Saturday, July 12, 2025
Interpleader and exclusive private enforcement
In the early days of S.B. 8 and all it has wrought, Teddy Rave (Texas) proposed a creative path to federal court for potential S.B. 8 defendants--statutory interpleader. The holder of a definite fund or res (places the fund in the court, which litigates and resolve disputes over proper ownership among competing claimants. Dr. Alan Braid--a Texas doctor who announced in the Washington Post that he had performed a post-heartbeat abortion, triggering three lawsuits--tried it. He despoited $ 10,000 (the minimum amount recoverable for one violative abortion) in the Northern District of Illinois (where one of the S.B. 8 plaintiffs resides).
The Seventh Circuit approved the process, sort of.*
The court acknowledge that this is not the typical interpleader, which involves a disinterested stakeholder and a fund such as an insurance fund or bank or estate assets. But Braid's claim fits the deliberately broad statutory language for claims "in the nature of interpleader." This can include money arising from a tort or statutory violation on which the stakeholder is not neutral-and-disinterested and on which the stakeholder resists any liability to any of the claimants on the fund. Braid's potential liability was definite enough (even if not-yet determined)--he has a single pot of (at least) $10,000 which only one of three competing claimants can recover, on which claims exceed the value of the fund (since all seek $ 10,000 but only $ 10,000 is recoverable), and on which Braid contests his liability and responsibility to pay anyone.
Of course, it did not matter that this could fit interpleader--the court of appeals sua sponte raised and abstained under Colorado River. The federal action lacked "formal symmetry" with the state action--only one federal defendant had an ongoing state claim, the federal action is more efficient, and S.B. 8 imposes problematic procedures in state court. But they were parallel enough--similar parties litigating similar issues (the validity of S.B. 8). And enough of the 10 Colorado River factors weighed heavily in favor of abstention--the centrality of Texas-law issues to both actions, the fact that state courts obtained jurisdiction first, the risks of piecemeal litigation and conflicting judgments, and the appearance of forum-shopping. The court was not swayed, nor should it have been, by arguments about S.B. 8's defective procedures.
Final thoughts:
1) I still think this is wrong as to interpleader. That process is designed to resolve competing claims over an existing fund, not to litigate liability on a state-law claim that might cause the fund to come into existence (or not). Otherwise, every tort defendant facing multiple damages actions in state court would try this move.
2) The limiting principle here might involve an S.B. 8 quirk. Multiple "any person" plaintiffs can sue over one abortion but a defendant can pay only one judgment for one violative procedure. Thus, unlike three tort plaintiffs recovering for their damages, three S.B. 8 plaintiffs fight over one statutory damage amount. Ironically, that limiting principle allows a state to enact S.B. 8 copycat and preempt this strategy by allowing multiple recoveries for one violation--cutting off interpleader (because the fund is less definitive) and making life more difficult for the targets of the law.
3) A further irony: Rocky and I argued that singular recovery was one (of three) keys to the argument that S.B. 8 plaintiffs act under color and are subject to § 1983 actions. Singular monetary recovery means the process looks more like criminal prosecution (a traditional-and-exclusive government function) than ordinary tort litigation--a singular sanction against the wrongdoer rather than damages to make an injured person whole. So a state shifting the recovery scheme to avoid interpleader might also avoid the under-color problem, all while making life worse for the targets of the law.
4) It is hard to imagine any attempted interpleader action that will not satisfy the same Colorado River factors, requiring the federal court to abstain. The interpleader requires the same initial steps--individual violates the statute and gets sued in state court under state law. State law always controls these actions and the state-court action always will have been first-filed. So the court opened the door to interpleader as a response to exclusive-private-enforcement regimes, but abstention makes it unlikely any person can avail themselves of that move.
Posted by Howard Wasserman on July 12, 2025 at 02:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
How Should the "Only Nationally Elected Official" Behave?
As has been the case all year--and indeed is generally the case--most of the interesting developments in constitutional law in the last few weeks, especially those involving separation of powers and unitary executive "theory," have had little or nothing to do with the Supreme Court. Even in corners where people discuss these things, most of the interesting and pressing questions about unitary executive "theory" simply haven't happened. I put quotes around "theory" not to reject the concept or the outlines of the argument as a textual or logical matter, but because there is so little of it. Most of the discussion seems to me to be focused on historical justifications for a unitary executive, and on questions of power--always everyone's favorite topic and generally a tedious one. But much less has been said about the broader implications that a theory might supply. In particular, the discussions rarely dig into the essential concomitant to power: the moral, ethical, political, and philosophical duties and obligations that must accompany that power. This is unsurprising on Donald Trump's part--he is not a knowledgeable or reflective man, and what little reflection he engages in doesn't run toward questions of moral duty--but a failing on the part of others. (Any statement so broad invites the usual "honorable exceptions" boilerplate, which applies here, viz. Thomas Crocker and Alan Rozenshtein. I surely have missed others. But, having gone looking for such discussions, I stand by the general statement.)
