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Monday, August 31, 2020

Race, Racism, & Business Law Courses

The past several months have caused many of us to reflect on how we can better incorporate issues of race and racism into our courses.  I wanted to highlight two new links regarding race, racism, and business law courses.  First, Carliss Chatman, Cathy Hwang, and Ben Edwards put together a statement on race/racism in business law that they are inviting all law professors to sign. The statement states in full:

“We are law professors, and many of us write and teach about business law.

We think race and racism are important to the study of business law, just as they are important to the study of any area of law. From slavery and redlining to lack of opportunity in the workplace and limited access to capital, race and racism have always been part of business and business law.

To our colleagues and our students: we welcome the opportunity to engage in these discussions and commit to thinking hard about how to incorporate them into our research and our teaching.”

They will share and update a list of signatories on the Business Law Prof Blog here, and you do not need to teach business law to sign it.  I personally think these issues are incredibly important, and I welcomed the opportunity to sign the statement – thanks to Carliss, Cathy, and Ben for putting it together!

Second, there was a recent discussion on the AALS Business Associations listserv in which many professors shared resources related to race, racism, and business law.  I put the resources into a shared document that anyone can access, and I will continue to update it.  If you have any additions to this document, please send them my way at [email protected]. 

Like many other areas of law, I think the business law community has real work to do in this area.  I look forward to continued dialogue and action on these issues. 

Posted by Jessica Erickson on August 31, 2020 at 07:11 PM in Life of Law Schools, Teaching Law | Permalink | Comments (3)

D.C. Circuit has a busy day

As has been widely discussed, today is Judge Griffith's last day on the court, so it wanted to get some things out.

First, the en banc court in an 8-2 per curiam denied Sullivan's Michael Flynn's petition for writ of mandamus, concluding that Flynn had an adequate alternative remedy via district court proceedings on the motion (which may result in dismissal) or appeal or further mandamus of any district court decision. The court also declined to order the case reassigned to another district judge. Griffith wrote a short concurrence, emphasizing the purely legal (rather than political) nature of the dispute in the case.

Second, Griffith wrote for a 2-1 panel that the House (held by the en banc court to have standing to sue to enforce a subpoena against Don McGahn) could not sue to enforce because it lacked a cause of action to sue. Neither Article I (the source of the right to subpoena information), equity, nor the Declaratory Judgment Act provides an existing cause of action. Congress can fix the problem by enacting a statute creating a right to sue. This confirms why, as I wrote following the en banc decision, standing is such a colossal waste of time. It also reflects a D.C. Circuit (and perhaps Supreme Court) that seems determined to push the House to start fining and jailing witnesses who refuse to comply with subpoenas by cutting-off the civil-suit alternative. Like its predecessor, it may not withstand en banc review.

Judges Rogers dissented, arguing that Art. I and the DJA provide a right to sue. She continues to argue there is jurisdiction over the action under § 1331, a point the majority found unnecessary to address. McGahn argued there was no jurisdiction over an action by the House because no statute grants that jurisdiction, while  § 1365 grants jurisdiction over actions by the Senate. The implication is that § 1365 provides the sole basis for jurisdiction in actions by the Senate, superseding § 1331. And since there is no House counterpart to § 1365, the House cannot rely on § 1331. But this ignores the plain text of § 1331, which gives jurisdiction over anything that arises under, without Congress having to do more. As Rogers pointed out, § 1365 was enacted when § 1331 had an amount-in-controversy requirement, so a separate statute was necessary to give jurisdiction over all possible actions. Many separate jurisdiction grants were enacted for similar reasons. But since Congress eliminated the AIC requirement in 1980, none has been read as anything more than vestigial and certainly not as precluding § 1331.

Posted by Howard Wasserman on August 31, 2020 at 03:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, August 30, 2020

Should Any Words Be Categorically "Eliminated" from "Legal Pedagogy?"

The answer, I think, is "no." But apparently opinions may vary.* 

I should think it is neither possible nor wise to categorically "eliminate" particular words from legal or any other form of pedagogy. Of course there are many words one might choose not to use in teaching. Given that I teach constitutional law, sometimes including free speech, and legal ethics, I am a little surprised by the words I have not used in my classes. My choices are influenced by many factors. Certainly sensitivity to the views and needs of my students is one of them, although it's not necessarily dispositive. Not begging for trouble is probably another factor, although I try not to let it be. A major point of tenure is to ensure that when the choice is between avoiding trouble and making an independent academic judgment about what teaching or scholarship require, one chooses the latter. (The same is true before tenure, at least for good professors and good institutions. It certainly should be.) Like most things in pedagogy, those decisions, whether they turn out to be right or wrong, are contextual, particularized, and multivarious. What else could they be?   

*[In fairness, although the language in the title of the post is apparently the exact language that a law school dean used (albeit the story is from Above the Law), she did not say precisely what she meant by it. It is far from clear to me that a dean in a public law school could order that any particular word be "eliminated" from "legal pedagogy" at his or her institution, and pretty clear--at least I think it is--that most professors would, at a minimum, politely ignore such an order.]

Posted by Paul Horwitz on August 30, 2020 at 10:32 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin's PAC's publishing a map featuring gun sights "targeting" Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that "binding precedent . . . does not come with an expiration date."*

[*] Usually.

The court denied the defendants' motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2020-2021

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-20152015-20162016-2017, 2017-2018, 2018-2019, and 2019-2020. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Posted by Sarah Lawsky on August 28, 2020 at 04:32 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (181)

Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Wednesday, August 26, 2020

NBA players try a different peaceful protest (Updated Aug. 28)

Vice President Pence's RNC speech this evening was to include criticisms of professional athletes for kneeling during the National Anthem. The criticism has always been disingenuous nonsense--critics demand peaceful protest, then tell the players they are peacefully protesting the wrong way.

So the players will try something new tonight: Not playing. The Milwaukee Bucks announced a boycott of this evening's Game 5 of their opening-round series. The Boston Celtics and Toronto Raptors discussed doing the same in their second-round game scheduled for Thursday. So the NBA canceled all games. No word on whether the Milwaukee Brewers (who have a home game Wednesday evening) or MLB will follow suit, although I doubt it. Update: I spoke too soon and happily stand corrected. The Brewers canceled their game. Other MLB teams are discussing doing the same, including the Mariners, who have the most African American players in MLB.

So what will be wrong with this form of peaceful protest? Does not playing disrespect veterans and troops? Is it wrong to politicize sports? Will Pence change his speech to decry cancel culture while calling for boycotts of this "politicized" NBA? Will everyone admit that the objection is to the message--that police are behaving badly--and nothing more neutral than that? Stay tuned. (Updated: No way on that last one).

August 28 Update: The NBA playoffs will resume Saturday. The league and union agreed to establish a social-justice coalition focused on voting, civic engagement, and criminal-justice and police reform. It also calls on teams that own their arenas to work with local election officials to convert the arena into a polling place. It is interesting that the push for racial justice has swerved into voting rights--recognition that voting rights are as endangered and that everything else happens only if people can vote and vote for officials who will pursue that agenda.

Posted by Howard Wasserman on August 26, 2020 at 05:23 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Civil rights puzzles in the Kenosha shooting (Updated)

Seventeen-year-old Kyle Rittenhouse was arrested and charged with killing two people and shooting a third during protests in Kenosha. According to reports, Rittenhouse considered himself a part of the militia and was hanging around with adult members of a group called the Kenosha Guard, which had put out a call for people to come protect property.

In a Facebook posted addressed to Kenosha's Chief of Police, the group urged KPD not to send members home in enforcing the curfew and seeking to "open a discussion" with KPD. The Kenosha County Sheriff said he fielded a call urging him to deputize armed citizens to patrol the streets, which he declined to do. But video from early in the evening (prior to the shooting) showed a law enforcement officer giving water* to a group of armed civilians (apparently including Rittenhouse) who are out past the 8 p.m. curfew and expressing appreciation for their being there in all their armed cosplay glory. Police also allowed Rittenhouse to leave the scene following the shooting, with an automatic a semi-automatic weapon over his shoulder, as witnesses identified him as the shooter.

[*] The sheriff insisted that his officers would give water to anybody. I am waiting for the video of police officers sharing water with people protesting police violence.

So, some possibilities (conceding that more and more accurate facts may emerge): A civil rights prosecution against Rittenhouse, based on some joint-participation theory. By expressing appreciation for their armed presence in a protest zone, not telling them to leave at curfew time, and supporting his efforts by sharing water, the police implicitly encouraged or supported Rittenhouse in his subsequent actions, making him a state actor. True, it is not Cecil Price agreeing to deliver Goodman, Chaney, and Schwerner to the Klansmen. But the officers sent a message.

Alternatively, a § 1983 action against the water-bearing officer (if not the department). This could be based on a state-created danger theory--the officer encouraged Rittenhouse and let him believe he could play cop with impunity, thus worsening the situation for the protesters and subjecting them to a greater risk of violence. (The Seventh Circuit has been forgiving in some SCD cases). Or on race- or speech-based retaliation theory--he encouraged the white person supporting the police, perhaps suspecting he might act against non-whites critical of police.

Update: The Chief of Police said that part of the problem was people being out after curfew and that if people respected the curfew they would be protected. But Rittenhouse was out after curfew and instead of telling him to take his large gun and go home, police gave him water. They are not helping themselves.

Posted by Howard Wasserman on August 26, 2020 at 04:40 PM | Permalink | Comments (10)

On Treason

I want to give a shout-out to new book by my friend Carlton Larson that will be coming out soon. I've read On Treason in draft form, and it's terrific. Here is the Abstract:

A concise, accessible, and engaging guide to the law of treason, written by the nation's foremost expert on the subject

The only crime defined in the United States Constitution, treason is routinely described by judges as more heinous than murder. Today the term is regularly thrown around by lawmakers and pundits on both sides of the aisle. But as these heated accusations flood the news cycle, it's not always clear what the crime of treason truly is, or when it should be prosecuted. Drawing on over two decades of research, constitutional law and legal history, scholar Carlton Larson takes us on a grand tour of the Treason Clause of the United States Constitution. Despite the Clause's apparent simplicity, Larson demonstrates that it is a form of constitutional quicksand in which seemingly obvious intuitions are often far off the mark. 

