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Monday, January 31, 2022

Faculty Hiring: Southern University Law Center

Position Announcement

Tenure-Track Faculty Positions

Southern University Law Center

Sitting at the edge of the Mississippi River, in a town known for its culinary creativity and easy-living lifestyle, Southern University Law Center (SULC) seeks applicants for at least four tenure-track appointments for its full-time faculty starting in August 2022. In addition to competitive salary and comprehensive benefits, SULC provides substantial publication support and incentives for dedicated scholars, travel stipends to present your work domestically and internationally, teaching and development resources, and supportive faculty at the ready to advance your career.

SULC’s mission and tradition has been to provide access and opportunity to a diverse group of students from underrepresented racial, ethnic, and socio-economic groups to obtain a high quality legal education. Areas of concentration include: Common Law Contracts, Family Law, Civil Law Obligations, Constitutional Law, Criminal Procedure, Professional Responsibility, Civil Procedure, Commercial Law, Business Entities, Conflicts of Laws, Federal Courts, Trial Advocacy, Civil Law Property, Wills and Trust, Successions and Donations, Remedies, amongst others.

A candidate must have a J.D. degree from an ABA-accredited law school and a commitment to teaching in an environment dedicated to excellence in teaching and mentoring of students. We will consider both lateral and entry-level applicants. We look for innovative faculty with significant background in practice or experience teaching; dynamic scholars with an established record or promise of legal scholarship; and applicants that demonstrate a commitment to service to legal education, the institution, and to the wider community. With one of the most diverse student bodies in the country, SULC is dedicated to the aims of diversity and strongly encourages applications from women and minorities.

SULC is a member of the Association of American Law Schools (AALS). Established in 1947 in response to a lawsuit by an African-American resident seeking to attend law school at a state institution, SULC has grown to serve a widely diverse population of over 900 students. We are uniquely attuned to the importance of an education for students of all backgrounds and circumstances.

SULC offers a comprehensive benefits package to full-time faculty members that includes retirement benefits as well as health, dental, and life insurance. Salary will be commensurate with qualifications. SULC also offers full-time faculty summer research grants, travel support, and research assistants.

SULC is located in Baton Rouge, Louisiana, the state capital. Baton Rouge is a thriving cultural center with more than a dozen museums and cultural centers, great food and music, and a temperate climate.

Please direct any questions about the positions to Vice Chancellor Donald North at [email protected]

Application Procedure

Email a cover letter, curriculum vitae, and contact information for three professional references to [email protected] by February 15, 2022.

Posted by Howard Wasserman on January 31, 2022 at 12:54 PM in Teaching Law | Permalink | Comments (0)

Thursday, January 27, 2022

National Conference of Constitutional Law Scholars--Online

I am pleased to post this announcement. I will be presenting here for the first time.

The Rehnquist Center is pleased to announce the National Conference of Constitutional Law Scholars. This year’s event will be held entirely via Zoom due to the pandemic but will otherwise follow a similar format to previous years, with a series of panels organized by subject matter moderated by Distinguished Commentators. To avoid Zoom fatigue, the program will be limited to a single day on Saturday, Feb. 19. The goal of the conference is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year. To that end, the program will include opportunities for informal discussion between panels. Registration is free and all constitutional law scholars are invited to attend. Papers will be presented in panel sessions, organized by subject, with commentary by a distinguished senior scholar. REGISTER NOW: tinyurl.com/conlaw22

Lee Epstein will give a keynote lecture.

Distinguished Commentators for 2022 include: Maggie Blackhawk  Josh Chafetz Cary Franklin Jennifer Nou Richard Re Fred Smith

ADDITIONAL PRESENTERS Payvand Ahdout - Separation of Powers Avoidance Jill Anderson & Kiel Brennan Marquez - Robotic Interpretation Rachel Bayefsky - Contrition and Compulsion: Court-Ordered Apologies and the Constitution Jacob Bronsther & Guha Krishnamurthi - Optional Legislation Christine Chabot - Interring the Unitary Executive Nathan Chapman - Qualified Immunity and the Rule of Law Katherine Crocker - Qualified Immunity, Sovereign Immunity and Systemic Reform Travis Crum - The Lawfulness of the Fifteenth Amendment Craig Green - Beyond Statehood Yuvraj Joshi - Equality Compromised Andrea Katz & Noah Rosenblum - The Origins of the Administrator-In-Chief: Myers and the Progressive Presidency Gerard Magliocca - Robert Jackson's Non-Delegation Doctrine W. Kerrel Murray - Discriminatory Taint Aaron Nielson & Christopher Walker - Congress’s Anti-removal Power Ryan Scoville - The International Commitments of the Fifty States Bijal Shah - Beyond Functionalism: A Critical Analysis of the Separation of Powers and the Administrative State Carolyn Shapiro – Taking the Independent State Legislature Doctrine Seriously Charles Tyler & Heather Gerken - The Myth of the Laboratories of Democracy Ilan Wurman - Reconstructing Reconstruction-Era Rights CONFERENCE ORGANIZERS Andrew Coan, Arizona Rebecca Aviel, Denver Eunice Lee, Arizona Shalev Roisman, Arizona David Schwartz, Wisconsin For content-related questions please contact Andrew Coan ([email protected]). For logistical questions please contact Bernadette Wilkinson ([email protected]).
The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Gerard Magliocca on January 27, 2022 at 07:42 PM | Permalink | Comments (0)

Two Thoughts About Justice Breyer's Retirement

1. Next Term, Justice Sotomayor will be the senior liberal justice on the Court. And this will probably be true for many years to come. Thus, her profile in dissent will be quite large.

