Monday, May 20, 2024

Woodrow Wilson and the Senate

I came across an interesting bit of trivia today. President Wilson gave a speech to the Senate in 1918 urging them to ratify the Nineteenth Amendment after the House passed the proposal. As far as I can tell, this is the only time in modern history that a President gave a speech to only one House of Congress. Presidential speeches are, of course, usually to a Joint Session. George Washington did go to the Senate at the very beginning to get their "advice and consent" on something, but quickly realized that was not the right approach.

Posted by Gerard Magliocca on May 20, 2024 at 11:09 AM | Permalink | Comments (0)

Saturday, May 18, 2024

Statement Opposing Boycott of Israeli Academics [Signatories Now Released]

UPDATE: Names of over 5500 3200 signatories have now been released and can be seen here. Additional names can be added here (scroll to the bottom).

Please consider signing the following "Statement against the Boycott of Israeli Academics." It was written by Anne Rethemann (Freie Universität Berlin), Helmut Walser Smith (Vanderbilt University) and Daniel Siemens (Newcastle University).  It responds to a report in Haaretz of growing cancellations and boycotts of Israeli academics, especially in the Humanities and Social Sciences. Here is a link to the Haaretz report (paywall):

The statement opposes the boycott of Israeli universities and individual academics because it threatens academic freedom, while also undermining the most open and anti-authoritarian institutions in the country. This is not a statement of support for the Netanyahu government.

I have signed the statement and suggest that others sign it here as well. 

Statement against the Boycott of Israeli Academics
May 14, 2024
We, scholars from various fields of the humanities and social sciences, are deeply concerned about the increasing isolation of our academic colleagues in Israel. Calls for boycotts against Israeli academic institutions are not new, but since the brutal attack by Hamas on October 7th and the subsequent Israeli-Hamas War, these calls have taken on a new dimension. On April 12, 2024, the Israeli daily newspaper Haaretz published an article based on interviews with over 60 Israeli scholars and reported an astonishing range of discriminatory practices. These include the termination of scientific collaborations, cancellation of conference invitations, refusal to consider scholarly submissions to journals, rejections of promotion evaluations, and withdrawal of offers for academic appointments, among other instances.

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions. We firmly advocate for intensive cooperation and continued work with them. We are also convinced that the gradual, often subtle exclusion of Israeli scholars contradicts fundamental principles of professional comportment and academic freedom. Moreover, an academic boycott against Israel is counterproductive regarding internal Israeli debates as well as Israeli-Palestinian dialogue, as Barak Medina argued in his compelling essay, Is it Justified to Boycott Israeli Academia?

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community. The alarming trend of excluding Israeli scholars from international academic discourse requires unequivocal response on our part. We, the undersigned, call on scholars to stand in solidarity with our Israeli colleagues on this critical issue.

Statement Authors
Anne Rethman, Freie Universität Berlin, visiting at Hebrew University 
Daniel Siemens, Newcastle University
Helmut Walser Smith, Vanderbilt University
You can sign here.
Names will be published on Saturday, May 18.

Posted by Steve Lubet on May 18, 2024 at 06:24 PM | Permalink | Comments (0)

Saturday Music Post - I’ll Be Your Baby Tonight

Released in 1967 on Bob Dylan's Nashville album John Wesley Harding, "I'll Be Your Baby Tonight has been a staple of his live shows ever since.

The clips are at The Faculty Lounge.


Posted by Steve Lubet on May 18, 2024 at 04:59 AM | Permalink | Comments (0)

Friday, May 17, 2024

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

Posted by Howard Wasserman on May 17, 2024 at 12:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Globalizing the Intifada

This is the meaning of banners seen at Northwestern and other encampments:

As reported by CNN:

Police have shot dead an armed attacker who was trying to set fire to a synagogue in the northern French city of Rouen, according to authorities.

As reported in the New York Times:

The identity and motives of the man who attacked the synagogue were not immediately clear, but the French authorities were treating the incident as an antisemitic act. Local prosecutors have opened an investigation into “religiously motivated arson” and assault.

