Monday, May 29, 2023
Dr. Glaucomflecken on Non-Competes
Note: Non-compete clauses are generally unethical for lawyers, but they are common in health care. It is a mystery that physicians have put up with them for so long, but the advent of for-profit and private equity acquisition of hospitals and medical practices makes it hard to get rid of them other than by government action. This should serve as a caution to those who favor allowing non-lawyer ownership of law practices.
Posted by Steve Lubet on May 29, 2023 at 11:04 AM | Permalink | Comments (0)
Sunday, May 28, 2023
The Debt Limit in Baseline Hell
As both of my regular readers know (hi mom!), I am a connoisseur of what I call “baseline hell.” “Baseline hell” is that infernal mode of debating about whether some state of affairs is “neutral” or “normal” rather than “good” or “bad.” It flares up everywhere — in takings doctrine, First Amendment doctrine, Free Exercise doctrine, etc. People land in baseline hell because they harbor the forlorn hope that they can sidestep contentious normative questions in favor of some elusive consensus about what constitutes the “normal” state of affairs — the “neutral” baseline from which departures are presumptively disfavored. Alas, disagreements about what constitutes a Neutral Baselines are just as intense as disagreements about what constitutes a Good World. The former debates unfortunately also have the disadvantage of being disputes about completely arbitrary lines. The result is diabolically tortuous and eternal squabbling about “neutrality” — aka something that does not really exist.
@Pwnallthings (aka Matt Tait) has a substack nicely illustrating how the current crisis over raising the Debt Limit can land us in fiscal Baseline Hell. Tait argues that the debt limit is a bad thing, because it “provides an artificial negotiating advantage to those who want to extract concessions from the governing party.” What’s so “artificial” about this advantage? Tait asserts that it is artificial to require “passing new legislation” to “maintain[] the status-quo,” because such a requirement “is an inversion of the traditional ‘schoolbook’ model of US governance” under which “major changes to the status-quo would normally require legislation passed by the Congress and signed by the President to take effect.” According to Tait, “[t]hese timebomb-style games-of-chicken have always been structurally bad,” because “[p]assing legislation in the United States is constitutionally hard on purpose” given that “it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches.”
Tait’s use of the adjective “artificial” is a sure sign that he is venturing into the first circle of Baseline Hell. The idea that some proposals are “artificial” departures from some “natural” state of affairs is the classic method of shifting burdens of proof without really defending the merits of a position. Like all such Baseline arguments, the definition of what’s “natural” and “artificial” is buried in murky adjectives — here, “new,” “major,” and “big.” As I shall argue after the jump, these terms beg all of the important normative questions. That argument, however, requires a bit of a deep dive into the non-delegation problem lying at the heart of the debt limit. After the jump, I’ll describe (1) how Wilson’s and other Southerners’ ambivalence about executive power likely limited the switch to full executive management of debt and (2) why this semi-executive system of marketing federal securities invites people like Tait to get lost in baseline hell rather than debate the merits of executive power versus legislative control of the bond market.
Continue reading "The Debt Limit in Baseline Hell"
Posted by Rick Hills on May 28, 2023 at 06:38 PM | Permalink | Comments (0)
What Were Their Billables?!?
At the VC, Eugene had two interesting posts yesterday on intersections between Chat GPT and the practice of law. The story about the lawyer who filed a brief with an assist from Chat GPT that resulted in citations to fictional cases has had some legs in legal circles. But it's the other story that interests me. It relates a message from Prof. Dennis Crouch: "I just talked to a partner at a big firm who has received memos with fake case cites from at least two different associates." The assumption, in this context, is that those fictional cases also came courtesy of Chat GPT.
My practitioner wife, who is a model to me both for her professionalism and for her kindness and compassion, takes the view that if she were the partner she would "fire their asses" immediately. That is an entirely reasonable position. She would also report them to the bar, although this, it seems to me, actually raises interesting questions about which rules they would have broken. More specifically, did they break any rules (such as the rule requiring competence in lawyering) in a way that would lead to anything on the part of the bar other than a decision not to pursue the matter further? Did their conduct rise to the level of raising substantial questions about their honesty, trustworthiness, or fitness as a lawyer, such that reporting would be mandatory? Did they actually violate the equivalent of Rule 8.4?