2.  Barring an unexpected health issue, we should probably expect no other vacancies in this presidential term. The Court is now quite young (in relative terms). By my reckoning, this is the youngest the Court has been since the mid-1990s, which ushered in a decade long period when there were no vacancies at all.

Posted by Gerard Magliocca on January 27, 2022 at 01:51 PM | Permalink | Comments (0)

Israel, Jewish teaching, and a strange law (Updated)

A teacher at a Jewish school in Westchester County, N.Y. has sued the Temple and Temple leaders, alleging that she was fired for writing statements critical of Israel on her personal blog (the post at issue was written after she was hired, before she started, and on my birthday, which may not be a material fact). The suit is brought under a provision of New York law that prohibits adverse employment action based on a person's "legal recreational activities," which the plaintiff alleges includes blogging (no comment). The story has garnered s attention, in the Jewish press because it exposes possible fault lines within the Jewish community over Israel and how anti-Zionism fits into Jewish teaching. A number of Jewish academics and leaders issued an open letter to the Temple supporting the woman.

The claim seems to me doomed under the ministerial exemption. Our Lady of Guadalupe says teachers are ministers (for FMLA and ADA purposes, but the First Amendment idea should carry), at least if their duties touch minimally on the religious. Paragraph 11 of the complaint says:

The job was secular rather than religious, and no religious ordination or training was required. The teaching responsibilities were essentially limited to the teaching and tutoring of the Hebrew language to WRT’s learners and students. The other job responsibilities involved assisting and supporting the development of social, cultural and community service programs for the teenagers in the WRT community. 

I doubt that is sufficient to get around the First Amendment. She is teaching Hebrew at least in part because it is necessary for students to learn prayers and "social, cultural, and community service programs" are part of the core of what a Temple does.

But I am wondering if we even reach the First Amendment. Does this law preclude an employer from taking action against someone who expresses or reveals objectionable views, views the employer believes inconsistent with its mission, if done as part of a lawful recreational activity? Can a kosher deli fire a waiter who attended the Unite the Right Rally? What if the Temple fired a custodian or security guard who attends a rally in support of Holocaust denial? If the law prohibits these actions, does that raise First Amendment problems as to the employer, who must employ someone with objectionable political views? If the employer could fire those employees, how does it get around this law? Can the employer fire a person not for their recreational activities (blogging, attending a rally) but for their expressed views, using the lawful recreational activities as evidence of those views?

Employment lawyers, please help.

Update: My colleague Kerri Stone offers this primer from a law firm discussing the law in the shadow of the 2020 protests. It seems to suggest that the law gives employees broad rights against adverse employment action for non-work expressive activity. It mentions a 2017 lawsuit by a NY Post sportswriter fired for comparing the inauguration of Donald Trump with Pearl Harbor and 9/11; the suit was dropped, but it might have had legs.

Update II: A reader emails to argue that the lawsuit is frivolous because the ministerial-exemption issue is so obvious and that this suggests an ulterior motive by the plaintiff, her lawyers, and those supporting her. There is a genuine moral question of whether and how synagogues should be open to competing views on Israel and whether support for Palestinian justice is consistent with Jewish commitments to social justice. But that is for the Jewish community and each synagogue to resolve. It does not belong in court. The ministerial exemption exists because courts should not be telling religious organizations what its. And that is why the reader suggests the plaintiff, her lawyers, and those supporting her may have an ulterior motive.

Posted by Howard Wasserman on January 27, 2022 at 10:09 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 26, 2022

Iowa Law Faculty Fellowship - 2022-2023

From the University of Iowa College of Law:

The University of Iowa College of Law seeks applicants for the Iowa Law Faculty Fellowship.  This program provides research and teaching opportunities, faculty mentoring, and career development for promising legal scholars and teachers aiming to launch new careers in legal academia.  The program also aims to further the College of Law’s and the University of Iowa’s longstanding goals of increasing diversity in the legal profession and recruiting and retaining a more diverse campus community of faculty, staff, and students.  (For information on the College’s DEI commitments and activities, see Diversity, Equity & Inclusion | College of Law - The University of Iowa (uiowa.edu). For information on the University’s DEI commitments and activities, see Diversity, Equity, and Inclusion | The University of Iowa (uiowa.edu).) 

Iowa Law is well known for its strong focus on law teaching, exceptionally comprehensive law library, and collaborative atmosphere.  The University of Iowa itself is a major public research university located in Iowa City, a quintessential college town brimming with writers, students, and scholars.   

