PrawfsBlawg

Thursday, April 17, 2025

A Course on "The Legal Profession"

A million years ago, when I was in law school, I took a course, taught by David Luban, called "The Legal Profession" (which, thanks to some Yale Law School magic, satisfied a professional-responsibility requirement although it was not, at all, about "the rules" of P.R.).  We read Luban's Lawyers and Justice, Ishiguro's Remains of the Day, Galanter's Tournament of Lawyers, some books about the evolution of the profession and the rise of big law firms, a book about Skadden, and -- providentially for me! -- some articles by a fascinating scholar who would become my colleague at Notre Dame, Tom Shaffer.  And some other things.

I've long wanted to teach a class like this, i.e., a course that I could hold out as satisfying our P.R. requirement but that was really more about "Lawyers and Society."  Has anyone taken, or taught, a class like this?

Posted by Rick Garnett on April 17, 2025 at 02:10 PM in Rick Garnett, Teaching Law | Permalink | Comments (0)

Wednesday, April 16, 2025

State Ratifications and the Constitution

In my recent research, I was struck by the following point. When we look at the 1787 Constitution, we pay a lot of attention to debates in the states. This makes sense for many reasons. First, the Philadelphia Convention's deliberations were secret. Second, we have good records of many state convention proceedings. Third, we have The Federalist.

For the succeeding amendments, though, we pay almost no attention to state ratification debates. I wrote a book on the first ten amendments and learned that we know almost nothing about the state legislative debates on them from 1789-1791. In those days, state legislatures kept only bares-bones journals or minutes. The same goes for amendments 11 and 12.

For the 14th Amendment, we have only one detailed record on state ratification. There are transcripts of the debate in the Pennsylvania Legislature that look like The Congressional Globe. Perhaps this is also true for the 13th and 15th Amendments, but I've never looked into that.

On more modern amendments, the record is almost as sparse. Sometimes this is because the proposed amendment was rather simple. The 21st Amendment, for example, received virtually no scrutiny in those state ratifying conventions. None of them lasted longer than a day. In other cases the record is sparse because the state legislative records from, say, a hundred years ago are not detailed.

That said, I think that there is room for a scholarly project that gathers the state debates on the twentieth-century amendments. Maybe we'd learn something useful about, say, the 26th or 16th Amendments. 

Posted by Gerard Magliocca on April 16, 2025 at 07:57 AM | Permalink | Comments (0)

Tuesday, April 15, 2025

The Scope of the 26th Amendment

There is currently a circuit split on whether states can prohibit 18-21 year-olds from having a gun. (I used this as an exam question years ago.) One of the points made in support of those challenging these laws is that the 26th Amendment should be read as reducing the age of majority for all constitutional rights, not just voting. Put another way, 21 was the relevant age in 1791 and 1868, but not after 1971.

Acceptance of this argument would have broader implications. Right now the 26th Amendment is a one-trick pony. Ratification simply reduced the national voting age to 18. But if you read the text more expansively, that brings in the argument that laws discriminating on the basis of age in voting are suspect. Attacks on state laws that, say, give preferential treatment to older voters have thus far not succeeded on 26th Amendment grounds. But maybe they will in the coming years. 

Posted by Gerard Magliocca on April 15, 2025 at 08:13 AM | Permalink | Comments (0)

Censorship at Annapolis

Defense Secretary Pete Hegseth’s demanded purge of the Naval Academy library was not unprecedented. Roy Cohn pulled the same stunt in 1953, at the behest of his boss, Joe McCarthy, at State Department libraries across Europe. There is one big difference, however, although it is not very encouraging, as I explain in my new column for The Hill.

Here is the gist:

Hegseth’s ‘Big Brother’ book purge models the worst of McCarthyism 

by Steven Lubet, opinion contributor

The U.S. Naval Academy has had a library since the day it was founded in Annapolis, Md. in 1845. Its history had been one of steady expansion and wide inclusion until last month, when Defense Secretary Pete Hegseth ordered the removal of suspect books. 

Hegseth was not the first Republican figure to demand a library purge. That was the disgraced Roy Cohn, Sen. Joe McCarthy’s henchman and President Trump’s early mentor. 

Hegseth was, however, the first to insist that future military officers could be harmed by exposure to the wrong books. In fact, the most famous five-star general in U.S. history once took a decidedly contrary view. 

McCarthy himself promised to “pin down” those who were “directly responsible” for “placing the U.S. stamp of approval on a vast number of well-known Communist authors.” Predating Hegseth by 72 years, Secretary of State John Foster Dulles ordered the removal of many books “stocked in our libraries throughout the world.”  

