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Monday, February 28, 2022

Quick thoughts on the Jackson nomination (Update)

1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.

2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.

Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.

3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.

4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.

Posted by Howard Wasserman on February 28, 2022 at 04:29 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Erbsen on Bookman & Shanahan on lawyerless courts

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022), which considers how procedure operates in the many courts dominated by pro se litigants. This is the latest in a run of articles and JOTWELL essays considering procedure on the ground outside of the federal courts we focus on in the classroom and in much scholarship.

Posted by Howard Wasserman on February 28, 2022 at 08:48 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, February 26, 2022

Tenure

The latest Academic Freedom Podcast interviews Matthew Finkin (Illinois) about Dan Patrick's stupidity and the history of tenure. Finkin argues that academic tenure was modeled on Article III tenure (albeit with a lengthy initial probationary period) as a way of protecting the pursuit of "truth" in the face of hostile popular opinion. Finkin says that, from his litigation experience, state judges (who lack such protections in most states) struggle with the concept of tenure when it arises in litigation more than do federal judges (who enjoy similar protections).

So how should we think about academic tenure in a time when many people across the political spectrum have soured on life tenure for judges. If it does not work in the courts, does it work in the academy? Alternatively, why are they different? The obvious difference is power. Many object to one person exercising political power to affect millions (even if only as one of nine) for 35 years. Nothing academics say inside or outside the classroom affects so many people in so direct a way. Another difference is political valence. Those seeking to change Article III in some way come from across the spectrum; systemic attacks on academic tenure come exclusively from the right (although the left does not like and would like to strip tenure in individual cases). But the pushback to Article III reflects concerns about insulation, isolation, being out of touch with the evolution of law, politics, and society. Is that less of a concern for professors and why?

I have come around to the 18-year Carrington Plan (if Eric Segall's even Court cannot happen). At the same time, I am in my nineteenth year of teaching, my fourteenth with tenure. I started to really figure out what I am doing--as a writer and in the classroom--five or six years ago. I cannot imagine my career being over in four years.

One different point, intended more for humor: Someone floated a proposal to split offense and defense in baseball--nine players bat, a different nine players play the field. It is a dumb proposal, in part because we value both skills. We also sometimes trade one for the other--accepting the great-hitter/poor-fielding first baseman or the little-hit/great-glove middle infielder. Much as we might accept the great-scholar who is not a good teacher or the great teacher who does not write. So match the skills--does teaching align with fielding or hitting.

Posted by Howard Wasserman on February 26, 2022 at 08:59 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, February 25, 2022

The College of Clerks

Today's nomination of Judge Jackson makes me wonder if any future Justice will be selected without having previously clerked on the Supreme Court. Justice Sotomayor was the last Justice nominated without such a clerkship, though Justice Thomas and Justice Alito also did not clerk for a Justice. 

The Pope (at least in modern times) much come from the College of Cardinals. That may work well for the Church, but I'm not sure it's a great model for picking Justices.

Posted by Gerard Magliocca on February 25, 2022 at 09:02 PM | Permalink | Comments (0)

Thursday, February 24, 2022

South Texas College of Houston: Visiting Faculty and Tenure-Track Faculty Teaching LRW

South Texas College of Law Houston (“STCL”) invites applications for several open positions beginning in the Fall 2022 semester. Applicants for these positions should include at least a letter of interest, CV, and three references. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply. Applications will be accepted until the positions are filled.

(1)  A full-time, tenure-track position teaching legal research and writing beginning in the 2022-23 academic year. Faculty teaching legal writing at STCL are fully integrated tenure-track faculty members with the same benefits and scholarship and service requirements as doctrinal tenure-track professors. We seek candidates with outstanding academic records who are passionate about legal writing and committed to both excellence in teaching and sustained scholarly achievement. Legal writing teaching experience is preferred but not required. Applications for and questions regarding this position may be directed to Professor Charles W. “Rocky” Rhodes, Chair, Faculty Appointments Committee, [email protected].

(2) One or more Visiting Assistant Professor (“VAP”) positions for academic years 2022-24. Our VAP program exists to help practitioners and others develop their teaching skills and scholarship to transition to full-time academic positions. A VAP is initially given a one-year contract, with the expectation of reappointment based on satisfactory performance, with a possibility for reappointment for a third year. The specific courses taught by a VAP will be determined by considering the interests and abilities of the VAP and our curricular needs, which include criminal law, criminal procedure, evidence, civil procedure, torts, first amendment law, secured transactions, and wills, trusts & estates. A VAP is eligible to be appointed to a permanent position on the STCL faculty under the same process used for all candidates for permanent faculty positions. VAP applications and questions regarding the program may be directed to Professor Kenneth Williams, Chair of the VAP Search Committee, [email protected].

(3) One or more podium visitor positions for Fall 2022 and/or Spring 2023. Our specific curricular needs include criminal law, criminal procedure, evidence, civil procedure, torts, first amendment law, secured transactions, and wills, trusts & estates. Applications and questions regarding the podium visitor position for experienced faculty may be directed to Ted L. Field, Associate Dean for Faculty, [email protected].