The Iowa Law Faculty Fellowship is a successor to the Faculty Fellows program, which provided aspiring legal academics with an opportunity to develop their scholarship and teaching, and ultimately seek long-term academic positions. Iowa Law Faculty Fellows concentrate on those aspects of academic life that are most likely to be helpful in preparing for a faculty career in legal education.  Typically, faculty fellows teach one course during the academic year, with the remainder of the fellow’s time devoted to research and development of one or more major works of scholarship.  The Iowa Law Faculty Fellowship does not have a specific subject matter focus, but prioritizes applicants who seek to conduct interdisciplinary research that connects with other fields of study at the University of Iowa.  The fellow works closely with a faculty mentor and advisory team of faculty members.  Faculty fellows participate in the life of the College, but have limited service assignments so they can concentrate on teaching and scholarship.  Fellows are expected to contribute to diversity, equity, and inclusion goals at the College and University.   

Initial Faculty Fellowship appointments are for one year and can be renewed once.  Fellows will be appointed at the rank of Visiting Assistant Professor of Law.  Most Faculty Fellows will serve for two years and participate in the law hiring market during the second year of the fellowship.  The salary for the 2022-2023 academic year will be competitive with well-regarded law fellowship and VAP programs.  In addition, Faculty Fellows will be provided with research support including research funds, travel funds, and the opportunity to hire law student research assistants.  Fellows will be expected to be in full-time residence at Iowa Law during the academic year.

To apply for the Iowa Law Faculty Fellowship program, an applicant should submit the following through [email protected], at jobs.uiowa.edu (refer to requisition #74372):

  • Cover letter, including a description of the applicant’s (1) research plan to be carried out during the fellowship and (2) plans for contributing to diversity, equity and inclusion goals at the College and University during the fellowship.
  • C.V.
  • Graduate, and professional transcripts (including law school transcripts)
  • Academic writing sample
  • Three letters of reference providing support for the applicant’s potential as a legal scholar and teacher

Required qualifications:

  • J.D. or equivalent, or a Ph.D. from a relevant field of study. 
  • Strong potential for legal teaching
  • Strong potential for legal scholarship
  • Strong potential for making contributions to the College’s and University’s diversity, equity, and inclusion goals
  • Strong communication and interpersonal skills

Desired qualifications:

  • Demonstrated ability to conduct interdisciplinary research
  • Alignment between the proposed research plan and collegiate and university resources and opportunities.

Review of applications will begin immediately and will continue until the position is filled.  For fullest consideration, submit applications before February 25, 2022.  For more information, please contact Todd Pettys, chair of the Faculty Appointments Committee, at [email protected].

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran. The University also affirms its commitment to providing equal opportunities and equal access to University facilities. Women and Minorities are encouraged to apply for all employment vacancies. For additional information on nondiscrimination policies, contact the Office of Institutional Equity, 319/335-0705, The University of Iowa, 202 Jessup Hall, Iowa City, Iowa, 52242-1316.  Persons with disabilities may contact University Human Resources/Faculty and Staff Disability Services, (319) 335-2660 or [email protected], to inquire or discuss accommodation needs.  Prospective employees may review the University Campus Security Policy and the latest annual crime statistics by contacting the Department of Public Safety at 319/335-5022.

Posted by Sarah Lawsky on January 26, 2022 at 05:32 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Breyer to retire

Story here. I presume Ketanji Jackson will be the nominee, which was part of the point of her elevation to the D.C. Circuit. Any chance Sinema or Manchin will throw a fit on this one?

Posted by Howard Wasserman on January 26, 2022 at 12:38 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, January 25, 2022

Partying Like It's 1937

I've often wondered what teaching Constitutional Law was like in 1937. Now I have an idea. I'm teaching Con Law this semester. Normally I would teach Roe and Casey, but now it's unclear where to take the discussion of those cases with Dobbs pending. We also do Grutter, but now that decision is on the chopping block. That's a lot to unpack without any prospect of a resolution during the course. My empathy goes out to my fellow Con Law teachers right now.

Posted by Gerard Magliocca on January 25, 2022 at 10:08 AM | Permalink | Comments (0)

Monday, January 24, 2022

Which parts of NYT v. Sullivan?

Sherry Colb writes about the cert petition in Coral Ridge Ministries, a series of defamation actions against the Southern Poverty Law Center for labeling it a hate group. The petition, on which the Court called for a response, asks the Court to overrule New York Times or limit it to public officials and not public figures.

I have argued before that the talk of overruling NYT is non-specific to the point of inaccuracy. What do people want to eliminate--the actual malice requirement or the larger edifice created in later cases? Coral Ridge seems an inappropriate case for this issue, because this case should not fail on actual malice but because "hate group" is opinion based on subject criteria rather than a provable assertion of fact.

