Monday, December 04, 2023
Tushnet on Ephemeral and Enduring Constitutional Scholarship
I've written here before that I always find Mark Tushnet's posts on legal scholarship at Balkinization must-read stuff. I wish he posted more often. Happily, he has given us three interesting, related posts--here, here, and here. In them, he explores what makes for "ephemeral" and "enduring" legal scholarship in constitutional law. His overarching view is that "a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral." Scholarship that "develops the normative basis for specific outcomes in real constitutional controversies" is hampered by the felt need to "track, to some significant extent, contemporary or recent Supreme Court decisions," which "change in normatively relevant ways often enough to make work that satisfies [that] condition [ ] ephemeral." "Normative discussion of the structural Constitution," in which "authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem," is generally overly focused on some recent event, and generally involves a long-enough time frame that "by the time you might be able to get those changes made, things have changed so much that" that the work is again renedered ephemeral. Enduring works of constitutional scholarship, in his view, "identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are," in a way that is both less time-bound and more removed from immediate political controversies. Tushnet sums up as follows:
I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article[s] that endure let us think about the issues we care about no matter what side we take in contemporary controversies.
The posts are long and well worth reading. (I would say "long but well worth reading" but--come on. Look who's talking.) They are interesting, exploratory, impersonal--he is talking about a phenomenon, a "sociology of the legal academy"; he's not throwing stones or calling anyone's work crap--and tough-minded, written in the knowledge that his conclusions about ephemerality not only embrace some of his own work but, and perhaps more importantly, that of friends, allies, and colleagues.
Seeing these posts makes me reflect yet again that I don't see as much serious, impersonal, tough-minded writing about scholarship in our field as I would like these days. By "about scholarship" I don't mean just meta-commentary about what we do, although I surely mean that too. But I don't even see as much simple substantive criticism of other scholars' work as I would expect--not good criticism, and certainly not good criticism of one's fellow travelers' work. I tend to blame political and cultural siloing, along with a heavy dose of therapeutic culture, which is not good for intellectual work. The relatively monocultural politics of the legal academy don't help. (There are differences in those politics seen up close, of course.) But that's not the whole of the story. Broadly speaking, I see a good deal of scholarship and public-facing, ie. social media, discourse in which any serious criticism is directed only, and merely, at one's adversaries, at people outside one's silo. And that's if one is lucky. Often enough, writing outside one's silo is simply disregarded, or it's dismissed in extravagant, shallow, and uninteresting terms. The better instances of criticism, when they appear, are not so much thorough as prosecutorial, with all the strengths and limitations that entails.
Within one's silo, there's an awful lot more praise--also extravagant, shallow, and uninteresting--than criticism, at least publicly. This seems to be a function of an academic culture in which "mutual support" is seen as an unalloyed good and apparently entails an absence of tough, impersonal criticism--again, at least publicly. I understand the roots of this, but it seems to me that not seriously criticizing one's friends or politically aligned fellow scholars is tantamount to not respecting them or taking them seriously as scholars and intellectuals. (Mark has been reading through his library and recently had tough words for my first book. I could have cried about it, I suppose--except that his actually engaging with the book is a lot better than some meaningless, enthusiastic blurb that signifies friendship rather than actual interest.) What I see on social media, when I visit it, is a great deal of "Fabulous new article by..." and "Excited to share X's terrific new piece," followed by a round of mutual compliments. Perhaps it was a terrible mistake for scholars to befriend each other on social media.
I suppose this is a form of mutual support. But law school and legal scholarship are most definitely markets, and what it mostly looks like to me is marketing, logrolling, and reciprocal flattery. Surely there is a substantial element of hustling in all this, because I can't imagine anyone enjoying it for its own sake or learning from it. At least with respect to the legal academy, the difference between "mutual support" and "life under late capitalism" seems to me to be rather hard to discern.
Posted by Paul Horwitz on December 4, 2023 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)
Misinformation at the Oakland City Council
Presented here without comment.