STCL is committed to fulfilling our mission of providing a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 60 full-time and 60 adjunct professors serving a student body of 900 full and part-time students. South Texas is known for its supportive and collegial culture and its commitment to student success. The school is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution. Additional information regarding South Texas is available at http://www.stcl.edu.

STCL is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national or ethnic origin, ancestry, age, disability, sexual orientation, gender identity, veteran status, or any other characteristic protected by law.

Posted by Howard Wasserman on February 24, 2022 at 10:06 AM in Teaching Law | Permalink | Comments (8)

Lawsky Entry Level Hiring Report 2022 - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.

You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.

If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)

If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.

Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2021 initial post, 2021 spreadsheet, 2021 report (with graphs)

2020 initial post, 2020 spreadsheet, 2020 report (with graphs)

2019 initial post, 2019 spreadsheet, 2019 report (with graphs).

2018 initial post, 2018 spreadsheet, 2018 report (with graphs).

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Posted by Sarah Lawsky on February 24, 2022 at 01:28 AM in Entry Level Hiring Report | Permalink | Comments (8)

Wednesday, February 23, 2022

Cawthorn Litigation Update

I wanted to note that the Federal District Court has scheduled a hearing for next week to consider arguments on Congressman Cawthorn's request for injunctive relief against a state candidate eligibility proceeding. The latest filing in the case is from the North Carolina Attorney General, who argues that Cawthorn's complaint should be dismissed.

At some point I'll try to put together a resource of all of the relevant filings. The federal litigation will, you would think, proceed to the Fourth Circuit and then to the Supreme Court (probably as requests for emergency relief given the short timeframe before the primary).

UPDATE: The hearing is postponed until March 21st. Due to the new redistricting in North Carolina, the state complaint must be refiled after Congressman Cawthorn decides which newly configured district he will run in.

Posted by Gerard Magliocca on February 23, 2022 at 01:22 PM | Permalink | Comments (0)

The Decision of 1789

One question that I raised at a conference this weekend was: "When was the "Decision of 1789" first characterized that way? The Decision of 1789, of course, refers to the congressional/executive precedent established then that the President could unilaterally remove executive officials from office. My recollection was that in the nineteenth century people discussed this episode but did not give it a special name or use a proper noun in referring to what occurred.

Turns out that Myers v. United States is the first case to use the term. This comes as no surprise given the Court's broad statements in Myers about the President's removal power. What's interesting is that I can find no law review reference to the "Decision of 1789" prior to Myers, though I have not done a more thorough search of the secondary literature from that period.

I'm always interested in how certain decisions or phrases become authoritative in constitutional law. Here is one more example.

Posted by Gerard Magliocca on February 23, 2022 at 01:07 PM | Permalink | Comments (0)

Friday, February 18, 2022

The January 6th Civil Suit

The District Court issued an opinion today rejecting former President Trump's motion to dismiss the civil case brought against him for the January 6th violence. Among other things, the Court concluded that Trump's speech at the "Stop the Steal" rally can be seen as incitement even under the very speech-protective Brandenburg standard. This conclusion is sure to generate a lot of discussion.

Posted by Gerard Magliocca on February 18, 2022 at 03:54 PM | Permalink | Comments (0)

Thursday, February 17, 2022

Clinical Professor of Law and Director, Bartlit Center for Trial Advocacy, Northwestern-Pritzker

Northwestern Pritzker School of Law

Bluhm Legal Clinic

Open-Rank Clinical Professor of Law and Director, Bartlit Center for Trial Advocacy

Northwestern Pritzker School of Law invites applications for a clinical faculty position to serve as the Director of its Bartlit Center for Trial Advocacy with an expected start date of August 1, 2022. The Center prepares law students to become confident, skilled, and effective litigators. The Center is a nationally-ranked, simulation-based teaching program - among the finest in the country.  The Center teaches students ethics and professional responsibility, evidence, pre-trial litigation, trial technology, and trial advocacy.

Candidates will be considered for appointment to the faculty of the Bluhm Legal Clinic of Northwestern Pritzker School of Law at a level commensurate with experience and qualifications. We seek applicants for this position with distinguished academic records and a demonstrated track record of directing, developing, and teaching trial advocacy courses.

Required qualifications include: a JD; at least five years of experience in the practice of law; excellent written and oral communication skills; experience supervising student mock trial teams; experience generating revenue for clinical programs, and enthusiasm for collaborating in departmental and law school committee work.

Duties of the position include: directing the Center, supervising and overseeing the hiring of adjunct faculty, teaching trial advocacy courses, developing curriculum and enhancing course offerings, fostering academic excellence and innovation throughout the Center, and maintaining our national reputation for excellence in advocacy training and teaching.