Posted by Howard Wasserman on January 24, 2022 at 01:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Amnesty and Pardons

One question that could arise under Section Three of the Fourteenth Amendment is whether someone can refuse congressional amnesty. A person can (and some people do) refuse a presidential pardon. Maybe they don't want the imputation of guilt, or maybe they don't want to accept any conditions attached to the pardon.

Section Three amnesty is analogous to a presidential pardon. Only Congress can relieve someone of a Section Three disability and, in effect, grant them forgiveness for their prior misconduct. Granted, pardons involve criminal cases and Section Three is a civil disability, but for purposes of whether someone can refuse amnesty I don't think that this matters. The same rationale that might lead someone to refuse a pardon--imputation of guilt--might lead someone to refuse an offer of amnesty, especially prior to a determination of ineligibility.

Are there any examples of someone refusing amnesty? Not that I can find. The only item of note is that Jefferson Davis (shortly before he died) indicated in a letter that he would not accept amnesty if offered. In 1979, Congress gave him amnesty and he was unable to refuse.

Posted by Gerard Magliocca on January 24, 2022 at 11:34 AM | Permalink | Comments (0)

Which Jews? (Updated)

This Wall Street Journal essay by Mark Oppenheimer on rising antisemitism has generated some heat. The basic argument is that modern antisemitism in America targets the "shrinking minority of Jews who regularly do Jewish things in Jewish spaces"--attend synagogue or Jewish schools, shop at kosher markets, wear Jewish clothing, etc. But "for people who are Jewish but don’t do Jewish things, the U.S. is less oppressive than ever," as "gentlemen's agreement" antisemitism excluding Jews from neighborhoods, schools, clubs, etc., are "artifacts pf the past."

1) Some accuse Oppenheimer of victim-blaming, of telling that minority to stop doing Jewish things in Jewish spaces so as to avoid being targeted. That is not a fair reading. He is not telling anyone to stop attending these spaces. Quite the opposite--he  ends the piece by praising those who regard Jewish education or praying with fellow Jews as worth the risk. He was not blaming the "Jews who Jew it" or telling them to stop. He was making the point that the new American antisemitism is complicated--rather than an across-the-board societal phenomenon affecting all Jews equally, it is isolated and individualized.

2) Oppenheimer's premise is questionable on its terms. Charlottesville targeted all Jews, not only those who wear kippot and shop in kosher markets. Reports of recent antisemitic incidents seem to target Jews because they are Jewish while operating in secular spaces (although many of these overlap with Israel). Over the weekend, fliers were thrown in front of houses in Miami Beach and Surfside linking Jews to COVID and evil vaccinations (listing the Jews in the CDC, HHS, etc.); similar fliers have been distributed other places. No word on how they picked the houses. Was it random homes in two heavily Jewish towns? Did they look for mezzuzot? And is a mezzuzah "Jewing it," akin to wearing a yarmulke or is it akin to walking through life as Josh Goldberg? He may be right that violence seems to target the obviously Jewish. But a lot of antisemitism is non-violent.

3) The argument conflates institutional (or systemic) and individual antisemitism, so I think the base of his argument is flawed. He compares individual antisemitism, a lot of which is directed at Jewish spaces, with institutional or systemic antisemitism in secular spaces, which he argues no longer exists. But those are unique situations in which regular" Jews and "Jews who Jew it" may not be so different. Gentlemen's-agreement antisemitism in schools, clubs, law firms, and businesses appears to be an artifact of the past for all Jews--universities do not have quotas on Jewish students, regardless of level of observance. Meanwhile, if we focus on individual antisemitism, many Jews of all stripes have been targets  in many spaces. His argument might work if we compare violent antisemitism. High-profile violence appears to have been limited to "obvious" Jews. But that is a narrower and distinct argument.

Posted by Howard Wasserman on January 24, 2022 at 10:41 AM in Howard Wasserman, Religion | Permalink | Comments (0)

Sunday, January 23, 2022

The Invention of Power: Popes, Kings, and the Birth of the West

I wanted to flag a new book by my favorite undergraduate professor, Bruce Bueno de Mesquita. Here is the Abstract: 

In the tradition of Why Nations Fail, this book solves one of the great puzzles of history: Why did the West become the most powerful civilization in the world?

Western exceptionalism—the idea that European civilizations are freer, wealthier, and less violent—is a widespread and powerful political idea. It has been a source of peace and prosperity in some societies, and of ethnic cleansing and havoc in others.

Yet in The Invention of Power, Bruce Bueno de Mesquita draws on his expertise in political maneuvering, deal-making, and game theory to present a revolutionary new theory of Western exceptionalism: that a single, rarely discussed event in the twelfth century changed the course of European and world history. By creating a compromise between churches and nation-states that, in effect, traded money for power and power for money, the 1122 Concordat of Worms incentivized economic growth, facilitated secularization, and improved the lot of the citizenry, all of which set European countries on a course for prosperity. In the centuries since, countries that have had a similar dynamic of competition between church and state have been consistently better off than those that have not.

The Invention of Power upends conventional thinking about European culture, religion, and race and presents a persuasive new vision of world history.

