Tuesday, June 17, 2025
Canada and the NPR Solution
The Trump administration's threats to funding for NPR, and demand to annex Canada, reminded me of this 2006 column that may actually suggest a stop-gap solution. Twenty years ago, we probably all enjoyed joking about NPR. The Trump attack isn't funny, but maybe this will help us recall better times. Also, everyone should join their local public radio stations, and subscribe to local newspapers. Independent journalism is more important now than ever.
WBEZ has air time to fill? Tune in on the Canadians
Chicago Sun Times (IL)
May 15, 2006
Steven Lubet
Just about everyone in town has an opinion about the impending changes at WBEZ, Chicago's public radio station, that will eliminate jazz and other music programming in favor of a 24-hour news-and-talk format. Bebop afficionados are threatening to hold their breaths and turn (appropriately) blue if the decision isn't reversed, while news junkies are salivating at the thought of even more current events coverage -- let's call it All Things Considered ad Nauseam.
But for all the erudite sturm und drang, no one has put their finger on the real problem. Where is WBEZ going to get 24 hours worth of news and talk? Sure, talk is cheap, but that doesn't mean it's easy to find, especially since it will have to fit public radio's hyphenated template -- super-serious, self-possessed, ultra-rational, and mostly non-partisan.
Fortunately, I know just the place where deadly earnest content abounds, where time limitations know no bounds, and where NPR's grave solemnity is exceeded by leaps and bounds. Yes, I'm talking about Canada. WBEZ simply needs to point its antenna to the north, and it will be able to fill virtually endless hours with in-depth coverage of subjects like software licensing in Toronto or the importance of weatherproof paint in New Brunswick.
Continue reading "Canada and the NPR Solution"
Posted by Steve Lubet on June 17, 2025 at 10:07 AM | Permalink | Comments (0)
The Buck Stops Somewhere Over There, I Guess
Judicial nominations are one area in which it doesn't much matter whether one holds a unitary executive theory of the presidency or not. In other cases, it does. For example, if an FCC chairman were to grossly abuse his office, raising or dropping investigations selectively for partisan purposes, or leaning on a media company that is in the middle of merger negotiations to encourage it to settle a lawsuit brought by a patron of that chairman, the president would obviously want to fire him; who could have confidence in such a person? The president's inability to do so would be a point in favor of the unitary executive theory, which emphasizes that, as the saying goes, the buck stops here. When it comes to judicial nominations, things are simpler. The president alone makes the nomination. He can be a lawyer or a felonious reality TV star, a genius or a semi-literate dope, but his nominations are his call.
So it seems odd to read Josh Blackman saying, in this of all areas, that if Donald Trump made bad choices of judges in his first administration--he did, although, rather conspicuously, not in the case of the one judge Blackman is discussing--then "the blame should not lie with President Trump." Of course it should. Where else could it lie?
Is it true that "[i]t's not the President's job to vet the pool of Supreme Court nominees?" Well, say rather that it's unlikely that any president will do his own Westlaw searches. But he can’t delegate making judicial nominations, and vetting the pool of potential nominees is much more his job, and much more within his capacity for decision-making, than, say, evaluating nuclear reactor safety or interest rates, or other jobs over which this president insists on control and random tinkering. And picking the people who do the vetting, or at least the people who pick those people, is certainly within his capacity and responsibility. It very much is his job.
Whether he makes a bad choice because he personally chose the wrong judge, because he picked the wrong people to do the vetting, or--and this seems to have been the case—because he made a deal about who would do the vetting, either to satisfy a constituency or to spare himself the trouble of having to care about something boring, is quite irrelevant. He, or his apologists, can't, to coin a phrase, post-emptively pin the blame on unnamed lawyers. To be sure, those lawyers were responsible to Trump. But Trump, like any president, was still responsible for the choices. If he doesn’t want to be blamed for things—and he sure doesn’t! What is his perversion of the office and the rule of law if not an extended temper tantrum over losing an election?—then he shouldn’t have run for president.
As it turns out, I think Trump made some sound choices for judges during his first administration. (At least, given his priors, or more accurately those of more interested and intelligent people working for him. I would have made other choices, unsurprisingly, but I ain’t the president.) Also some terrible choices, and some plausible choices who I think have embarrassed themselves on the bench with blowhard speeches, dubious decisions, and an addiction to dicta. I would guess that the current regime, burdened as it is by a surfeit of misplaced loyalty and ambition and a deficit of intelligence, experience, and integrity, will make a few good nominations and a lot of terrible ones. (I also imagine that first-term appointees in the "terrible choice" and "plausible but ultimately embarrassing" categories will be first in line for any Supreme Court seats. But it's just a guess.) But given that Trump, and his political dependents, are hardly shy about placing him "at the helm" when they want to flatter him (and reap political and financial benefits, and placate the mob), surely they should place him there when—after the fact—they dislike his choices. Especially, it seems, the intelligent, temperamentally judicious ones.
It’s true that, as they say, Trump consistently disrupts all political norms, none more than the sound, sober, and selfless ones. But "the buck stops here" is a pretty good norm. We should totally keep that one.
Posted by Paul Horwitz on June 17, 2025 at 07:51 AM in Paul Horwitz | Permalink | Comments (0)
Monday, June 16, 2025
Cross-ideological benefits
SCOTUS granted cert in First Choice Women's Resource Ctrs. v. Platkin to resolve "'[w]hether, when the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, a federal court in a first-filed action is deprived of jurisdiction because those rights must be adjudicated in state court." That is, can the target of an investigator subpoena challenge the subpoena in federal court or must it wait until the state seeks to enforce the subpoena, at which point Younger and preclusion kick-in.