From the floors of the medieval British Parliament that codified the Statute of Treasons upon which the American law was based to the treason of Benedict Arnold, our nation's founding traitor, to more recent events, including WWII's "Tokyo Rose" and the allegations against Edward Snowden and Donald Trump, Larson provides a riveting account of treason law in action. On Treason is an indispensable guide for anyone who wants to understand this fundamental aspect of our legal system. With this short, accessible look at the law's history and meaning, Larson clarifies who is actually guilty - and readers won't need a law degree to understand why. 

Posted by Gerard Magliocca on August 26, 2020 at 08:05 AM | Permalink | Comments (1)

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

The erroneous nomenclature that courts use in describing constitutional review contributes to common misunderstanding. Case in point: The Fourth Circuit decision affirming the convictions of two white-supremacist Charlottesville protesters under the Federal Anti-Riot Act, while declaring invalid certain portions of the statute as inconsistent with Brandenburg. The court talks about "invalidating" the statute, while commentators speak of the court "striking down" or "throwing out" the law, in whole or in part.

But the court did not do anything to the statute or those provisions of the statute--they remain on the books and they remain part of federal law, not erased or thrown out.

A more accurate description of what happens also would be cleaner: The court held that those provisions could not be enforced against these plaintiffs because doing so would violate their First Amendment rights, then affirmed the convictions because their conduct violated other provisions that could be enforced consistent with the First Amendment. The same is true of discussions of severability. The court does not sever some provisions from others--eliminating some and keeping others--because the entire thing remains on the books. I suppose what we call severability could be a way of asking whether the court can enforce some provisions and not others or whether the Constitution prohibits enforcement of all the language in the statute. Or it could be framed as Henry Monaghan described overbreadth--the presence of some constitutional defects means the statute cannot be applied, because there is a right to be convicted only under a constitutionally valid statute.

Either way, it would be cleaner to think about courts applying or not applying some provisions, rather than courts erasing them from existence.

Update: Zachary Clopton (Northwestern) reminds me that my discussion sounds in the debate between Justices Kavanaugh and Thomas described in a footnote in AAPC, which I wrote about after the decision and which Zach wrote about in Yale J. Reg. I think Thomas would agree with the approach I describe. Kavanaugh is correct in AAPC that future enforcement of the invalid provisions will be barred, at least in the Fourth Circuit, as a matter of precedent.

On further thought, this cases illustrates why injunctions should be particularized and why precedent does the real work. The constitutional issue arose in a government-initiated enforcement action--a criminal prosecution against these individuals, who then attempted to defeat enforcement by arguing that the law is invalid and thus cannot be enforced against their conduct. No one believes that the judgment in this case applies to anyone other than the defendants or that the government violates the judgment if it attempts to enforce the "invalid" provisions against someone else; in fact, the only thing the judgment does here is affirm their convictions. The prospective non-party effects of this decision come from the opinion, operating through precedent and stare decisis to require any court within the Fourth Circuit to dismiss a future attempt to enforce those provisions. So I return to my argument that a pre-enforcement injunction anticipates the enforcement judgment--and if the latter is limited to the parties, so is the former.

Posted by Howard Wasserman on August 25, 2020 at 03:55 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, August 23, 2020

George Sutherland

Several years ago, I started researching a book project on Justice George Sutherland, one of the "Four Horsemen" during the New Deal. I thought about doing a book on him or a collective biography of the "Four Horsemen." For a variety of reasons, I decided that I did not want to write that book.

I still have the material that I accumulated on the Justice. Speeches he gave as a Senator, his Supreme Court opinions, and some items from his papers. If anyone is interested in writing about him or in anything related to him, then you should let me know. I may be able to help you by sharing what I have.  

Posted by Gerard Magliocca on August 23, 2020 at 08:21 PM | Permalink | Comments (2)

Deadline approaching for Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2020.

Posted by Rick Garnett on August 23, 2020 at 11:34 AM in Rick Garnett | Permalink | Comments (0)

Friday, August 21, 2020

After the Golden Age: The Fragility of the Fourth Estate

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy. 

As I hope to show in an article I've been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public.  In light of this, the Court's reluctance to grant "special rights" or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn't need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate. 

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court's Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees--and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them "fake news" and the "enemy of the people" in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn't great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media's ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use "self-help" to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some "special rights" must be accorded to those willing and able scrutinize our officials and provide reliable information about what they're up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them.  From that perspective, analysis of whether the First Amendment might play a role in shoring up today's Fourth Estate seems overdue. 

Posted by Lyrissa Lidsky on August 21, 2020 at 05:15 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky | Permalink | Comments (6)

Koppelman and Inazu on Speech, Teaching, and Journal Policy

A slightly late and (these days) rare intervention to commend to readers two recent pieces. At Balkinization, Andrew Koppelman has this post about the proper response to incidents involving professors whose use of (relevant, if arguably ill-advised) language in the classroom provokes upset or protest in other realms. He also links to a--sorry!--characteristically thoughtful law review response piece by John Inazu, titled "Scholarship, Teaching, and Protest," in which John reaffirms the belief in the importance of racial justice that he has voiced in so many of his writings, but also urges greater clarity and (a word, and a sort of language, that our society can always use more of) "grace" in particular responses.

Leaving aside other issues and leaving open room for agreement or disagreement with the points made in John's piece, I would underscore a point that is made there: Different institutions carry out different functions in different ways, and may perform poorly, or undermine their core and valuable institutional functions, the more they undertake actions that are far removed from or even contrary to their institutional role and competence. We are in a moment in which institutions and their core functions, professionally undertaken, are simultaneously distrusted (not without reason, and not without much of the distrust being self-inflicted in various ways) and necessary. We should always be willing to question and reform them, and always wary about eliminating them altogether or insisting that all institutions ought to do the same things in the same ways. As I wrote a while back, we have witnessed some recent events and decisions that "raise[] some serious institutional questions" for and about particular law reviews "at a minimum, if not more generally for American legal scholarship," as well as other academic and speech institutions. My sense is that many of my colleagues (and no doubt many law students) share my concern; that this concern is indeed institutional and in the service of important intellectual and institutional values, not a concern about the substance of various views; and that many of them are reluctant to publicly acknowledge those concerns. The concerns are important; the reticence about saying that one shares them may be just as important.             

Posted by Paul Horwitz on August 21, 2020 at 01:05 PM in Paul Horwitz | Permalink | Comments (0)

Designing an Inclusive & Supportive Classroom Environment -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post focuses on the final step – supporting the students in our fall courses.

This is the last post in my series on preparing for our fall courses.   This post focuses on the final step in my approach to redesigning our courses to be physically distanced, hybrid, or remote -- planning for an inclusive and supportive classroom environment.  This step is easy to overlook as we try to learn all of the new technologies and techniques for fall teaching, but it is essential.  We all try to support our students and create an inclusive classroom, but it will be harder this fall.  Take our efforts to help students who don't understand the material in a given unit.  Normally, we can observe students in class and notice if they look confused or a little lost.   We can catch up with them in the hall, and they can also casually stop by our office if they have a question.  We don’t catch all issues this way, but we catch a fair amount.  When we all start wearing masks in the classroom and leaving the building (or logging off Zoom) as soon as class is over, we lose these informal ways of checking in with our students.

At the same time, our students may be struggling more.   They are dealing with additional anxiety and trauma related to the past several months.  Classes will be more challenging, both because our pedagogical techniques in these new environments will be less familiar to them and because being in a physically distanced or remote classroom feels more alienating.   And students may be struggling with the logistics of these new learning environments -- they may not have the right technology or a quiet work space.  In short, they may struggle more this semester, but we may notice it less.

Importantly, these burdens are not distributed equally through our society or our classrooms.  Black and Hispanic communities have been disproportionately impacted by COVID-19, as well as the racial violence and protests this summer.  Students with children may be struggling to find childcare this fall.  Students with spouses or roommates may have to share limited Internet connections, and students living in remote areas may not have any reliable Internet. 

In addition, we are changing many aspects of our courses, from assessments to learning activities and community building exercises.  When we redesign this many things at once, we can easily miss things.  We can craft assignments that don’t fully reflect our commitment to diversity, plan learning activities that don’t fully include all students, and miss ways that our policies and practices burden students unnecessarily.  This isn’t necessarily about bad faith on our part.  We are trying to do a lot right now, and things will fall through the cracks if we aren’t careful to think about our new course design through an lens of inclusivity and equity.  

Finally, students with disabilities may be particularly vulnerable.  Higher ed’s disability services are never perfect, but they will have additional hurdles this fall.  Students who have not been formally diagnosed with a disability may discover additional learning challenges in this new environment.  Students who do have a documented disability may have figured out accommodations that work for them in a traditional classroom, but these accommodations may be less effective in physically distanced or remote courses.  And universities have not developed clear guidelines on how to help students in these new environments, so they will be trying new approaches, some of which may need adjustment or may not work.  

If you want to understand the challenges that some students may face in the fall, check out this website.  It is styled as a “choose-your-own-adventure” narrative through the eyes of a student with disabilities. Someone could probably create a similar one about trying to navigate remote courses this fall as well.  The pandemic has created new and very real challenges for our students regardless of the learning environment.

It sounds daunting to build an inclusive and supportive classroom environment under these circumstances, but here are some concrete tips you can implement fairly easily.

Look at New Content and Assessments Through an Inclusivity Lens.  Ideally, you’ve been thinking about inclusive pedagogy all through your course redesign, and my advice throughout this series has tried to reflect inclusive pedagogy principles.  But it’s important to do a final hard look at your course design as you put the pieces together.  Which issues and voices do you prioritize in your selection of readings?  Do your fact patterns include a diverse group of people and fact patterns?  Experts in inclusive pedagogy talk about using curriculum choices as a window and mirror.  As a window, curricular choices should help students see into other people’s lives and lived experiences.  As a mirror, students should have the opportunity to see their reality reflected in the chosen examples.  Use this redesign as an opportunity to look critically at your pedagogical choices through this lens.

Look at New Policies and Practices Through an Inclusivity Lens.  You can do the same thing for any new policies and practices you have built into your course.  Most of us have many new policies in our syllabi this year.  With each rule, ask yourself, who is included and who is left out?  In other words, who will find it easy to comply with the rule, and who will find it more difficult?  Are these difficulties necessary to achieve your pedagogical goal or is there another approach that might accomplish the same goal without imposing new challenges on some students. 

