nonsense

Having followed the last round of controversy concerning lawyer and writer Rabea Eghbariah and his scholarship on what he is free to call "Nakba,"* I am trying to keep abreast of the latest round, which concerns the publication of a longer version of that project in the Columbia Law Review, and the publication and de-publication of that article online (along with every other article, since the entire website, when I last looked at it this morning, just reads "under maintenance").

One should take early and partisan coverage with a very large, even kosher-sized grain of salt. For instance, the main story on the subject at the moment, in The Intercept, is one-sided in its sourcing and checking, and it shows. For example, it repeats credulously an editor's statement that "I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence"--possibly true, but misleading, insofar as the word has appeared some 30 times in the journal's existence (not including case names), including 15 in the last 20 years or so. Not a capital crime, to be sure; but it's the kind of thing that's easily checked, and that, perhaps deliberately, leaves readers with a mistaken impression of the journal's past and present alike. (Perhaps the problem is that the Columbia Law Review's website, like many law review websites, is just not very good. If it's any comfort, others are even worse. Just off hand, the Texas, UCLA, and California law reviews all seem to require a hacker's skills if one simply wants to find out what has been published issue by issue.) 

It is difficult to pronounce on the facts under such circumstances. And absent a proper command of the facts it's even difficult to deliver some kind of principled statement. That said, just as I disagreed with the HLR editors' decision in November, I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception. Whatever the full facts and sequence of events, the journal ended up in an embarrassing place. Since it is unlikely the whole piece will be pulled, the board should have left the article up even if its hand was forced.  

If I am reading the available information and some of the tea leaves correctly, I would say that the following things seem true, or quite possible, about both the Columbia and Harvard incidents: 1) The leadership of each law review deviated from the usual practices, for more or less timid reasons. Note that the "leadership" is very different in each case: the student editors in the Harvard case, and the faculty/alumni board of directors in the Columbia case. 2) So did some smaller or larger group of editors who were more directly involved in or supportive of the article, for more or less ideological reasons. 3) So too, possibly, did another small group of editors who opposed the article, again for more or less ideological reasons. 4) Once there is a departure from normal standards, further departures are encouraged across the board. If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all.  

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. Its editors--and editorial board--should do only that, and disregard pressures to publish or not publish other for any other reasons. The more consistently they do that, treating all else as irrelevant, the easier it will be to ignore either breathless and most likely unwarranted praise or inappropriate threats. Just vet and publish good articles--a serious and conventional, even boring, job and the only one you have.

I would add that although departures from normal processes are noteworthy, not all of them are equal. It's somewhat unusual that the CLR decided to solicit a piece on a particular topic, and somewhat unusual that it then solicited the piece from a particular author (although one understands the likely reason here), when most non-symposium articles go, at least ostensibly (leaving aside pressure to publish tenure pieces, pressure to publish particular articles from faculty members, and other abuses), through the same calendared over-the-transom process. But perhaps there should be more of that sort of thing. I don't particularly trust law review editors to do this. On the other hand, their standard selection process is not especially trustworthy either, and at least this would result in the publication of timelier pieces more often. Other departures are more questionable.

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. It's good that some of them have introduced some measure of peer review, but that process has quickly become more of a fig leaf than a serious vetogate. The faculty of the schools that sponsor these journals are responsible for all of this; any blame attaches to the student editors only second. In the absence of a switch to the standard, everywhere else in the academy, of peer review, American law school faculty should take a more hands-on role in making sure that law reviews, at elite and non-elite schools alike, are doing their jobs properly. They should more actively oversee law reviews' selection process, demand more peer review where it is needed, and overrule editors' selection choices where appropriate, whether the students like it or not.

But they should exercise this sort of oversight at the beginning of the process, not the end, and if they are going to move to this imperfect but more professionally responsible model, they should make it a transparent and routine process, not some exceptional, struck-by-lighting thing. And the responsibility for doing so must rest with the faculty alone, since a law journal is an academic disciplinary publication. In this case, the board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish. The time had long since passed for the board to put up or shut up; its job now, at most, was to support and not undercut the editors, and controversy be damned.

I might add that one benefit of the kind of faculty involvement I envision is that it would thoroughly disrupt the whole process as it is currently conducted. If faculty were to be more involved in the selection process--as they should, albeit ideally they would do so primarily through peer review--the whole works would be gummed up and slowed down. Given the need to give qualitative and not resume-and-politics-scrutiny-style review to each piece, and given the other demands on faculty's time, law reviews would have to move away from the current single annual selection sweepstakes. Their involvement in review and selection would also disrupt the whole silly process of gaming offers from other journals. It might, indeed, lead to rules against multiple submissions. It might diminish many law students' desire to work on journals, as they slowly became mere copy-editors and cite-checkers, and reduce the value of law review membership as an employment credential. In time, American law reviews might actually become respectable disciplinary journals.

But none of this describes the process here, so far as I can tell. The article was selected and edited. It might have been selected in an unusual manner, and the last-minute stuff all looks irregular. It might be a good or bad article; certainly the fact of publication in a top U.S. journal is not currently a very strong indicator on that point. But it should have been published without any of the nonsense accompanying it. I hope at the least that the board appreciates that on these sorts of issues, there is no such thing as doing things quietly or confidentially, and that if its actions were intended to avoid controversy, they achieved the opposite result. 

*Incidentally, Eghbariah was educated at the University of Haifa and Tel Aviv University and worked at an Israeli human rights organization. Although the purported goal of conventional BDS movements is to aim at institutions and not persons, it does seem true that he honed his gifts at the sorts of institutions that many people cheering on his article would urge us to shun and weaken at all costs. One should pause for at least a moment to appreciate the juxtaposition.  

Posted by Paul Horwitz on June 4, 2024 at 03:11 PM in Paul Horwitz | Permalink | Comments (0)

Partial Recusals

Much of the recent debate about judicial recusals (specifically, Justice Alito) has a binary quality. Either the judge recuses or does not. There is no third way. I wonder if that's part of the problem. Consider some possible alternatives:

  1. Early in the Supreme Court's history, Justices who recused would sometimes issue a statement about the merits of the case. In other words, "I'm not voting on this case, but here's what I think about the issues." Is that an advisory opinion? Probably, but maybe no more so than a statement about a certiorari petition that is denied.
  2. You could also imagine "I will recuse if and only if my vote matters."
  3. I will only vote on the case. I will not write an opinion. 

Posted by Gerard Magliocca on June 4, 2024 at 08:27 AM | Permalink | Comments (0)