Saturday, June 03, 2023

Saturday Music Post - God Bless the Child

"God Bless the Child" was written by Billie Holiday and Arthur Herzog and initially released in 1942 on Okeh Records, the jazz and blues (then sometimes called Race music) subsidiary of Columbia. Holiday recorded it two more times for mainstream labels, Decca (1950) and Verve (1956). It was also a huge hit for Blood, Sweat & Tears in 1968. Diana Ross sang it in the 1972 Billie Holiday biopic "Lady Sings the Blues."

The clips are at The Faculty Lounge.

Posted by Steve Lubet on June 3, 2023 at 04:59 AM | Permalink | Comments (0)

Friday, June 02, 2023

JOTWELL: Levy on George, et al. on SCOTUS Clerks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tracey E. George, Albert Yoon, & Mitu Gulati, Some Are More Equal Than Others: U.S. Supreme Court Clerkships, an empirical study of who clerks for SCOTUS, where they come from, and where they go.

Posted by Howard Wasserman on June 2, 2023 at 08:57 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 01, 2023

Boudin, Berkeley Launch Center for the Study of the Matthew Effect

The actual name and purported goal of the center are different, but believe me, the interesting object of study here is the Matthew Effect. The fortunate Mr. Boudin will join countless other holders of sinecures at major law schools and more or less non-profit organizations. 

(Incidentally, this isn't the draft political post I mentioned earlier today. I deny that this is a political post. Noting the phenomenon by which social class, fame, connections, appropriate political views, and a completed or failed political career, or some combination thereof, ensure that one will always be gainfully and/or conveniently employed by fancy organizations is not political; it's merely descriptive. Cincinnatus was a sucker.)   

Posted by Paul Horwitz on June 1, 2023 at 12:25 PM in Paul Horwitz | Permalink | Comments (0)

What is the Court planning for § 1983 "and laws"

My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.

The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.

We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.

Posted by Howard Wasserman on June 1, 2023 at 11:18 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A Few Thoughts on Our Delightful, Antiquated Enterprise of Blogging

Brian Leiter writes today in his indispensable (?) Leiter Reports blog that "While Twitter has taken a toll on blogs generally, this one is still going remarkably strong, averaging well over three million unique visitors per year, so it seems a good time to begin phasing into blog retirement while it's still widely read and influential." He adds that it will be a "multi-year phasing." It occasions a few thoughts on the nature of the enterprise. The first, quite simply, is that I am sorry. Not being a philosopher, my reading of that blog is a little like watching a game of inside baseball while not knowing the sport well. But many posts are for more or less general readers, and they are interesting and spirited. Indeed, I wish his law school blog was more like his philosophy blog, that it more frequently tilted against whatever he may see as failings in our own corner of the academy. But it has long been a valued daily read, and if and when the time comes for it to go I shall miss it. (I suppose I could always read the Daily Nous. But I jest.) 

Second, I continue to believe the legal-academic blog fills a potentially useful space between social media and full-dress academic writing. The most important way it does so is not, as it once was, in terms of immediacy, but in terms of length: not everything worth saying is worth saying, or can be said, in 280-character stretches. (In my view, nothing worth saying can be said in 280-character stretches.) The second value it serves is its availability as a space to write about the academic life. I find academia greatly interesting as a sociological, anthropological, literary, and economic enterprise. It's in the nature of things that most articles don't say much that's new or terribly interesting, novelty claims notwithstanding. The job of the scholar as reader is thus largely one of sorting and winnowing. But how we write (or teach, or serve, or lateral, or govern, or fail to govern) I find endlessly fascinating. And all this has a direct relationship to what we write, what we don't write, often enough to why we write, whether and where this writing is published, and how it is received. It is a truism, albeit one that is selectively recalled and applied, that judges are political actors, affected by their context and bias, by the cases that come before them or are ignored or avoided, by the means of production of both judges and cases, and so on. Of course the same is true of legal scholarship, among other things we do as academics. Selectively applied, as I say. I hear a great deal about Koch money, for example, and almost nothing about Proteus Fund or Soros money; writing in non-conservative spaces about the influence on the legal academy of left-liberal heirs and plutocrats tends to be acceptable mostly if it's devoted to the past, such as writing about the influence of the Ford Foundation on clinical legal education in the late 60s and early 70s. But our choices are influenced by much more than money, and I would like to see more writing about how fads, fashions, the love of fame, and other factors leave their fingerprints all over what we do, rather than treating our work as if it emerged fully grown from Zeus's head.