In the meantime, Hegseth has earned for himself perhaps the best-known rebuke from the McCarthy era: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

You can read the entire essay at The Hill.

Posted by Steve Lubet on April 15, 2025 at 07:47 AM | Permalink | Comments (0)

Monday, April 14, 2025

The New Yorker Ain't What It Used to Be

If it's okay to lighten the mood a bit, can there be any excuse for running this piece on the second day of Pesach (and it's not even funny):

Bagels, Ranked

Posted by Steve Lubet on April 14, 2025 at 03:30 PM | Permalink | Comments (0)

It's not the antisemitism, stupid (again and again)

I hope the silence from anyone in the Trump Administration about the planned (and more-serious-and-destructive-than-reported) assassination attempt against a Jewish governor--on Passover, several hours after a community seder--(finally) disabuses everyone that this administration cares about antisemitism as opposed to using Jews to attack ideas and people they do not like.

That Shapiro was the target provides a layer of irony--MAGA loved Shapiro last summer when pushing faux anti-antisemitism in arguing that Kamala Harris did not choose Shapiro as her running mate because he is Jewish.

Posted by Howard Wasserman on April 14, 2025 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Size matters

Ilya Somin highlights an amicus brief signed by 86 colleges and associations in the AAUP student-visa lawsuit. Most of the signatories are liberal arts colleges and private non-research-centric universities, with a few exceptions (Georgetown, Fordham, Michigan State, the University of Maryland System). Many of the presidents pushing back in public lead liberal arts college, while Trump aims (for the moment) at R1 universities. Don Moynihan argues the divide makes collective action more difficult because different schools' needs and interests do not necessarily align or allow for similar remedies (e.g., University of Michigan depends on research funding in a way that Bard does not).

Something similar may play out among law firms. Large firms have surrendered--preemptively or otherwise--while smaller and boutique firms (most recently Sussman) have pushed back (along with large firms such as Jenner and Hale, obviously). The larger amount of money and the more varied practices of big firms makes it more difficult to make common cause with smaller shops. The firms most able to fight (financially) have more to lose in its business model.

Posted by Howard Wasserman on April 14, 2025 at 09:35 AM in Howard Wasserman | Permalink | Comments (0)

One Heartbeat Away

This is the title of Birch Bayh's 1968 book on the proposal and ratification of the Twenty-Fifth Amendment. It's probably the best account of how an amendment moves through the process from beginning to end. I wanted to highlight a couple of points:

1. The first is that was the era where the ABA's influence was at its height. The organization was heavily involved in rallying support for the 25th Amendment. Lewis Powell, later Justice Powell, played a role in these efforts. Perhaps the ABA is just another victim of polarization, though there may be other factors in its decline.
2. In constitutional design, there is often a debate between formalists and functionalists. Formalists want amendments and functionalists want statutes. Formalists also often want more detailed amendments while functionalists want shorter ones. You see this divide in the 25th Amendment debate. Some people wanted Congress just to enact a law on presidential disability. Others wanted an amendment to simply clarify that Congress had that power. The 14th Amendment saw a similar dynamic, with Bingham wanting an amendment and Stevens wanting statutes. Might be a theme for my book.
3. There is an extended discussion on how conference committees work. This led me to wonder: Do they even have those anymore? Perhaps Congress still does this for ordinary legislation, but for bigger items this is all done at the leadership level.  

Posted by Gerard Magliocca on April 14, 2025 at 07:40 AM | Permalink | Comments (0)

Saturday, April 12, 2025

When the Supreme Court Can Move Markets

Supreme Court opinions rarely move markets. I don't know enough about the Court's great antitrust opinions to know if they did, though they probably did for individual stocks. (John D. Rockefeller's response to the Court's opinion upholding the breakup of Standard Oil was "Buy Standard Oil," which was good advice.)

But can you can imagine a future Supreme Court decision on the legality of tariffs moving markets. And this creates some special concerns that people should start thinking about: For example:

1. Sometimes Supreme Court deliberations or opinions leak out. The opportunities for insider trading are obvious. Let's hope that the Court's security is better and that the insider trading laws clearly apply to the use of confidential court information. (I have no idea on the latter.)
2. The Court usually issues merits opinions at 10AM on a weekday. Right during stock market trading. Maybe this is a bad idea for a market-moving opinion.
3. Maybe #2 means that the Court should say in advance when the market-moving opinion is coming by issuing a special 4PM release time. In 1935, the Court did telegraph the day when it's opinions in the Gold Clause Cases would come out to squelch market rumors that it would be some other day, though they did not change the release time.
4. Deciding such a case on the emergency docket is not good because oral argument can at least signal where the Court is going and cushion the blow. 