Posted by Steve Lubet on December 4, 2023 at 02:07 PM | Permalink | Comments (0)
A Thought Experiment About Richard Nixon
It's 1975. Richard Nixon is on trial for Watergate crimes. He does not have a pardon. His lawyers and supporters ask the Court to dismiss the prosecution. Why? Because the trial, conviction, and/or imprisonment of a former President would be bad for America. I think it's fair to say that a court then (and now) would reject such an argument. Public policy concerns do not allow courts to set aside the law as applied to the facts for a given defendant. Only a pardon can take the wider public interest into account once a criminal prosecution is brought.
Many of Donald Trump's arguments in the ongoing Section Three litigation are similar to the hypothetical Nixon case. The claim is that disqualifying an insurrectionist former President from the ballot would be bad for America. A court cannot and should not consider these policy arguments. Only Congress--through its amnesty power--can.
This issue was briefly discussed in a District Court opinion upholding the constitutionality of Ford's pardon. In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Court said: "Few would today deny that the period from the break-in at the Watergate in June 1972, until the resignation f President Nixon in August 1974, was a ‘season of insurrection or rebellion’ by many actually in the Government." Nevertheless, President Ford exercised "prudent public policy judgment" in pardoning Nixon.
Whether you agree with Ford's pardon or not, it was his call to make and his alone. Likewise, only Congress can give Donald Trump a Section Three waiver from his season of insurrection or rebellion. Courts can look only at whether his conduct was disqualifying.
Posted by Gerard Magliocca on December 4, 2023 at 11:40 AM | Permalink | Comments (0)
Sunday, December 03, 2023
Swing Justices and "Legacies," Again
Some of the celebrations--quite justified--and remembrances of Justice Sandra Day O'Connor, focusing on changes on the Court since she retired, have focused on her "legacy" and worried that it is being undone. She was evidently not happy about that either, according to this excellent but odd obituary. (Excellent because of its detail and clean prose; odd because of its urgent insistence, not entirely respectful to her memory, on fixing her in the public annals as a liberal rather than a conservative, a feat that is achieved partly by excoriating the current Court but mostly by relegating a great many of her views and opinions to the 43rd paragraph and lower.) This reminds me that we went through the same discussion quite recently. In September, a Washington Post story argued that former Justice Anthony Kennedy’s "mark is fading fast—and is already erased in some areas." At the time, I suggested in response that for a number of reasons, a swing justice's legacy is bound to be evanescent.
Not to repeat myself, but the same thing applies here--and not only because of the current Court, despite its 2021 and 2022 terms. (My guess at the moment is that the 2023 term will be more of a term that uses the Fifth Circuit as a foil to signal that it has its limits and will move only when it wants to. Of course I could be wrong, and there's little point in predicting the future, since it will come along presently anyway.) On a closely divided court, a swing justice doesn't get a legacy; she (or he) gets power instead. That's no small thing, and it can conduce to the good. But that power derives from the balanced instability of that court on which the swing justice serves as the fulcrum. Inevitably, with a change in personnel, one of two things will happen: the balance will shift decisively in one direction or the other, depriving the swing justice of her pivotal power; or a different fulcrum point will emerge, giving some other justice the swing-vote power and putting the former swing justice's compromises in play once again. In Justice O'Connor's case, both things happened in reverse succession: after Justice O'Connor retired, first Justice Kennedy became the swing justice and then, after both were gone, the balance of the Court shifted decisively and neither justice's compromises were likely to remain in place. To quote a sage:
The "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy."...
Posted by Paul Horwitz on December 3, 2023 at 11:46 PM in Paul Horwitz | Permalink | Comments (0)
Saturday, December 02, 2023
Oxes, goring, etc.
One important argument for protecting speech you find offensive rests on the impossibility of laying down a principled standard to separate speech and speakers you find offensive from speech and speakers that others find offensive but that you like. If you succeed in getting government to sanction the former, it opens the door to government sanctioning the latter. And you cannot do anything about it without drawing accusations of hypocrisy.
Case in point: Universities have sanctioned faculty members for pro-Israel/anti-Palestinian/anti-Hamas speech. In several ways, they present the mirror of cases involving anti-Israel/antisemitic/pro-Palestinian/pro-Hamas speech:
• No one can agree on which is which. Did the USC prof wish death on Hamas or on all Palestinians? Did he intentionally step on the memorial display or only accidentally? The current crisis has created a counterpart to "is anti-Zionism antisemitism"--is "anti-Hamas anti-Palestinian." Whatever the merits of the questions and whatever the distinctions one can draw (based on one's views of the content at issue), government should not be drawing them.