The petitioner is a crisis pregnancy center seeking to challenge a subpoena from the New Jersey AG seeking donor information as part of a fraud investigation. Support for the petition cam entirely from conservative organizations. Mark Joseph Stern describes this as "a spite grant: The conservative justices are mad that New Jersey has dared to investigate a "crisis pregnancy center," so it will once again contort the law to shield CPCs from legal scrutiny. The biggest losers will be "patients" scammed out of obtaining actual health care services."
But it seems to me a decision making it easier for subpoena targets to win the race to to the federal courthouse (which Stern believes will be the likely outcome) will benefit liberal groups targeted by MAGA state governments. Consider Ken Paxton's crusades against Media Matters (also seeking donor and similar First Amendment-protected information) or Pre-Musk Twitter, similarly alleging fraud or consumer deception). Stern and other liberals reject the underlying premise of the lawsuit--that crisis pregnancy centers have First Amendment rights to engage in what these people regard as medical fraud. Fair enough on the merits. But the immediate precedent procedural/jurisdictional issue the Court will decide is not unique to conservative, religious, or anti-choice organizations.
Unless I am missing something. I am surprised at the one-sidedness of the response thus far. I look forward to seeing what the merits briefing looks like and how the U.S. positions itself in this case.
Posted by Howard Wasserman on June 16, 2025 at 10:54 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Sunday, June 15, 2025
Read your damn book
The Forward reports on attorney Steven Ludwig's loud resignation from the board of Philadelphia's ADL chapter to protest the direction that Jonathan Greenblatt has taken the organization. The letter quotes from Greenblatt's 2022 book It Could Happen Here, then argues that the things Greenblatt warned against--infringements on voting rights, infringements on the rule of law, censorship, and attacks on immigrants) are happening under Trump 2.0. But the ADL has not stood up or spoken out because none deals directly with antisemitism and, in fact, the administration is doing many of these things in the name of stopping antisemitism (and anti-Zionism as antisemitism).
Here is the ending of the letter:
At this rate, the ADL will invariably give an award to Trump for being the GREATEST fighter against antisemitism and for doing more for American Jews than anyone ever? (After all, Trump did more for Blacks with the possible exception of President Lincoln.)
Before it is too late, please fulfill ADL’s historic mission to fight for civil rights and to stand up for what’s right while there is still time.
Read your damn book.
The ADL downplayed the resignation, stating that it loses 1-2% of its 800 members across 23 regional boards each year. Still, this is a well-done argument, showing Greenblatt's mistakes, without having to reach for low-hanging fruit, such as Elon Musk's Nazi salutes.
The Forward story also said that Greenblatt walked back his support for Trump administration attacks on universities in a note to leadership, promising to "make a point to continue to call out to the administration the need and constitutional right for due process.” This highlights one of my criticisms of Greenblatt--he does not seem to object to deporting people or punishing colleges and students over protected speech that he deems antisemitic (e.g., Rumeysa Ozturk's op-ed), so long as they receive due process. That cannot be the limits of civil rights.
Posted by Howard Wasserman on June 15, 2025 at 01:08 PM in Howard Wasserman, Law and Politics, Religion | Permalink | Comments (0)
Saturday, June 14, 2025
Saturday Music Post - Love and Marriage
Songs idealizing marriage -- if sometimes only fleetingly or implicitly -- used to be pretty common in popular music, even in '60s rock. I am insufficiently up-to-date to know whether that's still the case, but there are some old examples, along with a with a bonus or two, in today post at The Faculty Lounge.
Posted by Steve Lubet on June 14, 2025 at 06:24 AM | Permalink | Comments (0)
Friday, June 13, 2025
Teaching and intellectual evolution
This Atlantic piece has stuck with me since first published in 2019 (I blogged about it). The Atlantic website recirculated it in today's daily email. I will highlight the piece that captures teaching and the academic connection.
As Bach demonstrated, teaching is an ability that decays very late in life, a principal exception to the general pattern of professional decline over time. A study in The Journal of Higher Education showed that the oldest college professors in disciplines requiring a large store of fixed knowledge, specifically the humanities, tended to get evaluated most positively by students. This probably explains the professional longevity of college professors, three-quarters of whom plan to retire after age 65—more than half of them after 70, and some 15 percent of them after 80. (The average American retires at 61.) One day, during my first year as a professor, I asked a colleague in his late 60s whether he’d ever considered retiring. He laughed, and told me he was more likely to leave his office horizontally than vertically.
Our dean might have chuckled ruefully at this—college administrators complain that research productivity among tenured faculty drops off significantly in the last decades of their career. Older professors take up budget slots that could otherwise be used to hire young scholars hungry to do cutting-edge research. But perhaps therein lies an opportunity: If older faculty members can shift the balance of their work from research to teaching without loss of professional prestige, younger faculty members can take on more research.
Ironically, the move to vigorous post-tenure review since 2019 (most prominently at Florida schools) flies in the face of this six-year-old article's insight--a 60-year-old who has taught for 25 years cannot be as productive a scholar as a 40-year-old in her first decade of teaching, and schools should adjust job assignments, expectations, and evaluation accordingly. Post-tenure review potentially flattens that evolution.
Posted by Howard Wasserman on June 13, 2025 at 02:27 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Thursday, June 12, 2025
Procedural law v. procedural culture
One interesting feature of teaching Civ Pro involves balancing formal rules and statutes against subtler, less formal practices (some from standing orders of each judge, some from the ether of the court system, some from general legal culture). Edith Beersden (Temple) has written about this as to discovery and other areas.
That distinction runs through Thursday' opinion in Parrish v. United States. A federal prisoner did not receive the district court order dismissing his civil rights action because he was released from federal prison and transferred to state prison the day after the order. When he received the order three months later, he sent a letter to the court that he called a notice of appeal. The Fourth Circuit recognized Parrish's letter/notice as a motion to reopen the time appeal; the district court granted that motion. But the Fourth Circuit, over the disagreement of both parties, held that Parrish had to file a new notice of appeal within the newly reopened time period; his original, premature notice (the letter to the district court) was insufficient.