Here's one case in point from the past week. Virtually the entire theory of this regime, such as it is, has been summed up by Stephen Miller, one of about a half dozen people effectively serving as acting President. (Which is not at all to say that Trump does nothing. We know, for example, that he likes tariffs, bribery, and revenge. And he has some thoughts about Cats, interior decoration, and the Baseball Hall of Fame. But the Trumpian cult of personality and media presence should not obscure the fact that a good deal of the time, Trump is far from the most active or influential member of the Trump regime. More on this anon.) As Miller says, "A president is elected by the whole American people. He's the only official in the entire government that is elected by the entire nation....The whole will of democracy is imbued into the elected president." He ties this to unitary executive theory on the view that since he is the one elected official, his Article II powers must be within his control.
I have no special objection to this, allowing for its imprecision, whether I ultimately agree with it or not. Of course, the pseudo-corollary positions the regime also takes--that there is only one "will of democracy" that belongs to the largest voting unit; citizens don't or can't have varied views, some of them in tension, that seek expression through votes for different offices; that those offices are in some sense subordinate rather than coordinate; and that elected representatives who do not fall in line with the president's desires are somehow acting improperly--are bunk. But I'm not concerned with that here. (This president also appears to believe--like most modern presidents but way more so, as is customary with him--that he has a "mandate," although mandates are as mythical and elusive as chupacabras. The fact that presidents are so gripped by this delusion, and have so many enablers-at-large in this, provides one more occasion to marvel at the extent to which American culture and history are just one long, sublimated urge for monarchy.)
It is characteristic that Miller's focus here is on power. And it's not just characteristic of Miller. Academics have suffered through a good decade or so (not to speak of the decades before that) of workshop talk reducing everything to questions of power (and treating the point as insightful). This usually comes from the left but is hardly exclusive to it. Indeed, a great deal of the thinking of the current right, as opposed to that of actual conservatives, is essentially ersatz leftish theory with a bit of theocracy, a Frank Frazetta drawing or two, and some outré takes on history and anthropology sprinkled on top.
But it would be more interesting and worthwhile to ask: If that's your basic theory, what obligations, as opposed to powers, does it entail? Beyond the usual, trivial "If the people don't like it, they can vote" argument, what internal constraint or conception of duty should guide the unitary executive--as well as his constitutional-oath-bound subordinates, state and federal officers outside the federal executive branch, and the people, who have a duty to monitor and judge the actions of the executive? What would the behavior of a president be if he acted more or less in accord with Miller's description of the president as representing and serving all the people--as opposed to, say, a view that he is obligated only to those who support him, or only those who "won"; or that he is not so much the people's representative as a Dear Leader-ish cult-of-personality figure, blessed by the occasional election, whose will is precedent in importance and authority to that of the people; or that he has been given power, not constrained much (if at all) by moral duty, to dispense or withhold favor to those he considers either good Americans or enemies?
Trump's words and actions suggest that he falls on the right side of that hyphen, despite justificatory verbiage like Miller's. And this week's prominent example involves disaster relief. As is almost invariably the case--see, for example, the aptly named DOJ Weaponization Working Group, whose mission is to centralize and supersize the use of law as a tool to punish personal and political enemies--Trump's goals are always best understood by assuming that what he criticizes in others is exactly what he plans to do. In this case, last year Trump accused President Biden of letting politics affect disaster relief last year in North Carolina. And so we could have guessed that he would take office with the goal of making disaster relief even more sectional and political.
Which he did. As this story notes, the administration has taken a starkly different approach to disaster relief in California, a state with which he is at barely undeclared war, than it is now in Texas. (The justifications offered by the administration--not counting those offered by Caroline Leavitt, for obvious reasons--must be viewed with skepticism. They should be evaluated skeptically in light of a longer pattern of Trumpian planning for targeted federal hostility to California, as well as his singling out of what he considers enemy cities with respect to illegal immigration while saying little about cities, like Houston and Charlotte, with equally significant populations. It's striking that Trump, whose ego and conception of the presidency both depend on the notion that he was chosen by the whole people, is so clearly, often explicitly, at war with vast swaths of the American people.)
Trump's plan to shutter FEMA appears to be undergoing revision, both because he has discovered that Texas has weather and because Trump mostly has impulses, not policies. But I doubt that one element of his general plan will change: his desire to have disaster relief funds distributed directly from the White House. As virtually every decision in the last six months indicates, this is hardly about ensuring that Americans, no matter where, receive the same level (or lack thereof) of federal disaster relief. It's about treating it as a political tool, a political weapon, and a form of lordly, personalist-authoritarian favor, handing out such relief where and how he pleases while insisting that the knee be bent and the Nobel nominations be kept handy.
I raise this example--a prominent one but, of course, only one of many--not to suggest that it refutes unitary executive theory, but to suggest that this, far more than questions such as who fired whom in 1807, is the kind of thing those interested in the unitary executive should be asking about. It raises the kinds of questions--about what obligations and duties should guide and constrain a unitary or powerful executive, and what implications the nationally-elected status of the president have for how he governs and how he may not govern--that demand urgent attention. In particular, they demand urgent attention from those who advocate and accept the premises of the unitary executive.