Requisite attributes include: demonstrated abilities to inspire others and to work collaboratively, creatively, and constructively with others.  The candidate must have strong organizational skills and be recognized as a respected member of the clinical community and professional community.  This person should have a passion for teaching and learning as well as for the development of students and academic programs. The candidate must have the ability to integrate technology into the teaching and learning process. The candidate must also have the ability to successfully interact with students, other educators and educational institution representatives, and the general public in a professional manner.

The Bluhm Legal Clinic is currently made up of the Center on Wrongful Convictions, Children and Family Justice Center, Center on International Human Rights, Entrepreneurship Law Center, Environmental Law Center, Appellate Advocacy Center, Roderick MacArthur Justice Center, Civil Litigation Center and other clinical programs that involve civil litigation and criminal defense.

To apply, applicants should submit a cover letter, curriculum vitae, and a list of three professional references through Northwestern’s online application system: https://facultyrecruiting.northwestern.edu/apply/MTQzMA==. Interested applicants are encouraged to submit materials as soon as possible and highly encouraged to apply no later than March 11.

Northwestern requires all staff and faculty to be vaccinated against COVID-19, subject to limited exceptions. For more information, please visit our COVID-19 and Campus Updates website.

 

Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes, including veterans and individuals with disabilities. Women, racial and ethnic minorities, individuals with disabilities, and veterans are encouraged to apply. Click for information on EEO is the Law.

Posted by Howard Wasserman on February 17, 2022 at 06:24 PM in Teaching Law | Permalink | Comments (0)

Stare Decisis Factors

I also taught Admiralty today and we discussed one of my favorite opinions. Moragne v. States Marine Lines, Inc. held that there is a general maritime law remedy for wrongful death, and in so doing overruled a prior Supreme Court decision. In this unanimous opinion, Justice John Marshall Harlan II said this about stare decisis:

Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments. The reasons for rejecting any established rule must always be weighed against these factors.

I've always thought that this was a better explication of stare decisis than what Casey said. If Roe v. Wade is overruled in June, I wonder how the opinion will read when compared to these factors. 

Posted by Gerard Magliocca on February 17, 2022 at 01:53 PM | Permalink | Comments (0)

Dicta From U.S. Term Limits v. Thornton on Qualifications

I'm teaching Thornton today in Constitutional Law. The case held, of course, that the states may not add qualifications to congressional candidates beyond those in the text of the Constitution. Here is how the Court described the Qualifications Clause in Thornton:

"We find further evidence of the Framers' intent in Art. I, Sec. 5, cl. 1, which provides: "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members." That Art. I, Sec. 5 vests a federal tribunal with ultimate authority to judge a Member's qualifications is fully consistent with the understanding that those qualifications are fixed in the Federal Constitution, but not with the understanding that they can be altered by the States."

According to the Court, the Qualifications Clause gives Congress "ultimate authority" to judge a Member's qualifications. Not exclusive authority. This is just one more piece of evidence against an exclusive reading of the Qualifications Clause.

Posted by Gerard Magliocca on February 17, 2022 at 12:35 PM | Permalink | Comments (0)

Abstention on cutting-edge constitutional issues

I am a few days late to comment on Gerard's post arguing the federal court should abstain from Madison Cawthorn's lawsuit seeking to stop the North Carolina Board of Elections proceeding to determine whether he can be barred from seeking office under § 3 of the 14th Amendment.

Gerard is correct about what the court should do. I am not convinced it will do that. Federal courts seem less likely to abstain where the federal constitutional issue that would be raised as a defense in state court is cutting-edge or otherwise nationally significant. The courts declined to abstain from Trump's lawsuit (in 2019) to stop Cy Vance's grand-jury investigation; federalism and separation of powers concerns, along with Trump's asserted immunity, created a sufficient federal issue to overcome Younger. A federal court might find that Cawthorn's argument that states lack the power to enforce § 3 and to keep a person off the ballot for federal office (which at least some scholars urge) sufficient to justify federal intervention and federal interference with the state proceedings, even if it does not fit any recognized exceptions or limitations to Younger.

I hope I am wrong. But courts approach Younger differently when the would-be federal plaintiff is a sitting congressman than when he is the owner of an adult theatre.

Posted by Howard Wasserman on February 17, 2022 at 10:17 AM | Permalink | Comments (0)

Wednesday, February 16, 2022

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I

The first of Rocky's and my (hopefully) three SB8 articles has been published in American University Law Review. This focuses on how providers cannot and can challenge SB8 through offensive litigation, including why WWH was correct and other offensive options the Court did not consider. AULR's editors were impressive in turning the piece around in less than three months after the Court's decision We are editing the second piece, forthcoming in SMU Law Review and focused on how defensive litigation may play out. The third piece, on New York Times as historical analogue, sits on a law review editorial desk near you.

Posted by Howard Wasserman on February 16, 2022 at 10:28 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

California's Ban on State-Funded Travel to Some States

One topic that I like discussing with students in Constitutional Law is AB 1887, which is the California that prohibits state-funded travel to states with LGBTQ policies that California finds obnoxious. There are 18 states on the list. Texas, which is one of these states, tried to bring a challenge in the Supreme Court's original jurisdiction last year but the petition was dismissed. I know of no challenges currently pending to AB 1887, though that may be because there just hasn't been much travel at all in the past two years.