The Court decided 8-1 that the original notice sufficed (Justice Gorsuch would have DIGed the case). But they split 6-2 as to why.
Writing for the majority, Justice Sotomayor focused on the controlling statutes (§ 2107 and FRAP 4). Those provisions codify the pre-existing common law concept of "relate-forward" (a prematurely filed document becomes effective later in time). Parrish had filed a premature notice of appeal, which related forward and became effective once the district court reopened the time to appeal and made the noticed appeal possible. Concurring in the judgment, Justice Jackson (with Justice Thomas) focused on the how litigants operate "everyday in federal court." When a party seeks leave to file a paper, it attaches that proposed paper to the motion; if the court grants the motion, it orders the underlying substantive paper docketed. Parrish filed a notice of appeal that the court treated as a motion to reopen the time to appeal (treating it as, in effect, a motion to reopen accompanied by a notice of appeal); having granted that motion (applying the requirements of § 2017), the district court follows regular practice of docketing the notice of appeal whose filing it approved.
Sotomayor and Jackson are the only members who have served as district judges (Sotomayor for about six years, Jackson for almost eight). And the other Justices often do not seem to understand or appreciate how things work in district courts. So it is interesting to see Sotomayor and Jackson on opposite sides of a divide between the legalistic approach and the cultural "this is how the trains operate" in the courts approach.
Posted by Howard Wasserman on June 12, 2025 at 06:20 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Reported Entry-Level Hiring by US News Rank
Building on my earlier post about hiring at schools ranked in the top 25 by US News, this post provides information about reported hiring based on US News rank of hiring school. As this post shows, the overall hiring over time graph hides significant variation between schools in different US News tiers. Schools ranked in the top 50 had a drop-off in reported hiring after 2011, but recovered fairly quickly. Schools ranked between 51 and 100 had an even more significant drop-off and recovered more slowly. Schools ranked 101 and higher had a very significant drop-off and never fully recovered.
This post draws from the data the Lawsky Entry-Level Hiring Report report. Therefore, it is incomplete. It does not reflect all entry-level hires, only those reported to me during the period in which I was collecting information for that year's report. You can see more information about the report and its limitations at the longer report posts. At the time of this writing the 2025 report is available at another site. The 2025 report is still in an early draft, and the information below reflects that early draft.
To create these graphs, for hiring Year X, I used the rank of the law school that was published in Year X - 1. For example, to determine whether hires reported in 2025 were for a school ranked in the top 25, I checked the US News rankings published in 2024 to see the rank of the school. (The name that US News gives to each year's rankings does not match the year in which the rankings were published.)
If a school was not ranked, I assigned the rank 999. All ranges are inclusive. The ranges do not include the same number of schools.
Looking first at the schools in three groups, 1-50, 51-100, and 100 and higher.
The schools ranked in the top 50 experienced some drop-off in hiring from 2011, but this rebounded fairly quickly. The lowest number of reported hires was in 2015 (29), about 55% of the hires in 2011, the year with the highest number of reported hires (53). But as early as 2016, these schools were back to hiring close to their highest-hiring year.
2011: 53; 2012: 47; 2013: 36; 2014: 35; 2015: 29; 2016: 45; 2017: 32; 2018: 38; 2019: 50; 2020: 38; 2021: 38; 2022: 49; 2023: 40; 2024: 40; 2025: 39. The total reported hires over this time period is 1482. The total reported hires at schools ranked 1 to 50, inclusive, is 609. Therefore 41.1% of the total reported hires were at schools ranked between 1 and 50, inclusive.
The schools ranked 51-100 had their highest hiring year not in 2011, but in 2012. The dropoff in hiring in schools in this range was more severe--the lowest number of reported hires, 16 reported hires in 2014, was only 31% of their highest number of reported hires. And rebounding took much longer--it was not until 2023 that these schools reported hires of more than about tw0-thirds of their highest-hiring year.
2011: 41; 2012: 51; 2013: 33; 2014: 16; 2015: 17; 2016: 18; 2017: 18; 2018: 18; 2019: 24; 2020: 28; 2021: 18; 2022: 32; 2023: 51; 2024: 44; 2025: 30. The total reported hires over this time period is 1482. The total reported hires at schools ranked 51 to 100, inclusive, is 439. Therefore 29.6% of the total reported hires were at schools ranked between 51 and 100, inclusive.
Schools ranked 101 and above, including unranked schools (recall that 999 means unranked), faced a much starker scenario than either of the other groups. The drop-off here from 2011 was steady, with a low in 2019 (when other schools had already rebounded) of only 13% of their highest hiring year. These schools did not reach even as high as two-thirds of their 2011 reported hiring until 2025.
2011: 59; 2012: 42; 2013: 35; 2014: 23; 2015: 23; 2016: 20; 2017: 11; 2018: 21; 2019: 8; 2020: 26; 2021: 17; 2022: 38; 2023: 38; 2024: 33; 2025: 40. The total reported hires over this time period is 1482. The total reported hires at schools ranked 101 to 999, inclusive, is 434. Therefore 29.3% of the total reported hires were at schools ranked between 101 and 999, inclusive.
Because the last post looked at the top 25 schools, break out the top group, 1-50, into 1-25 and 26-50. These two groups look roughly the same.
2011: 26; 2012: 28; 2013: 19; 2014: 19; 2015: 18; 2016: 21; 2017: 16; 2018: 17; 2019: 26; 2020: 20; 2021: 18; 2022: 32; 2023: 27; 2024: 17; 2025: 21. The total reported hires over this time period is 1482. The total reported hires at schools ranked 1 to 25, inclusive, is 325. Therefore 21.9% of the total reported hires were at schools ranked between 1 and 25, inclusive.