Posted by Paul Horwitz on July 12, 2025 at 10:34 AM in Paul Horwitz | Permalink | Comments (0)
Saturday Music Post - It's Only Old Time Rock 'n' Roll Music
Is Rock 'n' Roll the most self-referential of all music genres? There are dozens of songs invoking or praising Rock 'n' Roll, but few if any in other genres. There are plenty of blues songs with "Blues" in the title, but the reference is almost always to having the blues, not to the music itself. Anyhow, there are a few Rock songs about Rock music in today's post at The Faculty Lounge.
Posted by Steve Lubet on July 12, 2025 at 06:16 AM | Permalink | Comments (0)
Friday, July 11, 2025
An Open-Source Free Contracts Casebook
After several years of working with Guy Rub, Jake Linford, Tal Kastner, Pam Bookman, and Matt Bodie, we are excited to release to the world a free contracts casebook. We announced it first on the ContractsProf Blog.
Here is the gist of it:
If you teach contracts and are looking for more affordable materials for your students or are simply seeking a more customizable way to structure the course, we hope you’ll take a close look.
We know there are already many contract law casebooks out there, and many of them are excellent. So why launch this project? Not because we had nothing better to do. But two core motivations made us feel this was worth our time.
First, the rising costs of legal education. We became increasingly uncomfortable asking our students to spend hundreds of dollars on casebooks, especially when most of the core content (judicial opinions) is in the public domain. Moreover, we were often asking students to pay for material there was no way we could cover as our teaching credits got trimmed in curricular reforms. On top of the price, the commercial options often come with strings attached, including limitations on access, usage, and formatting.
Second, like many professors, we’ve developed our own distinct ways of teaching contract law. Over time, we found ourselves assigning commercial casebooks with lengthy editorial notes, often skipping chapters, rearranging content, and supplementing them heavily with our own materials. The traditional casebook model made it hard to align the text with our teaching goals, priorities, and style. It also got messy for the students as materials from many different places had to be collated and read out of order.
The open-source casebook aims to address these issues. It’s free, customizable, modular, and flexible. It is thus designed to meet the evolving needs of our diverse community of contract law professors and students. Inspired by a similar initiative in property law, we believe legal education, especially in core courses like contract law, can be rigorous without being expensive, and collaborative without being one-size-fits-all.
That’s how this project began: we wanted a casebook that could be tailored to different teaching priorities, and we wanted to share it freely so others could do the same. On our website, we outline the ways you can use the open-source casebook. Here are a few highlight features of this project:
Modularity: The casebook is composed of discrete units that can, with minor exceptions, be covered in any order (or skipped entirely). You can tailor the text to fit your syllabus and preferences. Want to start with remedies (or consideration or offer and acceptance or something else)? Emphasize the UCC or the common law? Skip excuses? Go ahead. The project is built for it.
Flexibility: Use the casebook as-is or remix it. Add your own notes, swap in cases, create new hypotheticals, or emphasize the themes that matter most to you. Because it’s published under a Creative Commons license, you can do all of this (legally and freely).
Freedom from the external constraints: This isn’t just about saving money for students or having more pedagogical control. It’s also about avoiding a host of irritating, time-consuming, and, at times, harmful limitations. There are no convoluted platforms, no logins (other than for the teacher’s manuals and proposed slides, which we make available behind a password-protected part of the website), no DRMs, no proprietary formats. Just simple PDF and Word files. Consider, for example, a recent challenge: many professors now restrict internet access during exams due to generative-AI concerns, but then find that their students can’t access their digital casebooks. While this problem might (or might not) be solvable, it, and similar ones, are completely irrelevant when the casebook is free and available to download in unrestricted, straightforward formats.
If any of this sounds useful, we encourage you to take a deeper dive. On our site, you can browse individual units or explore full casebook builds. You can adopt them as-is or adapt them however you like. If you are anxious about whether the book treats some of your favorite cases, you can look at the Table of Principal Cases on the website to make sure we have you covered. We also hope to foster a growing community of teachers who share resources. If you’ve developed your own materials, we’d love for you to contribute (with credit, of course). This project has given us not just new tools, but also new ideas and connections, and we’d love to build on that momentum with your involvement.
If you’re intrigued, check it out: https://contractscasebook.org/. We have teacher's manuals and slides for many modules if you need them to adopt the book.
Huge thank you to Tom Kaczorowski of the Maloney Library at Fordham Law School for making so much of this book pretty to look at and functional for users.
Posted by Ethan Leib on July 11, 2025 at 01:48 PM | Permalink | Comments (0)
The Bayh Subcommittee and the 1960s--Let the Revisionism Begin
If you ask Americans what stood out in politics or law from the 1960s, what would they say? Most law professors would say the Warren Court and civil rights. Most people, though, would probably talk more about JFK's assassination, student protests against the Vietnam War, and the tumult of 1968.
The Bayh Subcommittee addressed all of these questions. The 25th Amendment was a direct response to JFK's death. The 26th Amendment was a response to youth discontent. The proposal to abolish the Electoral College was prompted by concerns about civil rights and the 1968 election (i.e. George Wallace). The Subcommittee held many hearings on many leading Warren Court decisions (Reynolds, Miranda, Schempp).