If California had a regulatory statute that created two classes of sister states, such a law would almost certainly be unconstitutional under the Dormant Commerce Clause (or perhaps on other grounds). But AB 1887 is not about regulation--it's about spending money. A state has broader latitude about spending as opposed to regulation, though not without limit. Assuming you could find someone with standing to bring a constitutional challenge, is this statute valid or invalid discrimination?

I'm not sure. Saying that California must spend its money equally among the other states is a broad proposition that seems unworkable. On the other hand, if every state did something like what California does for its own policy of choice, that would amount to a lot of tit-for-tat retaliation that could be unduly burdensome for interstate commerce. This might become even more of a problem once we have states where abortion is broadly available and others where abortion is a crime. Having a national convention of state officials might become impossible, unless some simply attend on Zoom and thus spend no money at all. 

Posted by Gerard Magliocca on February 16, 2022 at 09:22 PM | Permalink | Comments (0)

Monday, February 14, 2022

Weird procedure and Palin v. New York Times (Updated Several Times)

Jed Rakoff is an excellent judge. But his approach to Palin v. NYT has been procedurally bizarre.

First, he held an evidentiary hearing (testimony from James Bennett, the op-ed's primary author) in deciding a 12(b)(6) motion, without converting to summary judgment; the Second Circuit reversed. Second, Rajoff denied summary judgment, hinting that the evidence did not support actual malice by clear-and-convincing evidence but that it was not his job to weigh the evidence. This was proper, although unusual--most judges are not so forgiving of plaintiffs.

Today, Rakoff announced he would grant the Times's motion for judgment as a matter of law, although the jury is deliberating and he will allow the jury to reach a verdict. It is not unusual for a judge to let a case go the jury knowing he will grant JML. He gives the jury a chance to get it "right" and enters judgment on the verdict, insulating his opinion from appellate review. But he can resolve the case as he sees fit if the jury gets it "wrong." But it is unusual (and perhaps improper?) to announce that intention while the jury is deliberating. If any juror learns of Rakoff's announcement, that seems to provide a basis for reversal of a judgment on the verdict or at least a new trial--the deliberations become a sham if the jurors know how the case ends regardless of what they do. If there is a chance the jury learns of his announcement it presents at least a colorable new-trial or appellate issue that will make life tougher for the Times in defending the judgment. [Update: On further thought, Rakoff could grant a new trial, then grant summary judgment before the new trial begins or JML after the plaintiff's case n the second trial]

Further Update: Jury finds for NYT. This moots the above discussion, although it remains a weird process, unless we somehow learn that jurors learned about Rakoff's plan before the verdict. Watch out for news reports saying that NYT lives another day or that the Court or jury reaffirmed NYT, which reflect basic ignorance about what district courts do.

Further, further Update: It turns out the use of NYT and actual malice as the standard is based in part on New York's anti-SLAPP statutewhich codifies actual malice (likely as a hedge against SCOTUS overruling)* although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.

[*] This presents the opposite of a zombie law--a statute that continues providing heightened protection of individual rights when the Constitution does not require that heightened protection. Like RFRA or RLUIPA. What do we call them? Super Laws, as they not only are no undead but enjoy extraordinary powers? I wish I had thought to include this opposite category in the paper.

Further, further, further update: The jury found out via push notifications on their phones. The jurors insist it did not affect their deliberations. Judge Rakoff notifed the parties and gave them the opportunity to seek any relief they believe appropriate based on this, while noting that no party objected to his plan to issue his FRCP 50 order while allowing the jury to continue deliberating. Everyone is scrambling to figure out what effect, if any, this will have.

Posted by Howard Wasserman on February 14, 2022 at 07:17 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

"Washington's Heir" Now Available for Pre-Order on Kindle

The Kindle version of my Bushrod Washington biography will come out on March 1st. When the book is released, I will write a series of posts outlining what I learned from this project.

Posted by Gerard Magliocca on February 14, 2022 at 06:44 PM | Permalink | Comments (0)

Sunday, February 13, 2022

Abstention in the Cawthorn Litigation

Professor Muller has a piece in the WSJ elaborating his view that the states are barred from enforcing the constitutional qualifications for congressional candidates. (The piece is available only if you subscribe to the Journal, but you can find the gist of the argument in some of Professor Muller's posts over on the Election Law Blog.) I've explained in some recent posts here why I am unpersuaded by his points and think that the states can enforce these qualifications. But this issue may not matter for quite a while.

The federal district court is likely to abstain from enjoining the North Carolina Board of Elections proceeding. And the Board of Elections has already filed a brief rejecting Professor Muller's position and asserting its concurrent authority to enforce the Qualifications Clause. If the federal courts do abstain, then there will probably be a full-blown hearing before the Board in which Congressman Cawthorn will have to testify about his involvement in January 6th. If the Board concludes that Congressman Cawthorn did not engage in insurrection, then the Qualifications Clause question may not be raised or addressed on appeal. Only if the Board disqualifies Cawthorn will a decision be necessary on whether states are disabled from enforcing Section Three of the Fourteenth Amendment against congressional candidates.  