2011: 27; 2012: 19; 2013: 17; 2014: 16; 2015: 11; 2016: 24; 2017: 16; 2018: 21; 2019: 24; 2020: 18; 2021: 20; 2022: 17; 2023: 13; 2024: 23; 2025: 18. The total reported hires over this time period is 1482. The total reported hires at schools ranked 26 to 50, inclusive, is 284. Therefore 19.2% of the total reported hires were at schools ranked between 26 and 50, inclusive.
Finally, bring all of the hiring together into one graph. This graph does not provide new information; it simply combines the previous information in this post.
Posted by Sarah Lawsky on June 12, 2025 at 12:26 PM in Entry Level Hiring Report | Permalink | Comments (0)
Kimmel on Trump
Long, but worth watching to the end:
Posted by Steve Lubet on June 12, 2025 at 11:13 AM | Permalink | Comments (0)
Pussy communists
Admit it: Prior to this week, most people had heard of posse comitatus from this scene in the very-'80s film Tank, starring James Garner, Shirley Jones (pay attention, Civ Pro fans), C. Thomas Howell, and perrenial bad guy G.D. Spradlin. Forgive the poor sound quality.
Posted by Howard Wasserman on June 12, 2025 at 12:00 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Wednesday, June 11, 2025
Charles Sumner
I'm reading Zaakir Tameez's new biography of Charles Sumner. I definitely recommend it. For years I had David Herbert Donald's terrible biography on my office shelf. Why did I keep a terrible book? Because it was the only Sumner biography and sometimes you just need to cite such a source. But I'm glad I don't have to now.
In fairness, you could say that every biography is terrible after 50 years because of changing perspectives and new research. I would love to update my Bingham book with a second (longer) edition, for example, but I doubt my publisher will ever be interested. Someone else will eventually write a better one.
Posted by Gerard Magliocca on June 11, 2025 at 09:54 AM | Permalink | Comments (0)
Tuesday, June 10, 2025
You Really Have No Idea What or How Your Government is Doing
An interesting article in Puck about a rather literal case of this regime's lack of transparency and its effects on separation of powers. A snippet:
[T]he Trump administration’s uncommunicativeness, and its partisan tilt in what it does share, appears to be next level. Past administrations would send information to both parties simultaneously when communicating with committees, and use staff briefings as an opportunity to build support for a policy on both sides of the aisle. But last month, when the State Department sent budget documents to the House Foreign Affairs Committee, only Republicans got them directly—Democrats had to get them forwarded from their G.O.P. colleagues.
In an administration obsessed with loyalty, it’s perhaps no surprise that access has become another form of leverage. Some disfavored Republicans have also had far less access to administration officials, I’m told, leaving them nearly as in the dark as Democrats. Members more aligned with Trump have been rewarded with better intel.
The dynamic is particularly evident at the State Department, which is undergoing a massive reorganization, and at USAID, an independent agency that is now overseen by Secretary of State Marco Rubio. Statute requires that Congress be consulted on any major changes to the aid agency, but Friday was the first time the House Committee on Foreign Affairs was ever briefed on Trump’s decision to terminate nearly every employee—even though Elon Musk bragged about “feeding USAID into the wood chipper” back in February....
It’s a familiar complaint these days. A Republican committee aide I spoke with defended the decision to cut out Democrats—after all, this person said, it’s not like the D.C.C.C. would brief Republicans on their midterm plans. The implication, in case it wasn’t obvious: Everything is political now....
When C.D.C. programs, funding, and employees were slashed, for instance, the agency initially planned to brief only the Republicans on the House Energy and Commerce Committee. It was only after G.O.P. members pushed to include their Democratic counterparts, a Democratic source told me, that they were given the briefing as well. But on the Senate side, committee Dems were shut out of a similar briefing. They’ve heard nothing in response to questions about the spread of avian flu, over-the-counter drug regulation, and even who is running the agency these days. (There is still no director, and it’s unclear whether Susan Monarez or Matthew Buzzelli are temporarily in charge.)
I would, of course, want to see more reporting on this. (Yet another reason the decimation and fractionation of "corporate" journalism and its replacement by under- or non-staffed tweet-style junk or Substacks is a net loss, in my view.) I don't treat it as gospel. But the reported facts do not strike me as so wholly unsurprising as to raise no special red flags. And the new elements--the open hostility or indifference to keeping even Republican members in the loop and positive view that the executive branch should mostly communicate only with same-party members of Congress rather than communicating as a matter of course with Congress as a coordinate and for the most part the predominant political branch--build on widely reported and acknowledged factors, such as the regime's failure to staff vast swaths of major positions (let alone staff them with sane and qualified individuals), the degree of incoherence and chaos left in the wake of barely targeted or untargeted cuts, and the more deliberate destruction of government agencies that actually monitor and collect data on what your government is doing.
The story notes that, to their credit, in some cases (but not all) the Republican majority members pushed back on regime refusals to inform it, both generally and specifically refusals to brief Democratic members along with Republican members. Of course Congress as a body could push back still more and could treat the executive branch as a coordinate branch rather than a combination political ally and looming election-level political threat. But it's equally clear that to the extent the story is accurate--and, as noted, most of this is uncontroversially true--the blame lies with Trump and his enablers.
Posted by Paul Horwitz on June 10, 2025 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)
Après et à Cause de Nous, le Déluge
From the Wall Street Journal, a fine review of an interesting book (albeit the "history of an idea" book currently is trendy enough to be approaching the point of saturation--a kind of academic press version of histories of mundane products or "...in 10 objects" books) on the history of revolution as a concept and political project. A generous and timely excerpt:
“The Revolution to Come” is a trenchant intellectual history of the modern revolutionary project, seeking to explain both its tendency toward slaughter and its fatal attraction to despotism....What interests [author Dan Edelstein] are not [violent] upheavals per se, but the willingness of moderns to evaluate them in a positive, approving manner as stages in the upward ascendance of history.