• Apologies are as sincere as the listener is sympathetic to the apologist's speech. One case involves a doctor at Johns Hopkins who called Palestinians "morally depraved" and "savage animals" and responded "god willing" to claims that his call for reclaiming every inch of Israel would produce large-scale slaughter. He apologized, saying his "messages in no way reflect my beliefs, me as a person, a physician, a friend, or colleague." A reporter for the Washington Free Beacon called for Hopkins to forgive the doctor. Why? Because the doctor treated the reporter's daughter--"as the father of a Klugman patient, I know he means it. Why? Because I witnessed with my own eyes how he delivered medical care.” I will let the absurdity of that last part sit without comment.
It would be great if people calling for bans on SJP and similar campus speech would see this story as a warning, as a logical risk (if not inevitability) of their efforts. I doubt it will.
Posted by Howard Wasserman on December 2, 2023 at 06:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday Music Post - Carole King's Goffin/King Medley
Before launching her legendary solo career in the 1970s, Carole King worked in the Brill Building, writing a series of hits with her then-husband Gerry Goffin. In total, King wrote or co-wrote an astounding 118 songs that charted on the Hot 100, beginning when she was a teenager, although I don't know how many were with Goffin (she wrote the music, he wrote the lyrics).
Today's post is from a 1988 television special, with Carole King performing the greatest Goffin/King songs with occasional guests (including her daughters).
The clips are on The Faculty Lounge.
Posted by Steve Lubet on December 2, 2023 at 05:46 AM | Permalink | Comments (1)
Friday, December 01, 2023
Sandra Day O'Connor (1930-2023)
Here are some excerpts from my 2019 review of Evan Thomas's First: Sandra Day O'Connor and Joan Biskupic's The Chief: The Life and Turbulent Times of Chief Justice John Roberts in The New Rambler Review:
If John Roberts’s “fast track” to “the best job” took him almost ineluctably to the U.S. Supreme Court, while maintaining a cool demeanor that can blunt even the best attempt at biography, Sandra Day O’Connor followed a far more winding road, even an adventurous one, as detailed in Evan Thomas’s absorbing First: Sandra Day O’Connor. She did not go from law school to prestigious clerkships, and then to an insider’s position in the White House. In fact, she was unable even to get interviews with top California law firms, although she had graduated at the top of her class at Stanford. One Los Angeles firm did let her in the door, but only to offer her a secretarial position, explaining that “our clients won’t stand [for] being represented by a woman” (43).
Before she was nominated by President Ronald Reagan in 1981, O’Connor had been an unsalaried assistant district attorney in California, a civilian lawyer in the U.S. Army’s Quartermaster Corps in Germany, and then a stay-at-home mom and a storefront lawyer in Phoenix. Her true professional ascent only began when, at age 39, she was appointed to a vacancy in the Arizona state senate. Within a few terms, she became the first woman majority leader in any U.S. legislature, followed by stints as a state trial court judge and appellate court justice.
O’Connor’s childhood and youth demanded independence and resourcefulness, preparing her well for later detours and disappointments. She was born on her parents’ cattle ranch—the 160,000 acre Lazy B, in an arid corner of southeast Arizona—in a house that had neither electricity nor indoor plumbing. Because there were no schools within reasonable distance of the Lazy B, six-year old Sandra Day was sent to El Paso, where she lived with her maternal grandmother while attending a private elementary school. She returned to the ranch for summers, and then as an adolescent, where she rode horses and joined in calf branding (and castrating) under the stern, and sometimes unforgiving, supervision of her father.
Always a precocious student, Sandra Day entered Stanford in 1946, at age 16, having skipped two grades. She was one of only a few women in her class. Graduating in only three years, she entered Stanford law school when she was 19 years old.