For example, there’s been a robust debate this summer about whether to require students to turn on their cameras.  There’s no easy answer.  Seeing everyone’s faces helps foster the virtual classroom environment, and it allows professors to see whether students look engaged or confused.  On the other hand, students may have privacy concerns about showing their personal space to classmates and professors.  I saw this language recommended somewhere, and I like it, but my point isn’t that you should adopt any one specific policy.  Instead you should think intentionally about the different interests in play and give considerable weight to the interests of students who may want to keep their environment private.  Give your other new policies and practices – from your attendance policy to rules about private chats on Zoom—the same scrutiny.

Use Universal Design Principles.  Faculty should strive for universal design of their courses, which means designing a course to work for everyone.  For physically distanced classrooms, this means wearing a mic even if we are fairly confident that most students can hear us from behind a mask.  In all classes, it means captioning our videos, using high-contrast color combinations in our slides, and providing concise text descriptions of content presented within image. 

Clear structure and communication is also a key part of universal design.  For students who struggle with attention and processing challenges, having a well-designed course in which the professor clearly lays out the requirements and how the different pieces of the course fit together is essential.  My last post addressed ways to build this structure into your course. 

Be Flexible on Accommodations.  Although online education has been around for a long time, we are still in unchartered territory in many ways.  Many law schools did not offer online courses before this past spring, so they may not have established accommodations policies for remote learning.  Zoom is a relatively new platform for online education, so its features raise new issues as well.  Physically distanced teaching is also entirely new for most educational institutions, so few have road-tested policies on helping students learn in an environment where the professor is teaching in a mask, behind Plexiglass barriers, with students spread out throughout a classroom. 

Students may also discover that they have new challenges or that existing challenges are magnified in these learning environments.  Some students, for example, have learned that spending a lot of time on Zoom triggers migraines or that the challenges from ADHD are magnified in remote courses.  We should let students know that they should talk to use or our dean of students’ office about any new challenges they face, and we also need to be flexible as our schools use a bit of trial and error to find the right accommodations for students.  The AALS had a great webinar called “Meeting the Needs of All Students Online” that addressed this issue. 

Check In Often, Esp. with Remote Students:  In traditional classrooms, you can often tell if students are struggling or just seem off.  In physically distanced or remote classes, though, it may be more difficult to read these informal signs.  Consider planning monthly individual check-ins with students or find other ways to check in regularly.  If you are primarily teaching in-person, but you have some students who regularly participate remotely, check in with your remote students even more.   

Nudge Struggling Students:  Create enough low-stakes assessments (graded or not) in the first few weeks of class that you have a pretty good sense of who is falling behind early on.  Reach out to them with a personalized but supportive email telling them you have noticed that they are having difficulty in the course and asking if you can help in any way.  You might say something like, “Hi ___, I was looking at the scores for the midterm and saw that you didn’t do as well as you might have expected.  It’s still early in the semester, so I would love to talk about how you might be able to improve your performance on the final exam.”

Build in breaks.  In a long in-person class, we often build in breaks.  Consider doing the same in synchronous Zoom classes as well.  You may even need more frequent breaks.  Best practices suggest a ten minute break for every fifty minutes of class in online classes.  You might also encourage a 1-minute stretch and/or breathing break after every 15 minutes of lecture or as a transition from lecture to an activity.

That’s a wrap on this series!  I may be back with a post or two in the fall, but for now I’ll end with a note about the importance of supporting yourself and your colleagues this semester, in addition to your students.  The summer is normally a time for rejuvenation when we can focus on other aspects of our jobs, but this summer looked really different.  Not only are we still in a pandemic, but we also had to overhaul all of our classes, often with a great deal of uncertainty about exactly how we will be teaching this fall.  It’s important to remember that your courses weren’t perfect the first time you taught them, and they won’t be perfect this semester.  That’s ok.  We’re all making the best of a truly challenging situation.  Be easy on yourself, and be there for your colleagues where you can be.  Good luck to all of us!

Posted by Jessica Erickson on August 21, 2020 at 09:42 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Thursday, August 20, 2020

Podcast on "Clauses and Controversies"

Here is a link to a podcast in the new series "Clauses and Controversies" with yours truly. Thanks to Mitu Gulati and Mark Weidemaier for having me on as their guest.

Posted by Gerard Magliocca on August 20, 2020 at 08:21 PM | Permalink | Comments (0)

Section Three Esoterica

Section Three of the Fourteenth Amendment was used more than once to exclude people from Congress. In 1870, North Carolina chose Zebulon Vance, who was a state prosecutor before the Civil War and Governor during the War, as its Senator. The Senate refused to seat him. More interesting is that Victor Berger, a self-styled Socialist congressman during World War I, was excluded from the House of Representatives for his opposition to the war and conviction (later overturned) under the Espionage Act. The House concluded that Section Three made Berger ineligible because he had "given aid or comfort to the enemies" of the United States. This is the only time that Section was used to exclude after Reconstruction.

These example raise an unclear question about Section Three. Is it an additional qualification for office or not? No court has resolved this issue. This matters because a qualification is not covered by the Supreme Court's decision in Powell v. McCormack. It's also not clear that Section Three (at least as applied by Congress to one of its alleged members) is subject to judicial review.

Posted by Gerard Magliocca on August 20, 2020 at 02:09 PM | Permalink | Comments (1)

Number of FAR Forms in First Distribution Over Time - 2020

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20200820

Year Forms
2009 637
2010 662
2011 592
2012 588
2013 592
2014 492
2015 410
2016 382
2017 403
2018 344
2019 334
2020 297

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 20, 2020.

Posted by Sarah Lawsky on August 20, 2020 at 11:12 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (9)

Wednesday, August 19, 2020

Section Three and Officers of the United States

Take a look again at the language of Section Three of the Fourteenth Amendment: 

No person shall be a Senator of Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

What's missing from Section Three's list of political disabilities? The Presidency. Now this may seem odd. Jefferson Davis could not be elected to Congress but could still be elected President? The oddness goes away, though, if you say the presidency is an office under the United States. What's not an office under the United States? Section Three seems to say that the answer is (1) a member of Congress; (2) a presidential elector; and (3) any state official. 

I haven't yet gone into the debates on Section Three. One alternative is that nobody thought that an ex-Confederate would get elected President or Vice-President, and thus Section Three was not written to cover those positions. But this strikes me as unlikely.

Posted by Gerard Magliocca on August 19, 2020 at 03:43 PM | Permalink | Comments (3)

Resumption of Live Teaching

There are many news stories about outbreaks at universities that are attempting to reopen. I would like to give a modestly upbeat take.

I taught my first two classes of the semester yesterday. (Two sections of Torts.) It did feel odd talking through a mask and seeing the students in masks. For maybe five minutes. Then the classes proceeded normally. The students and staff all did a great job in adjusting to the new procedures.

Who knows what will happen as the semester proceeds. But it was a good start.

Posted by Gerard Magliocca on August 19, 2020 at 10:58 AM | Permalink | Comments (5)

Tuesday, August 18, 2020

Building Communication and Structure Into Our Courses -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post focuses on the fourth step – developing a communication plan to introduce more structure and rhythm into your courses.

With classes just around the corner, most of us have likely figured out the key aspects of our course plan.  We’ve determined how to adapt our assessment and learning activities for these new learning environments.  We’ve come up with a strategy to connect with our students and help them connect with each other.  We’ve even practiced with the technology that will allow us to teach in a hybrid or remote way.  And we may feel like we are ready.  In my last two posts, however, I want to discuss how to put the finishing touches on our fall courses by (i) building additional communication and structure into our courses, and (ii) creating a plan to identify and support struggling students.  This post will focus on the first topic, and my final post later in the week will address the second.

Thinking about communication and structure certainly isn't new.  Most of us already think about how we will communicate with our students and how we can build structure into our classes.  This semester, however, when we are all teaching in distanced classrooms in the midst of a global pandemic, we need to think even more deliberately about these topics.  So here are a few suggestions:

Decide on a Consistent Communications Strategy (Ideally with Your Colleagues):  Back in mid-March, when the world suddenly shut down, how did you communicate the changes to your courses to your students?  Did you send them an email (or multiple emails)?  Did you put the new plan in your learning management system?  Did you create a Google Doc that you kept updated?  Most faculty I know used one of these strategies, and they felt pretty good about it.  Yes, our plans changed, but we made sure our students knew about all of the changes. 

From the student perspective, however, it often felt overwhelming because they were receiving communications from multiple professors and we all used our own preferred form of communication.  Imagine that you’re a student trying to keep track of five sets of Zoom links.  Some of your professors used a recurring calendar invite; others included the links in an email that got lost somewhere in your email folder; still others put the links on Blackboard, Canvas, or TWEN.  And maybe their approach changed from week to week.  Before every class, you have to remember where the particular professor put this particular piece of information.  And it’s the middle of a global pandemic, so you are already stressed and distracted.  I felt this dichotomy myself.  As a professor, I was sure I was being clear.  As a parent of three kids in the K-12 system, with multiple teachers who likely all thought they were being clear, I had no idea what was going on.  My kids missed several classes, assignments, etc. in the spring because we couldn’t keep track of all of the information coming our way through a million different channels.

My suggestion is that you decide now how you will communicate any changes to your course plan and then stick to it.  If you are teaching face-to-face, start using the system now, so your students will be used to it if and when the class has to transition to fully online. 

Ideally, your colleagues will all agree on a single consistent communication plan as well.  Yes, professors are all free agents, but this is a time to come together to reduce the mental load for our students.  Here at Richmond Law, we have encouraged professors to send out a single announcement through our learning management system each week with the reading, assignments, and Zoom links for the following week’s classes.  If a student can’t remember what they need to do for that week, they know exactly where to go.  It may be hard to pull off a school-wide plan at this point, but if you are teaching 1Ls, you might try to coordinate with the other 1L professors in your section.  If you are teaching a large upper-level course, try to coordinate with the professors teaching the other courses your students are likely taking.  And don’t let perfection be the enemy of the good here.  A consistent strategy across the school is far better than fifty perfect – but different – strategies. 

Build More Structure into Your Courses.  Most professors have thought deeply about the structure of their courses.  We know how the different doctrinal pieces fit together, and we’ve come up with assessments and other activities to help students learn this doctrine.  If you could see inside my brain, you would see a giant interconnected web of law, diagrams, hypos, and assignments for each of my courses that I have carefully constructed over the last 15 years.  The challenge though is that, even if these connections are clear to us, they may not be nearly as clear to our students. 