For the ancient Greeks, and for millennia thereafter, political turmoil was “revolutionary” in that it was a perennial pathology of cyclical history, bringing only pointless suffering. A model case was the civil war in the ancient city of Corcyra in the fifth century B.C., recounted by the Greek historian Thucydides. The war saw oligarchic and democratic factions engage in unspeakable butchery. “Reckless audacity” and “fanatical violence,” Thucydides wrote, “came to be considered the courage of a loyal ally.” Moderation “was held to be a cloak of unmanliness.” Ghastly bloodletting followed, with no hope of a breakthrough for justice or progress.
To the ancients, Mr. Edelstein writes, “the state in revolution was a perversion of the state, a social hell in which the trappings of society remained in place only to mask the unbridled violence and greed… that really governed human affairs.” Revolutions were calamitous “mutations” to no purpose, adding only tragedy to the affairs of men....
“Modern revolutions crave a Leviathan,” Mr. Edelstein writes. They owe[ ] more to Thomas Hobbes—a great enemy of mixed constitutions and an apologist for absolute sovereignty—than we may care to remember....
The American Constitution, in this interpretation, emerges as an antirevolutionary document designed to frustrate radical progressives. This echoes an anguished cry frequently heard from the political wings, both now and in the past. Mr. Edelstein is at times sympathetic. He writes of the “gnawing tension between our political structures and our political sensibilities” and of a constitution designed to inhibit “swift and extensive political change.” Americans are “moderns living in a world made by ancients.” One can imagine the likes of Elizabeth Warren, Alexandria Ocasio-Cortez or Steve Bannon nodding along.
But “The Revolution to Come” is still harder on the “modern” revolutionaries of the French dispensation. In his best chapters, Mr. Edelstein unfolds the despotism and pitiless violence that stains this tradition....
In place after place, disagreement over the question of what progress meant inevitably spawned factions, strife, conspiracies and atrocities. The drive to centralize power disabled any constitutional mechanisms that might have tamed this factionalism. The contest to control the single central power—through which the future would be defined—became increasingly ferocious. Purges targeted traditional counterrevolutionaries, but even more, false friends: the quisling moderates who might undermine the cause from within. The only solution was radical, reforming despotism.
“The principle of popular sovereignty could be disregarded in the name of the people,” Mr. Edelstein writes. “It was in the name of a future, improved democratic government by people Y that the present, inferior democratic government by people X must be suspended.”...
This is not an optimistic book. Historical progress tempts but eludes us, Mr. Edelstein suggests. He seemingly regrets the circumspect realism of the American constitutional order, but he cannot applaud a rival revolutionary tradition of carnage and tyranny. He quotes Matthew Arnold’s lament at “wandering between two worlds, one dead, / the other powerless to be born.” In his suggestive final pages, Mr. Edelstein seems to sense a rising impatience for revolution.
“The inevitable compromises of democratic governance,” he writes of our present moment, “do not sit easily with either progressives or traditionalists. Liberal democracy gets worn down by historical expectations or regrets.” This general ennui produces perilous effects: a taste for centralized power, distain for procedural justice, aggressive ideological purity, contempt for moderation. Whatever his intentions, Mr. Edelstein may find that his study of revolutions induces in readers an appreciation for the age-old, Polybian balance of the U.S. Constitution, even as history threatens to overtake it. We should certainly hope so.
I look forward to reading the book. The review certainly spotlights the timely point that it takes--well, what the hell, call it courage, I guess--to remain fiercely and firmly moderate, and dedicated to orderly and careful rather than revolutionary and swift government, and to resist pressure to do otherwise from vulgar mobs and jargon- or meme-spouting fashionable illiberal elites, in and out of government and academia, alike.
Posted by Paul Horwitz on June 10, 2025 at 11:30 AM in Paul Horwitz | Permalink | Comments (0)
Reported Entry-Level Hiring by US News Rank - Top 25
Someone asked me what percentage of reported entry-level hires in each year were at schools ranked in the top 25 by US News.
This post draws from the data the Lawsky Entry-Level Hiring Report report. Therefore, it is incomplete. It does not reflect all entry-level hires, only those reported to me during the period in which I was collecting information for that year's report. You can see more information about the report and its limitations at the longer report posts. At the time of this writing the 2025 report is available at another site. The 2025 report is still in an early draft, and the information below reflects that early draft. My guess is that the number of T25 hires in 2025 will increase, so be cautious in making too much of the 2025 numbers below.
To create these graphs, for hiring Year X, I used the rank of the law school that was published in Year X - 1. For example, to determine whether hires reported in 2025 were for a school ranked in the top 25, I checked the US News rankings published in 2024 to see the rank of the school. (The name that US News gives to each year's rankings does not match the year in which the rankings were published.) A total of 42 unique schools were represented in the top 25 over this period. A total of 28 schools were represented in the T20, so the fluctuation largely came in the 21-25 spots.
Count of reported hires at schools ranked in the top 25: 2011: 26; 2012: 28; 2013: 19; 2014: 19; 2015: 18; 2016: 21; 2017: 16; 2018: 17; 2019: 26; 2020: 20; 2021: 18; 2022: 32; 2023: 27; 2024: 17; 2025: 21
The reported number of hires at T25 never took as much of a hit as the overall hiring, even as the market collapsed between 2011 and 2014. The below graph shows the number of hires in a given year divided by the number of hires in 2011 (the last "precollapse" year; hires for 2006 through 2009, as reported by Larry Solum, were between 151 and 167, right in line with 2011). For example, by 2019, the overall reported hires were still only 54% of the overall reported hires in 2011, but the overall reported hires at T25 schools was equal to the overall reported hires at T25 schools in 2011.