In law school, Sandra Day was surrounded by WWII veterans, one of whom was William Rehnquist. For many years it was reported that the two law students had casually dated, and Rehnquist told his clerks only that they had “gone to the movies” once or twice (219). Thomas reveals that there was more to it. Their dating had been serious, with Rehnquist proclaiming his love during their third year at Stanford. “I know I can never be happy without you,” he told her. “To be specific, Sandy, will you marry me this summer” (42).
Continue reading "Sandra Day O'Connor (1930-2023)"
Posted by Steve Lubet on December 1, 2023 at 12:21 PM | Permalink | Comments (3)
JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts
The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including ,, to whom their essay responds) suggest.
Posted by Howard Wasserman on December 1, 2023 at 10:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Thursday, November 30, 2023
Judicial Ethics Reform Through Binding Resignations
How can Supreme Court ethics reform respect judicial independence but also have teeth? Ian Ayres and I have a proposed answer. Here are some excerpts from our post over at Balkanization:
In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests.
...
To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.
...
A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.
Posted by Richard M. Re on November 30, 2023 at 09:53 AM | Permalink | Comments (2)
Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"
Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond." The event will be live-streamed.
On November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.
The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.
The panelists include:
Ken Marcus, Esq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey Veidlinger, Joseph Brodsky Collegiate Professor of History and Judaic Studies at the University of MichiganThe event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.
The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.
The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.
Posted by Rick Garnett on November 30, 2023 at 08:50 AM in Rick Garnett | Permalink | Comments (0)
Justice Jackson's Conference Notes from Youngstown
His summary of his own view is "would affirm doing little damage as possible." It's a good judicial motto for many cases.
Posted by Gerard Magliocca on November 30, 2023 at 08:27 AM | Permalink | Comments (0)
Wednesday, November 29, 2023
Proofreading the Justices
I was at the Library of Congress today looking once again at Justice Jackson's papers on Youngstown. Here's one interesting letter that he received after the opinion was issued:
A covering note says that a comma was, in fact, added to the slip opinion in response.
Posted by Gerard Magliocca on November 29, 2023 at 09:36 PM | Permalink | Comments (0)
A Spector Is Haunting the University
This excellent article by Professor Emerita Donna Robinson Divine, originally at JNS, is reposted here with her permission:
A Specter Haunting the University
Donna Robinson Divine is the Morningstar Family Professor of Jewish Studies and Professor of Government Emerita at Smith College's Department of Government.
That Hamas’s Oct. 7 rampage of barbaric atrocities has become a symbol of “Palestinian liberation” on campus is unsurprising. The pro-Palestinian movement and its ideology have long been a specter haunting the university.
This moral descent of academia has resulted in proposals to reinvigorate protections for free speech and appeals to university presidents to ensure safety and respectful interactions. These are laudable goals but insufficient. They cannot change a dynamic that is anchored in the university’s dedication to a radical vision of social justice, which compromises and corrupts what was once taken for granted as the core principle of higher education: the advancement of knowledge.
A progressive ideological vision has acquired sacred status on campus. It has taken command of the very words spoken in classrooms and lecture halls. A colonization of language has permeated every scholarly discipline, with a particularly degrading effect on the study of the Middle East. As a result, the Israeli-Palestinian conflict is no longer seen as a struggle to be resolved by compromises on tangible goods, such as land or holy sites. It is propagandized as a battle over a past in which, according to the permitted vocabulary, the “wrong side of history” prevailed.
Continue reading "A Spector Is Haunting the University"
Posted by Steve Lubet on November 29, 2023 at 05:35 AM | Permalink | Comments (0)
Tuesday, November 28, 2023
Some Thoughts About the Latest Law Review Imbroglio
The news last week was that the Harvard Law Review editorial board had voted "not to proceed with publication" of an online blog post that is more or less about the international law status of Israeli military action in Gaza, despite that post having been duly commissioned by the blog's editors and having gone through the process that culminates in its being posted. Here is a story about it in The Intercept; here's one in the Guardian. You can read the article itself at The Nation, which decided to run it itself, albeit not without succumbing to the desire for a clickbait headline. And here is a note from the Law Review's editors. I limit myself to the information in those sources; if more illumination was provided on social media, I did not seek it there. I'm late to the party by Internet time, but I offer some thoughts below. I try to make any assumptions or unanswered questions clear.