There's room for more full-length writing about this in legal journals. But it's understandable that most of us, most of the time, prefer to write scholarship about the ideas themselves and not about their production. The latter can seem self-indulgent, and in any event most scholars are more interested in ideas themselves, whatever the sources of their encouragement, mediation, and corruption, than about the production of those ideas. We're not really a reflective or introspective bunch. (Given our long interdisciplinary trend, one would think there would be more room to hire and publish sociologists and anthropologists of the legal academy. But those are not the most common fields we hire from, and most of those we do hire write about the world outside their own gates. In raw numbers we probably have more people qualified to study the nature of our own enterprise than ever before, but the high-water mark of writing of this sort passed when the Crits fell out of favor.) It also might seem rude or perilous--another way in which the behind-the-scenes element affects what is seen in print. And there's yet another factor that suggests the sociological/means-of-production influence on what we do as legal scholars: such writing would have to be seen as interesting by the law students to whom we have, oddly, delegated the job of making publication decisions. Moreover, a scholar who went down that path might well be cautious or selective, given that the students themselves would surely be a subject of study, sometimes with unflattering results. (Mutually unflattering results, since student choices reflect the willingness or unwillingness of faculty to do something about them.) That kind of timorousness doesn't vanish because the space for writing is the blog--or, for that matter, Twitter, where the audience is larger and the timorousness is if anything much greater--rather than a law journal. Nevertheless, one sees more writing about these kinds of subjects in blogs than in law reviews, and I would miss it if it vanished.

Third, for me at least, one generally unstated reason to keep Prawfs going is our departed, murdered friend Dan Markel. I like it that his baby is still here. Not that I doubt Dan himself would have taken to Twitter eagerly and over-enthusiastically. But even if that makes Prawfs itself rather a historically contingent artifact, I still feel the desire and obligation to keep it alive, long past that hoped-for time when the last culpable Adelson is in prison.

Finally, I'd like to add a word to what Howard wrote on this blog a few weeks ago about legal blogs (and the legal academy generally) and political diversity and polarization. Howard asked whether Prawfs "does okay on this" and answered "yes," with room for improvement. I was sympathetic to this view, which was discussed entre nous before appearing in a post. I still am. Granted, talking about diversity among a group of small-l liberals ranging in their views from A to C may be like describing M&M's as varied because there are so many colors. But within that category, there are political and subject-matter differences among us. We don't all write with the same frequency, and that matters. But Howard's posts are different from mine, even apart from questions of economy versus excessive length, just as Howard's posts are different from Rick's and Rick's are different from other-Rick's. 

That said, I don't think I fully appreciated at the time the importance of what we write about from our varied perspectives, and the dynamic that is created once anyone writes about politics. If a person with one set of views chooses to write a post that is openly political--or, more often, a post about the law into which politics enters through the stray remark, casual imprecation, or incidental overconfident assertion about supposed matters of fact--the way diversity enters into things is that a co-blogger with different views challenges those remarks. The result is a series of posts about politics, or political posts. And then the blog becomes a place of disagreement about politics, a site whose subject is politics. That's just a politically diverse downward spiral, inasmuch as politics itself is a blindingly boring subject and our best selves are rarely on display in such disagreements. It still polarizes, simply by focusing on politics, a subject that these days is almost inherently polarizing. It also plays away from our strengths, given that law professors, like everyone else, have a lot of confidence about, but very little expertise or insight concerning, politics. God save us from a legal blog about politics, or a political legal blog, diverse or otherwise.