Posted by Gerard Magliocca on April 12, 2025 at 12:20 PM | Permalink | Comments (0)

Saturday Music Post - This Magic Moment

"This Magic Moment" is probably the second best known composition by Doc Pomus and his writing partner Mort Shuman. The first, of course, is "Save the Last Dance for Me," which was a Saturday post here in 2021. Doc Pomus -- birth name Jerome Felder -- was the Brooklyn born son of Jewish immigrants, who changed his name to sound (he thought) more like a blues singer. A polio victim at age seven (in 1932, decades before the Salk vaccine, when polio was great), he walked with crutches most of his life, and eventually used a wheelchair. He was the brother of the prominent New York City lawyer Raoul Felder. "Magic Moment," like "Save the Last Dance," was written for Ben E. King and the Drifters, who released it in 1960, reaching 16 on the Hot 100; the original audio is at the bottom of the post. It was covered by Jay and the Americans in 1969, charting at number 6; interestingly, it was originally the B-side for the totally forgettable "Since I Don't Have You." Jay Black also changed his name, from David Blatt, evidently to sound more, well, American. The clips are at The Faculty Lounge.

Posted by Steve Lubet on April 12, 2025 at 06:17 AM | Permalink | Comments (0)

Friday, April 11, 2025

Speaking of Amelia Earhart

 

Posted by Steve Lubet on April 11, 2025 at 06:28 AM | Permalink | Comments (0)

Thursday, April 10, 2025

Who Owns Amelia Earhart's Last Plane?

In my never-ending quest for future problems, I give you the world's most famous planewreck. Suppose that Amelia Earhart's plane ("Flying Laboratory") is found someday in international waters. Who would own it? This was an exam question for my Admiralty class last year.

Perhaps this is a case for the law of finds. Finders keepers. An objection to that approach, though, is that we use maritime salvage law for shipwrecks. Salvage law is more equitable and divides property or liability interests among various claimants. In this case there would be the salvor, Purdue University (which financed her final flight) and (perhaps) the United States itself.

But can salvage law be applied to planes? We don't generally apply maritime law to planes, even when they crash into navigable waters. Should we make an exception for Earhart's plane because of its cultural significance?

I stand ready to provide my thoughts when archaeologists find her plane. It belongs in a museum, you might say.

Posted by Gerard Magliocca on April 10, 2025 at 09:44 PM | Permalink | Comments (0)

Wednesday, April 09, 2025

The Truth is a National, ie. Personal, Security Threat; or, King Henry With Fewer Wives

The Trump regime paused briefly from its efforts to immiserate the American people wholesale and decided to go retail for a bit, returning to one of Donald Trump's chief regime policies: revenge. Several executive actions today are of particular note. One is an executive order and the others are memoranda to the heads of departments and agencies--although all of them are, in effect, part of the Trumpian taste for executive orders of attainder. 

One involves an executive order against the law firm Susman Godfrey. It's what we have come to know as standard-issue regime pettiness, although surely not petty to the law firm or to lawyers and decent citizens. Susman Godfrey's chief sin, first on the list in the executive order? The regime's lawyers--one imagines a couple still work there--put it in fancier language, but not so fancy as to obscure it. Susman Godfrey represented Dominion Voting Systems, which sued Fox News for defamation and received a settlement moments before trial, perhaps because Fox News in fact defamed Dominion Voting Systems. It is not clear in itself how much Trump's anger has to do with the crime of suing-the-media-while-not-being-Donald-Trump and how much it has to do with Dominion having had the temerity to interfere with the lie that the 2020 election was stolen.   

Two other orders are similarly grudge-driven. One is aimed at Miles Taylor, who Trump accuses of "disclosing sensitive information"--although not this sensitive information, which is fine. (Remember: "For my friends, everything. For my enemies, the law.") While I am normally and rightly queasy about a White House going after leakers, I certainly do not think doing so is per se illegitimate. Calling Taylor a traitor and ordering our cosplaying fool of a Homeland Security secretary to investigate him, however, is another matter. (Kristi Noem's recent social-media pictures put me in mind of other, similar photographs.) Of course Trump's interest is not in national security, but in getting even. 