As reported by Reuters:

French police shot dead a knife-wielding Algerian man who set fire to a synagogue and threatened police in the city of Rouen on Friday in the latest antisemitic attack, officials said.

France, like many countries across Europe, has seen a huge spike in anti-Jewish acts since Hamas' Oct. 7 attack on Israel and Israel's military response in Gaza.


Posted by Steve Lubet on May 17, 2024 at 11:27 AM | Permalink | Comments (0)

Thursday, May 16, 2024

New SEALS Faculty Recruitment Platforms

Posted on behalf of SEALS:

The Southeastern Association of Law Schools is excited to offer a new set of free services to the law teaching community, including and especially prospective members who are interested in joining legal academia.  For it to be effective, we must get the word out and encourage candidates to register and schools to use it.  Please help us by circulating this information widely to your VAPs, alumni, and search committee members.

The SEALS faculty recruitment platform is now live with two new hiring portals.

  • The Faculty Hiring Portal allows faculty candidates to indicate their interest in finding an academic job and permits faculty hiring committees to search for candidates who meet the school’s hiring needs.
  • Meanwhile, the Visiting Faculty Portal allows current law school faculty to indicate their interest in visiting opportunities on a look-see, podium, or overload basis. Meanwhile, schools interested in hiring are able to create institutional accounts (a single law school account provides access to both portals) and view candidate materials.
  • Finally, the Job Postings site is a bulletin for schools to advertise their various hiring interests and position details.

We welcome your questions and suggestions for the SEALS Faculty Recruitment Committee, which can be directed to committee chair Linda Jellum at [email protected].

Posted by Sarah Lawsky on May 16, 2024 at 04:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.


Posted by Dan Rodriguez on May 16, 2024 at 11:33 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, May 15, 2024

Bar reform in California. A promising start

Innovation in legal services is a slog.  One that rewards those who take the long view, and who can find some cautious optimism in a world of setbacks -- of protectionism, parochialism, inertia, and even the occasional crisis (financial; pandemic, etc) that knocks back fruitful experiments to the beginning or off the stage altogether.  This is at least as true of lawyer credentialing and the administration of the much-maligned bar exam.

And so we should welcome the interesting experiment just announced out of California.  The Golden State is eschewing its cooperation with the Nat'l Conference of Bar Examiners (NCBE), the organization based in Madison, Wisconsin -- peculiarly, given that this is the state that grants the diploma privilege to state law school grads, but I digress.  The NCBE has had an iron death-grip on the content, and many elements of administration, of the bar exams of states around the country.  The organization has not had a reputation for being especially innovation minded; nor has it been, in my experience, a constructive cooperator.  Anecdote: I was once in a meeting of twenty or so deans with the then-director of the organization, in the hopes of facilitating a useful exchange of student performance and bar data, data which has long been critical to a better understanding of where law schools fail, where NCBE and bar authorities come up short, and how we might improve the world for our students.  The response was, and this is mighty close to a direct quote:  "Well, we have high-level psychometricians at NCBE who work on these difficult issues and law schools (and other groups) couldn't possibly grasp the nuance of this performance information."  Us pea-brained deans got the message, and left without any optimism that law school/NCBE cooperation would be forthcoming.  About a dozen years later:  Same as it ever was.

Into this frustrating status quo comes California's decision to work internally on key matters of bar administration, including the possibility of an in-home version of the test -- something that so many grads pleaded for during Covid, and disabled grads would benefit from going forward.  Even more promising is the prospect that, in collaboration with Kaplan, Inc., California will develop some ambitious new types of content -- something that is really truly a "new generation" bar exam, which the NCBE has been touting with some fanfare for the last few years.  By way of context, I was involved in some conversations with state bar staff and an organization whose name I won't here disclose about the prospect of leveraging new ways of assessing knowledge, perhaps drawing from developments in gamification and AI/machine learning.  While I honestly don't know if this future-oriented discussion is part of this new initiative, I hope California will use all the big brains it can muster to give us novel, constructive ideas.

