Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 19, 2021

Why Stop There?

Josh Blackman suggests as a Gedankenexperiment that we eliminate the institution of Supreme Court clerk as it currently exists. He also muses that the Court could "hire a room of copy-editors and cite checkers--non-attorney career employees who can proofread the work, but not make substantive recommendations." So we might ultimately think of this not so much as a suggestion that the justices should have no helpers, but that the institution be significantly rethought and re-formed along more bureaucratic and centralized lines.

It's not a genuinely novel suggestion. (That's fine with me! Novelty is valuable but rare and deeply overrated, and may create a perverse incentive for ambitious scholars not to look at the reams of good legal academic literature that exist, especially those pre-dating the last 20 or 30 years. Almost nothing is new under the sun. I should note that one point he makes--that it would encourage earlier retirements--is not truly novel, but is more rarely mentioned and certainly interesting.) Many people have written about the rise of the modern Supreme Court law clerk institution, raised questions about it, and suggested we might do it differently or do without it. Reasons vary widely. 

Blackman focuses rather heavily on power and prestige in advancing his experiment. Another useful way to think about the issue is that changing or eliminating the institution simultaneously involves de- and re-personalizing the Court. Having a dedicated and diligent personal chambers staff--one that, because of the youth and inexperience of the staff and the particular skill set used in making hiring decisions, is characterized by hyper-technical skill rather than wisdom and judgment--allows the Court to write long opinions full of doctrinal detail and short on succinctness or personality. Getting rid of clerks dedicated to each single justice would thus re-personalize the Court by making the justices write in their own unique voices and, because of the reduction of extra time and technical skill that would result from the elimination of dedicated clerks, write with more economy and less kitchen-sink detail and hyper-doctrinalism. In short, less work by committee, more Holmesian aperçus. At the same time, the current institution is in other ways representative of and dedicated to the proposition that each justice is a "Justice:" a unique, powerful, and important figure, like Thanos. Having a room full of professional law clerks dotting i's and crossing t's on behalf of the entire Court rather than any individual justice would refigure the Court as a more bureaucratic institution, in which individual votes perforce still matter but the work is ultimately a collective, unglamorous, collective, and professionalized enterprise. Some would say the Court in the modern era is such an enterprise, and should be organized accordingly--and to make its true nature clearer, without the false superstructure of personal fame and distinction. 

Without judging the wisdom of such a move or the transition costs involved, I wonder why Blackman stops there. Other than the cert pool, which of the factors that he thinks support such a move don't apply just as well to federal circuit courts and their judges? They too are powerful, attract prestige games, engage in extracurricular activities, and risk becoming immured in their own chambers without substantial contact with their colleagues. Even the cert pool point could be analogized to what, in my day, were called "screeners"--opinions issued without oral argument. Viewed from the alternate perspective of personality and de-personality, again, I see little difference: Court of appeals judges partake plentifully in cults of personality, and court of appeals opinions are often highly bureaucratized in style. 

Taking for granted that circuit court judges need additional professional help, we might still reasonably ask: Do they really need individual "elbow clerks?" Is there anything a single clerk sitting in Louisville or Montgomery can do--anything we want them to do, that is, or ought to want--that can't be done by a room full of relatively nameless and faceless factotums at the Head Office in Cincinnati or Atlanta? Is there any reason we should look more kindly on the prestige, hiring bonuses, and future opportunities for power that attach to individual appeals court clerkships than those that accompany Supreme Court clerkships? Why not cry: Down with trivia-based application tests! Up with staff-clerk TPS forms! The argument for individual clerks is perhaps strongest for individual trial court judges. But it is not that strong. We could thus ask the same questions about federal district court clerkships, and about the various levels of state courts and their clerkships, which also participate in an economy of prestige and also serve bureaucratic functions. 