But I think the first and potentially most consequential question a supervising lawyer, or a client informed that something of this sort has happened (if they are so informed), or a court or opposing counsel who encounters this sort of thing in the context of a case in which hours are recorded because attorneys' fees might be awarded, is: What were those associates' billable hours on the file? If an associate turned in to me a memo or brief that turned out to have fictional cases or other flaws or errors related to the use of Chat GPT, the first question I would have is how long they said it took them to research and write that memo or brief. I might or might not fire or report to the bar an associate who used Chat GPT as an assist with a resultant error, although I think doing so, and especially firing them, is an entirely reasonable response, especially for those who value and demand professionalism. But I sure as hell would take both actions if a lawyer used AI to "research and write" something in three hours and recorded billable time of thirteen hours. Supervising lawyers, clients, in-house counsel, opposing counsel, and judges should definitely be vigilant about the billing implications of Chat GPT along with other risks.
Posted by Paul Horwitz on May 28, 2023 at 12:35 PM in Paul Horwitz | Permalink | Comments (0)
Law meets entertainment news
A fun confluence. In April, a divided Ninth Circuit panel held that a state law limiting honking of car horns to warnings did not violate the First Amendment as applied to a person honking in support of a political protest. The court declined rehearing last week.
The issue, and thus the decision, has merged with the day's leading pop-culture story--the WGA strike. Burbank police have placed signs near Disney and Warner Bros. studies announcing that "excessive horn use" violates the vehicle code, in response to neighbor complaints about passing drivers honking in support of picketing writers. Applying the law in this context illustrates why Judge Berzon's dissent had it right. In this context, the government interest is less traffic safety than noise--and there is no difference in the noise from car horns as from the other noisemaking associated with the pickets.
Posted by Howard Wasserman on May 28, 2023 at 12:14 PM in Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, May 27, 2023
Saturday Music Post - Rollin' and Tumblin'
"Rollin' and Tumblin'" is mostly remembered as a Robert Johnson song -- brought to Chicago by Muddy Waters in the 1950s, and reinterpreted by Cream in the 1960s -- but it was actually written and first recorded by Willie Nebern, who released only a handful of cuts in 1929 (not to be missed at the bottom of The Faculty Lounge post).
According to Wikipedia, it is derivative of Gus Cannon's 1928 "Minglewood Blues" (which is on my Jug Band Music post), but I don't really hear much more than a general blues similarity.
Most covers have been rock versions like Cream's, but there have also been blues cuts now and then.
The clips are at The Faculty Lounge.
Posted by Steve Lubet on May 27, 2023 at 05:44 AM | Permalink | Comments (0)
Friday, May 26, 2023
Sherlock Holmes on Anglo-American Relations
From "The Adventure of the Noble Bachelor"
"It is always a joy for me to meet an American, Mr. Moulton, for I am one of those who believe that the folly of a monarch and the blundering of a Minister in fargone years will not prevent our children from being one day citizens of the same world-wide country under a flag which shall be a quartering of the Union Jack with the Stars and Stripes."
Posted by Gerard Magliocca on May 26, 2023 at 08:22 AM | Permalink | Comments (0)
Three Years Ago Today . . .
OTD in 2020, the President of the University of Notre Dame, Fr. John Jenkins, had an op-ed in The New York Times called "We're Reopening Notre Dame. It's Worth the Risk." He wrote, among other things, that "[f]or questions about moral value — how we ought to decide and act — science can inform our deliberations, but it cannot provide the answer." This decision, at the time, came in for a lot of unfair, uncharitable, and even ghoulish criticism. (One critic, I recall, lamented the workings of the university's alleged "Marian Death Cult.") Jenkins was right, though, and one hopes that, especially in the context of schooling -- including legal education -- future policymakers' cost-benefit analyses and applications of the precautionary principle will be similarly prudent.
Posted by Rick Garnett on May 26, 2023 at 07:28 AM in Rick Garnett | Permalink | Comments (0)
Thursday, May 25, 2023
The Sisters and Dave Chappelle
My take on Judge-Duncan-at-Stanford differs from Rick's. But accepting that that case is not analogous to the Dodgers and the Sisters, the case of the Minneapolis comedy club and Dave Chappelle is analogous--private club withdrawing an invitation at the urging of those who would label (however debatable the tag) Chappelle's routine as anti-trans hate speech. FIRE defined as unacceptable cancel culture a for-profit club deciding that it is a bad idea to host and promote a comedian whose shtick is mocking (by punching down at) a disadvantaged and governmental targeted minority.
