Thursday, April 25, 2024
JOTWELL: Craig on Shatzman on clerkship whisper network
The new (guest) Courts Law essay comes from Jade Craig (Nova-Southeastern) reviewing Aliza Shatzman, The Clerkship Whisper Network: What It Is, Why It's Broken, and How to Fix It, 123 Colum. L. Rev. F. 110 (2023).
Posted by Howard Wasserman on April 25, 2024 at 10:55 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Harari and McWhorter on Gaza, Israel, and Columbia
Yuval Noah Harari and John McWhorter have written important essays on the the Israel/Hamas war (Harari, in Haaretz) and the response on American campuses (McWhorter in the NYTimes). Both are well worth reading in full, and I have excerpted a few paragraphs of each below.
Harari, "From Gaza to Iran, the Netanyahu Government Is Endangering Israel's Survival":
Following the horrendous massacre of October 7, Israel needed to liberate the hostages and disarm Hamas, but these should not have been its only aims. In light of the existential threat posed to Israel by Iran and its agents of chaos, Israel also needed to deepen its alliance with Western democracies, strengthen cooperation with moderate Arab forces, and work to establish a stable regional order. However, the Netanyahu government ignored all these aims, and instead focused on revenge. It has failed to secure the release of all the hostages, and has not disarmed Hamas. Worse, it intentionally inflicted a humanitarian disaster on the 2.3 million Palestinians in the Gaza Strip, and thereby undermined the moral and geopolitical basis for Israel's existence.
The decision to inflict on Gaza a humanitarian catastrophe resulted from a combination of three long-term factors: lack of sensitivity to the value of Palestinian lives; lack of sensitivity to Israel's international standing; and skewed priorities that ignored Israel's real security needs.
Netanyahu continues to promise Israelis "total victory," but the truth is, we are a step away from total defeat. Whatever could have been achieved by fighting – rebuilding domestic trust in the IDF following the October 7 debacle, rebuilding Israeli deterrence abroad, and eliminating most of Hamas' military capabilities – have already been achieved. Nothing more will be gained from continuing the war. It is a dangerous illusion to believe that one more victory, in Rafah, will bring about the collapse of Hamas, the release of all the hostages, and the surrender of Israel's many enemies. Every additional day of war only serves the purposes of Hamas and Iran, and intensifies Israel's international isolation.
McWhorter, "I’m a Columbia Professor. The Protests on My Campus Are Not Justice."
I thought about what would have happened if protesters were instead chanting anti-Black slogans or even something like “D.E.I. has got to die,” to the same “Sound Off” tune that “From the river to the sea” has been adapted to. They would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence. I’d wager that most of the student protesters against the Gaza war would view them that way. Why do so many people think that weekslong campus protests against not just the war in Gaza but Israel’s very existence are nevertheless permissible?
However, the relentless assault of this current protest — daily, loud, louder, into the night and using ever-angrier rhetoric — is beyond what any people should be expected to bear up under, regardless of their whiteness, privilege or power.
Social media discussion has been claiming that the protests are peaceful. They are, some of the time.
And besides, calling all this peaceful stretches the use of the word rather implausibly. It’s an odd kind of peace when a local rabbi urges Jewish students to go home as soon as possible, when an Israeli Arab activist is roughed up on Broadway, when the angry chanting becomes so constant that you almost start not to hear it and it starts to feel normal to see posters and clothing portraying members of Hamas as heroes.
What began as intelligent protest has become, in its uncompromising fury and its ceaselessness, a form of abuse.
As McWhorter and Harari point out, it should be possible to oppose the nature of the war in Gaza without descending into antisemitism. Unfortunately, that isn't happening in too many places.
Posted by Steve Lubet on April 25, 2024 at 03:10 AM | Permalink | Comments (0)
Wednesday, April 24, 2024
Lateral position announcments at Notre Dame Law School
The Notre Dame Law School has advertised some open lateral searches, tenured and tenure-track. The searches are not limited to any particular subject(s). Come join us in South Bend!