Again, it seems to me that such moves would recognize two odd-bedfellow points. First, it would shape our institution to recognize that in a gigantic modern economy, in a country with hundreds of millions of people and countless business entities, law is in many respects a bureaucratic and not a personal institution, and should be organized appropriately to its function. (Blackman writes that if John Marshall didn't need a law clerk, neither does John Roberts. That's the wrong way to think about it. The Marshall Court as an institution is not the Roberts Court as an institution, any more than the United States of 1803 is the United States of 2021. Roberts, who sits at the apex of a vast bureaucratic enterprise known as "the federal courts," may not need a personal law clerk--but not because the institution he heads is, in reality, the same one.) Second, by removing the closest level of bureaucratic layering from individual judges and making it a shared resource, it might force judges to be both less omnipresent and titanic, because deprived of the heavy lifting power devoted to him or her alone, and more personal and idiosyncratic.

Blackman conducts this purely as a thought experiment. But we need not be quite so arid. We have examples of courts that function perfectly well without precisely the same elbow-clerk organization we currently have. The Justices of the Supreme Court of Canada have individual law clerks. But the Ontario Court of Appeal, a powerful court in an economically mighty and sophisticated province--and, given Canada's legal structure, one that occupies essentially the same position as both a federal circuit court and a state high court--has a different system. Its clerks are "paired with either one or two judges of the Court and then change[ ] assignment[s] halfway through the year. This rotation process ensures that each law clerk is exposed to different approaches to judging and a broad range of areas of law." This disrupts the kind of culture that abounds in multi-member American federal courts, in which elbow clerks are typically chosen in part for political and ideological kinship and become partisans for their own judges, both in the long run and in terms of immediate internecine combat. Such an approach would be somewhere between the current American model and a wholly bureaucratized model. It might be a very healthy model for the Supreme Court to consider. So far as I know (which is not very far), the Court of Appeal has managed without leaks, conflicts of interest, confidentiality problems between chambers, or other concerns that might be raised against such an approach. State court clerkship structures vary widely, of course, but in some states, like Virginia, trial court clerks "are shared among two or more judges." Despite this arrangement, the Commonwealth still stands. This barely scratches the surface of the available information on state, federal, and comparative or international court/clerk arrangements.

I do not suggest that any differing arrangements are better or are suitable for transplantation. I merely suggest that our current arrangement is certainly not inevitable, almost certainly not necessary--and doesn't apply to the Supreme Court alone. Indeed, given the not-infrequent eruption of bitter disputes between judges within federal circuit courts and within state high courts, and the small number of appeals heard by the Supreme Court, I doubt it is the most important court to consider with respect to reimagining clerkships. Encouraging the consideration of expanding the bureaucratization of clerkships and eliminating individualized elbow-clerk arrangements beyond the Supreme Court is not just a matter of "go big or go home," although I think that's a legitimate suggestion about a thought experiment. It's also a matter of asking the question where it matters most--and considering that "where it matters most" might not be the Supreme Court, despite all the attention devoted to it.

Two final points in this short intervention. First, we might acknowledge that some of the current Supreme Court justices have shown a little more flair and individuality in their writing. Certainly this can be overstated, but it must be acknowledged. To the extent that we have associated law clerks with the "formulaic Constitution" style of opinion, we should consider that law clerks might have contributed to this style, but it was also a particular approach of a particular period in the history of the Court. We should be careful about generalizing across eras without making some effort to historicize. And we should consider how changes in the clerkship structure might affect approaches and styles on the Court or other courts other than the "over-long, hyper-technical, multi-part test" style. The most obvious candidate is originalism. Would that room full of depersonalized clerks conduct historical or historical-ish research on behalf of original justices? Would the staff-room include some non-lawyer historian assistants? Without elbow clerks, would the originalist justices do no originalism? Less originalism? Worse originalism? A different form of originalism, perhaps closer to Justice Black's than to the most contemporary versions? Originalism may be our law. But "our law," like everything else, is subject to, affected by, perhaps even a creature of the means of production.   