Good course design always includes thinking through how to make these connections visible, but this step is especially important this semester.    We are still figuring out how to teach in these new environments, so things that may have been clear to our students in the past may be muddier this fall.  Our students are also learning in new ways, and they may be juggling personal challenges and the stresses of the world in ways that make seeing these connections more challenging.  And many of the normal opportunities to clarify the content with our students – such as conversations before or after class or informal conversations in the hallways – may not happen now.  So it’s worth taking a few minutes to think through how you can make the underlying structure of your course even more visible to your students.

Here are a few ideas:

  • Build structure into your syllabus. This is not the semester for a barebones syllabus with a short list of reading assignments.  Instead, format your syllabus so students can easily tell the major units and sub-units of your course and then include the assignments within this structure.  In my syllabus, for example, the assignments section is in table form with a column that lists each day’s topic and another column listing the specific assignment for that topic.  Each unit in the course has its own table, so students can easily tell the major units in the course and where we are within each unit.
  • Build structure into your class sessions. We all know that attention wanders on Zoom, so keep students oriented by creating a clear structure for the class session and communicating that structure.  I include a slide at the start of every class with the main topics of the day, and I come back to that slide every time we move to the next topic during the class session.  If you don’t use PowerPoint, you can do the same thing by writing the topics on the board and referring back to them when you switch topics. 
  • Highlight the underlying structure of the doctrine. It’s easy for students to miss the forest for the trees when it comes to complicated legal doctrine.  They may focus on the particularities of Pennoyer or International Shoe, for example, without stepping back and understanding how these cases fit into the broader legal landscape.  Most of us have developed ways to  highlight the underlying structure.  For example, when I teach fiduciary duties in Business Associations, I have a single slide laying out how the big pieces fit together that I come back to between every case.  We need to make sure that this part of our teaching doesn’t get lost in the chaos of the fall.  Confirm that these techniques still work if you are teaching remotely and think through new approaches if necessary. 

I am planning one more post for later in the week on how to support struggling students during this semester.  In the meantime, good luck to everyone who started teaching this week!

Posted by Jessica Erickson on August 18, 2020 at 02:33 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Section Three of the Fourteenth Amendment and Voting

Section Three of the Fourteenth Amendment addressed only officeholding by former Confederates, but the language of that provision was used to restrict voting rights. How so? In two ways.

1. The First Military Reconstruction Act, passed in 1867, said that anyone barred from office by Section Three was ineligible to vote in the elections for the state constitutional conventions in the ex-Confederacy or to serve in those conventions. This is remarkable in that the Fourteenth Amendment was only a proposal at that point. Yet Section Three of that proposal was used to regulate the elections for the delegates who would decide to ratify Section Three. I cannot think of any other federal legislation that used a pending constitutional amendment as a standard.

2. Four of the new state constitutions ratified in the South specifically referred to Section Three to exclude men from suffrage. Once again, I cannot think of any other part of the Federal Constitution that was ever explicitly used in a state constitution as a benchmark. Thus, when Congress granted a broad Section Three amnesty in 1872, the voting rights of many white male southerners were restored.

I think I've done enough posts on Section Three for now. Time to start writing this up in a proper article.

Posted by Gerard Magliocca on August 18, 2020 at 01:17 PM | Permalink | Comments (1)

Stanford Con Law Fellowship

After the jump, an announcement about an entry-level fellowship at the Stanford Constitutional Law Center. The recent fellow, James Phillips, guested here in June and started on the faculty at Chapman.
The Stanford Constitutional Law Center fellowship is intended for individuals who are seeking an academic career working on constitutional law. Affiliates of the Center have gone on to obtain desirable academic positions at numerous law schools including Georgetown, the University of Chicago, the University of Texas, George Washington, Penn State, UCLA, Notre Dame, Hastings, Penn State, Georgia, Richmond, and Chapman, among others.
The fellowship is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford Law School. The fellowship is for one year with the possibility of extending to a second year. The fellowship is designed to allow participants to complete a significant body of independent scholarship. We expect fellows to dedicate most of their time to pursuing their proposed research projects, while dedicating a small amount of their time to attend Center activities, including our annual conference, our monthly speaker series, and paper workshops. Fellows may also occasionally be called on to help coordinate Center activities in cooperation with the Center’s executive director.
Fellows are encouraged to become part of a lively law-school-wide community of individuals with an interest in legal academia by attending weekly faculty lunch seminars and participating in activities with the other fellows at Stanford Law School. For the 2019-2020 fellowship, we will provide fellows with work space, a competitive salary, and a generous benefits package. Fellows will report to the executive director of the Constitutional Law Center.

Applicants should have a JD or doctoral level degree (PhD) in a relevant area. Successful applicants typically also have experience in a federal appellate clerkship, and a demonstrated aptitude for original research in constitutional law, typically in the form of past publications or student notes.

Posted by Howard Wasserman on August 18, 2020 at 11:55 AM in Teaching Law | Permalink | Comments (3)

Monday, August 17, 2020

Scholars' letter on Harris eligibility


Posted by Howard Wasserman on August 17, 2020 at 04:31 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Saturday, August 15, 2020

Robert E. Lee's Citizenship

In the recent discussion of Confederate monuments, many have pointed out that these tributes came long after the Civil War as expressions of white supremacy. Some of these came in the 1890s, some in the 1920s, and some in the 1950s. There is at least one big example, though, that came in the 1970s, which is later than one might expect.

Robert E. Lee was not granted an exemption from Section Three of the Fourteenth Amendment during his lifetime. (He died in 1870). In 1975, though, Congress passed a symbolic Joint Resolution declaring that Section Three no longer applied to Lee. In signing the resolution, which was passed by the necessary two-thirds vote in Congress, President Ford said the following:

"General Lee's character has been an example to succeeding generations, making the restoration of his citizenship an event in which every American can take pride."

Well, maybe not every American.

Posted by Gerard Magliocca on August 15, 2020 at 09:44 PM | Permalink | Comments (13)

Friday, August 14, 2020

Section Three and the Confederacy

One of the ironies of the Fourteenth Amendment is that Jefferson Davis was one of the first people to claim its protection (during the preliminaries of his treason trial). Another irony involves the opinion given by Attorney General Augustus Garland in 1885 that construed Section Three of the Fourteenth Amendment narrowly.

The question presented was whether a former lieutenant in the United States Army who then served in the Confederate Army was covered by Section Three given that he was pardoned by President Johnson in 1867. The Attorney General concluded that Section Three did not apply, in part because the pardon should be construed as a legal erasure of his Confederate service. He cited Ex Parte Garland as part of the authority for that proposition. Who was Garland in Ex Parte Garland? Augustus Garland, now the Attorney General. (Must be fun to cite your own case.)

The Attorney General went on to say that Section Three could not be read to support "an absurd and unjust consequence" and that imposing this legal disability would be absurd and unjust. Garland said that his view was backed by Slaughter-House, "where the court refused to adopt the full meaning of certain general words in the first section of the fourteenth amendment in order to avoid an interpretation that would have involved 'so great a departure from the structure and spirit of our institutions.'"

Garland's opinion is especially interesting because he was a member of the Confederate Congress during the Civil War and also received a pardon from President Johnson. (Section Three did not apply to him because he was only a presidential elector before the Civil War, which was not clearly within the categories listed in Section Three.) Then he was elected Governor of Arkansas, Senator from Arkansas, and became the first post-bellum Democratic Attorney General.   


Posted by Gerard Magliocca on August 14, 2020 at 02:51 PM | Permalink | Comments (3)

Wong Kim Ark Held That Children of Immigrants Were Natural Born Citizens

When Howard Wasserman and Ediberto Roman are right, they're right: Kamala Harris is a natural born citizen eligible to the presidency, and therefore to the vice presidency under the last sentence of the Twelfth Amendment. A fact perhaps not all students of the subject know: Presidential eligibility was specifically litigated in the Wong Kim Ark case, which held that the children of unnaturalized Chinese migrants born in the United States were U.S. citizens.  In the Supreme Court, the Department of Justice explained the importance of denying birthright citizenship to Chinese American children:

Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.

Brief for the United States at 34, United States v. Wong Kim Ark, 169 U.S. 649 (1898) (No. 95-904), reprinted in 14 Landmark Briefs and Arguments of the United States Supreme Court: Constitutional Law 37 (Philip B. Kurland & Gerhard Casper eds., 1975).

Nevertheless, the Court found that American-born Chinese people were U.S. citizens.  Engaging in analysis which might fairly be called an example of Derrick Bell’s interest convergence thesis, the Court noted that a contrary conclusion “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” 169 U.S. at 694. So Wong Kim Ark put children of non-white immigrants in the same boat as the children of White immigrants. 

Another possibility, which I suggest should be considered just as seriously and respectfully as other notions running around, is that because the Citizenship Clause of the Fourteenth Amendment made only "citizens" and not "natural born citizens," no one is eligible to be President who was born after the effective date of the Amendment, July 28, 1868.  The law, after all, I think all would agree, is the law, and must be scrupulously followed regardless of any personal preferences we may harbor.

Posted by Jack Chin on August 14, 2020 at 12:26 AM in Constitutional thoughts, Legal History | Permalink | Comments (2)

Thursday, August 13, 2020

Birtherism 2.0 more insidious than Original Recipe

Counter-arguments from top-line conservative scholars will not be enough to slow this tide. Original Recipe was based on a provably false factual premise--Obama was not born in Hawaii--that allowed it to be dismissed as the ravings of people living in an alternative factual reality. But 2.0 is not about a fact--no one questions that Harris was born in California. Instead, 2.0 is based on a legal argument; however weak and contrary to every judicial and scholarly position the argument, editors (such as those of Newsweek) can rationalize it as a point of scholarly disagreement and a constitutional debate "unlikely to fall quiet any time soon." And the President, editors, and others will bolster the legal position--however descriptively incorrect--by argumentum ad verecundiam, pointing out that Eastman is "very highly qualified and talented" and that he clerked for Justice Thomas and used to be a dean.