To be sure, this is a partnership with a company that has skin in the game.  I won't speak to either the incentives or the bona fides of Kaplan in regard, not for any cagey reason but just from a dearth of actual knowledge of the arrangement struck.  But I'll just say that the fact that California apparently knows what it doesn't know and seeks out external help from an organization other than one whose monopoly over bar exam ventures has hobbled innovation, is a promising development.  Many things betwixt cup and lip for sure, but we should watch with great interest what happens in California.  A failure will be a setback, but this natural experiment will yield valuable information.  That's what laboratories of experimentation are all about.  And if this succeeds, both in solving some serious financial problems that plague Cal Bar and in advancing the welfare of our graduates, that's a game-changer.  And change is what we need.

Posted by Dan Rodriguez on May 15, 2024 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Posted by Howard Wasserman on May 15, 2024 at 11:44 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 14, 2024

Lawsky Entry Level Hiring Report 2024

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2024. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 International license, cited as Sarah Lawsky, Reported Entry-Level Law School Hiring Spring 2024, PrawfsBlawg,

Here is the full spreadsheet:


There were 105 tenure-track hires at U.S. law schools reported, at 71 different law schools.

Q: How does 105 reported hires compare to past years?

A: There are fewer hires than each of the last two years, but still somewhat more than usual compared to the years since the “new normal” began. The average number of hires since 2014 is 87. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year to include it in the report.)


It would useful to know the percentage of those on the market who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. The x-axis here is Hiring Year; thus, for example, if the Hiring Year is 2024, the FAR forms were released in 2023.


As that graph suggests, the hires per FAR form were roughly comparable to 2019 and onward; last year seems to have been an anomaly.


As is true every year, some people who received entry-level jobs and are represented in this data did not participate in the AALS/FAR process.

Q: You say the hires were at 71 law schools. How does that compare to previous years?

A: Comparable to previous relatively recent years.


Q: How many reported hires got their JD from School X?


Yale: 23; Harvard: 12; Georgetown: 6; NYU: 6; Chicago: 5; Michigan: 4; Berkeley: 4; Hebrew University: 3; Baylor: 3; Penn: 3; Virginia: 3; Fewer than Three: 33

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Minnesota; Northwestern

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Alabama; Arizona; Arizona State; Brooklyn; Cardozo; Chicago Kent; Columbia; FGV Direito São Paulo; Geneva; Houston; Kogi State University; LSE; Lahore University; McGeorge; Nanchang; Nat'l Law University Jodhpur; Notre Dame; Ohio State; Pepperdine; Reichman; San Francisco; Stanford; Tel Aviv; UCLA; UNLV; Universidad Torcuato Di Tella; Vanderbilt; Washington & Lee; William & Mary

A high percentage of hires every year get their degree from Yale, Harvard, Stanford, or NYU.


However, over time, many schools are represented as the source of entry-level hiring.


The schools with four hires include: BYU; British Columbia; CUNY; Cardozo; Indiana-Bloomington; Iowa; LSU; Tel Aviv; Tennessee; Tulane; USC; Washington (St. Louis).

The schools with three hires include: American; Arizona; Arizona State; Arkansas-Fayetteville; Baylor; Brooklyn; Chicago Kent; Davis; Emory; Florida; George Mason; Howard; Miami; Mitchell Hamline; Northeastern; Pittsburgh; Pontificia Universidad Católica de Chile; Washington (University of).

The schools with two hires include: Cambridge; Colorado; East China University; Florida State; Georgia; ITAM; Kansas; Kentucky; Lewis & Clark; Nat'l Law School of India; New Mexico; New South Wales; Nigeria Law School; North Carolina; North Dakota; Oklahoma; Oregon; Queen's University; Queensland; Reichman; San Diego; Seoul Nat'l U; Sorbonne; St. Louis; Suffolk; Thomas Jefferson; UNLV; Universidad Torcuato Di Tella; West Virginia.