T25 reported hires as percent of 2011 T25 reported hires: 2011: 100%; 2012: 108%; 2013: 73%; 2014: 73%; 2015: 69%; 2016: 81%; 2017: 62%; 2018: 65%; 2019: 100%; 2020: 77%; 2021: 69%; 2022: 123%; 2023: 104%; 2024: 65%; 2025: 81%
Total reported hires as percent of 2011 total reported hires: 2011: 100%; 2012: 92%; 2013: 68%; 2014: 48%; 2015: 45%; 2016: 54%; 2017: 40%; 2018: 50%; 2019: 54%; 2020: 60%; 2021: 48%; 2022: 78%; 2023: 84%; 2024: 76%; 2025: 71%
This is even more stark when we consider the two groups--T25 schools and schools outside the T25--separately.
T25 reported hires as percent of 2011 T25 reported hires: 2011: 100%; 2012: 108%; 2013: 73%; 2014: 73%; 2015: 69%; 2016: 81%; 2017: 62%; 2018: 65%; 2019: 100%; 2020: 77%; 2021: 69%; 2022: 123%; 2023: 104%; 2024: 65%; 2025: 81%
Schools ranked lower than 25 reported hires as percent of 2011 lower than 25 reported hires: 2011: 100%; 2012: 88%; 2013: 67%; 2014: 43%; 2015: 40%; 2016: 49%; 2017: 35%; 2018: 47%; 2019: 44%; 2020: 57%; 2021: 43%; 2022: 69%; 2023: 80%; 2024: 79%; 2025: 69%
These disparate markets are reflected in the percentage of hires at T25 schools in each year. As the market recovered in the last four years, the percentage of hires that were at T25 schools dropped. The total hires over this time period is 1482. The total hires in the top 25 is 325. Therefore 21.9% of the total hires were at schools ranked in the top 25. On average, not weighted, 22.7% of hires each year were from top 25 schools. (That is the average of the list of percentages below.)
Percentage of reported hires at schools ranked in the top 25: 2011: 17%; 2012: 20%; 2013: 18%; 2014: 26%; 2015: 26%; 2016: 25%; 2017: 26%; 2018: 22%; 2019: 32%; 2020: 22%; 2021: 25%; 2022: 27%; 2023: 21%; 2024: 15%; 2025: 19%
Posted by Sarah Lawsky on June 10, 2025 at 10:46 AM in Entry Level Hiring Report | Permalink | Comments (0)
Monday, June 09, 2025
11th Circuit denies stay in challenge Florida immigration statute
I wrote about the scope-of-injunction issues in the challenge to Florida's law criminalizing undocumented persons entering or being present in the state--whether, in an action against the AG and every local prosecutor, the court could enjoin law enforcement from arresting people under the law.
An 11th Circuit motions panel refused to stay the injunction, on the merits and as to its application to non-party law enforcement. On the latter, the court takes a weird approach that I do not addresses the real issue. The court lays out a binary choice: Either the AG and law enforcement officials are "(in effect) a single monolithic entity" or they "are totally separate entities over which he has no meaningful control." If the former, the injunction has the proper scope to provide complete relief; if the latter, the AG may lack Article III standing to appeal the injunction as it applies to these non-parties. (I think this piece comes from Judge Newsom, a panel member and Fed Courts nerd--and it is fun to see Uthmeier hoisted on his own petard). Either way, the AG failed to make the necessary "strong showing" to justify a stay as to scope.
But the issue should not be whether the AG controls law enforcement as a single entity, which would bring law enforcement within the injunction under FRCP 65(d)(2)(A) (party) or (B) ("agents" or "servants"). The issue hould be whether law enforcement is in "active concert or participation" under (C). That need not involve control and certainly not "single monolithic entity." Instead, it is concerned with "officials who might be a part of the enforcement effort" who, if not enjoined, would thwart the efficacy of the district court's order. Plaintiffs might satisfy (C) even without showing AG control over law enforcement. That is the real unresolved question.
The AG also tried to squeeze this into the controversy and criticism of "universal injunctions." He ignored: 1) universality concerns plaintiffs protected not defendants bound and 2) the district court certified a provisional class, which the AG did not contest, so the injunction was specific to the plaintiff class. Both show the AG is a hack, trying to use buzzwords to appeal to whoever might be watching. Good for the court for not buying it.
Posted by Howard Wasserman on June 9, 2025 at 05:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
The Ten Commandments in Texas
My new essay for The Hill explains the many problems with Texas’s new law requiring a poster of the Ten Commandments in every public school classroom, not the least of which is that the statute actually specifies eleven (or maybe twelve) commandments.
Here is the gist:
Why the Ten Commandments in Texas classrooms could become a dozen
The Texas legislature has passed a bill requiring the Ten Commandments to be posted in every public school classroom in the state.
Although titled “An Act relating to the display of the Ten Commandments in public school classrooms,” the law’s mandatory language, with no changes or additions permitted, actually includes 11 commandments (or even 12, depending on what counts), without numbering them.
There is no universally accepted set of Ten Commandments, because different religious traditions use different renderings. The Texas legislature evidently attempted to avoid this difficulty by expanding the Ten Commandments to please everyone.
Although that may seem ecumenical, it again underscores the religiously restrictive nature of the display. Favored faiths are included, even at the cost of innumeracy; all others are not.
Everything might be bigger in Texas, but that does not justify legislating an unmistakably religious schoolroom display of 11 or 12 commandments.
You can read the full essay at The Hill.
Posted by Steve Lubet on June 9, 2025 at 12:38 PM | Permalink | Comments (0)
Sunday, June 08, 2025
Greenblatt gives up the non-partisan ghost
I apologize for repeatedly railing about the ADL generally and Jonathan Greenblatt in particular. But Greenblatt's latest speech--before the Republican Attorneys General Association--undermined any pretense (if any remained) ADL is "an apolitical, non-partisan organization."