Merits matter if you believe--as I do--that private deplatforming is protected speech. Merits do not matter if your fundamental principle is that one private actor should not yield to pressure to disinvite a private actor from fear of outside pressure--or we are fighting over whether Chappelle or the Sisters engage in hate speech (about which there is no agreement). If the club canceling Chappelle's appearance is bad as a matter of free-speech principle--as FIRE made clear--then the Dodgers canceling the Sisters' appearance is bad as a matter of the same free-speech principle.
Posted by Howard Wasserman on May 25, 2023 at 05:07 PM | Permalink | Comments (0)
"Justice Breyer and the Establishment Clause"
Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause: Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":
Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.
First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.
This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.
Like the man says, "download it while it's hot"!
Posted by Rick Garnett on May 25, 2023 at 04:20 PM in Rick Garnett | Permalink | Comments (0)
(Still) more on the "Sisters of Perpetual Indulgence" and FIRE.
Howard has suggested, in some recent posts (here and here) that there is some inconsistency between FIRE's opposition to, say, disinviting and/or shouting down campus speakers, such as Judge Kyle Duncan, and its (I gather) failure to criticize the (now abandoned) decision of the Los Angeles Dodgers to disinvite the "Sisters of Perpetual Indulgence" from an event at Dodger Stadium.
I disagree; the merits matter. The "Sisters of Perpetual Indulgence" are not merely (though they are) "offensive-to-some"; they are a hate group, and they traffic in a kind of nasty bigotry and obscenity that, I am confident, Howard would not shrug off were it directed at another religious group, regardless of his disagreement with that group's teachings or beliefs. A group like FIRE is, it seems to me, on solid ground when it distinguishes between (a) students at an elite university harassing a Article III judge who has been invited, in accord with established procedures, to deliver a university-appropriate talk and (b) a for-profit sports franchise deciding that, all things considered, it's a bad idea to invite and promote a hate group, the schtick of which is to mock professed religious women who share the faith of the largest religious community in that sports franchise's city.
Posted by Rick Garnett on May 25, 2023 at 03:53 PM in Rick Garnett | Permalink | Comments (0)
More on Thin-Skinned Judges
Here is an essay I wrote for American Lawyer Publications about 20 years ago. It is about an absurd disciplinary ruling by the Indiana Supreme Court, suspending a lawyer for including a mildly impolite footnote in an appellate brief. In an ironic judicial instance of the "Streisand Effect," the ruling drew far more attention to the footnote -- and the court's hyper-sensitivity -- than it would have gotten otherwise.
A Footnote Most Foul
When Michael Wilkins, an experienced Indiana appellate lawyer, agreed to serve as local counsel for a Michigan insurance company, he had no idea that the case would land him in deep trouble with his state supreme court. And when he submitted his client's brief - written by their Michigan lawyers, but reviewed and signed by Wilkins - he never expected that a mildly aggressive footnote would be declared so "scurrilous and intemperate" that it would get him clocked with a 30-day suspension.
Every lawyer knows stories about thin-skinned judges, easily angered by trivial or imaginary affronts. But the Indiana Supreme Court opinion in In re Wilkins takes judicial hubris to a new extreme.
Because Wilkins allowed one sentence in a brief that challenged the intellectual consistency of an appellate court opinion, the state supreme court, by a 3-2 majority, ordered Wilkins suspended from practice for a month. Such harsh discipline would be an extraordinary penalty for even the most boorish advocacy, so you might assume that the errant lawyer resorted to personal insults or foul language. But in fact he just tried to present his case forcefully.
Seeking discretionary review of an adverse appellate decision in an insurance case, Wilkins filed a petition for transfer (the local equivalent of a writ of certiorari) with the Indiana Supreme Court. He argued in his supporting brief that the appeals court erred badly in ruling against his client, materially misstating the record and ignoring relevant precedents. These claims will sound familiar to anyone who has ever lost a case, and, in fact, the applicable Indiana appellate rule requires comparable allegations as a basis for appeal.