Finally, and right in between the two, is his memo targeting Chris Krebs, who had the misfortune to take his oath and his office seriously while serving as director of the Cybersecurity and Infrastructure Security Agency during Trump's first term. As with Susman and Dominion Voting Systems, Krebs's greatest crime was insisting on the truth--or, as the presidential memorandum puts it, he "falsely and baselessly denied that the 2020 election was rigged and stolen." Perhaps that answers the question: Susman Godfrey's crime was not suing Fox, but doing so on the basis that claims of a rigged election were false. 

The election, of course, was not stolen. I find something especially offensive to anything like common decency, a stench in the nostrils, to see an official memorandum targeting an individual who did his duty and basing that vendetta on a blatantly false proposition, one that in the mind of this president and his lieutenants occupies the status of the propositions in the Oath of Succession in 1534. As the quote goes, "If [the Earth] is flat, will the King's command make it round? And if it is round, will the King's command flatten it?" No. But it can, in an administration run by a "King" whose councillors make us weep with longing for the intelligence and relative moral restraint of a mere Cromwell, lead to a presidential order charging Noem and the Attorney General to investigate Krebs and provide "recommendations for appropriate remedial or preventative actions." Or, as the quote goes, "My dear Norfolk....This isn't Spain."

I find "lawfare" a fatuous term, no matter which political side is using it. Still, insofar as it hangs like a moral millstone around the neck of its boss, sinking him ever deeper into the muck, I think we can all agree: "Lawfare continues to hobble the Trump administration." 

Posted by Paul Horwitz on April 9, 2025 at 11:41 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, April 08, 2025

More anti-antisemitism as fig leaf

Wesleyan President Michael Roth offers the latest "Trump is using Jews and it will end badly" take. He highlights the White House "Shalom ____" tweets ("Shalom Khalil," "Shalom Columbia," whatever) and the large dose of sarcasm in which Jews should not find comfort. And he calls out the ADL for losing sight of its mission in defending Musk's Nazi salute and in only belatedly (and under pressure) supporting due process for Khalil.

Roth makes one interesting move--highlighting why Jews are safe at Wesleyan (my kid feels perfectly at home) and why the "situation was different at Columbia. Protests became violent (both in the actions of the participants and those of the police who were called in to quell them). Tensions between supporters of Palestinians and Israelis were at times extreme." He highlights a March Atlantic article by Franklin Foer that "document[s] some serious antisemitic activity."

I read Foer's article (missed it in March). It discusses numerous incidents of antisemitic violence and harassment. But it mixes them with examples of obnoxious-but-protected speech, obnoxious-but-core faculty speech, and violations of neutral regulations (e.g., occupying buildings) that would be unprotected regardless of the occupiers' motivation (although the university's selective non-enforcement raises distinct discrimination concerns). For example, academic freedom and the First Amendment protect professors who engage in polemic, inside- and outside-of the classroom, at least to a point; Foer describes a prof's actions without identifying any line or where it might be. Foer argues (and Roth accepts) that this reflects an overall antisemitic environment. But the conversation must separate the protected from the unprotected--what makes students uncomfortable from what violates their rights.

Posted by Howard Wasserman on April 8, 2025 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

"The Actual Art of Governing" Now Available for Pre-Order

My new book on Justice Jackson's Youngstown concurrence is now available here. Much more to say about this in the coming months.

Posted by Gerard Magliocca on April 8, 2025 at 08:47 AM | Permalink | Comments (0)

Monday, April 07, 2025

Why Should You Even Have to Ask?

The following points are blindingly obvious, but I felt compelled to make them just the same.

The first and far less important one is that it seems perfectly cogent and morally acceptable to ask the question, “Can a federal court force the president to negotiate with a foreign leader to obtain return of an alien?” Or, to put it more fully, “Can a federal court order the president to ask a foreign leader to return an alien it has concededly removed in error?” It’s a perfectly legitimate legal question raising issues of judicial power and separation of powers. I suppose the only reason the point needs to be made is that the moral overhang is so powerful that one might be accused of a kind of fatal moral desiccation for even asking such a question, in the same way that one might be astonished by someone asking whether the American soldiers who liberated Buchenwald maintained proper unit discipline. Of course such an inquiry would miss the main point, and of course such an inquiry might well be made for morally desiccated, bad-faith, or even monstrous reasons. But the question is not illegitimate as such. It could be asked for purely academic reasons—to write a history, for example. It could even have some forward-looking value. Buchenwald was not the first or the last prison camp, and—provided, at least, that the United States prefers to liberate such places rather than to build them or lease space in them—it might be nice for planning purposes to know such things.   