So I think I'd have to revise my initial agreement with Howard's post, and at least make it a "yes, but." It's good that different perspectives can be found here. It would be nice if there were even more. But the best way to avoid both the unpleasantness and the tedious and blindered nature of polarization is not to field two or more teams, but to not play the game at all. (How about a nice game of chess?) Prawfs always focused more on writing about being a legal academic than on legal academics writing about, inter alia, political subjects. That gave it a real, albeit a narrow, focus and audience. I hope that continues to be our forte and, on the whole (and with the ironic knowledge that I have a post brewing that brings in politics) our primary area. The means of production and the background influences on our work continue to be relevant to what law professors do, and those influences continue to change. The rise of fellowships as the primary path to teaching means both that entry-level professors are better-informed, but also creates new reservoirs of quite incorrect shared lore. Changes in the student body create opportunities for new ways of teaching--and new student desires that ought to be resisted or rejeced. Changes in the mission of law journals--changes apparent to everyone but discussed less openly by the professors than by the students themselves--rejig the endless status game and deserve full treatment and criticism (or praise). Fads and fashions always change: Is the proper phrase "this is the first article to..." or "this Article, the first to...?" Is there any topic to which one can't append the phrase "The Political Economy of," and how many spots in the rankings that we all loudly reject will that title choice help the article climb? The money rolls in. or rolls out, each with attendant effects. Obviously, changes in technology create new topics to explore. So, even as we grow older and wiser and thus know less and less, there is still plenty to write about in what used to be our particular sandbox, rather than focusing on the world's oldest and most boring subject.  

Posted by Paul Horwitz on June 1, 2023 at 10:04 AM in Paul Horwitz | Permalink | Comments (0)

Law School Academic Impact Rankings, with FLAIR (Updated)

The following is by Matthew Sag (Emory); he has posted here about competing rankings systems.

I am pleased to announce the release of the Forward-Looking Academic Impact Rankings (FLAIR) for US law schools for 2023. I began this project two years ago because of my intense frustration that my law faculty (Loyola Chicago, at the time) had yet again been left out of the Sisk Rankings. The project has evolved and matured since then, and the design of the FLAIR rankings owes a great deal to debates that I have had with Prof. Gregory Sisk, partly in public, but mostly in private.

You can download the full draft paper from SSRN or wait for it to come out in the Florida State University Law Review.

Continue reading "Law School Academic Impact Rankings, with FLAIR (Updated)"

Posted by Howard Wasserman on June 1, 2023 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Wednesday, May 31, 2023

Steve Shiffrin and Our Luck

Mike Dorf reports that Steve Shiffrin, an emeritus professor at Cornell Law and a leading scholar on the First Amendment, has died. I am particularly grateful for his books The First Amendment, Democracy, and Romance and Dissent, Injustice, and the Meanings of America and the excellent First Amendment casebook of which he was a co-editor, and for his articles Religion and DemocracyThe Pluralistic Foundations of the Religion Clauses, and The Dark Side of the First Amendment. One could add many more major contributions to the list. On a personal and a scholarly level, he will be missed.

One thing I didn't know about Steve, and discovered upon looking at his faculty page just now, is that he was a night student in law school, at Loyola Los Angeles, where he was editor of the law review and first in his class. He also did graduate work in "Speech Communication" at UCLA, but remained ABD. These are real accomplishments, and anyone who has taught night students will tell you they can be some of the finest and certainly some of the most serious and dedicated students one has the privilege of teaching. Nevertheless, they depart from the conventional paths to law teaching, then and now. His students, colleagues, and readers have cause to be grateful that this didn't stop him and that various people along the way must have seen his promise and offered him the opportunities of which he made full use. Sarah Lawsky's annual entry-level hiring report indicates that a decent number of people still emerge from elsewhere than the usual schools and fellowships but that the usual suspects remain the norm. What we get from looking under the lamppost, as we do so often when hiring, is not so much brilliance as it is safety and efficiency (as well as conventionality, although I'm not sure this is something law schools are actively seeking by putting students through the standardization process of fellowships; it may be more of a side-effect). What we lose is the potential reward of simple chance and raw promise. It's a loss to be lamented, and a reason both to look more widely when hiring and to reconsider the deadening effects of the high tenure rates that prevail in American law schools. 