 

Posted by Gerard Magliocca on February 13, 2022 at 10:28 PM | Permalink | Comments (0)

SSRN fallout? (Udpated Twice)

Are schools discussing or planning responses to SSRN on the Ann Lipton debacle-stopping their legal studies series (permanently or temporarily), stopping posting new papers (permanently or temporarily), something else?

Leaving comments open for real responses. I will delete unrelated comments.

Update: Several people say that HLR did not withdraw Lipton's publication offer and did receive a C&D letter (resolving a question raised in the comments). I regret the suggestion that faculty could, might, or should impose negative consequences on the review and have deleted that reference from the first paragraph.

Update, Update: Ann updated her post to report that SSRN restored the paper and posted an explanation to Twitter announcing that it had changed its policy of pulling papers while investigating defamation complaints.

Posted by Howard Wasserman on February 13, 2022 at 11:20 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Saturday, February 12, 2022

SSRN succumbs to a cease and desist letter

Tulane law professor Ann Lipton wrote an important article called Capital Discrimination, and it was accepted by the Houston Law Review and posted on SSRN.  The article identifies an important problem of gender discrimination against women as business owners, partners, and capital providers, not covered by employment law discrimination, and proposes changes to both statutory law and common law fiduciary duties in order to address this kind of discrimination. The article identifies several business law cases and analyzes them as part of the research. One of them is Shawe v. Elting -- when the article was placed online, an attorney representing Shawe sent a cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. What did SSRN do? You guessed it - removed the paper. Wow! Tulane's counsel sent a response letter to SSRN, and you can read with links about this whole saga here. Madness! I teach defamation and this is not something that would fall within an actionable defamation claim. It reminded me of the ironies of having written a book about how litigious Mattel is, and then seeing my publisher be super worried, beyond anything the law would allow, about whether Mattel would send a cease and desist.

The silver lining -- Ann's article is now getting more views and reads than law reviews articles normally get - which is great, because, again, it is an important issue!

 

 

Posted by Orly Lobel on February 12, 2022 at 08:25 PM | Permalink | Comments (7)

Friday, February 11, 2022

Reforming the Electoral Count Act

The current draft of legislation to amend the Electoral Count Act contains many significant improvements. But I do want to highlight one issue that could pose a problem down the road.

There is a tension between Congress's role in counting the electoral votes and the authority of state legislatures to determine how presidential electors are chosen. If Congress says "we will only count a state's electoral votes if . . ." that could be understood as an intrusion into the state legislature's authority if the state presents a single slate of electors. For instance, the current draft of the bill says that state legislatures may not reverse the result of the state's presidential election and award the electors to the other candidate. Or, put another way, Congress will not count any electoral votes awarded ex post by the state legislature.

I think, though, that Congress can say this only if state legislatures lack that power. And there is a decent argument that they do lack that power. If that's wrong, though, then I don't see how Congress can refuse to count such votes. Perhaps the answer is that in that situation there will always be two slates of electors, such Congress would just be choosing between them, but I'm not sure. 

Posted by Gerard Magliocca on February 11, 2022 at 12:33 PM | Permalink | Comments (0)

JOTWELL: Smith on Citron & Solove on privacy harms

The new Courts Law essay comes from Fred Smith, Jr. (Emory) reviewing Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. ___ (forthcoming 2022), which explores how to better recognize and remedy privacy violations.

Posted by Howard Wasserman on February 11, 2022 at 10:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Quote for All of Us

Bueller quote

Posted by Orly Lobel on February 11, 2022 at 01:44 AM | Permalink | Comments (0)

The Netanyahus - an academic novel

I am delighted to discover a new academic novel (sometimes referred to as a campus novel, but the academic novel is a subgenre of the campus novel - it is about the life (or perspective) of faculty, rather than students and the greater university community) - comic and original - The Netanyahus. I haven't finished it yet but happy to start a book club thread here. Blum, the narrator, is a particular kind of academic by the way: he writes about the history of tax, a compromise between his parents who wanted him to become an accountant and himself, who was drawn to literature. English became history, accounting became economics. 

from the publisher:

Corbin College, not quite upstate New York, winter 1959–1960: Ruben Blum, a Jewish historian—but not an historian of the Jews—is co-opted onto a hiring committee to review the application of an exiled Israeli scholar specializing in the Spanish Inquisition. When Benzion Netanyahu shows up for an interview, family unexpectedly in tow, Blum plays the reluctant host to guests who proceed to lay waste to his American complacencies. Mixing fiction with nonfiction, the campus novel with the lecture, The Netanyahus is a wildly inventive, genre-bending comedy of blending, identity, and politics that finds Joshua Cohen at the height of his powers.