Posted by Rick Garnett on April 24, 2024 at 10:47 AM in Rick Garnett | Permalink | Comments (0)
Trump's Admiration for Robert E. Lee
[Cross-posted on The Faculty Lounge]
In a recent speech at Schnecksville, Pennsylvania, former President Trump had this to say about the Battle of Gettysburg:
The Battle of Gettysburg. What an unbelievable — it was so much and so interesting, and so vicious and horrible, and so beautiful in so many different ways. It represented such a big portion of the success of this country. Gettysburg, wow. I go to Gettysburg’s Pennsylvania to look and to watch, and the statement of Robert E. Lee, who’s no longer in favor, did you ever notice that? No longer in favor. ‘Never fight up hill, me boys. Never fight up hill,’ he said. Wow. That was a big mistake. He lost his great general.
That was not Trump's first expression of admiration for Robert E. Lee, who committed treason in defense of slavery (and did not talk like a pirate). In 2017, Al Brophy and I published an oped in the Chicago Tribune explaining why Trump's comparison of Lee to George Washington was offensive and wrong:
Why Trump is wrong to equate George Washington with Robert E. Lee
By Alfred Brophy and Steven Lubet
PUBLISHED: August 20, 2017
The recent neo-Nazi march in Charlottesville, Va., was purportedly held to protest the municipality’s decision to remove a statue of Confederate Gen. Robert E. Lee. In an alarming news conference, President Donald Trump seemed to indicate respect for the marchers’ goal, if not their tactics.
If the Lee monument is removed, he asked rhetorically, “are we going to take down statues to George Washington?” The president’s personal lawyer was even more explicit, circulating an email that directly equated Washington with Lee. Under the subject line “The Information that Validates President Trump on Charlottesville,” the email said: “You cannot be against General Lee and be for General Washington (because) there literally is no difference between the two men.”
The comparison, now made by both the president and his attorney, is deeply offensive for some reasons that should be obvious to everyone and others better known to historians.
First and foremost, of course, is the fact that George Washington was a patriot and Robert E. Lee was a traitor. Washington led his countrymen in battle to win the independence of the United States, while Lee did his utmost to destroy our “more perfect Union” for the sake of chattel slavery.
And make no mistake, the very purpose of the Confederacy was to perpetuate and expand slavery. The Confederate Constitution, which Lee took an oath to uphold and defend, prohibited laws “impairing the right of property in negro slaves,” meaning that no state could ever abolish slavery even if it wanted to. In all, there were 10 specific references to slaves or slavery in the Confederate Constitution. The 11 state secession conventions focused on Abraham Lincoln’s election as a threat to slavery, and declared the need to leave the Union to create a slaveholders’ republic.
It is true that Washington was also a slaveholder, but that is where his resemblance to Lee ends. As Matthew Yglesias pointed out in Vox, we revere Washington today because of his many accomplishments on behalf of the nation that had nothing to do with slavery. He was the military leader in the Revolutionary War, he presided over the Constitutional Convention in 1787 and, perhaps most important, he established the precedent of peacefully leaving office at the end of his term.
Lee, in contrast, had virtually no achievements other than the military defense of slavery, which led to the deaths of hundreds of thousands of Americans. If Washington is remembered despite his connection to slavery, Lee is remembered only because of it. To be sure, Washington’s slaveholding is, and must be, an indelible stain on his reputation. Lee, by contrast, would have no historical reputation at all if he had not committed treason to defend human bondage.
There is one more distinction between the two men that depends on an understanding of abolitionist history. The lives of Washington (1732-1799) and Lee (1807-1870) did not overlap, and they were divided by a crucial inflection point in American attitudes toward slavery.
Continue reading "Trump's Admiration for Robert E. Lee"
Posted by Steve Lubet on April 24, 2024 at 05:17 AM | Permalink | Comments (0)
Tuesday, April 23, 2024
2024 Symposium on AI Disrupting Law
2024 Symposium on AI Disrupting Law https://studentorgs.kentlaw.iit.edu/cklawreview/live-symposia/ai-disrupting-law-symposium/
feel free to join in!