This is a fascinating political science book, but there is also a legal connection. One argument in here is that Magna Carta should be understood in part as a product of the fight between the Pope and King John, not just between King John and the barons. That puts a different twist on that foundational document that merits further thought.

Posted by Gerard Magliocca on January 23, 2022 at 06:47 PM | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Posted by Howard Wasserman on January 22, 2022 at 11:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Technology and sports officiating

I oppose and actively dislike replay and most other officiating technology in sports. So why am I happy about the expansion of  the automated strike zone?

The answer is that the ball-strike call is unique in sport. First, the call is difficult for human officials. The umpire must determine whether a ball traveling as extreme speed with outrageous spin passed in the air through an imaginary moving box, simultaneously judging the horizontal and vertical location within that box. And he must make that call between 250 and 300 times each game. Second, the call can be automated in a way other calls cannot be. The call occurs in a confined and stationary space, at which a few cameras can be aimed; it does not require no movement or following the play. Third, it is one of the few technological advances that does not require breaking the flow of the game.

Count me as hoping this works.

Posted by Howard Wasserman on January 21, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Legislative and Adjudicative Jurisdiction

Kudos to the First Circuit for getting it right in a case involving a federal prosecution for drug trafficking in international waters. The defendants argued, and the court agreed, that extending the Maritime Drug Law Enforcement Act to international waters infringed on international law and thus exceeded congressional authority. The defendants had moved to dismiss for lack of subject matter jurisdiction, but the First Circuit rightly recognized the issue as one of legislative jurisdiction--Congress' power to enact substantive legislation--rather than the subject-matter jurisdiction of the federal courts. Thus the prosecution fails on the merits because the law being enforced was unconstitutional; the prosecution does not fail for lack of judicial jurisdiction.

Posted by Howard Wasserman on January 21, 2022 at 08:32 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink | Comments (0)

Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink | Comments (0)

Drexel University VAP Positions

From Drexel University Thomas R. Kline School of Law:

The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

We seek candidates who hold (at minimum) a JD or appropriate equivalent degree.  We are particularly interested in candidates embarking on an academic career.  The Kline School of Law is committed to recruiting, developing, retaining, and rewarding faculty members who bring scholarly interests and life experiences that contribute to the diversity and success of our students, our University, and our communities.

Drexel University, founded in 1891, is an R1 comprehensive research institution.  Drexel established its law school in 2006, and it has rapidly developed a reputation for innovative scholarship across disciplines, a diverse portfolio of academic programs, and a focus on civic engagement.  The Kline School of Law is home to the Center for Law and Transformational Technology and the Center for Law, Policy and Social Action.   The law school has a vibrant scholarly culture, including an active workshop series.  Kline Law has moved up steadily in the rankings and is now ranked #81 by U.S. News.

Applications for this position should include a CV and cover letter.

Review of applications will begin immediately, and prompt application is encouraged.  Questions should be directed to Professor Bret Asbury. 

Apply online via Drexel’s HR portal: https://careers.drexel.edu/en-us/job/497570/visiting-assistant-professor-kline-school-of-law.

Posted by Sarah Lawsky on January 19, 2022 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, January 16, 2022

The Unequal Footing Principle

In Shelby County, the Supreme Court invented the principle that the states are on an equal footing with respect to sovereignty. The authority cited by the Court for that proposition was remarkably weak. And the analysis was unsound because the ratification of the Fifteenth Amendment (the basis for the Voting Rights Act) was not done with each state on an equal footing, as some states (like Georgia) were required to ratify the Fifteenth Amendment to return to Congress.

There are other problems with Shelby County's broad reading of the equal footing principle. One is that when Congress readmitted the former Confederate States, many of them were readmitted with a statute that imposed special conditions on them with respect to voting and officeholding, including the express incorporation of Section Three of the Fourteenth Amendment. Another is that (before the Civil War) John Bingham pointed out that the 1787 Constitution does not treat all states equally with respect to slavery. Article One, Section Nine, Clause 1, which discusses the importation of enslaved people, says that "the states now existing" could permit slave importation unless and until Congress imposed a ban. Bingham argued that this excluded states added after the original 13, otherwise the provision would have just said "the states."

The 1868 Act of Congress readmitting some of the ex-Confederate states with conditions could become relevant in future litigation. 

Posted by Gerard Magliocca on January 16, 2022 at 10:13 AM | Permalink | Comments (0)

Saturday, January 15, 2022

Mark Finchem and Section Three

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

Posted by Gerard Magliocca on January 15, 2022 at 09:43 PM | Permalink | Comments (0)

Some Additional Section Three Resources

I've found some additional cases and authorities on Section Three that are not in my law review article. None of them are terribly significant, but for those who are interested I thought I would just list them.

Opinion of Justices, 12 Fla. 651 (1868) (advisory opinion holding that members of the state secessionist convention were not subject to Section Three).

Hudspeth v. Garrigues, 21 La.Ann 684 (1869) (holding that a state court clerk under the Confederacy was not subject to Section Three).