But the brief included a fatal footnote that drew the Supreme Court's ire. Here, in toto, is what it said:
"Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for the [Appellee], and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."
Continue reading "More on Thin-Skinned Judges"
Posted by Steve Lubet on May 25, 2023 at 11:57 AM | Permalink | Comments (0)
Wednesday, May 24, 2023
Thick-skinned judges
From Judge Joshua Wolson (E.D. Pa., with whom I clerked on that court), dismissing a lawsuit by a state judge against the Daily Beast for describing her as "QAnon-linked:"
Being a Judge is a great job. But it comes with downsides. What we do, we do in public, and we subject ourselves to public discussion and criticism of our decisions, both fair and unfair. Federalist No. 78 noted the importance of Judges being independent of the “effects of those ill humors, which are the arts of designing men, or the influence of particular conjunctures [that] sometimes disseminate among the people themselves.” The Federalist No. 78 (Alexander Hamilton). That remains just as true today as it was in the 18th Century. Being a judge requires a thick skin and a willingness to make decisions in the face of criticism, even unfair criticism, and to remember that sticks and stones may break my bones, but names can never hurt me.
That view of judges needing thick skin and the ability to handle even unfair criticism and continuing to do the job departs from the attitude expressed by Justice Alito, Judge Duncan, Judge Ho, and others, demanding sanction for or defense against their critics. Is it easy to say this when discussing another judge reacting to criticism (in rejecting that other judge's efforts to silence those criticism) than when handling unfair criticism directed at oneself? (Note that I am not attributing that position to Judge Wolson or suggesting he would react differently to criticism targeting him).
Posted by Howard Wasserman on May 24, 2023 at 06:48 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Sherlock Holmes on the Ku Klux Klan
From "The Five Orange Pips," which involves the murder of an American ex-pat by the KKK.
"Have you never--" said Sherlock Holmes, bending forward and sinking his voice--"have you never heard of the Ku Klux Klan?"
"I never have." [This is Dr. Watson] . . .
"This terrible secret society was formed by some ex-Confederate soldiers in the Southern States after the Civil War, and it rapidly formed local branches in different parts of the country, notably in Tennessee, Louisiana, the Carolinas, Georgia, and Florida. Its power was used for political purposes, principally for the terrorizing of the negro voters, and the murdering or driving from the country of those who were opposed to its views. . . . For some years the organization flourished, in spite of the efforts of the United States Government, and of the better classes of then community in the South."
I find this interesting because the story was written in 1891, yet this is a pretty accurate description of the Klan. Conan Doyle did make up some details elsewhere to move the plot along. There are some more law and literature tidbits about Holmes that I will post on later.
Posted by Gerard Magliocca on May 24, 2023 at 09:56 AM | Permalink | Comments (0)
Appropiating Bagels
I was traveling this year and completely missed National Bagel Day, which is when I usually re-post my 1998 Chicago Tribune column on cultural appropriation and bagel variety. Propitiously, the New York Times recently posted a video featuring the last hand-rolled bagels in New York, and the legendary roller responsible for turning out as many as 3000 bagels every day.
Hand rolling is a venerable tradition -- it's how my mother made them in our kitchen, and how every bagel was made until the 1960s -- but those who watch the video may notice a couple of, shall we say, developments. First, despite the hand rolling, it appears that these bagels are not boiled. In other words, they aren't bagels at all; they are just round bread rolls. Second, enthusiastic customers of the bagel shops describe them as "fluffy," a quality not found in a true bagel, which should be crusty and chewy. It is notable that the NYTimes reporter evidently knew almost nothing about bagels, other than her own preferences.
This doesn't diminish the impressive energy and commitment of Celestino Garcia, the subject of the video, but it definitely says something about popularizing cuisines.
You can read my original column after the jump. Remember, it was 1998.
Continue reading "Appropiating Bagels"
Posted by Steve Lubet on May 24, 2023 at 04:26 AM | Permalink | Comments (0)
Tuesday, May 23, 2023
(Guest Post) Judicial Politics and Legal Scholarship in Warhol Foundation v. Goldsmith
I meant it when i said I have no idea who had the better of Warhol. So the following is from my FIU colleague Hannibal Travis, who does.