Friday, April 26, 2024
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Time (CDT) |
Event |
Zoom Link |
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12:45 PM – 2:00 PM |
Georgia Jenkins, A Principle of Artistic Data Sovereignty: Linking Creative Reuse to Author Remuneration Daniel Gervais, Artificial Intellectual Property Commentators: Pam Samuelson & Dan Hunter |
https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09 |
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2:00 PM – 3:15 PM |
Camilla Hrdy, Trade Secrecy Meets Generative AI Ryan Abbott, Creative Machines: Generative Artificial Intelligence and Copyright Law Commentators: Sonia Katyal & Orly Lobel |
https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09 |
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3:15 PM – 3:30 PM |
Coffee Break |
N/A |
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3:30 PM – 4:45 PM |
James Grimmelmann & A. Feder Cooper, The Files Are in the Computer: Copyright, Memorization, and Generative AI Catherine Sharkey, A Products Liability Framework for AI Commentators: Derek Bambauer & Eugene Volokh |
https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09 |
Posted by Orly Lobel on April 23, 2024 at 01:59 PM | Permalink | Comments (0)
Monday, April 22, 2024
Antisemitic Images on Campus
My new essay for The Hill addresses recent antisemitic incidents on American campuses. Here is the gist:
Free antisemitic speech is still antisemitic and indefensible
BY STEVEN LUBET, OPINION CONTRIBUTOR - 04/22/24
Although anti-Israel activists typically assert that their protests are leveled only at Zionism, some have lately demonstrated a shocking inclination to employ classically antisemitic themes and images.
Law Students for Justice in Palestine placed posters throughout the law school, as well as on their Instagram account, featuring a grotesque caricature of Dean Erwin Chemerinsky holding a bloody knife and fork, with the caption “No Dinner with Zionist Chem While Gaza Starves.”
Chemerinsky recognized the image as “blatant antisemitism,” invoking the “horrible antisemitic trope of blood libel” and attacking him for “no apparent reason other than I am Jewish.”
He wasn’t exaggerating.
The portrayal of Jews as leering blood drinkers — historically known as a “blood libel” — dates back to Medieval times, and it has been used ever since as an excuse for pogroms, expulsions, and worse. It was a staple of Germany’s Der Stürmer in the Nazi era and can be seen today in its American descendant, the far-right, neo-Nazi publication The Daily Stormer.
You can read the full essay at The Hill.
Posted by Steve Lubet on April 22, 2024 at 12:20 PM | Permalink | Comments (0)
Two Nuggets on The Application of the Draft
In my research on the draft, I recently come across two interesting items.
First, every draft law (Civil War, World War I, World War II) exempts the Vice President (and all other significant federal officials) but does not specifically exempt the President. This may be because Congress assumed that drafting the President is unconstitutional, or that the President was put in charge of the draft and would presumably not pick himself. I'll be looking into more closely.
Second, I did not know that the Pennsylvania Supreme Court declared the draft unconstitutional in 1863. (Kneedler v. Lane). The Court reversed itself a year later after state elections that went well for Republicans. There is secondary literature on this that I will dig into.
I think that this might well be my next book. With Uncle Sam on the cover.
Posted by Gerard Magliocca on April 22, 2024 at 10:26 AM | Permalink | Comments (0)
Saturday, April 20, 2024
Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)
But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.
Update: Stefanik has called on Shafik to resign or for the Board to remove her.
FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.
Posted by Howard Wasserman on April 20, 2024 at 09:43 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Saturday Music Post - Worthwhile Canadian Music
The Canadian folk and folk-rock duo Ian & Sylvia began performing together in New York in 1961. They married in 1964 and broke up -- musically and maritally -- in 1975 (with at least one later reunion concert). Their most famous song, written by Ian, was "Four Strong Winds," which has been covered many times. In 2005, CBC listeners vote "Four Strong Winds" the greatest Canadian song of all time.