By contrast, the Warren Court played only a peripheral role in JFK's assassination (the Warren Commission), in student protests against Vietnam (cases like Tinker and O'Brian), and no role at all in responding to the chaos of 1968. Thus, using the Warren Court as shorthand for the 1960s Constitution is inaccurate. The Bayh Subcommittee is better shorthand, or so I will argue in my next book.
Of course, the Bayh Subcommittee also did important work in the 1970s (on ERA for example), so there's a broader story to tell. More on that next week.
Posted by Gerard Magliocca on July 11, 2025 at 08:28 AM | Permalink | Comments (0)
Thursday, July 10, 2025
Ted Cruz Is Not a Fourteenth Amendment Citizen
Ted Cruz opposes birthright citizenship, but he should be careful what he wishes for. My new essay for The Hill explains what can happen when someone’s citizenship history is excavated. Here is the gist:
Ted Cruz and birthright citizenship: Be careful what you wish for
by Steven Lubet, opinion contributor - 07/10/25
Cruz’s own citizenship derives not directly from the Constitution, but from Section 301 of the Immigration and Nationality Act, which applies to children born outside the U.S. to “parents one of whom is an alien, and the other a citizen of the United States.”
If Trump’s executive order or Cruz’s proposed statute had been in effect in 1934, [his mother’s] birth certificate would not even constitute proof of her own citizenship, upon which Cruz’s citizenship depends. Rather, he would have to establish that one of [her] parents had been a citizen or a permanent resident alien.
There is also some reason to wonder whether Cruz’s father had once violated immigration law. Raphael Cruz, Sr. came to the U.S. on a student visa in 1957, at age 18, speaking almost no English. Upon enrolling at the University of Texas, he worked washing dishes for “a mere 50 cents an hour.”
The minimum wage in 1957 was $1.00 an hour, which at least suggests that Rafael was working off the books, possibly for cash, which has never been unusual for newly arrived teenagers who speak no English.
I don’t mean to disparage the Cruz family, or to challenge the senator’s citizenship, but rather to show what happens when anyone’s immigration status is intensely questioned.
The genius of birthright citizenship is the simplicity of the 14th Amendment.
There is no need to investigate parents’ or grandparents’ immigration status or length of residency, or to search for decades-old documentation. The only relevant inquiry is place of birth, which is enough to make people Americans.
You can read the entire essay at The Hill.
Posted by Steve Lubet on July 10, 2025 at 02:57 PM | Permalink | Comments (0)
Off the Record on Miranda
The new issue of the Journal of Supreme Court History contains a remarkable article. Catherine Ladnier, then an undergraduate, managed to get off-the-record interviews with five of the Justices who sat in Miranda. (Black, Douglas, Clark, Harlan, & Stewart). The fact that she got them is amazing in and of itself. But the comments that she got (which are printed verbatim) give you a really vivid sense of the individual personalities involved. Definitely worth your time.
Posted by Gerard Magliocca on July 10, 2025 at 12:42 PM | Permalink | Comments (0)
CFP: Georgia Law Review: Polarized Courts: The New Private Enforcement
As the Executive Symposium Editors for Volume 60 of Georgia Law Review, it is our pleasure to announce our annual symposium for Spring 2026: Polarized Courts: The New Private Enforcement.
This year’s symposium will focus on the increasing use of private rights of action to perform enforcement traditionally done by state actors, the arms race among the states to enforce policy preferences through private rights of action, the ramifications for our union of these competing and polarizing uses of courts, and other similar topics. The symposium will include panels and a keynote address.
Continue reading "CFP: Georgia Law Review: Polarized Courts: The New Private Enforcement"
Posted by Howard Wasserman on July 10, 2025 at 10:25 AM in Teaching Law | Permalink | Comments (0)
Wednesday, July 09, 2025
Law School Faculty Hiring Posting Schedule 2025-2026
The usual posts will occur this year regarding law school faculty hiring.
The post collecting information about Hiring Committees is up.
On August 14, 2025, AALS will release the first distribution of FAR forms to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).
Also on August 14, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2025-2026 (last year's Hiring Spreadsheet and Clearinghouse Post).
Around September 5, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).
Posted by Sarah Lawsky on July 9, 2025 at 08:49 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Institutional Leadership and the 1980 Election
One reason I'm researching the Bayh Subcommittee is that this was an era where Congress dominated constitutional discourse. Each branch takes its turn as the constitutional engine. Today you'd have to say that the Presidency is on the leading edge (for better or worse). In the 1960s and 1970s, though, Congress was first among equals, especially when you combine the constitutional amendments proposed with the landmark statutes enacted and with the Watergate inquiry.
Why was Congress the leader then? First, the Presidency was more focused on foreign affairs (the Cold War and Vietnam). Second, Watergate weakened the executive branch and gave Congress a boost. Third, Birch Bayh was in the Senate. Fourth, Warren Burger was no Earl Warren.
Why did this change? In 1980, President Reagan was elected with a distinctive constitutional vision. He seasoned the Justice Department with lawyers like John Roberts, Ed Meese, and Steve Calabresi to carry that vision forward. But another key development in 1980 was that Birch Bayh lost his Senate seat.