 

Posted by Orly Lobel on February 11, 2022 at 01:28 AM | Permalink | Comments (0)

Law Review Publishing Conversation

this video:

https://www.youtube.com/watch?v=TZ6_eLecqQA

Professors Lederman (Indiana-Bloomington) & Choi (Minnesota) co-host this interview with Indiana Law 3L Abbi Semnisky and also share insights. Prof. Lederman was a Note & Comment editor on the NYU Law Review. Prof. Choi was Bluebooking Editor on the Yale Law Journal. Prof. Choi also shares Minnesota Law Review statistics.

Posted by Orly Lobel on February 11, 2022 at 01:18 AM | Permalink | Comments (0)

Thursday, February 10, 2022

A Section Three Challenge in Indiana

The eligibility of Representative Jim Banks (R-IN) to run for reelection is being challenged by one of his potential Democratic opponents in November. The challenge, filed before the Indiana Election Commission, alleges that Representative Banks is ineligible under Section Three of the Fourteenth Amendment.

I am quite skeptical that there is sufficient factual support for this challenge, as I am unaware of any allegations that Representative Banks was involved in the January 6th insurrection. The Indiana Election Commission decides these eligibility challenges informally--no written submissions are required and no written decision is issued. Thus, I'm not sure their ruling will tell us much of anything. But an appeal can, of course, be brought in the courts.

Posted by Gerard Magliocca on February 10, 2022 at 06:07 PM | Permalink | Comments (0)

Wednesday, February 09, 2022

Formal and Functional Constitutional Reasoning

A recurring conflict in constitutional law is between a more formal and more functional approach. Let me give you an example and then apply that to a current issue.

Suppose a naturalized citizen who is otherwise eligible to run for President runs for the White House. When her right to appear on the ballot is challenged by state election authorities, she says, "Oh, but the Constitution could be amended between now and Inauguration Day to allow naturalized citizens to serve as President. So you must let me run."

I think it's pretty clear that this argument would be rejected. Why? Because the chances of such an amendment are close to zero. This is, of course, a functional answer to the problem. 

Now let's turn to a related subject. Suppose someone ineligible to run for office under Section 3 of the Fourteenth Amendment says to state election authorities, "Oh, but Congress might give me amnesty between now and when I would take office. So you must let me run." Is that the same as our hypothetical naturalized citizen running for President?

Under a formal approach, both arguments are correct because in theory the Constitution could be rapidly amended and insurrectionists could be given immediate amnesty by Congress. Under a functional view, though, they may not be the same. It depends on the likelihood of amnesty. In the 1860s and 1870s, there was a reasonable application of amnesty because many people were getting amnesty and many amnesty measures were pending in Congress. 

Today, however, the odds of anyone getting Section 3 amnesty from Congress is about the same as the odds of a constitutional amendment being ratified--slim and none. Nobody has received amnesty since Jan. 6, 2021 and there are no amnesty measures pending in Congress. Thus, I think that the "I could get amnesty" argument does not work for anyone who is ineligible under Section Three now. 

Posted by Gerard Magliocca on February 9, 2022 at 03:19 PM | Permalink | Comments (0)

VAP Search: Villanova University Charles Widger School of Law

Villanova University Charles Widger School of Law seeks a qualified individual to serve as Visiting Assistant Professors of Law during academic year 2022-23. This position is a 10-month, visiting position beginning in the summer of 2022, with the possibility of one additional 10-month term.

The successful candidate will be responsible for teaching two courses, one per semester. We are especially interested in candidates who would like to teach Criminal Procedure and/or Legal Profession.  Courses are subject to negotiation, based on the curricular needs of the Law School and the interests of the candidate. Our VAPs have ample time to focus on scholarship and be afforded access to the Law School's library and related resources. Past Visiting Assistant Professors of Law at Villanova have found great success in legal academia.

Interested persons may reach out to Teri Ravenell, Associate Dean for Research & Faculty Development, at [email protected] with questions but should apply via our HR process at https://urldefense.com/v3/__https://jobs.villanova.edu/postings/22296__;!!FjuHKAHQs5udqho!ZKlwXNzY8kccxK388s2-3kAWfI7qJd-j2QDRpIjq6eJwsfAb-uRpLHyxZVz9g3lTGbP8gg$.

Villanova is a Catholic university sponsored by the Augustinian order. Diversity and inclusion have been and will continue to be an integral component of Villanova University's mission. The University is an Equal Opportunity/Affirmative Action employer and seeks candidates who understand, respect and can contribute to the University's mission and values.

Posted by Howard Wasserman on February 9, 2022 at 11:35 AM in Teaching Law | Permalink | Comments (0)

Tuesday, February 08, 2022

New York Times v. Sullivan as Historical Analogue

Charles W. "Rocky" Rhodes and I have posted to SSRN the third piece in our series on SB8--Solving the Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times as Historical Analogue. The piece compares Alabama's defamation regime and the coordinated campaign of private civil litigation to silence the northern media and stop coverage of the civil rights moves, none of which triggered offensive litigation.