Powell v. Boon, 43 Ala. 459 (1869) (mentioning Section Three in an offhand way).

Op. of the Attorney General, May 24th 1867 (defining "engaged in insurrection" as used in the Reconstruction Acts, incorporating Section Three of the proposed Fourteenth Amendment).

There's at least one more case from Kansas that I will discuss in another post.

Posted by Gerard Magliocca on January 15, 2022 at 08:42 AM | Permalink | Comments (0)

Friday, January 14, 2022

conference - Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy

Related to my post below about Dopesick and the opioid litigation, Samir Parikh sends word about a symposium he is organizing for Fordham Law Review that unpacks the issues at the intersection of aggregate litigation and bankruptcy, focusing on Purdue, USA Gymnastics, Boy Scouts of America, and other prominent mass tort bankruptcies register here  - https://t.e2ma.net/message/ettj4g/i485hj

great lineup and here's the description:


This symposium addresses the novel intersection of civil procedure and bankruptcy law.  Corporate defendants – including Purdue Pharma, Boy Scouts of America, and USA Gymnastics – facing substantial numbers of mass tort claims have filed for bankruptcy to exploit statutory loopholes and impose a new bargain on tort victims.  This interdisciplinary event will feature panels discussing bankruptcy preemption and multidistrict litigation, due process, representation issues regarding unidentified victims, settlement dynamics in complex cases, and victims’ rights.



Posted by Orly Lobel on January 14, 2022 at 08:33 PM | Permalink | Comments (9)

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Recommended: Dopesick, the Hulu series & book

If you haven't watched it, I highly recommend Hulu's limited series starring Michael Keaton, Dopesick, based on the book Dopesick: Dealers, Doctors and the Drug Company that Addicted America by Beth Macy. It tells the story of the lawsuits of over-prescription of addictive pharmaceutical drugs and the corporations and marketing schemes behind opioid crisis. It shows the pain and the magnitude of the epidemic and behind the scenes dramatization of the executive greed, the doctors who prescribed and the attorney generals who ventured to take on a privately held billion dollar pharma. There are dozens of ongoing cases and also interesting angle is the Sackler's family philanthropy (from Harvard to the Louvre to Tel Aviv U to Guggenheim) and new questions about name removal (I believe the Louvre is the first to remove their name from association with the museum). 

Posted by Orly Lobel on January 13, 2022 at 04:44 PM | Permalink | Comments (4)

Judges Participating in Cases

Before we return to more Section Three posts, I thought I'd ask a more esoteric question.

Suppose an appellate judge is part of a panel that hears a case. Before the opinion issues, though, the judge dies or retires. Then the decision is issued without her, sometimes with a notion that she heard the case but is no longer a panel member. This makes sense, in that you could say the relevant point in time is the decision rather than the argument.

Now think about a Justice who joins the Supreme Court after the start of the Term, the way Justice Barrett did. She was not part of the decisions from the cases argued that Term before she was confirmed. But she was on the Court while those cases were pending decision and when they were decided. Why, then, could she not vote on them? She could read the briefs, of course, and Justices do vote in cases where they cannot attend the oral argument due to illness. And the Court had a vacancy, so you can't say that the reason is because the Court was at full strength until she was confirmed.

The Court's custom, at least in recent years, is that a new Justice who starts after the Term begins and fills a vacant seat does not vote on or participate in the pending cases. But why? 

Posted by Gerard Magliocca on January 13, 2022 at 01:52 PM | Permalink | Comments (0)

I am officially old (corrected, still old)

A 1L in my Civ Pro class this semester is the child of a woman who took Civ Pro from me in fall 2002 at Florida State, the first time I taught the course as a VAP.

Posted by Howard Wasserman on January 13, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:


Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 12, 2022

Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) Some of these involve what we might think of continuity and succession issues between volumes and editors. Others involve what we might think of as changes in view among some law students about what their office as editors of scholarly journals--and it is an office--involves, allows, or demands. That larger category involves a good deal more than just flashpoints around the publication of particular articles, or even public statements issued by reviews or their editors about their aims, although there have been quite a few of those in the past few years. 

I was particularly interested in a post by Michael Smith, linked to by Caron, noting and complaining about what Smith calls "the sport of attacking law review editors." I take no view on most of what Smith has to say in his post, and am not in total agreement with his complaint that professors should not criticize law review editors by name. On the whole I am sympathetic to it. I would not be inclined to do it. It seems undignified and unnecessary much more often than not. And I must acknowledge my suspicion that a good deal of the time such posts and twits, even when they have a point on the merits and about larger concerns, are carried out in a fashion that reflects the awful mixed motives that characterize so much social media activity: not just making a point, but scoring a point, or promoting oneself, or feeding unhealthy controversy, or exaggerating for political effect, and all the other things that make so much of contemporary discourse a cesspool. But some instances of naming a law review editor seem to me more about fairly reporting and documentation than outright attack. And it seems fair to note that to the extent that journals and their editors are busy making public pronouncements of their own, their expectations of privacy may diminish accordingly.