Two thoughts on responding. First is to recognize that this is a legal rather than factual dispute. The response cannot be "Eastman is wrong and Harris is eligible because she was born in California;" no one disputes that.* Eastman's argument is that she is ineligible even thought she was born in California, because she was born to non-citizen parents. Second, the conversation must emphasize the difference between descriptive and normative arguments. Descriptively, the prevailing state of current law is birthright citizenship, which makes Harris eligible. Eastman (and soon Trump) is making a normative argument about what he believes the law should be. Any conversation must show why that vision is wrong.

[*] For the moment. Once the fever swamp gets hold of this, who knows where she will have been born or what explanation there will be for why California was not properly admitted to the Union.

Two questions. First, will we see a spate of lawsuits (as we did in 2008) challenging Harris' placement on the ballot, which will be dismissed for lack of standing. Second, if Biden/Harris wins, do they get an OLC opinion on the subject?

Posted by Howard Wasserman on August 13, 2020 at 09:08 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

More on Section Three of the Fourteenth Amendment

I'm pleased to say that I've found many more interesting items about Section 3 of the Fourteenth Amendment. To wit:

1. Congress started waiving the disability imposed by Section Three before the Fourteenth Amendment was ratified. In June 1868, private acts were passed by the required 2/3 vote exempting various individuals (including a Congressman-elect from Tennessee). How could Congress exercise that power before the Fourteenth Amendment was ratified in July 1868? Good question.

2.  Section Three became a major political issue in 1871 and 1872. Republican critics of President Grant (the so-called "Liberal Republicans") asserted in their party platform that amnesty should be given to all ex-Confederates in the name of sectional reconciliation. This partly explains why Grant asked Congress to grant a partial amnesty in 1871 and Congress then followed through in 1872.

3. Another rationale for amnesty was that it was a carrot to induce some ex-    Confederate leaders to oppose the Ku Klux Klan. President Grant took strong actions against the Klan in 1871 (aided by Congress) including a suspension of habeas corpus in parts of the South. Amnesty was supposed to aid in the Klan's suppression, or at least get more buy-in from white southern elites.

4. Even after the partial amnesty was granted by Congress, some ex-Confederates were still ineligible for office under Section Three. In 1885, the Attorney General gave a remarkable opinion construing Section Three narrowly and cited Slaughter-House (of course) in support of that narrow reading. This opinion deserves a whole separate post.

Posted by Gerard Magliocca on August 13, 2020 at 04:07 PM | Permalink | Comments (4)

Tuesday, August 11, 2020

Section Three of the Fourteenth Amendment

Section Three of the Fourteenth Amendment provides: 

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

There is almost no scholarly commentary on this provision, though my friend Mark Graber is writing a book on the Fourteenth Amendment that will look at this part of the Constitution more closely. I've started looking into what happened to Section 3 after ratification, and I've found some very interesting things. Enough for a paper. (And you thought every nook and cranny of the Constitution was covered.)

  1. Was Section Three self-executing? 

Chief Justice Chase thought that the answer was no. In a circuit opinion he wrote in 1869, he said that Congress needed to legislate to make Section 3 operative. The alternative was that every decision taken by a now-ineligible official was void, and this would mean that many criminal convictions would be invalid. He said that this sort of serious disruption should not be accepted when an alternative construction was available.

2. Was Section Three a punishment? 

Chief Justice Chase said yes. He thought that Jefferson Davis could not be tried for treason because the Double Jeopardy Clause was implicated by Section Three. The issue never reached the Supreme Court, though, as Davis was pardoned by Andrew Johnson.

3. How was this enforced?

In 1870, Congress passed a law stating that the relevant United States attorney was authorized to bring an action to unseat any official covered by Section Three whose disability was not removed by Congress. Moreover, the law said that these actions were to be given priority on the docket of a federal court and that it was a misdemeanor to hold the office illegally. Many actions were then brought (against more than one Justice of the Tennessee Supreme Court, for example).

4. How did removing the disability work?

People applied to Congress for a pardon. (There was even a standard form.) In fact, some people received a pardon before the Fourteenth Amendment was even ratified. These "pardons" were presented to and signed by the President, though there was no agreement on whether that was required.

5. And then?

In 1871, President Grant asked Congress to grant a broad Section 3 amnesty. Congress (for reasons I don't yet fully understand) did so in 1872 with John Bingham's backing. Charles Sumner tried to attach his civil rights bill to the amnesty (as Michael McConnell explained in his article on Brown and the original understanding) which led to protracted debate.

Finally, in 1898 (with the Spanish-American War in the offing), Congress gave amnesty to those not covered by the 1872 Act as a symbolic gesture. 

And so the next article begins.


Posted by Gerard Magliocca on August 11, 2020 at 08:52 PM | Permalink | Comments (8)

ICYMI: Ten (No, Make that Nineteen) Tips for New Law Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desperately need you to be predictable. It is comforting to them when they know roughly what to expect each day. I think of this advice a lot as dean, too. The Dean's "mood" affects the whole institution, and it is important to remain predictably but not Pollyanna-ishly optimistic no matter what comes along. As an aside, I think this is important as a parent, too. My motto: We'll deal!

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 25 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another. 

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. Videos can be sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) 28 years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  [I used the whiteboard feature in zoom this summer as a replacement for the board. It worked better than powerpoint in prompting interaction.]

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. This is probably the most important piece of advice on this list. It happens to be good advice for deans, too!

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit when you're new. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now (I do as dean!), but I believe in signalling I take the endeavor seriously by dressing professionally.

Finally, if you're new and you'd like to talk about any of the subjects I teach (mostly Torts, Media Law, Advanced Torts, First Amendment Law), I'd be happy to share any materials I have.

Posted by Lyrissa Lidsky on August 11, 2020 at 05:08 PM in Lyrissa Lidsky, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (13)

Building Connections Among Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the third step—building connections and community in our physically distanced, remote, or hybrid courses.

In a prior post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  My last post focused on how students can connect with us in these new learning elements, while this post will focus on how we can provide opportunities for students to interact with each other. 

Prioritize Group Assessments & Activities.  We are all rethinking how we will assess and engage students this semester, and with all of the challenges, it can be tempting to simplify and do more lecturing or individual assessments, especially if you are teaching in a physically distanced classroom where group work is far more difficult.  But the cost of choosing more individual assessments is that students will feel even more disconnected from each other.  We need to figure out how to get students talking to each other, even in physically distanced classrooms.  As I’ve talked about previously, it should still work to have students work in groups of two or three even in a physically distanced classroom, and it’s worth the effort even if it feels complicated to get students to work together while in masks.  You might even hold events outside of class that are more informal, like discussions of current events related to the class or a movie watching party.

Create group camaraderie.  Stealing an idea from Harry Potter, consider putting the students into groups and give them opportunities to earn points for their group.  The groups can compete against each other to gain the most points.  The two groups in my class will be the “Pennoyers” and the “International Shoes” (try to guess what class I am teaching…).  If I were teaching Business Associations, I’d break them into houses named after Delaware Court of Chancery judges.  Clearly, my motto is “if you’re going to geek out, geek all the way out.”  I may hold trivia contests or Jeopardy contests related to the course material as a review or just for fun, with the winning house getting points. 

The groups could also serve as a support system for the members.  For example, you could encourage them to share phone numbers, so they can reach out to each other if they are having tech issues.  If you are teaching a hybrid class with only some students in-person each class, you might assign them to the same in-class days, so they get to know each other in-person as well. 

Assign students to study groups.  In a regular semester, study groups can develop naturally.  It is harder for students to connect with each other remotely or in a physically distanced classroom, so you might create study groups early on.  You can give the groups a few assignments that they turn in for a completion grade to create incentives for them to meet as a group.  Not all of the groups will work well together, and I certainly wouldn’t force them to stay together beyond these early assignments, but it could help some students form connections.

Use fun icebreakers.  Consider icebreakers throughout the semester.  We typically use icebreakers on the first day of class and then assume the students will get to know each other organically throughout the rest of the semester.  In physically distanced or remote courses, however, we may have to work harder to introduce (and re-introduce!) the students to each other.  You might pick a theme each week, asking students to send you pictures or tidbits about themselves that relate to the theme. 

Here's what I’m planning.  I’m doing one “just for fun” prompt a week – they’ll be totally optional, but I plan to hype them up so students hopefully put in the few minutes it will take to do them.  I’ll also share my own answers with them so they get to know me a bit better.  If they choose to respond, they will put their responses in their pre-class Google Docs or Flipgrid video assignments, which I talked about here.  (As an aside, if you want sample instructions for either of these technologies, just email me!).  I’ll let the students know that I plan to share a few each class, so they can learn more about each other. 

Here are some sample prompts from my syllabus:

  • At the start of many movies, there is a song that plays when the hero makes their first appearance. This song (often called a “walkout song”) symbolizes the hero’s journey and what is to come.  You have just made your first appearance in law school.  What is your walkout song?  You can include the song title in your Google Doc if you would like.  And if you can’t think of a song that fits, you can include a meme or gif instead.  I stole this prompt from Professor Molly Brady at Harvard, and I love the idea.
  • Do you have a pet? If so, I’d love to see a picture! 
  • Share one thing that has surprised you about law school so far.
  • What TV series have you watched over the last six months that you have really liked?
  • Share your cutest or craziest baby pictures!
  • What’s your favorite board game or card game? What do you love about it?
  • If you could design your perfect career, what would it be?
  • What’s your favorite place to go in [the town where your law school is located]?
  • What’s your favorite holiday and what do you love about it?
  • What has been your favorite part of law school so far? What’s one thing about law school you wish you could change? 
  • If you could go anywhere in the world during winter break, where would you go? Since this is your fantasy, it can be any season you’d like as well. 

Simulate Unstructured Classroom Time. In an in-person class, students will often arrive a bit early and chat with their classmates, or they will stay after class to ask you a question.  You can provide similar opportunities in an online class.  Let the students know that you will open up the Zoom class ten minutes early, but will mute your own mic and speakers, so they can talk to each other.  You can also tell them that you will stay after class for 10 minutes for their questions.

Build fun moments into class.  If you are teaching remotely, you might screenshare word searches or crossword puzzles before class or during the break.  Students can work on them together using the annotation tool in Zoom. I bought an account to wordmint, which allows you to create all kinds of customized games and puzzles.  The account was cheap, and now I can create personalized puzzles for my students.  I might create one for personal jurisdiction, for example, that includes all the new terminology they have learned, from “long-arm statute” to “minimum contacts.” 