Posted by Paul Horwitz on May 31, 2023 at 05:00 PM in Paul Horwitz | Permalink | Comments (0)

More graduation free speech nonsense

Popehat calls out BU President Robert A. Brown for a lack of commitment to free speech dressed in cancel-culture/free-speech-warrior bullshit. I wish I could say it any better than he did.

Posted by Howard Wasserman on May 31, 2023 at 02:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

CUNY Law graduation: Everyone screws up a free speech problem (Updated)

I missed this story from two weeks ago, although the latest fallout continued yesterday. The student-chosen student speaker at CUNY Law's May 12 graduation, Fatima Mousa Mohammed, took aim at Israel and many other targets. People have responded in expected ways. Also as expected, no one covers themselves in free-speech glory.

Continue reading "CUNY Law graduation: Everyone screws up a free speech problem (Updated)"

Posted by Howard Wasserman on May 31, 2023 at 12:56 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Should the House of Representatives Be Bigger?

Harvard’s Danielle Allen has proposed adding members to the House of Representatives, which has not been expanded since 1929. My new column at The Hill explains why that is a bad idea.

Here is the gist:

Would growing the House make it more efficient? Probably not


In a series of columns for The Washington Post, Allen contends that “growing the House of Representatives is the key to unlocking our present paralysis.” 

Unfortunately, she is wrong. Adding members to the House will only increase partisanship and feed extremism, as the behavior of state legislatures has amply demonstrated. 

Allen argues that continuously enlarging the House will “get our politics working again,” but she fails to reckon with the virtual certainty of partisan gerrymandering.

The same pattern can be seen in state after state. Legislative districts far smaller than those in the U.S. House of Representatives have enabled radical gerrymandering, in some cases, ensconcing supermajorities far out of proportion to the actual electorates.  

Allen’s proposal would increase the House by 150 members, providing several more representatives to all but the smallest states (which would still have one apiece). The U.S. Supreme Court, in Rucho v. Common Cause, gave the go-ahead to extreme partisan gerrymandering. Can there be any doubt that the majorities in most state legislatures would design the new congressional districts to further entrench their own parties?  

Congressional gridlock has become a dangerous problem, but adding legislators is not going to fix it.

You can read the entire essay at The Hill.

Comments are open and will be monitored.

Posted by Steve Lubet on May 31, 2023 at 07:26 AM | Permalink | Comments (0)

Tuesday, May 30, 2023

Life without the Infield Fly Rule

(H/T: Michael Risch, I think from last season).

Video here; a YouTuber's analysis of why the ump erred in failing to invoke.

The play illustrates why we have the IFR. The ump almost certainly did not invoke because the ball was not high enough. The commentator argues that height alone should not matter. It was not a line drive and landed directly in front of the shortstop who barely had to move, thus implicating the rule's purposes (or evils).

One other thing as you watch the play: The best move for the runner on second, recognizing non-invocation, is to retreat to second base and hope that the second baseman catches the flip and steps on the bag before tagging him. Stepping on the bag puts out the runner on first, but removes the force, allowing the runner on second to remain. But the runner must have the wherewithal to process that in an instant. And the second baseman must have the wherewithal to stay off the bag while catching the flip, tag the runner, then step on the bag--and to process that in an instant. So there are "counters" to the intentional non-catch, but none that players can reasonably pull off.