Nevertheless, I am in sympathy with Smith's basic point, beyond my concerns about undignified discourse, insofar as it reminds us that if there is a problem, it lies elsewhere. Legal scholarship, like scholarship in any discipline, is an institution. And, with very rare exceptions, it is not an independent institution. (There is at least one prominent law review that is formally independent. Even there, I don't think it should be viewed as wholly independent of the law school with which it is associated.) Given the odd fact that most law reviews in this country are student-edited, it shouldn't be an independent institution. A scholarly institution is the responsibility of the members of its discipline. That's true in general terms, but also in the more specific sense that a law review is ultimately the responsibility of its law school, that school's faculty, and the review's faculty advisor. At a minimum, if someone is going to go to the trouble of naming the editor of a law review when complaining that it has failed in its duties, scholarly or contractual, that critic should note the name of the faculty advisor and ask for comment from that person. But beyond that, ultimately a law faculty itself should step in--has an institutional and disciplinary duty to do so--if one of its journals is acting in a way that violates, ignores, or weakens scholarly norms. 

Of course what those norms are is subject to the usual contestation. But the ultimate duty to step in and at least temporarily resolve those contests belongs not with student editors, but with the larger institutions that administer the law reviews and that bear responsibility for the state of their piece of the discipline. Were it otherwise, the existence of student-edited journals would be even more absurd than it already is. No doubt that duty can and perhaps should usually be exercised lightly--not deferentially, since there is little basis for deference, but lightly. In the past, when I have been faculty advisor to a journal, I've told the editors that it's "their" volume and  that they are generally free to make their own calls about which articles to publish and about the direction in which they want their volume to go. The editors of one volume may be concerned with "national" scholarship and prestige, while the editors of another might want to place a greater emphasis on scholarship and writers focused on their own state or jurisdiction, and so on. Most of that is fine with me, although I offered advice up front and along the way. But if the editors decided they wanted to run a year of Alexandrine verse, not for any recognizably legal-scholarship-related reason but because they are keen on Alexandrine verse, I would have an obvious duty to step in and say no--and if I didn't, my colleagues and administration would.

I suspect that some potential controversies don't arise, or don't get publicity, or end up being resolved appropriately, because the faculty advisor or the law school itself steps in, quietly, either before the fact or to resolve a problem. That's as it should be. (I gather that in the case of at least one of the journals named above, that's what ultimately happened. And NYU issued a statement on its own behalf and that of the law school objecting to the NYU Review of Law & Social Change's action.) But when we are talking about the controversies that do end up arising and gathering traction, or about larger concerns about law reviews, we should certainly remember that however much autonomy we appear to give law reviews, they are not actually autonomous, and for disciplinary reasons cannot be. Ultimately, they are the responsibility of the discipline, generally through the office of the faculty advisor and in a broader sense of the law school and its faculty and administration, and beyond that of all of us. We may act or talk most of the time as if these reviews are independent and autonomous, but the buck still stops with us. It is at least possible that we should be more hands-on in our disciplinary responsibilities on this front than we currently are. Law reviews and their editors are, at least in this system, free to talk about exciting "new" visions about what legal scholarship should be and do, what positions law reviews should take (if any), and so on. (They're often not actually "new," of course.) But if we as a discipline or as individual institutions think their vision is wrong, or that they have acted wrongly or outside scholarly norms in a particular instance, it's still our job to step in and settle the matter.            

Posted by Paul Horwitz on January 12, 2022 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, January 11, 2022

State Ballot Eligibility Regulation

Derek Muller has a post arguing that states lack the authority to enforce federal constitutional eligibility requirements against federal congressional candidates. He says this means that 15-year olds can, say, run for the Senate even though they are obviously ineligible. Only Congress can (if such a person wins) exclude them from office.

There are several problems with this argument. But one is that I don't think this tracks actual practice. I once represented a woman who was excluded from the ballot for the House of Representatives because she was too young. (Basically, I made Muller's argument and lost.) I find it hard to believe that I'm only person to ever have had such a case. States also commonly require candidates for Congress to swear that they are eligible to serve, citing the Federal Constitution. If you don't complete the form, you can't run.

If Muller's argument were correct, I would also tend to think that all least one state would have a similar rule for state legislative elections. Many state constitutions just copied the Qualifications Clause in Article One, Section Five. I do not know of any state that reads this clause to say that state election officials are disabled from enforcing state constitutional eligibility requirements on legislative candidates. (But on this point I'm happy to be corrected if I'm wrong.)



Posted by Gerard Magliocca on January 11, 2022 at 09:46 PM | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, January 09, 2022

Interesting conference about law school student evaluations

via zoom - Validity and Equity Problems in Law School Teaching Evaluations Thursday, January 20, 2022, 12 – 2 pm CST. register here. from the organizers:

Student evaluations are, as shown by study after study, not valid measures of teaching quality and are biased along the axes of gender, race, accent, age, disability, attractiveness, and other instructor attributes unrelated to teaching ability. Yet, even as many universities and colleges have begun reckoning with these established problems with teaching evaluations, and while many law schools have started tackling other barriers facing women and minorities in academia, attempts to reform evaluations have lagged behind in the legal academy. This panel brings together a multidisciplinary group of scholars to discuss the most recent research on teaching evaluations and how law schools should proceed given what this work shows about the issues with such evaluations.