Combine fun and attendance:  My colleague Kristen Osenga has a good idea for using our polling software – PollEverywhere -- to take attendance in a fun way.  She asks a question in the first 2 minutes of class like “What’s your favorite decade?,”  “What’s your favorite type of candy?,” and “What are your plans for spring break?”.   The options will usually be multiple choice, and she’ll share her own thoughts as well.  She says that it gets the class talking from the beginning about something not class related, and gives the students a chance to know each other and her.

 Collaborative Start-Stop-Continue: In a start-stop-continue exercise, students work in pairs or small groups to provide their thoughts about what they’d like their instructor to start doing, stop doing, and keep doing in class. The groups can submit their responses to you using a Google Form email, or a free online bulletin board (e.g., Padlet, Lino). You can follow up by summarizing the results and discussing you will or won’t change and why.  This can be a good way for students to collaborate in a low-stakes way and learn how they are each experiencing the class. 

Allow Extra Credit Group Projects.  Consider giving students the option to form groups and do a fun extra credit project.  You might let them research the background of a case, come up with a video explaining a rule to a non-lawyer, or even make a fun hand washing poster that goes with the class:

Handwashing(Full disclosure -- I would love to give credit to whoever created it, but I don't know who that is!  If you know, email me and I'll edit this post.)

I’d love any other tips you have in the comments, or you can join the conversation on Twitter here.

Posted by Jessica Erickson on August 11, 2020 at 03:14 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (5)

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

Posted by Howard Wasserman on August 11, 2020 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (9)

Saturday, August 08, 2020

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Posted by Howard Wasserman on August 8, 2020 at 02:19 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Friday, August 07, 2020

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Some Thoughts on Qualified Immunity

I teach about qualified immunity on a regular basis but have never written an article on that topic. It's one of those doctrines that I often think of writing about but then say "Nah" because I'd rather write about something else. Still, I thought I'd offer some thoughts on what is a growing conversation.

My starting point is that I think the current doctrine is erroneous as a matter of law and policy. I think, though, that the proper remedy lies with Congress and with the state legislatures. A couple of states have already reformed their official immunity doctrines this year, and I expect that more will do so next year.

Why do I prefer this route? One answer is that qualified immunity should not be a one-size-fits-all concept. The Supreme Court's decision to apply the same standard to all governments officials who exercise discretion was a mistake. There are many kinds of government officials who perform very different sorts of tasks. Some may deserve qualified immunity. Some may not. And some might deserve that only if certain conditions are met. Legislatures can make these sorts of distinctions in a much better way than courts. 

A second answer is that I don't see the Supreme Court doing anything with its qualified immunity precedents with the current zeitgeist on stare decisis. Statutory stare decisis, we've been repeatedly told, is the strongest kind. And when the precedents in question are under discussion in Congress and in the states, that just gives the stare decisis crowd another reason to say that they should not act. The certiorari denials in the recent petitions challenging qualified immunity signal that fact loud and clear.

That said, I can see the Court applying qualified immunity in a less stringent way. To my mind, another fault in the current doctrine is that "clearly established law" is  a standard that gives courts too much discretion in saying when immunity applies. "It's clear to us" is easy to say assuming that a constitutional violation occurred. It's just as easy to say "it's not clear to us." There is no objective standard of clear in contested cases. Thus, the Court could adhere to its qualified immunity standard but just start saying that more cases do not warrant immunity, as a way of sending a message to the lower federal courts. Do I think that will happen? Probably not, but I'm not sure. 

Posted by Gerard Magliocca on August 7, 2020 at 09:02 AM | Permalink | Comments (2)

Building a Rapport With Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the third step—building connections and community in our physically distanced, remote, or hybrid courses.

 In my last post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  This post will focus on second element, or how students interact with us.  It will be an adjustment for sure, but even if our students are behind masks or a video screen, there are a number of things we can try to build meaningful connections with them. 

Welcome Videos:  Record a short video of yourself to introduce yourself to your students.  Make it fun.  Show your kids, your pets, whatever!  Let them see you as a person rather than just the teacher behind the mask at the front of the room.  You might also talk about what makes the course important/relevant/fun and how they can succeed in it.  Here’s a good example of a script for this sort of video.  You might also have students record short videos of themselves in the first week of class.  You can use your learning management system or a tool like Flipgrid to do this.  You might ask them to give their name, their hometown, and a fun fact about themselves.  Or you can tie it into the course content.  If you teach Civil Procedure, for example, you might style the welcome video as a chance for them explain their citizenship for subject-matter jurisdiction purposes.  You learn a lot about someone by hearing about where they intend to remain indefinitely and why!  Encourage the students to have fun with the videos and then make them all accessible to the whole class, so they can get to know each other a bit better.  

Learn their names quickly.  Try to learn every student’s name, ideally in the first week of class.  Your learning management system may have photographs of the students in your classes.  Our tech team here has used these photographs to create a matching game that professors can use to quiz themselves on your students’ names, but you can just study the photographs as well.  In larger in-person classes, consider having them use name tents for a few weeks.

Get to know them personally.  It will be harder to get to know students when they are behind a mask or screen, so you will have to be more deliberate about making these personal connections.  Consider setting up Zoom coffee dates with individual students in the first few weeks of the semester or with small groups of students if you are teaching larger classes.  You can also ask students to fill out a Google Form at the start of the semester that asks a whole host of information about their background, why they came to law school, and their broader interests.  In your later communications with them, try to refer back to things you know about them from these more personal meetings.  

Use Video Assignments Where Possible.  I’ve talked before about the pre-class assignments my Civil Procedure students do in Google Docs.  This semester, I’m going to make some of these assignments video assignments instead so I can see students without masks on and get to know their personalities a bit better.  My learning management system allows video assignments, but I think I’m going to use Flipgrid this fall­­—its interface is more personal and frankly fun, and it seems like a better platform if your goal is to build connections.  In these videos, you might ask them to summarize a key point of law from the assigned reading or give a hypothetical client advice based on the reading.  You might also ask for their personal views on the reading—i.e., do they think the court got it right?  why or why not?

Record periodic videos yourself.  If you get a few questions from students on the same point, you might record a brief video clarifying the point and send it out to your students.  Especially if you are teaching in a physically distanced classroom this fall, these videos could be a good opportunity for your students to see you without your mask on.  Make these videos a little more personal and engaging than you might in a normal semester. 

Make office hours more inviting.  I don’t know about you, but my office hours aren’t typically the most popular events.  I’ll sit in my office for a few hours, and maybe one or two students will stop by, at least until we get a few weeks out from exams.  This semester, I am going to work harder to get students to attend.  I’m renaming them “student hours” based on recommendations suggesting that some students (especially first-generation students) may not know the purpose of office hours, and I plan to regularly encourage students in my classes to attend.  When students do attend, I will make a special effort to get to know them personally.  Logistically, office hours are pretty easy to hold in Zoom—just enable your personal waiting room, and admit students one-by-one in the order in which they arrived in the room.  I may also hold some communal office hour sessions that function more like review sessions at the end of different units, so students can have more opportunities to interact with each other.      

Hold optional events outside of class.  A few times during the semester, you might hold an optional event related to the course.  For example, you can invite them to read a few chapters of a book related to the course or send out a shorter article or video, and then meet one evening on Zoom (or even physically distanced in your backyard or on campus) to discuss.  You might also hold an optional session to talk about course content in the news.  If you teach a business related course, you might talk about what the heck happened at WeWork.  If you teach Civil Procedure, you might talk about the oral argument in the Ford personal jurisdiction case that will be argued in October.  The goal here would be to bring together a smaller group in a less formal setting.  If you are teaching in a physically distanced class where everyone is wearing masks, you might hold these smaller sessions over Zoom so people can see each other without masks on.

Notice positive contributions.  Send students a personal email when they have a good contribution in class, a discussion board, or an assignment.  Keep track of who has received emails, and see if you can send at least one or two emails to every student during the semester. 

Humanize your tech.  We will likely be using technology a lot more this semester, but the default interfaces can feel really impersonal.  I’m going to make my Blackboard course page and my slides more human and interesting this semester.  In your learning management system, consider adding your own profile picture and/or adding images in your posts (here are directions -- go down to “add images in the editor”).  In PowerPoint, trade the black-on-white slides for slide templates that are a bit more engaging.  You might also add pictures, videos, etc. to text-filled slides.  It’s a little thing, but the world already feels impersonal enough right now without our tech choices adding to it.

Embrace imperfections.  New online teachers often have a desire to make their class sessions perfect. I was definitely guilty of this in the spring.  When I recorded asynchronous videos, for example, I would keep re-recording them until I could get a take without any stumbles or other issues.  But experts in online pedagogy say that stumbles help personalize online courses.  Students don’t necessarily want the Coursera version of a law school course.  They want to see their professor as a real person and that means seeing the version of the video where your kid interrupted your recording or where you momentarily  forgot what you were going to say.   This spring, my students had many laughs at the “cloffice” (i.e., closet/office) where I hid from my kids during our class sessions, and I think it helped bring humor to the class in a way that a perfect Zoom background would not have. 

I’d love your suggestions as well – feel free to post other ideas in the comments.  In my next post, I’ll talk about ways to connect students with each other this fall. 

Posted by Jessica Erickson on August 7, 2020 at 06:45 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Thursday, August 06, 2020

Emergency bar admission rule for law grads

This week, the American Bar Ass'n passed Resolution 10G, which urges states to cease in-person bar examinations until which time that they can be carried out with appropriate attention to the examinees' public health.  It further invites states to consider which mechanism of licensure is appropriate, whether providing a remote bar exam (if that could be administered effectively, given technology issues), limited practice under professional supervision, a diploma privilege, or some other device. 

This resolution is merely advisory, as these choices are all made within the states, and typically via the state high court.  Moreover, the resolution comes too late for the graduates in the twenty-three states that late last month gathered to take in-person exams.  There is one documented case (Colorado) of an examinee testing positive for COVID-19.  We can only wonder whether and to what extent there are other cases.

I was pleased to participate in the debate on behalf of this resolution, a resolution supported by myriad organizations within the ABA.  Notably, however, members of the board of trustees of the Nat'l Conference of Bar Examiners opposed this resolution.  Curious and dispiriting, but ultimately unsuccessful, as the resolution passed by a wide margin.