Finally: Would Blackman's suggestion eliminate those "distortions in legal markets" with respect to law clerks that are specifically related to power and prestige? Nope. Not in a million years. In fairness, Blackman does not suggest otherwise, and he has a variety of distortions in mind, not just things like Supreme Court clerks getting giant paydays and prestigious future jobs. (To the extent he does have that sort of thing in mind, we certainly should include court of appeals and district court clerkships in the thought experiment.) But I don't think it would be wrong to see this as one of his focuses. And I think we can say accurately that as night follows day, so the elimination of one form of prestige will give rise to others--or to more subterranean arrangements serving the same function, as in the good-and-bad old days. Status and prestige, like money, are hydraulic, and will flow somehow and somewhere.           

Posted by Paul Horwitz on November 19, 2021 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

Continue reading "The puzzle of prior restraint"

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 18, 2021

Oh, good, Congress is looking into UF

The House Subcommittee on Civil Rights and Civil Liberties of the Committee on Oversight and Reform sent a letter to UF demanding information and threatening an investigation of the university's since-reversed refusal to allow professors to testify in cases adverse to the state. This is a waste that will achieve nothing but partisan grandstanding and partisan pushback. Plus, the letter was co-signed by Debbie Wasserman-Schultz, who, despite her last name, used the phrase "shouting fire in a crowded theatre" in Gosar censure debate and thus has forfeited any standing to advocate on First Amendment issues.

Posted by Howard Wasserman on November 18, 2021 at 04:45 PM | Permalink | Comments (0)

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.

Posted by Howard Wasserman on November 18, 2021 at 03:49 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

More on UIC (no longer John Marshall)

I wrote last January about Jason Kilborn at UIC (not John Marshall--why they changed it . . .), who was in the middle of a firestorm that began over a reference to a racial slur on an exam and went badly sideways. Andy Koppelman (Northwestern) has a long essay in the CHE updating the story, which includes a seemingly inaccurate committee finding of harassing conduct, continued student protests (with appearances by Jesse Jackson), and settlement of a brewing lawsuit.

It is a mess of administrative overreach and the collision of speech, academic freedom, and DEI. A la Yale. And it again illustrates my repeated point about recent academic-freedom controversies--When it happens at Yale or at UF, it makes The Times and the Post; when it happens at UIC, it makes the Sun-Times and the Chronicle. Not the same level of attention and thus not the same level of public pressure.

One final point of speculation: Would this have played differently if it had happened at the Former JMLS--stand-alone private urban law school--than when happening at UIC--large, majority-minority public university. Does the large administrative apparatus that accompanies a large public university exacerbate these types of incidents? Does it suggest that the public takeover--which I predicted 20+ years ago and regarded as an unalloyed good for the law school--has a substantial downside?

Posted by Howard Wasserman on November 18, 2021 at 03:39 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, November 17, 2021

Losing Alice and a Lost Chapter: The Bad Reader

There's an Apple TV show I highly recommend: Losing Alice. It is an Israeli noir psychothriller about creativity, self., and truth. And it stars the fabulous Ayelet Zurer. In one of the later episodes, a character accuses Alice of being the bad reader. He pulls out from his bookshelf the Amos Oz, A Tale of Love and Darkness (I've reviewed another Amos Oz book on Prawfs here). He reads out loud. I went back to find the original, and discovered that the English translation omits this whole chapter about the bad reader. The bad reader is the reader that focuses on who is in fact Elena Ferante, obsessing about whether she has a real life brilliant friend.