Here I want to make a sports analogy that Howard will love. Sometimes a team is in a golden age. The Chicago Bulls in the 1990s. The Indianapolis Colts for a decade or so. Why? Because of one star player. Sure, other people were involved, but without the star the team would be just good. Sometimes the same is true in politics. The personality of the President matters. And there are key figures in Congress. Birch Bayh was that person in his era when it came to constitutional reform. Once he left, the energy was gone. Congress has proposed no constitutional amendments to the states since.
Tomorrow I'll start discussing a more controversial theme of my project, which is that the Warren Court is a poor way of describing the constitution of the 1960s.
Posted by Gerard Magliocca on July 9, 2025 at 07:57 AM | Permalink | Comments (0)
Tuesday, July 08, 2025
Structural Predictions
The Bayh Subcommittee spent more time and energy on abolishing the Electoral College than on any other subject. During the 1970s, one argument against that idea was that black voters would be put at a disadvantage by the direct popular election of the President. Alexander Bickel made this claim. So did Vernon Jordan. It was either wrong or not right, depending on how you want to look at it.
This raises a broader point that you see from the Founding, Reconstruction, and other parts of constitutional history. Predictions about how a structural change will play out in future tend to be inaccurate. The truth is that nobody really knows how those sorts of big reforms will play out over, say, 50 or a 100 years. But judges and commentators often make confident predictions along those lines. You see that in Supreme Court opinions all the time.
Predictions like this should be discounted or ignored. Direct popular election could have hurt black voters in a past election. But in other elections the opposite was true. There was and is no pattern over the long haul. Structural reforms should be made based on broader principles rather than on anticipated results that cannot be correctly anticipated.
Posted by Gerard Magliocca on July 8, 2025 at 10:42 AM | Permalink | Comments (0)
Monday, July 07, 2025
The Ghost of Miranda
One subject that drew a lot of attention from Birch Bayh's Senate Subcommittee was Miranda. Blockbuster hearings were held in 1966 that included testimony by Arlen Specter (then a young prosecutor in Philadelphia fresh off serving on the Warren Commission) and Truman Capote. Why Truman Capote? He was a celebrity, and that was sometimes a consideration for these hearings to get the media engaged. But as the author of In Cold Blood, he testified that confessions were needed sometimes to catch guilty criminals and that Miranda was wrong. It was an interesting perspective.
The Subcommittee also (for the only time) took its show on the road. Miranda hearings were held in Houston, Milwaukee, and other cities to give local police a change to give their views and give other Senators a chance to get attention in their states. None of these hearings led to a constitutional amendment proposal that reached the floor of Congress. Instead, Congress passed the Crime Control Act of 1968.
What are some of the lessons here? One is that constitutional issues can be huge and then disappear. Nobody in politics cares about Miranda now. To be sure, Miranda was narrowed by subsequent decisions. But a more important factor is that police departments and ordinary folks just got used to Miranda warnings over time and concluded that they were not such a big deal. The Supreme Court confirmed this consensus in the Dickerson case in 2000.
Another lesson is that Warren Court decisions were often subjected to careful scrutiny by Congress through the Bayh Subcommittee. Sometimes this review served as a safety valve for criticism of a decision. Sometimes there were reform proposals that led to action short of a constitutional amendment. Sometimes ideas were developed that could be deployed in fresh litigation. The Bayh Subcommittee was in dialogue with the Warren Court on other issues such as school prayer and legislative reapportionment. I'll elaborate on this in another post, as it will probably be a theme of my book.
Finally, maybe Congress should hold more hearings outside of Washington. Show the flag, you might say.
Posted by Gerard Magliocca on July 7, 2025 at 07:59 AM | Permalink | Comments (0)
Sunday, July 06, 2025
A Dual Track for Article Five Amendments
I spent much of last week in the Birch Bayh Archives researching my next article and book. Over the next few weeks, I'm going to talk what I found there and reflect on some themes as I start sifting the material.
Let's begin with a little nugget. When the Direct Election Amendment was under consideration in 1969 to abolish the Electoral College, language was drafted in the Senate Subcommittee on Constitutional Amendments providing for a three-year time limit for ratification by state legislatures. But then the draft said that if the proposal was not ratified by enough legislatures within three years, Congress could submit the proposal to state conventions and they would have four years to get their own three-fourths tally ratify.
This was a clever idea. You still have what is now the standard seven-year time limit. But the proposal gets two separate bites at the apple. If the proposal was not overwhelmingly popular, the convention option can kick in to provide for fresh and focused elections on what would be a more difficult or controversial issue in at least some states. But only if Congress triggers that machinery--perhaps a future Congress would not be keen or would see the handwriting on the wall.
Maybe this suggestion was too clever or complicated to be put into the final draft --I'm not sure yet when it didn't make the cut. One thing I am sure of is that this sort of proposal would be constitutional under Congress's Article V powers and precedents.
Posted by Gerard Magliocca on July 6, 2025 at 07:20 AM | Permalink | Comments (0)
Saturday, July 05, 2025
Was a University of Illinois Architecture Professor Denied Tenure because He Is a Zionist? UPDATED
Moving to the front with the correct link.