Sylvia also wrote the much-covered song, "You Were on My Mind."
The clips are at The Faculty Lounge.
[For those who did not get the reference in the post's title -- intended absolutely ironically, I assure you -- see here.]
Posted by Steve Lubet on April 20, 2024 at 06:12 AM | Permalink | Comments (0)
Thursday, April 18, 2024
More zombie laws
Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.
Posted by Howard Wasserman on April 18, 2024 at 04:53 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Why Roe is different
When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).
While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*
[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.
Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Wednesday, April 17, 2024
Blaming the courts for everything (Updated)
A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.
No one is happy with the decision, but for interesting reasons.
The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.
The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.
But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.
Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.
Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.
Posted by Howard Wasserman on April 17, 2024 at 09:43 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Tuesday, April 16, 2024
USC's (Bad) Choice
David Schraub of Lewis & Clark has a useful new article titled, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Campus Speech. I haven't fully digested it so I have no general commentary, agreement, or disagreement. His focus, or exemplar, is campus protests, especially in "fast-moving" contexts. But he places these in the general realm of the problem of how we "facilitate public debate" on campus. And one point he makes, quite fairly, is that we might spare a thought for the administrators, especially lower-level staffers, who are faced with dealing with these issues on the ground and in the moment. Amen to that, but of course some of the dilemmas he discusses run up and down the administrative chain.
That is the most charitable light in which I might place USC's decision (announced by the provost, Andrew Guzman, who is also a professor at USC's Gould School of Law) to cancel the speech of its valedictorian at commencement. The valedictorian is described in the Times article I've linked to as having written "social media posts supporting Palestinians," at least one of which a campus group has objected to for the writer's now-standard equation of Zionism to settler colonialism etc. The objecting group, also adopting the tedious language of our times, complains that the university "chose to platform" a student it believes will exacerbate anti-Semitism on campus. The provost's announcement is replete with equally standard language about safety.
I think the university's decision was wrong. If, as its own letter suggests, having the valedictorian speak at commencement is standard--a "tradition," in the letter's terms--and if the selection of the valedictorian proceeded according to its governing processes, as it appears to have, then that tradition should not give way to threats. It's also not clear what those threats are. The Times story reports none, but is not well-reported. The USC Daily Trojan does a better reporting job than that, quoting an official saying that "the University received threats relating to Tabassum via email, phone calls and letters" but declining to provide further details. Unless it has well-grounded fears for her physical safety, it should move forward with the usual order of speeches. The complaint about "platforming" the speaker appears to fall in line with the usual recent complaints about platforming, which is to say it conflates content-neutral facilitation with promotion and agreement. The valedictorian is apparently chosen on the basis of both academic achievement and "service and leadership." Those criteria do not include "social media history" and the service and leadership for which the speaker was cited are commendable, not objectionable. I have no idea what she would have spoken about, but it's not relevant and it's not the reason she was given a "platform," any more than a public school is advancing religion when it selects a valedictorian speaker who has the highest class rank and also turns out to be vocally religious. "Platform," especially in its pernicious verb form, is one of the many recent locutions we could use a long, healthy break from.
But take the mildly charitable view for a second. Graduation ceremonies are indeed an occasion for community, family, and fundraising celebration. Universities want them to be pleasant. One no more wants or expects the Days of Rage at a commencement than one does a portable loudspeaker at a dinner party. If the university is aware of genuine and serious safety concerns, it faces potentially great challenges in assuring that safety--a job which will be done by staff and security officers on the ground. If it faces a threat of more-than-mild protest--say, something that graduates from the usual turned backs or slogans on mortarboards to an attempt wrongly to shout down the speaker, who has precedence according to the speech norms of the occasion and is entitled to be heard--then it will have to use its resources, or those of the police, to ensure the speaker can be heard and that those causing the disturbance either simmer down or are removed (and hopefully, depending on their actual conduct in these still-hypothetical circumstances, arrested or subjected to discipline). That's not the kind of thing universities want to put photos of in their alumni newsletter. As Schraub notes in his article, it will face the blame one way or the other: for failing to protect the speaker or for being too hard on the protesters.