Posted by Howard Wasserman on May 30, 2023 at 02:35 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Alabama Law Review Symposium: The End of Animus: The Lifespan of Impermissible Purposes--In Print

The Alabama Law Review recently published its symposium issue from last year's Law Review Symposium on "The End of Animus." I heartily recommend it. The word "end" here has two meanings. The primary meaning is temporal, asking how long a judicial finding of impermissible purpose or animus does or should remain in place and how (or whether) it can be ended. It's a question raised by several recent cases, such as Ramos v. Louisiana and Trump v. Hawaii. My general sense of the scholarly (and judicial) literature is that much more attention is devoted to the front-end question of how to get a finding of impermissible purpose than to the question of how or when it ends, and it seems to me that the latter question deserves more attention for anyone interested in questions of sound political and legal governance. The second sense of the word has to do with whether "animus" as a legal tool itself ought to be questioned and perhaps done away with. The contributors to the symposium--William Araiza, Dale Carpenter, Michael Coenen, Andrew Hayashi, Joy Milligan, and Robert Tsai--have a great deal of value to say on both questions. Read it now! (In the category of encouraging student efforts to grapple with jurisprudential questions, may I also call your attention to a recent student note, available on the same page, by Matthew T. Still, titled "St. Thomas Confounds Vermeule: A Thomistic Critique of Professor Vermeule's Conservative Anti-Originalism.")

A parting word on "print," which is never dead but often in the process of being wounded: As valuable as I find the ready accessibility of law reviews and law review articles on their own sites and at SSRN, I confess to missing the feeling of law review issues as "books" taking a physical form. Services providing law review tables of contents have faded, partly in response to technological changes and partly as a result of library budget cuts and changes. At least in my case, which I don't think is totally idiosyncratic, COVID cut back on my visit to the library to peruse the actual new print issues in their natural habitat. Another easy budget cut is for law schools to stop subsidizing the production of extra copies and for law reviews to stop sending their new print issues to each member of the faculty. All of this, I think, is a loss whose possible effects--a disconnection between a faculty and its own journal(s), a slackening of interest in individual issues planned for impact as issues, a further reduction in the number of book reviews (since they fall between the stools for both authors and editors and may have less metrical "impact," and a general contribution to our collective disembodiment--are not worried about enough. I wonder whether the sense that the notion of a "publication date" is itself something of an artifact contributes to the increasing lateness of many journals' issues, although doubtless that has a much longer history. In any event, I lament the change and encourage law schools and law libraries not to budget the physical form out of existence, and for law reviews to continue thinking of each issue as a "book" whose contents should be planned and structured accordingly, with different sorts of features within a given issue, with the physical thing itself treated as being of continuing importance, and with copies continuing to fill up mailboxes. (And I await with some eagerness the April Book Review issue of the Michigan Law Review.)    

Posted by Paul Horwitz on May 30, 2023 at 11:25 AM in Paul Horwitz | Permalink | Comments (0)

Sackett v. EPA – AKA See Rapanos (plurality opinion)

The following is by my FIU colleague Alex Erwin.

By the time you get to “We start as always with the text” on page 15, it should be abundantly clear what Justice Alito believes the “text” says.  Those 15 pages ostensibly cover the structure and history of the Clean Water Act (CWA), but that background information is neatly interwoven with a narrative of the “crushing consequences even for inadvertent violations” that property owners are subjected to under the Act.  According to Justice Alito, the ultimate effect is that many landowners  “simply choose to build nothing” rather than attempt to comply with the Act.

Continue reading "Sackett v. EPA – AKA See Rapanos (plurality opinion)"

Posted by Howard Wasserman on May 30, 2023 at 10:01 AM in Law and Politics | Permalink | Comments (0)

What is the trouble with SCOTUS reporting (and with SCOTUS)?