So submits my friend and co-author Cary Nelson, emeritus professor at UIUC and former president of the AAUP, in the case of Dr. Benjamin Bross. Writing on behalf of Faculty for Academic Freedom and against Antisemitism:
Other than Dr. Bross having published several more essays and having received enthusiastic reviews of his teaching, the only other notable feature in his tenure profile came in the wake of Hamas’s October 7, 2023, assault. Bross, who had kept quiet about his Zionist sympathies, now made them public. Before October 2023, Bross received a glowing third-year evaluation, a nomination for a scholarly prize, and an invitation by his school’s director to write a second book; in 2024, his tenure review committee suddenly went against the department’s prior endorsements of Bross and recommended denying him tenure through a one-sentence notice that his publications and teaching were inadequate. Meanwhile, other faculty were expressing their rage at Israel’s conduct of the war in Gaza.
Now procedural negligence gave committed anti-Zionists an opportunity to act: first, when they were appointed to a Zionist’s tenure review committee and apparently saw no cause to recuse themselves; second, when they recommended outside reviewers instead of the senior faculty member in the candidate’s field of urban studies (as the School of Architecture requires); and third, when it came to an up-or-down vote on tenure.
As the letters attest, one of Benjamin Bross’s tenure review committee members apparently expressly told another person in the program that Dr. Bross’s Zionism was unacceptable.
Another one of Bross's tenure review committee members signed a “Call for Immediate Action” letter tht condemned Israel for its role i the current Gaza war. In any case, the UI rules are clear:"Any faculty member with a conflict of interest, or the appearance of a conrflict of interest, should not participte (e.g., review, evaluate, advoacte, or vote) in a candadte's promotion and tenure review."
You can read the entire article here.
Posted by Steve Lubet on July 5, 2025 at 03:15 PM | Permalink | Comments (0)
Saturday Music Post - Stayin' Alive
"Stayin' Alive" was written by the Gibb brothers for the 1978 movie Saturday Night Fever, for which it was kinda perfect even for those of us (including me) who never liked disco (looking at you, Alex). It wasn't nominated for an Oscar that year -- maybe the Academy also disdained disco -- but it won four Grammys in 1979. In 2004 was listed by Rolling Stone as number 189 of the 500 Greatest Songs of All Time. In a 2021 update, it was ranked 99, which is pretty strange for a song that was released 43 years earlier. I have no idea what happened to the 90 songs it jumped, not to mention all the new music recorded in the 17 year interim. Unsurprisingly, most of the covers are by female vocalists, and they are not all disco.
Anyhow, I figured it wouldn't hurt include one disco number after all these years. The iconic Travolta clip is at the bottom of today's post at The Faculty Lounge.
Posted by Steve Lubet on July 5, 2025 at 06:37 AM | Permalink | Comments (0)
Friday, July 04, 2025
Happy 4th
Trapped at home during COVID summer (2020), we marked the holiday with a family reading of the Declaration of Independence, along with Frederick Douglas's "What to the Slave is the 4th of July," as read by James Earl Jones (of course). It became a mini family tradition. Join us after the jump, hopefully not for the last time.
Posted by Howard Wasserman on July 4, 2025 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)
Thursday, July 03, 2025
Speed dial
I am not a fan of Justice Sotomayor's writing, even when I agree on the substance--it comes across as over-wrought without being lyrical. But check out the final line of her dissent from the Court's "clarification" of the third-country removal order--"Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial." That's a great line.
In the wake of Justice Kavanaugh's CASA concurrence, this order shows the majority's palpable contempt for district judges.* Not just SCOTUS supremacy, but contempt. They proceed as if the district court decision--and, more importantly, the remedy it grants and the monitoring of that remedy--is less than a full order of a court of competent jurisdiction that parties (or at least the government) must obey subject to appellate review. District court decisions are preliminary pronouncements, an inconvenient-and-inefficient, unfortunately necessary speedbump on the way to SCOTUS' meaningful ruling. And the executive need not obey or respect them as anything more than a preliminary recommendation. Worse, the Court seems increasingly likely to reject that "recommendation."
[*] Not a new phenomenon. Recall Justice Scalia in the Iqbal argument:
Well, I mean, that's ovely, that -- that the -- the ability of the Attorney General and Director of the FBI to -- to do their jobs without having to litigate personal liability is dependent upon the discretionary decision of a single district judge.
The latest episode of Preet Bharar's Stay Tuned With Preet features Melissa Murray, Trevor Morrison, and Jack Goldsmith. In discussing CASA, either Trevor or Jack (can't remember who) argues that SCOTUS wanted to get the Administration off the backs of district courts, to tamp down on the accusations of lawless judges. Perhaps. But the Court seems to be offering the Administration reasons to not take trial courts and their orders seriously or treat them as worthy of respect in the interim.
Posted by Howard Wasserman on July 3, 2025 at 07:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Why Ever Bother Calling a Trump Regime Press Office?