One can thus sympathize with the administrators and those on the ground. One can assume its choice was not based on the identity or views of the speaker but on the "threats" or reactions it anticipated. But the university's choice was still wrong--and dangerous. The university's announcement says that its decision "has nothing to do with freedom of speech. There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period." Of course the latter sentence is important. But much depends on what the actual threat is. Again, words like "security" and "safety" can encompass all manner of things, from genuine security and safety to the weaker senses in which these words are now often used, and to something weaker still, like disruption or discomfort or bad optics. I'm doing my best to take seriously the university's statement that it faced real threats to safety without simply swallowing it whole. One may occasionally doubt the accuracy of non-detailed official statements, and the less detail USC gives, the less one ought to credit it. But if the threat to safety were real and grave, such that no amount of security would suffice, I think USC's duty then would be to "choose" to give the speaker a "platform," finding some safer way for her to deliver her intended address before friends and grandees and then broadcasting it.
And the first point is a distraction. No, there is no First Amendment right to speak at a commencement. Yes, it does indeed have a great deal to do with freedom of speech, or, perhaps more accurately, with the system of speech on campus and, in a broader sense, with freedom of speech. That's so not simply because a student wishes to speak, but because this is the speech the university customarily provides and facilitates on these occasions, and it is giving way, altering its "tradition," in the face of identity- or speaker- or viewpoint-based opposition. It has an obligation not to do so. It should prefer a lousy, unpleasant graduation with the intended speech to a graduation ceremony that goes swimmingly, pleasantly, and pusillanimously. That's so especially because it is almost certainly going to get protests and disruptions no matter which path it takes. So it might as well take the right one.
Posted by Paul Horwitz on April 16, 2024 at 07:32 PM in Paul Horwitz | Permalink | Comments (0)
SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)
SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.
Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:
Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”
That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.
Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.
Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.
Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.
Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, April 15, 2024
Ken Holtzman Z"L
Ken Holtzman, the winningest Jewish pitcher in MLB history, died Sunday. Holtzman won 174 games in a 14-year career with the Cubs, Oakland, and individual seasons with the Orioles and Yankees. Holtzman pitched two no-hitters with the Cubs and won three World Series with the A's, including the Series-clinching win in Game 7 of the 1973 World Series. He was the # 3 started on that staff (behind Hall of Famer Catfish Hunter and Vida Blue), but the A's relied on him as much as the other two in big games. Among Jewish pitchers, he is first in wins, sixth in ERA, second in strikeouts, fourth in appearances, and first in innings pitched. He also homered in the 1974 World Series, the last then-acknowledged-as-Jewish player to homer in a World Series until Alex Bregman and Joc Pederson traded homers in 2017.
As I described, Holtzman plays a big role in the Jewish-players-on-Yom-Kippur story. He never pitched on the holy day. In 1966, his first full season in the Majors, Holtzman opposed Koufax the day after Yom Kippur when both pushed their starts back to avoid the holy day; Holtzman pitched a two-hit complete game, in a game he said his mother hope he would get a no-decision. Holtzman attended Yom Kippur services in Baltimore in 1973 when the holy day coincided with Game One of the ALCS. Another story is less uplifting. In 1977, the Yankees petitioned MLB to move a 1977 game from Yom Kippur day to the evening. They cited Holtzman's unavailability, although Holtzman appeared in 18 games that season (which some stories attribute to manager Billy Martin's antisemitism) and would not have pitched even if was at the park; Holtzman was not pleased at being used in that way.
Zichrono livracha.
Update: Howie Megdal's Baseball Talmud ranks Holtzman as # 2 lefty starter, # 3 starting pitcher, # 10 All-Time (after Koufax and a bunch of non-pitchers), and falling out of the top-ten if, by 2035, Alex Bregman and Max Fried continue the careers they have been having.