The second is, again, obvious: It seems bizarre to ask the question above without asking, “Why on earth would it have to?” If the United States reaches an agreement with a dictatorial populist thug and part-time internet troll—hard to imagine us being well-positioned to do this, I know, but bear with me—and offers to pay several million dollars, plus (one imagines) other benefits such as improved relations, to rent space in that leader’s human-rights-violating maximum-security prison, and then by its own admission sends someone there in error, why on earth would a court have to ask it to make some effort to seek the return of that individual? (To say nothing of the unknown number of others it has also sent there in error but hasn’t gotten around to admitting to.) How, unless perchance there were a particularly important golf tournament, would it even have time to before finding out that the question had been mooted by the government’s own mitigating efforts?

One can understand that whether a court can order a president to engage in what our regime pretends, in high-flown language, is “sensitive foreign negotiations” is a genuine question. But when the United States realizes it has sent someone to a foreign prison camp-cum-American-storage-space-rental in violation of a court order, and knows that the sensitive negotiations consist of some lackey picking up a phone and exercising the same leverage he used the first time around, or at least trying and failing, the obvious prior question is: How does it not even try?

I suppose one could view this as a matter of “breaking norms.” But I prefer to think of the norm of attempting to correct your own mistakes without having to be asked as more of a fundamental question of morality and of honor. And not one that exists entirely outside of or irrelevantly to the Constitution. One reason courts are not faced with fixing every mistake made by executive actors is that executive actors often, as honorable officials will, attempt to clean up their own messes. The core values that lead them to see themselves as honor-bound in such circumstances to attempt to correct the mistake are the same ones that permit them to take oaths of office, to give some content to them, and to live up to them. To be willfully indifferent to the first is to be unworthy of and presumptively incapable of carrying out the second.

Of course it is often harder to undo a mistake than to make it in the first place, easier to destroy than to build--or to remedy. I take it that is one reason for things like due process, the separation of powers, and a system that requires law to be made by large legislative bodies rather than by one short-fingered individual. You can’t guarantee the return of a prisoner from a foreign prison camp, any more than you can resurrect ten trillion annihilated dollars. (I believe the current word for that kind of thing is “oopsie.”) That it doesn’t occur to an executive branch to try—or, worse, that it does occur to it—is, it seems to me, the more pressing question. Very pressing.

As I said, these are obvious points, so forgive me. Whatever the result in this case, all these things are obvious to the courts too. I’m more concerned at present with the enormity of the conduct. But I’ll note, also obviously, that this is one more occasion on which the Trump regime has said to the judicial branch, as loudly as possible, that its actions and justifications should be viewed with skepticism and with no presumption of good faith, legitimate motives, or the capacity for lawful, honest, or decent conduct. No one can reasonably expect judges, like other human beings, not to recognize and, implicitly or explicitly, respond to the extent to which the current executive branch—and, perhaps, its apologists—have become legally, mentally, and/or morally deranged.     

Posted by Paul Horwitz on April 7, 2025 at 06:45 PM in Paul Horwitz | Permalink | Comments (0)

Scope of Pullman

A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.

The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.

The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.

On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.

Posted by Howard Wasserman on April 7, 2025 at 04:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Delaware v. New York (1966)

My best college professor drilled into my head the idea that you have to look at what didn't happen as well as what happened to understand something fully. This is what I'm doing in researching the Bayh Subcommittee. Let me give you an example:

In 1966, Delaware filed an action in the Supreme Court's original jurisdiction arguing that the Electoral College was unconstitutional. Electoral College reform was in the air. President Johnson asked Congress to consider an Article V amendment. The Bayh Subcommittee held hearings, and Senator Bayh expressed support for the lawsuit. Delaware was candid in explaining its goal:

Although the Complaint seeks declaratory and injunctive relief, it is recognized that ultimate correction of the conditions complained of may best be achieved by Constitutional Amendment. But unless this Court sees fit to “open the door,” and point the way through equitable interim relief, as it did in the field of legislative apportionment, no Constitutional Amendment aimed at fair and just reform of the Electoral College is likely to come from entrenched political interests which are satisfied with a voting device that suits their purposes. No other remedy is available to aid citizens whose votes in presidential elections are diluted, debased and misappropriated through the state unit system and its risks of miscarriage of the popular choice will continue indefinitely, unless this Court grant relief. 

Now this was directed at the Warren Court, which might explain why Delaware thought they could get somewhere. The Court rejected the complaint without comment. I'll have to did into the papers of the Justices to see what, if anything, was said on this internally.

Posted by Gerard Magliocca on April 7, 2025 at 02:17 PM | Permalink | Comments (0)