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat, while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $ 10,000 per prohibited abortion. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

This Article—the third in a series unpacking S.B.8’s procedural puzzles—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free-speech case. Like S.B. 8, New York Times arose out of a campaign to deter locally unpopular-but-constitutionally protected activity through threat of hundreds of lawsuits and devastating liability; southern governments used state defamation law and private civil litigation to silence The Times and other media outlets from reporting on Jim Crow and the Civil Rights Movement. As with S.B. 8, state defamation law was enforced through private civil damages litigation. As with S.B.8, defendants faced severe monetary exposure through the cost of litigation and potential liability. But defendants in New York Times could not go to federal court ahead of any private lawsuit and seek to functionally enjoin the state’s trial courts. Rather, the paper litigated defensively, with successful review to the Supreme Court of the United States; providers can follow the same process to challenge the substantive validity of the Texas heartbeat ban.

Posted by Howard Wasserman on February 8, 2022 at 04:05 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, February 07, 2022

Book/Movie Club: The Lost Daughter

This afternoon I am excited to join a group of women law professors discussing via zoom Elena Ferrante's novella , The Lost Daughter, which Maggie Gyllenhaal’s adapted to a movie starring Olivia Coleman. The main theme of both book and movie, and indeed also of Ferrante's other Neapolitan amazing books, is the challenges and tensions between one's identity as mother and scholar/passions. The same theme centers Hagai Levi's remake of Scenes from a Marriage  - Ingar Bergmann's 1973 Swedish miniseries. Both are about mothers of young girls. Ironically though, the person who is struggling in Ferrante's novel is the scholar/academic, wanting to write, think, travel to conferences, to have dinner and conversations with other scholars; in Scenes, the stable person who stays with the daughter, parents and loves steadily, is the academic -- the father. He can be home, think, write, and take care of the kids. It's the nonacademic, the executive M&A mother who travels the world  and comes back wanting to leave again.

I will keep Prawfs posted on insights from the movie club meet. As some of you know - the academic novel is one of my favorite genres of fiction, so new recommendations and discussions always welcome.

 

Posted by Orly Lobel on February 7, 2022 at 03:40 PM | Permalink | Comments (5)

AALS is returning in person in San Diego 2023!

That's all folks - simply thrilled to think about an in person sunny meeting. Stay safe and healthy!

https://am.aals.org/theme/ 

Posted by Orly Lobel on February 7, 2022 at 02:49 PM | Permalink | Comments (2)

Saturday, February 05, 2022

Crazy if Wrong, Crazier if Right

I found only thing startling about this story reporting that a former clerk to Judge Ketanji Brown Jackson "embarked on a Wikipedia editing spree over the past week, bolstering the page of his former boss while altering the pages of her competitors in an apparent attempt to invite liberal skepticism, according to a statement from his fellow clerks." It certainly wasn't the act itself (for which no sensible or charitable person would hold the judge responsible). It was this bit: "The most recent changes to Jackson's page appear to be an attempt at swaying left-leaning opinion in her favor. On Jan. 30 and Feb. 1, user H2rty made significant changes to the body of Jackson’s page, cutting a reference to Jackson’s position on an advisory board of 'a Baptist school.'” It takes a remarkable level of youthful hubris and immurement in some kind of epistemic bubble to confidently conclude that deleting a reference to a judge's service to a Baptist religious organization would improve her chances at nomination, let alone confirmation in a divided Senate or wider electoral benefits. Worse still is the possibility that the judgment was accurate insofar as it reflected a prediction of the views, not of left-leaning or liberal public opinion, but of left-leaning or liberal interest groups. I don't think even that is correct, although if it were it would reflect badly on the political acumen of those groups and suggest the dangers of being generously well-funded by a few wealthy private donors instead of having to appeal broadly to the public for financial support.

I think of it mostly as youthful error. But the episode may also serve the same function that law professor listservs do: offering a powerful reminder that some kinds of brilliance are almost directly disproportionate to any kind of skill at reading or predicting politics and may be better as a guide to how to lose elections.  

Posted by Paul Horwitz on February 5, 2022 at 02:53 PM in Paul Horwitz | Permalink | Comments (0)

Friday, February 04, 2022

Northwestern University Law Review Spring Article Selection and Call for Symposium Proposals

From the Northwestern University Law Review:

Today, the Northwestern University Law Review opened for spring submissions. See NULR’s page on Scholastica for submission details. Authors working on a timely, novel essay under 10,000 words are also encouraged to submit to NULR Online through Scholastica here.

NULR is also now accepting proposals for their 2022 Symposium. Detail on NULR’s submission process can be found on their website here. Symposium proposals should be submitted via email at [email protected] before February 28, 2022.

Posted by Sarah Lawsky on February 4, 2022 at 10:00 AM in Law Review Review | Permalink | Comments (0)

Thursday, February 03, 2022

"In Tonight's Performance, Warren Rudman Will Be Played By...."