It's been a remarkable week for the press. In a week in which the president's corruption* and authoritarianism were displayed, inter alia, in a letter from his personal lawyer threatening to sue CNN and the New York Times for defamation for accurate reporting on intelligence reports concerning the United States airstrike on Iran--a letter that was rightly met with the response, "No retraction is needed. No apology is forthcoming."--here's another item in the annals of Trump regime contempt for both transparency and the role of the press in investigating and reporting on government. Granted, it involves an insane person, but insanity is no disqualification for high office in this regime.
The lunatic in question this time is Director of National Intelligence Tulsi Gabbard, who wrote on the regime's de-facto official channel to complain that a Washington Post reporter had engaged in what she called "harassment" of ODNI staff. Gabbard said: "Instead of reaching out to my press office, she is calling high level Intelligence Officers from a burner phone, refusing to identify herself, lying about the fact that she works for the Washington Post, and then demanding they share sensitive information." I assume Gabbard is lying or engaging in subterfuge about the last three items on her bill of particulars and did not conceal her identity from the individuals she spoke to. And I'm not sure what relevance the use of a burner phone has, except that acting under the assumption that your government wants to investigate or persecute you is good journalistic practice under this regime (and has been a good idea under other administrations too, at least in the national security area).
But I'm struck by that phrase, "Instead of reaching out to my press office." Press or communications offices can be a good thing and good press people can be useful, honest brokers. Frequently, they are also experienced and expert about the subject matter of the agency or company whose media relations they handle. But of course they are there for efficiency and transparency, not because there is some kind of rule or expectation that you should always turn to them first. If your question is for the Department of Homeland Security's Director for Crisis and Weather Management, and you have that person's phone or office number, that's who you call or visit. Whether that person wants to tell you to talk to go to the press office instead is their business, not yours. And if you're not sure who to call, or are doing a more comprehensive piece, and you have a list of 200 employees, you call all 200 people on that list. This is called reporting, not harassment. As the Post's executive editor said today: "Reaching out to potential sources rather than relying solely on official government press statements regarding matters of public interest is neither nefarious nor is it harassment. It is basic journalism." Indeed, it's the kind of journalism we always need more of, and precisely why Substack pages or skimming through Twitter feeds are no substitute for heavily staffed pressrooms.
It is not administration-specific that good reporting requires more than simply going to the press office with one's hand out. But it's especially true given the staffing of this regime. In any administration, the good practice would be to make the best possible use of the press office and also try to find and communicate directly with sources. But the question one must ask about this regime is: Why would one bother to talk to a Trump regime press office at all? Its press practices, and the staffing of its press offices, have been remarkably consistent across agencies. It is a customary joke or assumption that all press people lie. But lying is quite literally not incidental to but the primary job of press offices under Trump v. 2, and they undertake it with both energy and determination.
Beyond this, the press people in the current regime are unreliable not only because of a constitutional propensity to lie, but because they simply lack the expertise and experience that actually makes someone in a press office at a specialized agency valuable. ODNI is a good example. During the Obama administration, the spokesperson for the office had previously spent two decades in the Marine Corps and did media relations there and elsewhere before taking the job. The DNI press person during most of the first Trump administration spent ten years working in that office before taking on the communications director role. The person in that role during the Biden administration served in the Navy, then as a civilian in the National Counterterrorism Center, ODNI, and the CIA before coming back to the communications role at ODNI. The person Gabbard thinks reporters should go to, first and probably last, for information about complex matters of national security graduated from college in 2020, has been flacking on the Hill ever since, and has no background in intelligence or national security.
This is not a personal insult; I don't have that background either. But clearly she is not qualified to do the job, if that job involves something other than bullshitting. This is entirely characteristic of virtually all of the regime's press hires. Of course, more generally it's characteristic of the regime's appointments altogether. From the man in the Oval Office all the way down, the staffing of the regime looks as though, some 40 years ago, Donald Trump ran across the phrase "Peter Principle" in a copy of Forbes and assumed the article was recommending it as good management practice. In short, not only is there no good reason to go to the ODNI press office first, but there is little reason for a reporter who knows much more about the subject than the agency's spokesperson does to go there at all. And the same is true across the whole branch.
*Why corruption, in this context? Because it's not some claim that the journalists violated national security law, but a personal lawsuit brought by Trump's private lawyer. (How, exactly, that lawyer has the information or security clearance necessary to make some of the claims he makes in the letter, except as mere flourishes, is beyond me. But this is not a regime that takes management of confidential information especially seriously.) And that lawsuit can be yet another ring on the cash register, especially with respect to a company like CNN, if you have someone around who is servile and/or unscrupulous enough to use his office as leverage.
Posted by Paul Horwitz on July 3, 2025 at 04:55 PM in Paul Horwitz | Permalink | Comments (0)
Title VI action v. Haverford College dismissed
Here, this time with prejudice, because plaintiffs largely failed to clean-up the press-release pleading the court dismissed in January. There also is this line at the end of the opinion--"Oral argument was suffused with emotional rhetoric, giving this Court little comfort in the prospect for further refinement of facts adequate to support a claim," a strong warning about the perils of performative litigation.
