Tuesday, January 14, 2025
Job Posting - Federal Judicial Center - 2025
From Timothy Lau, Federal Judicial Center:
The Research Division of the Federal Judicial Center is currently seeking Research Associate(s). Candidates ideally would have both a Ph.D. and a JD. The Federal Judicial Center is the research and education agency of the United States federal courts, and research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries.
The precise job listing can be found at https://www.usajobs.gov/job/827523100
Posted by Sarah Lawsky on January 14, 2025 at 04:54 PM | Permalink | Comments (0)
Guest Blogger: Chad Oldfather on Judging, Judges, and Judgment
I am pleased to announce that Chad Oldfather (Marquette) will guest-blog on his new book, Judges, Judging, and Judgment (Cambridge University Press, forthcoming this week). His posts will begin tomorrow.
Posted by Howard Wasserman on January 14, 2025 at 12:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)
Monday, January 13, 2025
Can Donald Trump block people on Twitter?
I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.
Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.
It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.
Curious to hear what others think. What's that definition of insanity everyone uses?
Posted by Howard Wasserman on January 13, 2025 at 02:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Pleading as press release, performative litigation, and good guys v. bad guys
I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.
I want to drill down on this because a range of ideas are floating here.
Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.
We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").
David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.
These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.
[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.
Posted by Howard Wasserman on January 13, 2025 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
No, you cannot sue legislators who vote for Israel funding
My new essay for The Hill explains why a lawsuit against two California representatives is frivolous, no matter how much the plaintiffs abhor funding for Israel. Here is the gist:
The class-action suit against Israel’s funding defies law and logic
The appalling devastation in Gaza, much of it wrought by U.S.-supplied weapons, certainly seems to have driven many of Israel’s critics, including otherwise reasonable people, to thoughtless measures, staking out extreme and unsupportable positions that will do nothing to end the war.
One case in point is a bizarre federal class action lawsuit (Donnelly v. Thompson) recently filed in the Northern District of California, claiming that Reps. Mike Thompson (D-Calif.) and Jared Huffman (D-Calif.) had “exceeded the constitutional limitations on their tax and spend authority by voting to authorize the funding of the Israeli military.”
Their case is entirely without legal merit. Their clients lack standing to bring the case. They sued the wrong defendants. No court can grant the relief they have requested. Their claims are barred by a specific provision of the Constitution.
Attorneys are prohibited from filing cases merely to rally support or shine spotlights. A lawsuit demands more substance than a press release. There are rules against frivolous litigation, brought solely to attract attention, no matter how heartfelt the cause.
You can read the entire piece at The Hill.
Posted by Steve Lubet on January 13, 2025 at 12:28 PM | Permalink | Comments (0)
Good Faith in U.S. Constitutional Law
I was invited to draft a chapter about US law for a book about the use of "good faith" standards in constitutional jurisprudence worldwide. I've posted my draft on SSRN. Here is the abstract:
The language of "good faith" and "bad faith" is rarely invoked directly with a specific legal meaning within the constitutional law of the United States. But it would be a mistake to ignore the work motivational analysis and faithfulness to role and the Constitution plays more broadly within constitutional law more capaciously conceived. Many domains of constitutional law interrogate the good faith or bad faith of government actors to test their compliance with constitutional norms--and constitutional practices routinely demand fidelity to the constitutional project itself. From the law of oaths and impeachments to the law of tiered scrutiny associated with the Equal Protection Clause under the Fourteenth Amendment among others, several features of U.S. constitutional law make important demands on public officeholders. More important, perhaps, than the pockets of direct enforcement of good faith norms to U.S. constitutional law, however, is the theory of public office they evince. That so often the Constitution of the United States demands as a primary rule of conduct that public officers act faithfully tells us that there is a fiduciary conception of office pervading the law even when it is not enforced directly as a rule of decision. That brings it closer to private law implementations of good faith than has thus far been appreciated.
Posted by Ethan Leib on January 13, 2025 at 10:47 AM | Permalink | Comments (0)
Saturday, January 11, 2025
Saturday Music Post - Rescue Me
"Rescue Me" was written in 1965 by Raynard Miner, Carl William Smith, and Fontella Bass (although she did not get credit until much later). Released by Chess Records that same year, it was Bass's biggest hit by far, reaching number 4 on the Hot 100 and number 1 on the R&B chart. Minnie Riperton was one of the backup singers, with drums and bass by members of Earth, Wind & Fire. It was Chess's biggest hit since Chuck Berry's heyday, selling over a million copies. Bass nonetheless left Chess after a couple years, having been under-appreciated and underpaid. She finally obtained a fair share of royalties following extended litigation, but she never achieved similar recording success again. You can hear the original and some covers at The Faculty Lounge.
Posted by Steve Lubet on January 11, 2025 at 05:46 AM | Permalink | Comments (0)
Friday, January 10, 2025
Revised Draft on Women's Suffrage and the Reconstruction Amendments
I've posted on SSRN a revised draft and abstract of my paper entitled "Right in Theory, Wrong in Practice."
Posted by Gerard Magliocca on January 10, 2025 at 11:36 AM | Permalink | Comments (0)
Wednesday, January 08, 2025
Greenland Whale Fisheries
Oh, Greenland is a dreadful place/ A land that's never green./ Where there's ice and snow/ And the whale fishes blow/ And daylight's seldom seen.
Peter Yarrow, R.I.P.
Posted by Steve Lubet on January 8, 2025 at 09:50 AM | Permalink | Comments (0)
Tuesday, January 07, 2025
JOTWELL: Pfander on West on constitutional torts
The new Courts Law essay comes from James Pfander (Northwestern) reviewing E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. ___ (forthcoming 2025) on how reconceptualizing constitutional rights changes the process of litigating constitutional rights. I am also thinking about how it affects disputes over offensive and defensive litigation and laws such as S.B. 8.
Posted by Howard Wasserman on January 7, 2025 at 10:53 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Monday, January 06, 2025
Trans-parenting
I published an essay over break for the Boston Globe about parenting trans youth. Although some of the piece draws on my work in ethical theory about the subject, it presses a somewhat more personal and political view. If you can't get past the paywall, here is a PDF: Download __1Ideas__001KGLXXX1222F.
Posted by Ethan Leib on January 6, 2025 at 11:16 AM | Permalink | Comments (0)