Slate's Amicus Podcast hosted a live conversation with Dahlia Lithwick, Mark Joseph Stern, Jay Willis, and Elie Mystal. The conversation centered on the failures of the SCOTUS press corps. Press failures include: too much focus on the law of the opinions (they liken it to how science reporters cover NASA); failing to identify the "reality" beneath those opinions, whether by exposing the Court's misleading presentation of facts (Kennedy) or by positioning one case within a larger political, ideological, and jurisprudential trend; failing to write about the real-world consequences of the decisions; failing to report on and follow individual justices (compared with the extensive coverage of members of Congress and even small legislative actions); and failing to write about the behind-the-scenes influences on the Justices (Harlan Crow, Leonard Leo, ADF, et al.).

I enjoyed the program, although I did not agree with a lot of it. Some reactions after the jump.

Continue reading "What is the trouble with SCOTUS reporting (and with SCOTUS)?"

Posted by Howard Wasserman on May 30, 2023 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Reason, Rhetoric, and Ethic at the Friendly Medal Ceremony

Justice Kagan and Chief Justice Roberts recently gave a pair of remarkable speeches that took up topics like judicial writing, the rule of law, and political polarization. The occasion was the Chief Justice’s receipt of the ALI’s Henry J. Friendly Medal, which Kagan presented. (Video here.)

This “Friendly” award ceremony was aptly named. As Kagan pointed out, she and the Chief had that very week seemed like “two kindred souls” in Andy Warhol Foundation v. Goldsmith, and they carried that amicable attitude with them to the award ceremony. Yet these two figures have of course been sharply at odds in many cases, and they will be again before the summer is done. So, why is Kagan heaping so much praise on the Chief?

Kagan tackles this issue head-on in the following passage (borrowed from a transcript helpfully produced by Ryan Subel):

[The Chief Justice] is a consummate legal craftsman. …

Now, why is this important? Because let’s be frank here, there’s a lot that the Chief and I don’t agree on. … [T]here are some times that I really could tear my hair out about the things he thinks, and I’m sure he would say the exact same thing of me. And those things that we disagree about, they have consequence, they matter, they matter in our society, they matter in people's lives, and that shouldn't ever be forgotten.

Having insisted that their disagreements “should never be forgotten,” Kagan promptly ushered them from center stage. What followed was a remarkable discussion—really, a whole theory—of judicial writing:

But still, the kind of judicial craftsmanship that John Roberts exemplifies, and shares with Henry Friendly—his clarity, the intelligibility of his writing and his thought, his analytic precision, his ability to see and organize and make lucid whole areas of law, his ability to explain, not only to lawyers but to a wider public what his decisions are based on, those qualities, they’re more than craft, they are the foundation stones of the rule of law. 

One might say there are aspects of law’s internal morality. They are an important part of what separates law from dictate. They enable law to provide a guide for future conduct. They make law something that can actually be followed by other judges and citizens. They offer transparency and accountability. They show how rules of decision are arrived at and they show how to criticize them. And finally, those qualities of the master legal craftsmen, they encourage, even if they don’t guarantee, law that in its substance is careful and restrained and principled.

Kagan’s compact discussion is rich. It envisions good judicial prose as clear – that is, writing that is “lucid” with “intelligibility,” “precision,” and “clarity.” It then links that apparently singular trait with a host of quite distinct values, including democratic legitimacy, predictability, uniformity, transparency, accountability, deliberation, and wisdom. These connections, Kagan suggests, represent “aspects of law’s internal morality.” But only “aspects,” not the whole, since they merely “encourage” substantive justice, without guaranteeing it.

Interestingly, this part of Kagan’s discussion left out the zestier features of celebrated judicial writing, such as jokes, insults, and literary references. By contrast, her recent Warhol dissent (like the majority) exhibited all three of those techniques—sometimes in the same sentence. And Kagan was happy to talk about examples of entertaining writing in other parts of her speech. Could the rhetoric that Kagan enjoys be in tension with the reasoning that she applauds? While scholars have addressed that question (see especially Nina Varsava here), Kagan’s speech skirts the issue. 