Prof. Deborah Merritt of Ohio State gave oral testimony to the House of Delegates on this matter.  It is an especially cogent statement of the dilemma and the reason for decisive action.  I reproduce it here in full:

"Thank you, Mr. Chair. This is a very simple resolution. It calls first on states to postpone in-person bar exams until health authorities declare them safe. That is a necessary recommendation. By the end of this month, COVID-19 will be the third leading cause of death in the United States. For most victims, it is a prolonged, painful, and lonely death—one without family or loved ones at their side. Even for victims who survive, there are long-term consequences that we are just starting to understand. That’s not what we want for applicants to our profession. Nor is it what we want for the support workers who will clean the toilets, floors, tables, snack bars, and hotel rooms used by these applicants.

Gathering hundreds of young adults in a single city spreads COVID-19, especially when those adults come from all corners of the state and country. It is horrible to think of an exam-taker falling ill from COVID-19, lying helpless on a ventilator, and perhaps dying from this disease. It is equally horrible to think of low-income workers suffering that fate because our profession was not willing to adopt alternative methods of licensing during a fatal and uncertain pandemic.

This resolution also urges states to adopt one of those alternative methods, rather than simply halt licensing. That recommendation is just as important. Half of newly licensed lawyers work for government agencies, nonprofits, or law firms with fewer than 10 lawyers. New attorneys are an essential part of the team in those offices. I know this because I have taught those new lawyers for 36 years and closely followed their work after graduation. Many of you know this too: You work with new lawyers in the organizations and law firms that serve the most vulnerable clients. If states don’t find alternative ways to license these lawyers, even if just through well-supervised, temporary licenses, we will be reducing the flow of legal support to disadvantaged members of our communities—just when the pandemic and economic hardships have dramatically increased their legal needs.

I have just completed a nationwide study of the work that new lawyers do, as well as the knowledge and skills that they need for their work. Together with the Institute for the Advancement of the American Legal System and more than two dozen researchers, we held 50 focus groups with new lawyers and their supervisors in 18 locations around the country, from rural North Carolina to Silicon Valley. I led that project, have read all of the transcripts, and coded the data. I know from that work that there are many ways to assess minimum competence on an emergency basis, during this pandemic only, that won’t impose the health risks of an in-person exam. The resolution leaves the choice of method to jurisdictions.

This is not a resolution about the future of the bar exam—or about granting diploma privilege to all 2020 graduates. A few states have chosen that route, and this resolution recognizes that. This resolution is about many ways to solve a once-in-a-lifetime urgent problem. We have ways to solve this problem that will preserve access to justice, protect the integrity of the profession, and respect the health of our communities.

One of those ways is through a remotely administered, online exam. That’s what the third part of this resolution addresses, laying out a series of recommendations that are simply best practices for an online, high-stakes exam. Most of these appear in the Standards for Educational and Psychological Testing, known as the “Bible” to all test-makers and administrators. These are the standards that NCBE itself follows.

We cannot administer an online, high-stakes exam without assuring that the online platform works, that reasonable accommodations have been provided to test-takers, that we follow data privacy protocols, that we provide information about exam conditions to candidates in advance, and that we assure the reliability of the exam’s cut score. NCBE is providing the materials for this online exam, but it is leaving these other matters to jurisdictions. Jurisdictions urgently need the recommendations in this resolution. Without them, we risk administering exams that do not serve the purpose of reliably measuring minimum competence.

Friends, I am not a voting member of this distinguished body. I am just a law professor and part-time prosecutor preparing to teach a clinic online in two weeks. But I can tell you that we need this resolution. Our communities need it to protect their health. Vulnerable clients need it to continue their access to legal services. Candidates for admission need it. And our profession needs it to affirm our ethic of responsibility. I ask you to vote in favor of the resolution."




Posted by Dan Rodriguez on August 6, 2020 at 06:16 PM in Daniel Rodriguez | Permalink | Comments (2)

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Sovereign Immunity and Dalehite

With all of the attention now being given to qualified immunity, let's not forget that sovereign immunity (both at the state and federal level) also bars many lawsuits that ought to go forward in the interests of justice.

One case that I periodically use in class is Dalehite v. United States, a 1953 Supreme Court case that invoked sovereign immunity over one of Justice Robert Jackson's crackerjack dissents. Dalehite came to mind today because the facts are almost identical to what happened in Beirut yesterday. A large stash of ammonium nitrate was negligently stored in a port warehouse as part of a government aid program. There was an explosion of the nitrate that (in Dalehite) killed over 500 people. The estates and survivors sued the United States for damages and lost. The opinions (especially Justice Jackson's) are worth your time. 

Posted by Gerard Magliocca on August 5, 2020 at 07:34 AM | Permalink | Comments (1)

The Importance of Building Connections and Community -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here

My posts so far in this series have focused on the first two steps of my five step approach to redesigning your courses to be physically distanced or remote— (1) identifying your learning objectives and (2) deciding on your assessment and engagement techniques.  This post will introduce the third step, which focuses on building connections and community in these new learning environments.  

We may think of connections and community as things that are nice to have, but they are actually essential to student learning.  Research shows that a sense of community at school is associated with increased motivation, greater enjoyment of their classes, and more effective learning.  The research also suggests that building this sense of community is much harder in online or hybrid courses.  Students in online environments struggle with feeling isolated (as do many professors!).

Most of the empirical data on this topic comes from undergraduates, but data from the Law Student Survey of Student Engagement (LSSSE) shows that a sense of belonging matters to law students as well.  LSSSE data has been used to examine both the inputs and outputs of law students’ sense of belonging.  In other words, using the LSSSE data, we can gain insight into what causes law students to feel a sense of belonging (the inputs) and the impact that a sense of belonging has on law students’ performance in law school and their career more generally (the outputs).

Starting with the inputs, LSSSE’s 2018 report Relationships Matter surveyed more than 18,000 students at 72 different law schools.  They conclude:  “Relationships with faculty, administrators, and peers are among the most influential aspects of the law student experience. These connections deepen students’ sense of belonging and enhance their understanding of class work and the profession.”  Connections, in other words, are key when it comes to fostering law students’ sense of belonging.  That’s not surprising.  Think back to your most meaningful learning experiences in law school.  They probably didn’t happen when you were passively listening in class.  For me at least, they came through study groups and conversations with faculty—i.e., those times in law school when my learning combined with meaningful relationships.

When it comes to the outputs, we can look at research summarized here by Professor Victor D. Quintanilla, who was one of the researchers who conducted a key study using LSSSE data.  They found that a sense of belonging significantly predicted three key outputs – (1) students’ overall experience in law school, (2) whether they would choose to go to law school again, and (3) their academic success (i.e., law school GPA).  Moreover, not only does a student’s sense of belonging help predict their academic performance, but the impact was even greater than other commonly used predictors such as undergraduate GPA and LSAT scores.  This means that, even if students come to law school with different academic backgrounds, we can help close this gap by fostering our students’ sense of belonging. 

Professor Quintanilla depicts the inputs and outputs of law students’ sense of belonging as follows:

The takeaways from this research are clear.  We cannot just focus on the content of our courses.  If we want our students to succeed, we also need to help foster key connections between our students and between our students, faculty, and staff.  In traditional classes, these connections develop fairly naturally.  Students talk casually with the professor and each other before and after class, and they bolster these connections through interactions outside of class—stopping by a professor’s office, running into their classmates in the hallways or the library, etc.  There are also personal bonds that develop in class when we can see people’s faces and expressions.  These connections will be much harder in physically distanced or remote classrooms, so this fall we will have to be much more intentional about developing a sense of connection and community among our students.

So how do we do it?  The theory on building community in online courses is built around the community of inquiry model.  The model has been represented as follows:


Social presence refers to the development of an online environment in which participants feel socially and emotionally connected with each other.  Cognitive presence describes the extent to which learners are able to construct and confirm meaning through sustained reflection and discourse.  Teaching presence is defined as the design, facilitation, and direction of cognitive and social processes for the realization of meaningful learning.

This can feel a little abstract, but the main idea is that you need to think intentionally about how students will interact with the content, how they will interact with you, and how they will interact with each other.  I’ve talked about how students interact with the content in my prior posts on assessment and engagement techniques.  In my next two posts, I’ll discuss the other components, starting with how to foster connections between you and your students.  

Posted by Jessica Erickson on August 5, 2020 at 06:49 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Tuesday, August 04, 2020

Second Circuit tries for solution to universal injunctions, misses the mark

The Second Circuit affirmed-but-narrowed an injunction prohibiting enforcement of the Trump Administration's public-charge regulation. As modified, the injunction is limited to the named plaintiffs (three states and several advocacy organizations) in New York, Connecticut, and Vermont (the Second Circuit), where the states are located and the plaintiff organizations do most of their work.

The court attempted to find a middle ground in the final five pages of the opinion, which I copy after the jump. But the court failed, in part because, as many courts, misunderstands the issues.

Here is the relevant portion of the opinion:

We have no doubt that the law, as it stands today, permits district courts to enter nationwide injunctions, and agree that such injunctions may be an appropriate remedy in certain circumstances – for example, where only a single case challenges the action or where multiple courts have spoken unanimously on the issue. The issuance of unqualified nationwide injunctions is a less desirable practice where, as here, numerous challenges to the same agency action are being litigated simultaneously in district and circuit courts across the country. It is not clear to us that, where contrary views could be or have been taken by courts of parallel or superior authority, entitled to determine the law within their owngeographical jurisdictions, the court that imposes the most sweeping injunction should control the nationwide legal landscape.

When confronted with such a volatile litigation landscape, we encourage district courts to consider crafting preliminary injunctions that anticipate the possibility of conflict with other courts and provide for such a contingency. Such approaches could take the form of limiting language providing that the injunction would not supersede contrary rulings of other courts, an invitation to the parties to return and request modification as the situation changes, or the limitation of the injunction to the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court.

We need not decide whether the able district judge in these cases abused his discretion in entering nationwide injunctions. Instead, we exercise our own discretion, in light of the divergent decisions that have emerged in our sister circuits since the district court entered its orders, to modify the injunction,limiting it to the states of New York, Connecticut, and Vermont. Cf. Smith v.Woosley, 399 F.3d 428, 436 (2d Cir. 2005). As modified, the injunction covers the State plaintiffs and the vast majority of the Organizations’ operations. We see no need for a broader injunction at this point, particularly in light of the somewhat unusual posture of this case, namely that the preliminary injunction has already been stayed by the Supreme Court, not only through our disposition of the case,but also through the disposition of DHS’s petition for a writ of certiorari, should DHS seek review of this decision. See New York, 140 S. Ct. at 599.