The bad reader "pursues the secrets of the novelist rather than the secrets of the novel. The bad reader wants to know “the story behind the story.” If Dostoevsky gives us a man who robs and murders an old woman, the bad reader is sure that Dostoevsky himself must have been implicated, if only through private fantasies, in that sordid activity. If Nabokov gives us a pedophile, it is tantamount to a confession of pedophilia. And how, the bad reader wonders, could Sophocles possibly have manufactured such a vivid story of incest and patricide without the benefit of some personal experience along those lines?" “They come to take my message from me, dead or alive,” says Oz writes. "Invoking “the right of the public to know,” interviewers want him to identify the message, the moral and the political cargo his fiction conveys to the reader. Perhaps it is “The occupation corrupts,” or “Love triumphs,” or “The minorities are exploited.” Both the bad reader and the gasping interviewer share a “righteous puritanical hatred for creativity, for discovery, for obfuscation and exaggeration, for the games of courtship, for the ambiguous, the musical and the Muse, for the imagination itself."...Oz likens the bad reader to “a psychopathic lover” who strips off his victim’s skin, impatiently removes the flesh, dismantles her skeleton, “and at the end — when he is filleting her bones between his crude yellow teeth — only then does he finally attain his satisfaction: that’s that. Now I’m really, really inside. I’ve arrived.” The metaphor of “the psychopathic lover” forces us to consider the reader’s desire to control and possess a work of art, as if that were possible — as if anyone, even the artist, could enjoy such power. Oz sees a nihilistic urge at work in “the bad reader,” whose sole aim is to prove that, in the end, the characters in a story are no more than representations of the author and his relatives and friends and neighbors, doing the same mundane things that everyone else does — nothing extraordinary or mysterious — because in reality, “everyone is the same.” Bad readers convince themselves that any work of fiction will boil down to something utterly familiar, just as all the characters on a computer keyboard are reduced, in their little binary world, to a bunch of zeros and ones."

Incidentally, and tragically, Oz's family and private life has been the subject of a lot of pages after his death last year.

Watch the series, read the book, and, perhaps all we can do is try to be good watchers and readers.

 

 

Posted by Orly Lobel on November 17, 2021 at 11:27 AM | Permalink | Comments (1)

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Posted by Howard Wasserman on November 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 16, 2021

How Discretionary is Certiorari?

I recently outlined an account of the justices' discretion with respect to certiorari. Briefly, I suggested that a standard generally governs the decision to grant cert, a permission generally protects votes to deny, and that a presumption or mandate in favor of granting cert governs a special subset of cases.

In the comments, Orin Kerr thoughtfully expressed some doubts about my account, essentially suggesting that cert votes are purely discretionary. My post had criticized that view, but I have to admit that it's plausible. And I wondered how many people share it. So I put up an extremely unscientific twitter poll. Apart from lots of "What the FERC?!" comments, here are the results:

Screen Shot 2021-11-16 at 11.07.48 AM

This is of course a very crude survey, even apart from the obvious selection problems. What each of these categories means is unclear, and they might overlap.

There are also follow-up questions to ask. For those who reject the pure discretion view, for instance, is the problem more about granting all FERC cases, or denying all non-FERC cases? Should the answer depend, as one commentator suggested, on the subjective goals of the justice singling out FERC cases? And, to what extent are supporters of the precedent/custom option basically asking whether the current justices do in fact feel bound to vote in a certain way?

Naturally, I wouldn't want to put any weight on the vote breakdown here. Perhaps the poll offers some evidence that there are diverse views on the scope and source of the justices' certiorari discretion. Or maybe the poll's only use is to prompt more thought and discussion.

Posted by Richard M. Re on November 16, 2021 at 11:39 AM | Permalink | Comments (18)

Monday, November 15, 2021

Free Library of Philly, This Thursday conversation with Jorge Contreras on his new book The Genome Defense

Law professor Jorge Contreras has written a fascinating book, The Genome Defense, about the battles over genetic sequencing patents. I will be in conversation with him about the book and the intellectual property issues he’s researched. the event is free and open to all - register here for the zoom link:

https://www.eventbrite.com/e/virtual-jorge-l-contreras-the-genome-defense-inside-the-epic-legal-tickets-195441580027

Posted by Orly Lobel on November 15, 2021 at 03:58 PM | Permalink | Comments (3)

Resources for new and aspiring ad law profs

Christopher Walker (Ohio State) at Yale J. Reg's Notice and Comment, for the ad law scholar in your life.