1: One thing to note at the outset is that the writing was slated to run on the HLR's blog, not in the journal or "even" the HLR Forum. The Guardian article and the Nation's preface to the actual post make that clear; the Intercept article mentions it in passing. Both the Intercept and the Guardian do employ some slippage in their language, repeatedly emphasizing the prestige of the parent journal, referring variously to the writing as an "essay," an "article," and so on, and lamenting that the post will now "never be published with the Harvard Law Review." That makes for more eyeballs. But still: it's just a blog post! No one takes blogs or blog posts seriously. (You can decide for yourself whether I'm speaking with irony, accuracy, or both. Regardless, henceforth the editors of PrawfsBlawg, taking a page from the folks in Cambridge and the iron law of title inflation, will be known as "Online Chairs.")
Perhaps that suggests that discussion of the controversy could be drained of some of the language of high drama. That doesn't alter my opinion about the wrongness of the editors' ultimate decision. But it does suggest that some of the Olympian verbiage and prestige-mongering might be toned down. The post will indeed "never be published with the Harvard Law Review." But it was never going to be published in the Harvard Law Review! On the other hand, it is also relevant on the other side of the ledger. One does not reasonably expect a blog post to be scholarship or to meet the same standards that might be expected for the journal itself. However vainly, one does expect everything a scholar writes on his or her subject, even in a blog post or amicus brief, to be accurate and honest. But a scholar can surely opine or editorialize in a blog post, including about current events, and including doing so in ways that a scholar might avoid in a scholarly article. (This time I am obviously speaking ironically. People editorialize often and wildly in law review articles, often about current events, and on matters both within and far outside their expertise.) To the extent that reactions to the decision not to publish focus on its not being sufficiently "scholarly" or not good enough to warrant publication, a question which is only relevant if that was the reason for the decision not to publish, those standards are misplaced.
2: Assuming the facts are as reported, the post should have been published. I assume, per the Intercept, that the post was "solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors" and that all this happened "in line with the Law Review’s standard procedures" for posts on the blog. If so, and absent something like a late discovery of plagiarism or defamatory material--which presumably would still have been dealt with through normal processes--that should be that. The Law Review editors' note states that after the regular process had been followed, "the full body met and deliberated over whether to publish a particular Blog piece that had been solicited by two editors. A substantial majority voted not to proceed with publication." It had been more than solicited by this point. One could imagine an argument that the full board can always, in theory, make a final decision not to proceed with publication of any sort of piece within the HLR "brand." But I assume it does not generally do so. ("One last time while we still have the galleys in hand: Is everyone okay with running this Foreword?") I see no relevant reason, and have read of none, why it should have acted differently here. The post should have run. The editors erred.
3: It is never a bad time to question law review processes (and substance!). That goes for the processes involving its online supplements and blogs and other outlets as well as the journal itself. Since there was a process and it was apparently followed, the piece should have been posted. But that doesn't mean the process makes sense or is an academically sound one. I'm not questioning the good faith of the "Online Chairs" in this instance. But obviously, if (as the description of the process suggests) they have autonomy in their choices, it's a system that is vulnerable to unchecked bad decision-making or abuse. (The usual abuses, for law reviews, would be and are favoritism, deal-making, careerism, and so on, but certainly naked politics belongs on the list too.) Maybe the Harvard Law Review doesn't actually need a blog. (Who does?) Maybe if it has one, it should limit itself to non-substantive or milquetoast posts. Maybe if it runs substantive pieces, there should be greater checks on solicitation practices and a further checkpoint before acceptance and publication. That's especially true in that the actual value of the blog is not that it's a blog, but that it gets to call itself the Harvard Law Review Blog, so that authors can list it as such on CVs and journalists can talk about it as if it is an august publication. Maybe it will now change the substance or processes of its blog accordingly. Maybe it should! But not midstream.