The majority opinion in Warhol carries forward certain recent trends in decisionmaking at the Supreme Court. As others have noted, there is a "David and Goliath" quality to the ruling that photographer Lynn Goldsmith, breaking barriers as a woman in the male-dominated rock-n-roll photography field and earning a modest living from selling photographs to magazines for around $400, was entitled to compensation for Andy Warhol making an unauthorized tracing and silkscreen of her photograph of the rock star Prince and licensing it to Vanity Fair for $10,000. It is reminiscent of the celebrated ruling in NCAA v. Alston (2021) that college athletes had been unlawfully exploited when colleges conspired to limit their education-related benefits for playing, and that the NCAA had no right to define intercollegiate athletics as a market in which cost-of-attendance scholarships are the fundamental cap on scholarships to ensure amateur play. The majority also attempts to return fair use doctrine to what it sees as first principles, contrary to certain lower court rulings that supposedly overemphasized one aspect of one fair use factor. This continues a trend of swatting away overly formalistic or innovative circuit court tests, some of the more notorious being "design marketability," "likelihood of dilution," the "machine-or-transformation" test for concrete patentable ideas, and the "teaching-suggestion-motivation test" for obvious improvements to existing technologies for patentability purposes.
Posted by Howard Wasserman on May 23, 2023 at 09:31 AM in Intellectual Property, Judicial Process | Permalink | Comments (0)
Dr. Glaucomflecken on Prior Authorizations
Posted by Steve Lubet on May 23, 2023 at 06:17 AM | Permalink | Comments (0)
Monday, May 22, 2023
Dodgers reinvite Sisters (Update)
The Dodgers have reversed course and reinvited the Sisters of Perpetual Indulgence to the team's June Pride Night, after other LGTBQ+ groups threatened to pull out of the event. As far as I can tell, FIRE never said a word.
Update: The LA Times' LS Granderson has thoughts (may be paywalled), as does the Catholic League.
Posted by Howard Wasserman on May 22, 2023 at 09:46 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
What Joan Biscupic Found in the John Paul Stevens Papers
A recent CNN article by Joan Biscupic includes a memo from Justice Stevens to Justice O’Connor citing an essay by my late colleague Nat Nathanson:
But then, in his main order of business, Stevens urged her to look at a 1977 essay he attached to his personal note. “It strongly supports the durational requirement in the last part of your opinion. One of its authors, Nathaniel Nathanson, was a Brandeis clerk and taught me constitutional law at Northwestern. The entire article is consistent with your analysis, and some of his comments on page 292 might be worth including in a footnote.”
The next day, after O’Connor had sent out a new draft with some of the essay’s sentiments, Stevens wrote back to O’Connor: “Many thanks for the changes. I don’t mean to be a nuisance, but I want to point out that the sentence in the Nathanson article immediately following the one you quoted reads as follows: ‘But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.’ Including that positive statement would really add strength to the opinion. Again, this is just a suggestion, but the one sentence that you do quote by itself seems to convey a somewhat different message.”
O’Connor ended up quoting that fuller section from the article co-authored by Nathanson and Casimir Bartnik entitled “The Constitutionality of Preferential Treatment of Minority Applicants to Professional Schools”: “It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.”
Nat joined the Northwestern faculty in 1936, became emeritus in 1977 (we had mandatory retirement in those days), and continued teaching until he passed away in 1983. He was one of the kindest, most supportive people I've ever known. He was very enthusiastic about clinical and simulation teaching at a time when it was marginal at most law schools. I believe he was the last living Brandeis clerk.
It was especially moving to read the words of a Supreme Court justice invoking one of his professors, which should remind all of us about the incredible and lasting impact we may have on our students.
Posted by Steve Lubet on May 22, 2023 at 04:12 AM | Permalink | Comments (0)
Sunday, May 21, 2023
Constitutional Quorum Rules
Many state constitutions require a supermajority of a legislative chamber for a quorum. This allows the minority party to block legislation by simply not showing up (or by leaving the state entirely). In recent years, there have been high-profile examples of this sort of minority veto in states like Texas and Oregon. The Federal Constitution is largely free of these requirements. Article I states that only a majority is required for a quorum in the House and in the Senate. Imagine how much worse off we would be if the minority party could block any bill by just not appearing.