Posted by Howard Wasserman on November 15, 2021 at 12:12 PM in Howard Wasserman, Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Sunday, November 14, 2021

No

Since I'm busy avoiding work, I'll take a moment to answer Howard's question: Does what the late Justice Ginsburg said about Colin Kaepernick tell us anything about how she would have voted in the flag-burning cases? My view is that the answer is a clear no. I'm not sure much evidence is needed. But while tributes are generally the last place one should look for the truth or for evidence of sincerely held views, I would just note that in her memorial tribute to William Brennan, 111 Harv. L. Rev. 3 (1997), Justice Ginsburg wrote, in a tone of implicit approval, of a variety of his noted opinions, and included Johnson and Eichman, with a description of those cases as being about "the tolerance the First Amendment exacts even for flag burners." Whether the flag-loving rhetoric in that sentence was sincere, obligatory, or somewhere between the two, I doubt she would have had any difficulty casting a speech-protective vote in those cases. 

None of this is meant to suggest that Ginsburg should have said what she did, or that Couric acted anything other than improperly in attempting to sanitize the interview to protect Justice Ginsburg's reputation. (As Couric saw it. The interesting thing about the episode is that while Couric's perception might be accurate with respect to elites, surely Ginsburg's off-the-cuff reaction to Kaepernick was close to the center of public opinion at the time. Couric may have thought, after literally consulting with other members of the establishment, that leaving in Ginsburg's comment would embarrass the Justice. Nevertheless, ultimately her editing had less to do with protecting Ginsburg's general public reputation than with safeguarding her club membership. Asking millionaire journalists for their thoughts on public opinion is like going to Marie Antoinette for tips on baking.) Couric clearly acted wrongly, and doubly so because her stated reason for editing out the remark--that Ginsburg "was elderly and probably didn't fully understand the question"--was far more newsworthy than the particulars of how she answered the question. Nor does it matter to me one way or the other what Ginsburg's celebrity trainer has to say about the matter. Ginsburg shouldn't have answered the question not because she answered it rightly or wrongly, but because she shouldn't have answered it--or given the interview--at all.

Whatever Ginsburg's thoughts on the flag, the national anthem, or protests were, however, I think her vote in Johnson and Eichman would clearly have been the same as Brennan's.     

Posted by Paul Horwitz on November 14, 2021 at 05:22 PM in Paul Horwitz | Permalink | Comments (0)

RBG and patriotic symbolism

Josh Blackman writes about an attempt by Bryant Johnson, RBG's longtime trainer, to defend the Justice against Katie Couric's report about RBG's comments on Colin Kaepernick. According to Johnson, RBG knew nothing about the Kaepernick controversy at the time of the interview. He subsequently explained to RBG that Kaepernick was protesting racial injustice rather than the country and that he chose this method at the suggestion of a veteran as a more-respectful alternative; RBG responded that she did not know the whole story and should not have answered the question. Josh calls B.S.

I return to my prior question: Does this tell us anything about how Ginsburg would have voted in Eichman and Johnson? Johnson's defense of RBG rests on the premise of her not having the full story and changing her mind once she realized Kaepernick was showing respect. But that leaves RBG's line at patriotic symbolic counter-speech showing unquestioned contempt for government and not allowed in the places their families came from, for which flag-burning qualifies. So what would she have done with flag-burning?

Posted by Howard Wasserman on November 14, 2021 at 04:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Most Important Sentence in Simon Lazarus's YLS Memo

Leaving aside all the other issues, there is surely one point in Simon Lazarus's memo, noted by Rick below, on which all right-thinking people can agree: "'Inflection point' is an overused cliché."