The schools with one hire include: Ain Shams Fac of Law; Alabama; Aristotle U; Athens; Augsburg; Barry; Belarusian State U; Bonn; Catholic (Portugal); College of Mgmt Acad Stud; Cologne; Connecticut; Dayton; DePaul; Democritus of Thrace; Denver; Diego Portales; FGV Direito São Paulo; Freiburg; Fundacao Getulio Vargas; Geneva; Genoa; Georgia State; Ghent; Haifa; Hamburg; Hawaii; Hofstra; Houston; Humboldt; Idaho; Inter-American; Irvine; Kogi State University; LSE; Lahore University; Lisbon; Louisville; Loyola-Chicago; Loyola-LA; Loyola-New Orleans; Maine; McGeorge; McGill; Melbourne; Montana; Nanchang; Nat'l Chengchi U; Nat'l Law University Jodhpur; Nebraska; New Hampshire; Ohio State; Passac (Germany); Penn State; Pepperdine; Phillipines; Pontificia Universidad Javeriana; Richmond; Rutgers; SMU; San Francisco; Sao Paulo; Sapienza; Savannah; Shandong; Shenzhen; South Carolina; Southern; Southern Illinois; Sydney; Tehran; Toronto; Trinity; Tsinghua; Tulsa; UCL; Universitat Pompeu Fabra; University of Ljubljana; Utah; Vermont; Vienna; Wayne State; Whittier; William & Mary; Zimbabwe.

Again, this is a partial list, as over time I am certainly missing hires. This is just an aggregation of the information reported to me in the spring of the year in which I do each report.

And each year, there are relatively many unique schools represented.


The number of unique schools may be in part a function of the number of hires. Unique schools as a percentage of total hires is comparable to recent years. (This graph represents the number of unique schools from which hires got their JD in a given year divided by total number of hires for that year. If in a particular year there were five total hires, and each came from a different law school, the graph would show 5/5 = 100% for that year. If in a given year there were five total hires, and three of those hires came from School X and two came from school Y, then the graph would show 2/5 = 40% for that year.)


This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued.

Q: How many reported hires had a fellowship, degree, or clerkship?

80 (about 76%) had a fellowship; 54 (about 51%) had a clerkship; 62 (about 59%) had a higher degree. 5 people had none of these credentials. The percentage of each of these credentials was consistent with but slightly lower than percentages in recent years.



09B_percent_Higher Degree_per_year

Venn diagram. Of the five people who did not have a fellowship, clerkship, or advanced degree, at least four of the five had significant, extensive academic experience (three were non-tenure-track to tenure-track hires and one was a current professor in another field).


Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--last year seems to have been an anomaly.


Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.


Harvard: 14; NYU: 12; Penn: 4; Columbia: 4; Stanford: 4; Chicago: 4; Gonzaga: 3; UCLA: 3; Yale: 3; Georgetown: 3; George Washington: 3; Fewer than Three: 39

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees.

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 62 “highest” advanced degrees broke down like this:


Doctorate: 37; Masters: 18; LLM: 6; MBA: 1

Topics ranged all over the maps. For the 37 Doctorates, a number of topics had multiple hires, including Law: 13; Philosophy: 6; Political Science: 6; History: 4; Health: 2. The other doctorate topics, each of which had one hire, were Education; Psychology; Literature; Religion; Sociology; Environment.

Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

84% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. The percentage of reported hires with doctorates is roughly comparable to years since 2017, though still below 40%.


The percentage of doctorates who also had a fellowship is 78%, which is comparable to recent years (except for last year).


Q: How long ago did these reported hires get their initial law degrees?


Zero to Four Years (Graduated 2020-2024): 14; Five to Nine Years (Graduated 2015-2019): 47; Ten to 19 Years (Graduated 2005-2014): 39; Twenty or More Years (Graduated before 2005): 5

Q: How do the "years since initial degree" numbers compare to previous years?

Consistent with prior years.


Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this report is certainly missing some information. It is without question incomplete. If you are aware of an entry-level hire who is not reported, please let me know and I will add that person.