4: There is certainly nothing wrong, in my view, with a writer on international law arguing, inter alia, that Israeli action toward Gaza after October 7 constitutes genocide, or that (if I read the author's piece in the Nation correctly) a proper framework must be employed to understand its actions and that framework can be found in the events of 1947-49 and their sequelae. The argument might or might not be wrong, but it's a pretty standard line of inquiry and hardly unspeakable (if "unspeakable" is even a relevant limitation on scholarly writing). The piece itself seems to me to be more of a series of assertions than a set of arguments, but, again, it's just a blog post. (Nor is assertion without argument absent from law reviews themselves.) And it seems to me to use airy abstractions, scholarly abstruseness, and grad-school filigrees to obscure acts of terrible violence while complaining about how others have obscured acts of terrible violence with airy abstractions and scholarly abstruseness. But that's standard-issue stuff for scholarship. While most of the piece is outside my subject matter, I do think its first, second, and sixth paragraphs are silly and melodramatic and are also neither especially accurate nor at all healthy in their assertions about what legal academia is or what it should be. (Are "leading law schools and legal scholars in the United States" really going around "fashion[ing] their silence as impartiality?" Why should one care about "leading law schools" as such on this subject anyway, other than for the usual reasons of elite self-regard? Why on earth would one turn to law professors, as opposed to moral philosophers or, say, just plain folks, when "moral clarity" is "urgent?" Did I miss the required 1L class on moral clarity?) But all this is par for the course, for many blog posts and no shortage of legal scholarship. And none of this appears to have bothered the editors as such, let alone the specific editors who apparently were given free rein to solicit and run blog posts. If the Law Review's email to the author is to be credited, its reasons for spiking the post had nothing to do with any "substantive or technical aspects of [the] piece."
So, again, it should have run. If a bunch of editors elsewhere on the journal then decided the piece was objectionable, they could have asked the blog editors to hasten their work on the response piece that I naturally assume those editors had already solicited. If none was in the offing, for some strange reason, they could have insisted that one be solicited. (It could have been on the main issues, but given the paragraphs I mention above, I think Stanley Fish could have penned a bang-up response.) If the online editors refused to run one, that would be a good time to force a vote or revise the journal's blog policies.
5: In the Guardian piece, the author of the post calls the decision to kill it an act of "discrimination" and censorship. The first charge seems inapt. The general sense of the reporting (including an email from one of the online editors) suggests that some editors "oppose[d] or [were] offended by the piece" but that the larger concern was that the piece might provoke a reaction from members of the public who might in turn harass, dox or otherwise attempt to intimidate our editors, staff and HLR leadership." Opposition and offense are not legitimate reasons to kill a piece that has already been through the process. They are not, for that matter, legitimate reasons to kill any piece, in any corner of the Law Review or in any other scholarly forum, at the beginning of the process, regardless of the topic of the article.
I think there is room for considerable sympathy on the final reason, however, even though it doesn't alter my conclusions. To the extent that the concern is professional (editors worrying about "risk[ing] their futures"), I doubt that running the blog post would have had consequences at all but the most foolish places; it's a far cry from the kind of conduct that law firms waved their hands about. But the prospect of online identification (I'm not sure calling it "doxxing" is fully accurate; that non-precise term seems to be getting ever more imprecise) and harassment seem much more likely, no matter that running the piece once it had been accepted would be the proper decision or that the journal might run subsequent posts criticizing the first one.
I've already written here several times that I'm deeply disturbed by that dynamic, especially given the extra charge that social media gives it, and think any civil libertarian should be. I do not think there is a right to not be identified or not be criticized for even proper conduct, let alone improper conduct, or that there necessarily should be. If, say, you have spent several years constructing a public persona, however phony, that calls for crushing corporate America, it's kind of okay for a corporate law firm to consider you a bad fit, even if its usual tendency has been to ignore applicants' views as long as they have the right pedigree. But one can still oppose the large-scale operationalization of that sort of mob or crowd pressure--as some have been saying for many years now--and the subsequent weak-kneed response by employers and other institutions, and think that this dynamic is harmful to civic, and civil, discourse.
In any event, this is a far cry from some of the more ridiculous statements that have been made along these lines. This is not "we demand the right to publicly smash windows, or block or occupy buildings, or tear down posters, but you know, in 'private,' and definitely without professional consequences." Yet mobs, and individuals who engage in individualized harassment, are not especially good at drawing these distinctions. So I can sympathize with the student editors' fears, and I think their decision is best understood as one of self-preservation rather than politics, let alone discrimination. But those fears and my sympathy don't change their job or the obligations attached to it. A wrongful action that I can sympathize with is still wrongful. (I assume fear, and not politics, was behind the decision of the Harvard Law Review editors to deny membership to Jonathan Lubell in 1953.)