Posted by Howard Wasserman on April 15, 2024 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Conscription and the Two-Term Tradition
As I've mentioned before, I'm working on a project about the use of conscription in constitutional argument. A prominent non-judicial example came in 1940 when FDR announced that he would run for a third term. Obviously, in doing that he was breaking with George Washington's precedent. How did he explain that? By saying that he could not refuse a draft from the people while the people were being drafted. Here is the argument from his radio address to the Democratic National Convention. It's interesting and it worked.
During the past few months, with due Congressional approval, we in the United States have been taking steps to implement the total defense of America. I cannot forget that in carrying out this program I have drafted into the service of the nation many men and women, taking them away from important private affairs, calling them suddenly from their homes and their businesses. I have asked them to leave their own work, and to contribute their skill and experience to the cause of their nation.
I, as the head of their Government, have asked them to do this. Regardless of party, regardless of personal convenience, they came—they answered the call. Every single one of them, with one exception, has come to the nation's Capital to serve the nation. These people, who have placed patriotism above all else, represent those who have made their way to what might be called the top of their professions or industries through their proven skill and experience. But they alone could not be enough to meet the needs of the times.
Just as a system of national defense based on man power alone, without the mechanized equipment of modern warfare, is totally insufficient for adequate national defense, so also planes and guns and tanks are wholly insufficient unless they are implemented by the power of men trained to use them. Such man power consists not only of pilots and gunners and infantry and those who operate tanks. For every individual in actual combat service, it is necessary for adequate defense that we have ready at hand at least four or five other trained individuals organized for non-combat services.
Because of the millions of citizens involved in the conduct of defense, most right thinking persons are agreed that some form of selection by draft is as necessary and fair today as it was in 1917 and 1918. Nearly every American is willing to do his share or her share to defend the United States. It is neither just nor efficient to permit that task to fall upon any one section or any one group. For every section and every group depend for their existence upon the survival of the nation as a whole. Lying awake, as I have, on many nights, I have asked myself whether I have the right, as Commander-in-Chief of the Army and Navy, to call on men and women to serve their country or to train themselves to serve and, at the same time, decline to serve my country in my own personal capacity, if I am called upon to do so by the people of my country.
In times like these—in times of great tension, of great crisis-the compass of the world narrows to a single fact. The fact which dominates our world is the fact of armed aggression, the fact of successful armed aggression, aimed at the form of Government, the kind of society that we in the United States have chosen and established for ourselves. It is a fact which no one longer doubts -which no one is longer able to ignore. It is not an ordinary war. It is a revolution imposed by force of arms, which threatens all men everywhere. It is a revolution which proposes not to set men free but to reduce them to slavery—to reduce them to slavery in the interest of a dictatorship which has already shown the nature and the extent of the advantage which it hopes to obtain.
That is the fact which dominates our world and which dominates the lives of all of us, each and every one of us. In the face of the danger which confronts our time, no individual retains or can hope to retain, the right of personal choice which free men enjoy in times of peace. He has a first obligation to serve in the defense of our institutions of freedom—a first obligation to serve his country in whatever capacity his country finds him useful.
Like most men of my age, I had made plans for myself, plans for a private life of my own choice and for my own satisfaction, a life of that kind to begin in January, 1941. These plans, like so many other plans, had been made in a world which now seems as distant as another planet. Today all private plans, all private lives, have been in a sense repealed by an overriding public danger. In the face of that public danger all those who can be of service to the Republic have no choice but to offer themselves for service in those capacities for which they may be fitted.
Those, my friends, are the reasons why I have had to admit to myself, and now to state to you, that my conscience will not let me turn my back upon a call to service. The right to make that call rests with the people through the American method of a free election. Only the people themselves can draft a President. If such a draft should be made upon me, I say to you, in the utmost simplicity, I will, with God's help, continue to serve with the best of my ability and with the fullness of my strength.
Posted by Gerard Magliocca on April 15, 2024 at 03:48 PM | Permalink | Comments (0)