Posted by Orly Lobel on January 9, 2022 at 05:54 PM | Permalink | Comments (6)

Saturday, January 08, 2022

Closing Comments

With regret, I must tell you that I will no longer be opening my posts to comments. I don’t have the time to moderate the thread, and lately many of the comments (from one account) have been spouting anti-vaccine gibberish. 

Thank you for all of your comments over these past 13 years, if you include my stints at other blogs. It’s been a blast. 

Posted by Gerard Magliocca on January 8, 2022 at 12:37 PM | Permalink | Comments (0)

Friday, January 07, 2022

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

Posted by Howard Wasserman on January 7, 2022 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, January 06, 2022

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

Posted by Howard Wasserman on January 6, 2022 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 04, 2022

The Marshall/Washington Court

My biography of Bushrod Washington will (as all biographies do) provide many fascinating details about the subject and the times in which he lived. If there is one overarching theme of the book, though, it is that we should understand the Marshall Court as a partnership between John Marshall and Bushrod Washington.

One way to view constitutional law is as a series of remarkable collaborations. For the Warren Court, there was Earl Warren and William Brennan. At the Founding, there was: (1) George Washington and Alexander Hamilton, and (2) Thomas Jefferson and James Madison. These pairs sometimes worked together and sometimes were opposed, but each member of each pair complemented the other and made the whole greater than the sum of its parts.

When we turn to the early Supreme Court, though, the focus is almost on John Marshall alone. Or sometimes we say John Marshall with a little help from Joseph Story. My book argues that the answer is really John Marshall with a lot of help from Bushrod Washington and a little help from Joseph Story. Bushrod Washington and Marshall balanced each other both personally and professionally. Indeed, there are echoes of the Hamilton/George Washington relationship there, with Marshall playing a version of the Hamiltonian role with Bushrod displaying George's sober temperament.) The proof of this will be in the telling of the book, and I may expand on this idea in other posts.  

Posted by Gerard Magliocca on January 4, 2022 at 05:03 PM | Permalink | Comments (1)

Beyond Imagination?: The January 6 Insurrection

The following post is by Mark C. Alexander, Arthur J. Kania Dean and Professor of Law at Villanova and is sponsored by West Academic.

As United States citizens, we have long prided ourselves on the peaceful transfer of power after elections. Every four years we hold a presidential election, resulting in a winner. Dissenting voices may object, but the winner is accepted, and the loser moves on. At least this was the case until January 6, 2021.

Since that fateful day, we have been consumed with and concerned by that day’s events. Amounting to nothing short of an insurrection, a violent and deadly mob stormed the U.S. Capitol while the Congress was meeting to perform the essential, yet largely ceremonial, task of counting the ballots from the Electoral College to formally declare the winner of the presidential election. That task has occurred without much attention for 200+ years, but this time it was different. Instead, Americans watched the unimaginable happen—an attack on our democracy, the rule of law, and the foundation of America’s constitutional democracy.

While our nation has always been a work in progress, the rule of law serves as the guide to achieve the promise of equal justice under law. Throughout our nation’s complex history, the rule of law and our carefully balanced constitutional system has allowed the nation to confront and successfully navigate many unique existential threats.

As law professors, we train the next generation of lawyers; therefore, we are obligated to examine these seditious acts, with an eye on the lawyers involved, the rule of law, and our system of laws and government. As lawyers, we also must act according to certain standards of conduct, which reflect the great trust placed upon all members of our noble profession.

In the immediate aftermath of the events of January 6, 171 deans of American law schools came together and wrote an open letter addressing the attack. After that open letter, I reached out to a number of colleagues, and 14 of us decided to write a book, entitled Beyond Imagination?: The January 6 Insurrection. The book is not a partisan undertaking; it is instead intended to expose the problems that led to January 6 and to help us move forward and heal. Our cause is the rule of law; our loyalty is to the Constitution of the United States. We support the American people, not one candidate, elected official, or individual. Each co-author wrote one chapter—relatively short and accessible, but still erudite. We write from our perspectives as legal scholars, as deans of our institutions, and as individuals who have been engaged in leadership in various ways, primarily (but not exclusively) in the law.

As lawyers and legal educators, the ongoing legitimacy of our nation’s republic requires us all to engage. This work will not be easy. We hope that all may be interested in reading this book as an exercise in civics and that it will challenge the reader. It could form the basis for a stand-alone course or, you could use select chapters in a course on any number of myriad subjects. It would work well for a sort of “One Book” course, or for CLE offerings as well.  We hope that this work can serve as a sober reminder of the weight and responsibility that attends the oaths we have taken to uphold the Constitution and the rule of law.

Posted by Howard Wasserman on January 4, 2022 at 09:35 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)