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about entry-level hires reported to me as of the spring before the school year starts.

Originally posted 5/14/2024. Updated 5/15/24 to fix the JD school over time graph and add text for schools with fewer than five hires over time. Updated 5/16/24 to add hires and add text related to NTT to TT hires. Updated 5/19/24 to add hires.

Posted by Sarah Lawsky on May 14, 2024 at 03:54 PM in Entry Level Hiring Report | Permalink | Comments (0)

Monday, May 13, 2024

2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) San Diego September 13-14, 2024 - book your hotel with group rate

Dear Friends,

This is a reminder that the 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held in San Diego on Friday, September 13 - Saturday, September 14, 2024. The host schools are California Western School of Law and the University of San Diego School of Law. We hope you will calendar these dates and plan to attend.

An event webpage should be available for registration and abstract submission in the next 2 - 3 weeks. This works-in-progress event does not require submission of a paper, but we do ask that you provide a paper abstract so that submissions may be organized thematically into appropriate panels. We will post again once the 2024 COSELL registration webpage is live.

In the meanwhile, we have reserved a block of rooms at the Marriot Courtyard San Diego Old Town, which is equidistant from both host campuses. A reservation link  appears below. The start date for the US$194 per night conference rate is Thursday, September 12, 2024. The end date is Saturday, September 14, 2024. The last day to book is August 13, 2024.

Here is the the link for the hotel registration:

Book your group rate for CoSELL Conference 

If you have difficulty with the link or any other questions, please contact Susan Bisom-Rapp ([email protected]) or Orly Lobel ([email protected]).

Warm regards,

Susan Bisom-Rapp, Dean Steven R. Smith Professor of Law, California Western School of Law

Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment & Labor Policy, University of San Diego School of Law

Posted by Orly Lobel on May 13, 2024 at 06:21 PM | Permalink | Comments (0)

The Judges' Boycott of Columbia University is Bad, Bad, Bad

My new essay for The Hill explains why 13 Trump-appointed judges are wrong – in so very many ways – to boycott graduates of Columbia University. Here is the gist:

In an open letter to President Minouche Shafik, 13 Trump-appointed federal judges have announced that they will not hire graduates of Columbia University because the campus has become “ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints.” 

The boycott, including undergraduates and law students, is irrational, self-defeating and unethical — with no redeeming features.

Savvy judges should easily be able to weed out any bad actors unless they believe there is a conspiracy among Hamas supporters to establish sleeper cells in judicial chambers. Even Fox News hasn’t gone that far.

Law clerks and other staff are public employees, provided to judges for assistance in deciding cases. It is flatly improper to use the positions as a reward, or punishment, dangled before third parties to bully their compliance with a judge’s ideological agenda.

You can read the full essay at The Hill.

Posted by Steve Lubet on May 13, 2024 at 12:14 PM | Permalink | Comments (0)

Saturday, May 11, 2024


Recent discussion on the possible revival of the Comstock Act got me to thinking about desuetude doctrine. Though there is no federal version of that idea, there are state cases where courts say that a criminal statute cannot be enforced due to desuetude. One example is State ex rel. Canterbury v. Blake, a 2003 West Virginia Supreme Court case. In applying desuetude there, the Court said that three factors were pertinent:

(1) The statute proscribes only acts that are malum prohibitum and not malum in se;
(2) There has been open, notorious and pervasive violation of the statute for a long period; and
(3) There has been a conspicuous policy of nonenforcement of the statute.
Anyway, food for thought.

Posted by Gerard Magliocca on May 11, 2024 at 09:21 AM | Permalink | Comments (0)

Saturday Music Post - Crashes

Surprisingly many musicians have died in plane crashes, including some who are less well known than the stars.

Today's clips are at The Faculty Lounge.


Posted by Steve Lubet on May 11, 2024 at 05:45 AM | Permalink | Comments (0)

Friday, May 10, 2024

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

Posted by Howard Wasserman on May 10, 2024 at 06:51 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)