Because while making that disclaimer, Greenblatt spoke to an expressly partisan organization. And he parrotted GOP talking points--pro-Palestinian protesters are the equivalent of al-Qaeda and ICE and have overseas ties; that all liberal activism (including Black Lives Matter) is nihilistic; he does not want to destroy Harvard and other universities but "God bless Secretary McMahon" for efforts designed and intended to destroy those schools; and these protesters are "opposed to America." I do not know how a speech from the head of a "political, partisan organization" would sound any different than this.
Oh, and the protected antisemitic speech that produced some genuine (but not overwhelming in number) unlawful and harassing actions is "the worst expression of hate against any group in the country for the last 100 years." Anyone who says that--when the South had de jure discrimination and de facto lawful lynching within the past 100 years--no longer deserves to be taken seriously.
Posted by Howard Wasserman on June 8, 2025 at 05:28 PM in Howard Wasserman, Law and Politics, Religion | Permalink | Comments (0)
While You Were Gawking
For the past couple of days,* many people have, understandably, been absorbed in the fun of watching two ostensibly grown men acting like infants on social media. (As Nick Catoggio writes, "It was a fun day. Are you not entertained?"). One hopes that at least some of that audience has focused specifically on the obvious dictatorial impulses of one of those men, who happens to be president of the United States, as he casually and corruptly threatens--yet again, only this time not through lackeys at the Department of Education--to use ostensible executive power to punish someone who has wounded his ego. Even at such times, it is perhaps worth remembering other things. For instance: Robert F. Kennedy, Jr. is still the Secretary of Human Services.
It's a little thing, I know. But on any given day, while we understandably focus on the president's personal corruption and authoritarianism, it is also the case that entire agencies are busily doing stupid and dangerous things more or less under the radar. As a general rule of thumb, the executive branch agencies in the present regime are likely to act in an especially egregious fashion when one of two conditions applies: 1) When President Trump takes a personal interest in the agency, and 2) when he shows no interest in it at all. In the case of HHS, it seems to be more the latter.
I'm going to go into some detail here on one example provided the other day by the Wall Street Journal, whose reporting on the regime has been superb. It brings us an update on David Geier, who I have mentioned before. Geier is busy seeking access to CDC data so he can "prove" that a) vaccines cause autism and b) the CDC covered it all up. The detail is worth it in part for the sake of fairness and in part because the things Kennedy is doing to the HHS and to domestic and international health and disease policy always deserve the attention. (I like to think of Kennedy as aiming for the top spot on the list of leading causes of death in the United States, as if it's a prize.) Of course--and this is the larger reason for the post, although any given scandal is worth noting for its own sake--it's just one of innumerable daily instances of the dangerous, incompetent, and corrupt ways in which our government is being conducted at the middle and bottom while we are entranced by the spectacle of corruption and incompetence at the top.
Kennedy himself is, of course, a walking, bear-cub-dumping refutation of the "lawyer as astrophysicist" myth (except for this guy, I guess). His training in American history and literature easily equips him to question the germ theory consensus on disease in favor of a clumsy form of Béchamp revivalism. His apparent view is that a conflict of interest is shocking if it involves working with the actual makers of drugs and vaccines but a mere professional courtesy if it involves suing them, selling basil seed supplements, or acting as TikTok snake-oil vendors. Still, with his continued championing of Geier, a kind of Thomas Fugate avant la lettre figure in his lack of qualifications, Kennedy really hit the jackpot.
You may recall that, armed with a whole entire undergraduate degree in biology and some grad school classes, David Geier was found to have examined (underage) patients, ordered blood work, and otherwise aided his doctor father, Mark Geier, as he recommended that minor patients be injected with Lupron--a drug used, inter alia, to suppress testosterone development and for chemical castration--to "treat" autism. For this, Geier fils was disciplined for practicing medicine without a license; see also 2015 WL 5921325. (Geier père's license to practice medicine was stripped or suspended in multiple states. Mark Geier died in March of this year, fortuitously rendering him ineligible for the post of Surgeon General.)
At a Senate hearing in mid-May, Kennedy denied reports that Geier, as initially rumored, was actually heading up his predetermined "study" of the "causes" of autism. (In doing so, Kenndy accused Sen. Maggie Hassan, the senator who was grilling him, of spreading defamatory lies. She did get some things slightly wrong, but not the ones he was complaining about. Kennedy being Kennedy, he then proceeded to baldly misrepresent the facts concerning Geier and related litigation. It is always worth remembering that if Kennedy is testifying before the Senate and his lips are moving, he may be lying and is probably wrong.) Rather, Kennedy said, Geier had been "hired by an independent contractor[,] not as an HHS employee," to go through nonpublic vaccine research data to see if the data conformed with what he and his late father had seen on earlier visits. (Geier actually shows up in the HHS employee database not as an independent contractor but as a "senior data analyst.")
How did they get access, if the data was nonpublic? In Kennedy's version, because "[t]he Congress ordered CDC to open it to the Geiers." Another way to put it: Because of pressure from former congressman Dr. Dave Weldon--most recently an abortive nominee for director of the CDC, and a man with a long record of anti-vaccine advocacy, including parroting Kennedy's favorite claims about vaccines and autism.
And how did their earlier visit go? Not great. This letter from HHS to the institutional review board that had approved the Geiers' proposed 2004 study involving VRD data information details the problems, including misrepresenting their plans for the data and accidentally or intentionally attempting to take the data with them without permission. (At least this IRB, unlike one board the Geiers used during their Lupron frolic, didn't consist of "Mark and David Geier; Dr Geier's wife; two of Dr Geier's business associates; and two mothers of autistic children, one of whom has publicly acknowledged that her son is a patient/subject of Dr Geier, and the other of whom is plaintiff in three pending vaccine injury claims.") Things went no better when they returned in 2006 and again violated the terms of the protocol for their data-gathering, possibly through deception.