The Chief Justice, too, was interested in reason and rhetoric. Agreeing with Kagan that Judge Friendly was an avatar for excellence, the Chief heaped praise on his former boss for having “applied reason, not ideology. Analysis, not slogans.” The Chief then drew a pointed contrast:

Now, as a general matter, those principles are good for judges, but they’re also not bad for other officers as well. Yet, much of the public discourse seems today very different. Instead of openness, most views being discussed seem to come prepackaged. Instead of reasoning, you get slogans and shouting. …

But inside the court, there’s cause for optimism. I am happy that I can continue to say that there has never been a voice raised in anger in our conference room. Our court consists of nine appointees by four presidents [sic]. We deal with some of the most controversial issues before the country, yet we maintain collegial relations with each other.

When I wander down the halls and see a colleague, I am always happy to have the chance to chat. Now to be fair, there are many days where I don’t feel like walking down the halls, so you may have to discount that a little bit.

The Chief bought some credibility by cracking a smile at the end. Still, the main picture is of a “collegial” Court within a divided polity. And this passage calls back to Judge Friendly. Whereas public discourse indulges in “slogans,” the justices hew to “reasoning”—just like Friendly did.

It would be easy to dismiss this episode. Maybe it’s just a couple of elites scratching each other’s backs. Maybe it’s beleaguered jurists desperate to burnish a court that affords them so much prestige. Or maybe it’s canny strategy, as each speaker tries to lobby for the other’s future votes.

Perhaps, but I think there is something deeper and more complex going on.  The justices maintain a kind of double consciousness about one another. They can know in their bones that their colleagues are wrong, wrong, wrong, and they pointedly say so in written opinions. But they may also know that their adversaries are worthy, competent people who are mostly trying to do their best. The Warhol opinions, in which two ideological allies faced off, provides another example.

That ability to both rebuke and respect—to “disagree agreeably,” as Justice O’Connor frequently put it—isn’t ultimately grounded in either reason or rhetoric. It’s more of an ethic or, perhaps, a sense of perspective. And it seems as critical to our legal culture as it is in short supply. 

*          *          *

If you’ve read this far and are interested in writing on these topics, please consider the preceding post's call for papers for a 2024 conference. 

Cross-posted from Re's Judicata.

Posted by Richard M. Re on May 30, 2023 at 09:00 AM | Permalink | Comments (0)

CFP: Judicial Rhetoric

Readers may be interested in the Call for Papers below:


CFP: Judicial Rhetoric: A Symposium

April 5, 2024

University of Virginia School of Law

In collaboration with Case Western Reserve University

Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators might be forgiven for missing an older approach to judicial writing, one marked by a more technical, even tedious style.

We believe that literary and legal inquiries intersect in the judicial opinion and its rhetoric. Different methodologies are relevant to this joint inquiry, ranging from qualitative historical research to statistical modeling to literary scholarship.

We invite paper proposals for a one-day conference on the topic of law and rhetoric, broadly understood. Consider an illustrative set of questions:

  • How do legal decisions incorporate or interact with poetic and narrative genres?
  • How do literary genres represent legal argumentation and reasoning?
  • What are the effects of new media and technology on legal practice?
  • What is the role of the text, the author, and the audience in legal discourse?
  • How can judges use rhetoric responsibly, or ethically?
  • How does contemporary work on race, gender, sexuality, and ability bring together law and literature?
  • How is rhetoric developed, situated, and used in specific institutional contexts (the academy, the court)?

A keynote address will be delivered by Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Carey Law School.

Papers may represent work at any stage of development but should be no more than 5,000 words or 10-12 minutes in length. (A paper may be a digest or portion of a longer work.) A second symposium, with its own call for papers, will be held at Case Western Reserve University in 2025.

By September 15, 2023, please send a short bio of 50-100 words and abstract of 250 words to Richard Re ([email protected]), Walt Hunter ([email protected]), and Martha Schaffer ([email protected]). Accepted papers will be due and circulated among participants in mid-March. Questions are also welcome.



Posted by Richard M. Re on May 30, 2023 at 08:55 AM | Permalink | Comments (0)

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)