The court's analysis reflects the Ben Eidelson/Deborah Hellman arguments about why plaintiffs may struggle to plead Title VI claims. In particular, the court held a firm line that: 1) the college's failure to silence offensive-but-constitutionally protected speech (which was true for much of the speech at issue) cannot form the basis for Title VI liability and 2) the college's good-faith efforts to balance competing interests (such as allowing a sit-in to run its course) cannot establish deliberate indifference.
The court did find the plaintiffs sufficiently pleaded a breach-of-contract claim based on Haverford's alleged failure to investigate and resolve bias allegations under college policy, although only for nominal damages. Two thoughts on this. First, it shows the benefits of small-bore litigation efforts. Rather than a massive effort to litigate antisemitism writ large under a statute not necessarily designed for those purposes, plaintiffs may succeed by showing a discrete non-federal violation as to them.
Second, plaintiffs face a strategic choice. They likely want to appeal the Title VI dismissal. But the court's decision is not final because the contract claim remains. The court might certify the order as final as to the Title VI claims under FRCP 54(b). They have a good argument--Title VI forms the heart of the case and it would benefit the litigation process to determine whether plaintiffs plausibly pleaded those claims (that is, whether the district court was wrong) now, rather than waiting. Alternatively, plaintiffs could voluntarily dismiss the contract claims--which they likely do not want to do, as those represent their best hope for any recovery right now. Interestingly, the court did not (at least in this order) decline supplemental jurisdiction over that state claim, another way of creating finality.
Posted by Howard Wasserman on July 3, 2025 at 11:23 AM in Civil Procedure, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)
Trump plays procedural games, wins procedural prizes (Updated Twice)
Donald Trump voluntarily dismissed his BS lawsuit against the DesMoines Register and pollster Ann Selzer over her erroneous final-weekend poll that showed Kamala Harris winning Iowa. Some people are using this as another TACO and "See, we must fight Trump" moment. Turns out it is more procedural.
Trump sued Selzer, her company, and the Register in state court. I had not paid much attention because the suit is nonsense and the Register and Selzer (represented by FIRE) seemed ready to litigate a strong First Amendment position
I also assumed it would stay in state court because Selzer and her company are Iowa citizens. But they snap-removed. Trump then filed an amended complaint adding two Iowa politicians as plaintiffs (destroying diversity) and moved to remand. Last month (I missed this), the court denied the motion. First, the court held snap removal is permissible. Second, the court denied leave to amend the complaint to add the non-diverse plaintiffs. Although Trump filed the amended complaint within the matter-of-course time period of FRCP 15(a)(1)(B), under circuit precedent (and Wright & Miller) a plaintiff must seek leave when adding a new party, especially when adding the party destroys diversity jurisdiction. Leave to amend was improper because the new plaintiffs are no indispensable and were added for the explicit purpose of destroying jurisdiction and Trump will not be prejudiced by having to litigate alone. With the Iowa plaintiffs not in the case, jurisdiction remained and the court had no basis to remand.
So I imagine Trump dismissed this action with plans to refile in a different state court with the Iowans as plaintiffs. Then some things to watch: 1) How quickly can they serve Selzer and the company to preclude another snap removal; 2) Selzer may remove and try to argue that the Iowa plaintiffs are fraudulently joined; 3) Is there some other basis on which to stop this type of gamesmanship?
Update: Later Monday, the Register moved to strike the Notice of Dismissal. First, a petition to appeal the denial of remand is pending in the Eighth Circuit (the district certified the snap-removal issue as a controlling issue of law). Second, Trump seeks to dismiss the federal action to pursue the same case (with the two Iowa plaintiffs added) in a different court (Trump filed that new lawsuit in Iowa state court Monday). The combination raises two problems. A party cannot voluntarily dismiss through FRCP 41 if an appeal, including a still-unresolved request to appeal, is pending. And the combination of issues reflects Trump's effort to voluntarily dismiss to avoid an adverse ruling (possible affirmance of the remand issue) and to obtain a more favorable forum, both grounds for a court to reject voluntary dismissal.
According to the Register, timing matters. Iowa enacted an anti-SLAPP statute that takes effect on Tuesday but that does not apply retroactively. Trump made these moves now to get out of federal court and have the sole action in state court filed before the SLAPP statute takes effect.
Stay tuned.
Updated Again (July 3): The district court struck the notice of voluntary dismissal and declined to dismiss the action. Because an aspect of the case is in the court of appeals, the district court cannot dismiss the action unless Trump takes steps to have the appeal dismissed, which he has not done.
This seems a momentary blip. Trump will seek to have the appeal dismissed, then refile his voluntary dismissal. While Trump is clearly trying to forum shop, I would be surprised if the federal court continues to resist dismissal.
But things might get fun if the trial court refuses to dismiss. Trump might then ask the federal court to abstain under Colorado River, although I doubt a federal court that refuses to voluntary dismiss would exercise discretion to abstain. That leaves us with parallel litigation and a race to the finish--whether with Trump as party to both actions or the state court action featuring only the Iowa plaintiffs (assuming they want to pursue litigation and are not in the case to destroy complete diversity). The defendants also might try to remove the new state court action and argue that the Iowa plaintiffs are fraudulently joined (which did not come up on the remand motion).
Again, stay tuned.
Posted by Howard Wasserman on July 3, 2025 at 10:01 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)