I suppose the easiest way to make sure someone isn't abusing his access to data is to just hire him so you don't have to think about the details. But it doesn't seem the best way to do it. Nevertheless, it is exactly what Kennedy, and by extension Trump, have done. This NBC piece on Geier puts the point well, in a way that suggests once again the basic theme of the entire second Trump regime: "[W]ith Kennedy at the helm of HHS and Geier working for him, there are no roadblocks left."
There is nothing unique about this story, except insofar as basically every presidential administration--until now--has generally done its best to keep this agency and especially its major departments run on a professional footing and not have them overseen by rogues. But days of Trump-madness, or even of relative quiet, can go by while one simply forgets that this president deliberately placed domestic and global health policy in the hands of Robert F. Kennedy, Jr.--someone who is not only unqualified to steward them by virtue of experience, temperament, and dishonesty, but positively believes stupid and harmful things. Sen. Hassan got some details wrong, but not this: She is right that Geier "has directly endangered the lives of children" and "does not belong at a government agency that oversees the health of more than 70 million American children." One must surely say the same thing about Kennedy himself.
One tries, in enduring and evaluating this regime, to distinguish between matters of ordinary politics and policy in which, however much I disagree with the policy and the politics, they are only awful, not awful and unlawful, awful and corrupt, or awful and dictatorial. All of these things are worth discussing, but I prefer to avoid characterizing the first category as if it is novel, or as if it is dangerous to democracy; there are enough examples of conduct that falls into the latter categories. I didn't write every time I found a Biden (or Trump I) policy stupid, although I often did. (This is not, however, the same as writing a good deal, in a generalist way, about federal and constitutional law in spaces like this and never talking about current policy and politics--one might say, deliberately avoiding any such discussion, like a lawyer who busily absorbs himself in mastering new corporate transactional practices--in Germany, in the early 1930s. Especially in the case of this evidently and deliberately dangerous regime, that's neither prudence nor specialization: it's a form of cowardice and moral failure.)
The cumulative failures of competence in this regime, its frequent corruption, the ways in which even matters of ordinary politics are folded into utterly extraordinary and starkly personalist and authoritarian conduct, and the ultimate near-impossibility of distinguishing among and between these categories when the executive branch is so frequently committed to bullshitting, and combines extreme garrulousness with a profound lack of transparency, make this approach challenging, to say the least. Moreover, because one train wreck is always followed by four more on the same day, the sheer volume means that if you're going to offer an attempt to fully and fairly describe each dereliction, you will be permanently behind. And that extra effort is valuable if a) you want to be fair-minded, b) you think tweet- and slogan-level politics, however standard, is asinine and degrading, and c) you want to distinguish between ordinary bad politics and unusually bad, corrupt, or unlawful politics. It is fair to say that if you don't care too much about law or guardrails, care very little about results, and care not at all about separation of powers, it's easy for the regime to keep up that pace and hard for citizen-critics to keep up with it.
But it's worth the occasional reminder of something like the sheer fact of Kennedy, or this particular item about Geier, because it is simply what goes on, in surely unprecedented volume, in every department on every day. The presidential bread and circuses (minus the bread, to be sure) are easy enough to track, and Trump, who is basically a Quantum Lichen Person, would be disappointed if you didn't. I followed it, if only for all the awesome, subliterately Riefenstahl-esque homoeroticism of Trump's more fervent fans. But it's worth sparing a thought for all the ordinary acts of governmental vandalism, corruption, and insanity that are quietly committed by hundreds upon hundreds of Trump regime officials every day, from the David Geiers to the even-worse-than-Geiers. All of which, to be sure, should on this regime's legal theory be treated by supporters and critics alike as if they had been committed by Donald Trump personally.
* Of course this was written before the latest conflagration. And this rather goes to demonstrate the points made here: that a) keeping up with the enormity of the regime is a challenge, especially if one wants to do so in a detailed and not a drive-by or tweetish fashion; and b) the Trumpian Sturm und Drang should not detract from everything that his surrogates--which is to say, the entire executive branch--are doing every day to worsen the nation.
Posted by Paul Horwitz on June 8, 2025 at 02:38 PM in Paul Horwitz | Permalink | Comments (0)
Saturday Music Post - How Sweet It Is (to Be Loved by You)
"How Sweet It Is (to Be Loved by You)" was written by Motown's Holland-Dozier-Holland in 1964 and recorded at the Hitsville studio by Marvin Gaye in early 1965. The release was on Tamla Records, a Motown subsidiary, for reasons I have not discovered. Backed by the Funk Brothers, it was a huge hit for Gaye. James Taylor later had a hit with "How Sweet It Is" in 1975. The title was taken from Jackie Gleason's tag line, "how sweet it is," and I am pretty sure it is the only Motown or R&B title ever inspired by an Irish comedian; see the clip at the bottom of the post at The Faculty Lounge.
Posted by Steve Lubet on June 8, 2025 at 02:20 PM | Permalink | Comments (0)
Saturday, June 07, 2025
Browne C. Lewis Section Award, T&E Section of AALS
The Trusts and Estates Section of AALS is seeking nominations for the annual Browne C. Lewis Section Award. Please share this information broadly. We hope to get many nominations!
Browne C. Lewis Section Award
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Posted by Howard Wasserman on June 7, 2025 at 11:24 AM in Teaching Law | Permalink | Comments (0)
Changes to Inaugural Law and Political Economy Conference
From conference organizer Luke Norris
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Posted by Howard Wasserman on June 7, 2025 at 11:22 AM in Teaching Law | Permalink | Comments (0)