It is true that academics are not the most thoughtful or independent thinkers or writers. And it seems increasingly true that apart from all the other trend-chasing they may engage in, they--and their youthful editors--are caught in a moment (not an inflection point!) in which both academic and general-audience writing is infected by a hybrid of what I think of as social-media bumper-sticker phrases (see, e.g., virtually every current political and cultural debate) and bad grad-school-dropout essay style. (Try comparing the current movie reviews in the Times to those five or fifteen years ago--and read the staff bios. This is a case in which the hiring crisis in the humanities is a lose-lose scenario.) But the frequency of use of a phrase like "inflection point" serves as a nice illustration of how bad things have gotten. Here, based on a search of Westlaw's law review database, is a look at the number of times the phrase has been used per year in the past decade:

2021 to date: 114

2020: 139

2019: 136

2018: 93

2017: 80

2016: 79

2015: 64

2014: 56

2013: 49

2012: 31

Going further back at greater intervals, the numbers are 21 times in 2008, five times in 2005, six times in 2000, a whopping twice in 1995, and a total of seven times in a search of all uses of the phrase before 1995. The numbers are actually worse than that. The further back one goes, the more likely it is that when an article contains the phrase "inflection point," it is using it accurately as a term of art in mathematics, or quoting it as business jargon. That is far less true today.

I am sure that 1995 also had its trendy phrases. (And that I used them.) And I don't think this kind of trend--not so much an example of academic jargon, I think, but more an example of the increasing jargonization of normal language, and of its seeping from the Internet into every other corner of the language--is unique to the legal academy as opposed to other sectors. It might even be less common in legal academic writing, although one might think otherwise given the circumstances of its production: As an academic discipline, law is more undisciplined than most and its gatekeepers less qualified and, because they are younger, more subject to capture by linguistic fads. Still, given how often lawyers or legal academics trumpet the lawyer's ability to speak and write clearly and succinctly, we ought to be especially vigilant against this sort of trend. Evidently, we are not. 

It also strikes me--and this too is true of many of the phrases appearing in both online and offline discourse, including in the law journals--that most of the time it is used inaccurately even as a turn of phrase. In its non-mathematical sense--one closely related to its mathematical meaning--an inflection point is a moment of dramatic and fundamental change, one in which previous assumptions no longer apply. Most of the time, "inflection point" is merely used to mean something more like an "important moment." And a good deal of the time, its use is less descriptive and more rhetorically assertive and strategic than that. It is used to mean something like, "This is a moment that I want you to believe is urgent." Since the evidence given to support the assertion is often lacking, it is fair to say that its invocation in such cases meets Harry Frankfurt's definition of "bullshit:" it is intended to persuade without much regard for whether it is true or false in fact. (Why undertake this draconian legal change, despite the unanswered questions about consequences or the existence of known costs and risks or the presence of contrary precedent? Because we are at an inflection point.) Apart from its political uses--and a good deal of legal academic writing is intended to look as if it is politically engaged or make the writer feel he or she is politically engaged--I suspect that it fills a self-serving function supplemental to novelty claims, spurious or otherwise. Why publish this article, or publish it in a top journal--even though, strictly speaking, it is not novel? Because we are at an inflection point.

I don't much care for writing prescriptions. But if I were addressing law review editors, my advice to them would be straightforward: Redline every use of every phrase of this sort. (I'm sure many current instant-cliches will occur to you.) Ask the writer whether it is actually true (and demand support on that point) and actually needed. Encourage him or her to rewrite the sentence in plain English. (At a minimum, this would have the benefit of making many articles feel less important and exciting.) Then go after the older cliches as well. 

But the real target of any advice should be the professors, who are older and better situated to withstand the linguistic temptation to be timely and up-to-date. They won't be anyway. We all grow old and, if we are fortunate, unfashionable. So they may as well shoot for being clear and timeless.   

  

       

   

Posted by Paul Horwitz on November 14, 2021 at 01:24 PM in Paul Horwitz | Permalink | Comments (0)