There is one curious exception though. The Twelfth Amendment says that two-thirds of the Senate is required for a quorum on a vote to choose the Vice President in the event that no candidate receives a majority in the Electoral College. So this means that in a presidential election that is decided by the House of Representatives, the minority party in the Senate can block the VP election by refusing to show up. (Query whether the newly-elected President, though, can bypass this blockade by nominating his erstwhile running mate as VP under the Twenty-Fifth Amendment, which has no special quorum requirement.)
In general, the Twelfth Amendment probably the most poorly designed amendment. The Framers in 1787 can be somewhat forgiven for not understanding how the Electoral College would evolve. By 1804, though, Congress should have done a lot better.
Posted by Gerard Magliocca on May 21, 2023 at 11:16 AM | Permalink | Comments (0)
Saturday, May 20, 2023
The presence of Justice Kagan
Gerard suggests Justice Breyer's absence explains the nastiness of the exchanges in Warhol (and deteriorating relationships among the Justices generally)--he "was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills." Josh Blackman says the same.
But wasn't the ability and desire to broker compromises one of Kagan's selling points, based on her time and efforts as HLS dean? Is she too young? Too junior to play that role on the Court (she is the median justice in seniority)? Too caustic a writer? Or does this involve a different type of compromise--not across ideological lines but across temperament, between two people who generally align.
Posted by Howard Wasserman on May 20, 2023 at 12:27 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
The Absence of Justice Breyer
On Thursday, the Court issued its opinion in the Andy Warhol copyright case. FWIW, I think that the majority erred in its interpretation of the first fair use factor. I sometimes think that cases like this are viewed differently when the artist's estate (read "money-grasping distant relatives") are the party of interest rather than the actual artist. If Warhol was still alive, would he have lost?
But what I want to highlight in this post is that Warhol was the first copyright case in 30 years decided without Justice Breyer. He was the most knowledgeable copyright person on the Court, due in part to his academic work. His absence is telling, I think, both in the Court's treatment of the issue and in the unnecessarily harsh tone of the opinions.
Though I have no way of knowing, I also wonder whether Justice Breyer's absence may explain the deteriorating relationships among the Justices. He was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills. Granted, things were not perfect while he was there, but I'm not sure who on the current Court can be the "glue" that holds that group together. My work on Bushrod Washington indicates that this is sort of Justice is quite important for the health of the Court as an institution.
Posted by Gerard Magliocca on May 20, 2023 at 09:33 AM | Permalink | Comments (0)
Saturday Music Post - Bill Bailey
Has any song been more enjoyable than "Bill Bailey"? Originally titled "Bill Bailey, Won't You Please Come Home," it was written in 1902 by Hughie Cannon, a tavern piano player in Jackson, Michigan. As the story goes, Cannon was inspired by the carousing of his friend and fellow musician Willard "Bill" Bailey, whose wife regularly called on him to end his late night habits. Whether true or not, Michigan's nocturnal Bill Bailey has been immortalized in a song that has been a Dixieland and jazz standard for over a century. The song is almost impossible to overdo, overact, over arrange, or over produce. Though parodies abound, I have included only one.
The clips are at The Faculty Lounge.
Posted by Steve Lubet on May 20, 2023 at 05:49 AM | Permalink | Comments (0)
Friday, May 19, 2023
Validity and Repayment
One argument about Section Four of the Fourteenth Amendment that I want to knock down is the idea--advanced by Michael McConnell and Sai Prakash--that Section Four prohibits only the outright repudiation of the national debt. The claim goes something like this: Failing to repay debt is not the same as questioning the validity of that debt. An unpaid debt is still valid.
This reading is incorrect for two reasons. First, the original public meaning of Section Four was that debt must be repaid. This point was emphasized repeatedly by members of Congress, especially with respect to the portion of the debt owed to pensions for wounded soldiers and the survivors of the Union dead. The notion that paying lip service to those obligations without paying them would have satisfied the constitutional principle is unpersuasive. Second, the McConnell/Prakesh reading contradicts what the Supreme Court said about Section Four in Perry v. United States, which is the only Section Four case. I assume that they think Perry was erroneous (or at least contained erroneous dicta), though I'm not sure.
That said, I still agree that the President lacks the unilateral power to ignore the debt ceiling, as I've explained in prior posts.
Posted by Gerard Magliocca on May 19, 2023 at 02:15 PM | Permalink | Comments (0)