The court not only uses the wrong term ("nationwide" rather than "universal" or "non-particularized), but it conflates who and and where. It talks about the concern for conflicts with other courts, contrary rulings, and other issues that compel against non-particularized injunctions, then narrows the geographic scope while protecting only the parties. That is, the court issued a particularized injunction protecting only the parties, making it unnecessary to address the power to issue non-particularized/universal injunctions unnecessary.

The guidelines the court tries to impose make no sense. The court says a universal/non-particularized injunction is permissible where a single case challenges an action or multiple courts have ruled the same way. But it gives no reason why either situation justifies expanding the party scope and no guidance for when universality becomes ok. If multiple courts have ruled the same way, there is no need for one universal injunction, since individual plaintiffs in each of those cases have their remedies and do not need the new universal remedy. And it leaves most questions unanswered--How many courts must rule the same way? How many cases become too many to justify it? Can the first court issue a universal injunction if it can do so before other cases are filed?

Nor do the attempted limitations work. One is to provide that the injunction does not supersede a contrary ruling. But this does not provide parties with much guidance or reflect the practices of litigation. If Court I issues an injunction that might be universal--and we are taking universality seriously--there will not be a second litigation, because non-parties threatened with enforcement will not file a new lawsuit but will go to Court I to enforce the existing injunction that purports to protect them.  And the final limitation--"the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court"--again conflates who and where.

Finally, the injunction the court ends up with is insufficient as to the plaintiff organizations. The court says they do the "vast majority" of their operations within those states. But that ignores that some portion (however small) of their operations are outside those states and not protected by the injunction, leaving their injury (threat of enforcement of the regulations as to them) unremedied. And the court offers no good reason for leaving that bit of their rights unremedied.

It is a good effort by the court to wrangle and try to provide guidance on the issue. It fails because the courts cannot keep the real issues straight.

Posted by Howard Wasserman on August 4, 2020 at 08:30 PM | Permalink | Comments (2)

Debate: Free speech v. Cancel culture (Updated)

Ken (Popehat) White for the position that "cancel culture" is a cynical ploy to undermine counter-speech v. Greg Lukianoff (of the Foundation for Individual Rights in Education) for the position that the real source of protection comes from "free speech culture," which means a culture of accepting other people's views and going along for the ride.

Unsurprisingly, I agree with White. Critics of cancel culture are imposing norms on "more speech" that they do not impose on the speech being rebutted and are essentially insisting that more speech not be too harsh. Lukianoff makes the good point that a culture of free speech is as important as formal legal protection for free speech. But he never deals with White's argument that much of what is derided as cancel culture is counter-speech, including many of the outrageous examples he offers. Lukianoff emphasizes the heralded legal principles "Sticks and stones" and "to each his own," which are possible responses to obnoxious speech. But there is no reason they should be the only responses to obnoxious speech.

Lukianoff kind of proves White's point with his requests: Don't call people hypocrites, welcome temporary allies, and don't lump free-speech advocates (himself or Nadine Strossen) with cynical partisans (Charlie Kirk). The last is well-taken, although most serious free-speech advocates do not do that. But the last is inconsistent with the first, which seems to require us to accept Charlie Kirk's support for free speech rather than recognizing its hypocrisy. In any event, Lukianoff's argument is about policing speech, about declaring some expression out of bounds. His arguments never answer that concern.

Update: As if on cue: Kelly Loeffler--Senator and senatorial candidate from Georgia, co-owner of the WNBA Atlanta Dream, and critic of BLM and kneeling basketball players--cries "cancel culture" because WNBA players wore t-shirts supporting her opponent in the coming election. It is difficult to imagine anything more central to the First Amendment than speech saying "Vote for X." Can it possibly lose protection because spoken in response to Loeffler's statements about about BLM and the flag?

Meanwhile, Auburn is investigating a (non-tenure-track) faculty member for "fuck the police" tweets and a Republican congressman is calling for him to be fired for anti-police hate speech. Proving White's point that there are hypocrites and grifters.

Posted by Howard Wasserman on August 4, 2020 at 02:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, August 03, 2020

Unpacking Deadlines and the Planning Fallacy

I am in the final stages of preparing my new article, The Contract Thicket: Addition and Supra Addition in Private Law Theory for submission. In the article I analyze the literature on the behavioral effects of bundling and unpacking in relation to contract terms that a lengthy and paired with many other restrictive terms. I will post more about the article and the arguments I develop about contract and antitrust law's treatment of such practices, but here is something I just cut out of the draft. It's about the planning fallacy and why people usually take on too much. This might be rather close to home for us scholars:

“Applied to the planning fallacy, support theory suggests that one reason people may underestimate task completion times is that they do not naturally unpack those tasks into their various subcomponents...Writing a manuscript,’ for instance, involves several different (and lengthy) constituents: completing the literature review, composing the general discussion, double-checking the statistical analyses, writing the references section, hounding (or pleading with) recalcitrant co-authors.”

It comes from an article by Kruger and Evans called If you don't want to be late, enumerate: Unpacking reduces the planning fallacy inJournal of Experimental Social Psychology 40(5):586-598 · September 2004.

Good advice and good luck with all your summer writing projects! Don't be late, enumerate...

Posted by Orly Lobel on August 3, 2020 at 06:16 PM | Permalink | Comments (9)

Competing views on the Biskupic articles

Josh Blackman sees this as a threat to the institution that the Chief must repair (through some actions that I am not sure the Chief, as "first among equals," can do) or resign. Dan Epps argues that more transparency is a good thing. Take your pick or land somewhere in the middle.

I will share and concur in a comment from the Conaw List Serv that the Biskupic stories were interesting, but not earth-shattering--some of it could have been gleaned from the opinions themselves or from what we already knew about the Court's operations.

Posted by Howard Wasserman on August 3, 2020 at 12:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Metacognition and Learning How to Learn Online – Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

So far I’ve talked about a variety of techniques to assess and engage students from comprehension checks to group work, discussions, and community-based learning.  In my last post on the topic of assessment & engagement, I want to talk about techniques that help students reflect on their learning.  Even in non-COVID times, we could all probably do a better job teaching students how to succeed in law school courses, but this instruction is especially important as we ask students to suddenly transition to an entirely new way of learning.  This transition also comes at a time when their personal lives and professional goals may in flux.  Simply dumping students into remote or physically distanced courses without some guidance on how to succeed in these courses seems like a failure in our job as educators.

So how can we help students learn effectively in their fall courses?  First, we need to offer them guidance on what we know about successful learning in these new environments.  There are a lot of resources out there on how students can prepare to learn online.  Here’s a great list compiled by Professor Cat Moon at Vanderbilt Law School.  As professors, it’s worth becoming familiar with these resources ourselves and talking with our students and advisees about how they can thrive in their remote courses.

A lot of this advice is common sense--i.e., create a dedicated work space, minimize distractions, and create a regular work schedule.  That said, students will still benefit from clear guidance on these topics as well as conversations about how to implement this guidance in their own lives.   For example, I often recommend that students try the Freedom app, which blocks specific website so you don’t find yourself mindlessly spending hours on social media or ranting at the news sites (not that I’ve ever done that…).  It’s also worth reminding students that everything they’ve learned about growth mindsets applies here too.  I’ve heard lots of students say that they “just don’t learn well online.”  That may well be true, but they are also probably pretty new at it.  Like anything, it may take practice and some trial and error before they find out what works for them.  As an aside, the same is probably true for all of the faculty who say that their teaching style just doesn’t work online.

Even if we think we have all of the answers, we know we shouldn’t just stand at the front of our physically distanced classrooms or on Zoom and lecture at students on how to learn effectively in these spaces.  Going back to basic pedagogy concepts, we need active learning to help these concepts sink in.  And of course, we don’t have all of the answers.  Our students are in very different situations, especially now, so they need to figure out what works best for them given their own course loads, living situations, and other challenges.

I’ve decided that I am going to build short opportunities for reflection at least every other week into my fall courses.  Some of these opportunities will be through pre-class assignments (I’ve talked here about the Google Doc assignments my students complete before class), and others will be during class or at the end of class. 

Here I need to give credit where credit is most definitely due.  I watched a webinar this summer where Professor April Dawson at North Carolina Central University School of Law highlighted a reflection exercise she does at the end of her classes that asks students to provide 1-2 takeaways from the class session and provides a space for their questions that she can then answer during the next class period.  She recommends using a QR code that students can open with their phone that links to a short form.  She uses airtable (here’s a short video she created to show how to set up a similar form yourself), but you could do the same thing through Google Forms.  I love this idea, and it would also work for professors who are trying to figure out how to take attendance in these new spaces. 

Here’s a form that I created based on her template.  Just open the camera on your phone, aim it at the QR code, and then click on the link that comes up.  If students do not have a cell phone, you can provide them with the web link.

QR code
Here are some specific metacognition prompts that you can also use, either through polling software or reflection that students do on their own:

  • What helped you learn in the spring when classes went online?  What practices or strategies do wish you had adopted?
  • If you were to do [name specific assignment] again, what would you do differently?  What would you do in the same way?
  • Think about today’s class.  What strategies did you use to prepare?  How do you think they worked?  What other strategies would you like to try?
  • What does fully preparing for class include for you?  Create a list of the things you want to do on your own to understand the material before coming to class. 
  • If you were to spend 30 minutes after class reflecting on what we learned today, what specific things would you do during this time? 
  • What are your goals for this course in light of your larger motivation in coming to law school?  What have you done so far this semester that has helped you to achieve these goals?  What specific strategies could you try to help you achieve these goals?

I’ll end by acknowledging that students won’t necessarily want to reflect on these questions.  Students often want us to focus on the black letter law and other information they will need for the exam.  Fair enough, but their overall success as lawyers depends on them learning this broader set of skills.  Just as education is changing, the practice of law is changing as well, and our students will have to bring these same metacognition skills to their practice.  So as you’re overhauling your courses this summer, consider building in a few metacognition exercises and explaining to students why it’s important to stop and reflect every once in a while.

Posted by Jessica Erickson on August 3, 2020 at 08:58 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)