6: This incident may be unusual. But it's not unique. It ain't all about Gaza and the political sensitivities around it, or Bill Ackman or "doxxing trucks." If this was a wrongful act of censorship, then so was the effort first to bowdlerize and then the outright cancellation of Larry Alexander's piece in the Emory Law Journal not so long ago. If the HLR editors demanding that an accepted publication be spiked despite its having gone through the usual processes constitutes a (successful) effort at censorship, then a similar label should attach to the (unsuccessful) effort of Oxford University Press USA employees to get the press to "reconsider" its publication of Holly Lawford-Smith's book Gender-Critical Feminism. The same goes for the American Indian Law Review's abrupt rejection, also of reasonably recent vintage, of an article it had already agreed to publish.
If the more general argument is that the editors wrongly took political considerations into account instead of simply publishing a plausibly acceptable scholarly writing, I welcome it! But any honest reader of law reviews in the past several years (not to speak of years past) must acknowledge that their selection process has been quite political--increasingly so--even (or especially) when such selections are not visible. (Sometimes they are. When you run a whole issue or symposium devoted to a particular politically inflected substantive view and exclude any questioning, doubting, or critical views, even when it's obvious that such views exist and that there is ample room for serious, good-faith scholarly questions and criticism on the topic, that's a visibly political decision, as well as a bad one.) As I said, I doubt politics were at the bottom of the editors' action here. But if people believe otherwise and still have a problem with it, they will not lack occasions for alarm.
Posted by Paul Horwitz on November 28, 2023 at 03:22 PM in Paul Horwitz | Permalink | Comments (0)
Monday, November 27, 2023
Herb Block on the Steel Seizure Case
One of my favorite aspects of writing a book involves selecting illustrations. Here is a Herb Block cartoon from June 1952 that I will probably use in my book about Justice Jackson's opinion in the case.
Posted by Gerard Magliocca on November 27, 2023 at 09:56 PM | Permalink | Comments (0)
Brown University faculty commit category error
More than 260 faculty and staff at Brown University signed an open letter to President Christina Paxson urging the university not to pursue criminal or student-conduct charges against a group of students arrest for staging a sit-in at a campus building.
The letter attempts to play "gotcha" with Paxson. They cite her statement to faculty about ensuring "that individual members of the community are free to voice their views, including using their voices to urge lawmakers or other universities to take specific actions or, more generally, express their beliefs on matters of conscience." And they cite her NYT op-ed decrying past instances of state censorship ship of everyone from Galileo to Darwin to communist professors and how those censors were on the "wrong side of history." It follows, the letter argues, that the sit-in enjoys the same constitutional protection, because "freedom of expression is not restricted to speech but includes the right to protest and to perform civil disobedience." The students "undertook a peaceful act of civil disobedience, following a time-honored American tradition."
Whatever the merits of the request, the authors commit a category error in conflating civil disobedience with protected speech and protest. Civil disobedience (including "peaceful acts of civil disobedience") does not enjoy First Amendment protection from sanction. Those who engage in civil disobedience do so to either protest and challenge unjust laws (e.g., lunch counter sit-ins) or to call attention to some other cause through disobedience (e.g., the letter's list of policy changes, such as South Africa divestment, that Brown has enacted in the wake of past sit-ins). The disobedience at issue here falls into the second category. But those who engage in that second category violate valid laws (e.g., a prohibition on occupying the university president's office) with the goal of drawing attention to their cause. They violate that law knowing--and believing it worthwhile--to face punishment and sanction in the name of a larger cause. We may regard that as noble or worthwhile, but it does not confer immunity from neutral, otherwise-valid regulations. And the school enforcing its rules about use of the office does not conflict with Paxson's stated support for free speech, including speech by those with marginal or unpopular views. These students enjoy many ways to advocate for a ceasefire, most of which would not--at a school, such as Brown, voluntarily binding itself to the First Amendment--run afoul of school rules or subject them to arrest or sanction.
We could, generously, read the letter as making a prudential point--the school should refrain from sanctioning them because of their motivations and because of Brown's long history of successful sit-ins and occupations. But that argument does not require the broader efforts to tie this to genuinely protected speech.
Posted by Howard Wasserman on November 27, 2023 at 03:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Once Again, the AAUP Ignores Antisemitism
My new essay in The Hill explains how a recent statement from the American Association of University Professors discounts antisemitism on U.S. campuses.
Here is the gist (I did not write the headline):
Hypocritical definitions of ‘academic freedom’ empower extremists
by Steven Lubet, opinion contributor - 11/27/23
The American Association of University Professors (AAUP) quite rightly calls itself the “most prominent guardian of academic freedom” for faculty and students in the U.S. In a recent statement on the Israel-Hamas war, however, titled “Polarizing Times Demand Robust Academic Freedom” the AAUP displayed a distressing anti-Israel bias that sadly undermines its commitment to even-handed protection of free expression.
The AAUP, however, addresses only one rhetorical excess, even though it is almost entirely non-existent, declaring that it “rejects the characterization of pro-Palestinian speech or critiques of the Israeli state as invariably antisemitic.” That is a classic straw person. Apart from an occasional crank or zealot, nobody has ever charged that pro-Palestinian advocacy or criticism of Israel is “invariably” antisemitic.
Meanwhile, the AAUP statement says not a word about the threats to the academic freedom of Jewish students, who have been insulted and marginalized on many campuses.
It is deeply objectionable, as the AAUP statement points out, that pro-Palestinian faculty have been “investigated, suspended, or fired.” But the same is true of the Jewish professors who have been suspended — as at Johns Hopkins, Southern California, and NYU — for anti-Hamas statements, and others who have been isolated or threatened, never mentioned by the AAUP.
You can read the full essay in The Hill.
Posted by Steve Lubet on November 27, 2023 at 12:15 PM | Permalink | Comments (0)
Saturday, November 25, 2023
Saturday Music Post - Drifting Up, On, Under
Among their big hits in the early 1960s, The Drifters charted three songs with prepositions beginning the titles: "Up on the Roof," "On Broadway," and "Under the Boardwalk." The group itself was extremely unstable, with lead and backup singers coming and going at frequent intervals. Both Clyde McPhatter and Ben E. King were Drifters' lead singers before going on to successful solo careers, although neither sang lead on the "prepositional" songs featured in this post. The name for the group was owned by their manager George Treadwell, a former jazz trumpeter and once the husband of Sarah Vaughn. Treadwell cycled over 60 vocalists under The Drifters' name, paying most of them poorly, in a lineage often described as "Treadwell's Drifters." Early members of the group sometimes competed under other names, including "The Original Drifters," led by early member Bill Pinckney, who obtained the rights to the variant name in binding arbitration with Treadwell.
The clips are at The Faculty Lounge.
"Up on the Roof" was written by Gerry Goffin and Carol King and released in 1962 with Rudy Lewis singing lead (Clyde McPhatter and Ben E. King having already left). Goffin, the lyricist, said it was his favorite of all their songs. It reached number 4 on the Hot 100.
"On Broadway" was released in 1963, with Rudy Lewis again singing lead. It completed The Drifters' trifecta of Brill Building songwriters, having been written by Barry Mann and Cynthia Weil, with an assist from Jerry Leiber and Mike Stoller. The cut featured Phil Spector on guitar, though I don't think he was acknowledged in the line "I can play this here guitar." It reached number 9 on the Hot 100.
"Under the Boardwalk," by Art Resnick and Kenny Young (born Shalom Giskan), was released in 1964 and reached number 4 on the Hot 100. It was originally set to be recorded with Rudy Lewis as the lead singer, but he died the night before the session of a suspected heroin overdose. Rather than reschedule the recording, apparently at the insistence of Treadwell, the group promoted Johnny Moore to lead singer. Moore had joined only a year earlier, but he could really hit the high notes. I don't know who played guitar, but it wasn't Phil Spector.
The clips are at The Faculty Lounge.
Posted by Steve Lubet on November 25, 2023 at 05:50 AM | Permalink | Comments (0)