The New York Times has a delightful story today reporting that Rep. James Clyburn, whose vital endorsement is famously linked to President Biden's pledge to nominate a Black woman to the Supreme Court, has a particular candidate in mind--federal district court judge J. Michelle Childs, who is also currently a nominee for the DC Circuit--and is pushing for her appointment. The story calls it "a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court" and suggests that although the administration is officially considering her nomination, it has also occasioned some pushback. The pushback is best represented, in the story, by its very non-specific, off-the-record, "aides say" nature--and by the more specific detail that some pushback has come from "some progressives and labor activists, who have flagged her work as a lawyer representing employers opposing unionization drives." One may sympathize with those who find it difficult to keep straight the question when a lawyer in private practice--in this case, at the firm of Nexsen Pruet, where Judge Childs became the first African American partner--is or isn't inextricably linked with the legal aims of her clients. The story describes her as being "regarded as more moderate than other candidates Mr. Biden is thought to be considering." Hence, one assumes, the pushback. 

30-odd years ago doesn't seem like ancient history to me, but the analogy missing from the story is to former Justice David Souter, who was heavily pushed for the Court by Warren Rudman and John Sununu--and who was ultimately viewed as a disappointment to Republicans who wanted and did not get a more conservative vote.

If the analogy holds, I say more power to Rep. Clyburn and Judge Childs. Walter Dellinger writes in today's Times that there is "a long and important tradition of presidents taking into consideration the demographic characteristics of prospective justices — including geographic background, religion, race and sex — to ensure that the Supreme Court is and remains a representative institution in touch with the varied facets of American life." Jamelle Bouie the other day opined that it is time to reject the standard-issue Establishment view that "the court is the final rung on the meritocratic ladder for judges and other legal elites." He added, "To the extent that Biden has been open about the politics and political optics of this nomination, I think he’s done a service to the public. The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood. Anything that makes this clear, anything that helps bring the court back down to earth where it belongs, is worthy of our support." 

Quite so. The old saying that a judge is a lawyer who knew a governor still holds true. There is little doubt that Judge Childs, as a federal judge and nominee--by this president--for still another federal judgeship, is qualified in a general historical sense. There is plenty to be said for nominating someone who is the daughter of a police officer, who lived in Detroit and in the Deep South, and was educated somewhere other than the same usual one or two square miles of the United States. The fact that her nomination might more nakedly suggest a relationship to straight-up relational and transactional politics is, as Bouie suggests, neither unusual nor necessarily a bad thing. And, as Justice Souter demonstrates (in my view), it can turn out quite well. I personally welcome a choice that brings a "more moderate" judge to the court, if only because it defies the usual and dominant currents of polarization. Most of all, there is always something to be said about making a choice that defies the settled expectations of a small number of political and legal professionals, who are quite sure they know exactly what and who is needed and that they have the whole thing sewn up, in favor of a more Tip O'Neill-ish acknowledgment that all politics, including Supreme Court politics, is local. Hubris being what it is, when Everyone Who Counts is convinced they know who the nominee ought to be and that the stakes have never been higher, and when the interest-group press releases have already been all but finalized and mass-emailed, that is exactly the time to do something else.     

Posted by Paul Horwitz on February 3, 2022 at 07:03 PM in Paul Horwitz | Permalink | Comments (0)

Departmentalism Won't Look So Good

Here's another looming Section 3 problem. Suppose the Supreme Court does decide whether Donald Trump is eligible to run again. And they decide that he is eligible to run again. It's hard to imagine that this decision will be unanimous. You may get 3 or 4 dissenting justices who say that Section 3 bars Trump from returning to the presidency.

This outcome, while better than having no Supreme Court decision at all, is still troubling. Democrats will have a plausible basis in the campaign to say that Trump would not be a legitimate president if elected. They can continue to make this argument if he wins and is inaugurated. If you're a fan of departmentalism, this isn't a problem. But people might quickly become disenchanted with that theory if a Democratic Senate says: "Well, he's not the real president, so we're not confirming any of his nominees," or if a Democratic House says, "We're not inviting him to give the State of the Union--he's not the real president." Unfortunately, there is no easy solution to this issue if Trump runs  in 2024 and wins.

BTW, if a justice thinks that someone is ineligible to be president, what will she do in the first case where an official action of that president is challenged? Continue to insist that the president is an imposter, or acquiesce in the holding that he is eligible to serve? 

Posted by Gerard Magliocca on February 3, 2022 at 08:44 AM | Permalink | Comments (0)

Wednesday, February 02, 2022

Day One Project Report on NDAs and Corporate Secrecy

Super excited about this new Day One Project on secrecy and the harms of concealing publicly significant information such as sexual harassment or corporate corruption by nondisclosure agreements. I coauthored the report with law professors Rachel Arnow Richman and Jodi Short, economist Evan Starr & journalists—activists Gretchen Carlson & Julie Roginsky (formerly of Fox - and blowing the whistle on their NDAs that concealed a culture of harassment). Our hope is that the report will impact policy both at the federal and state levels and around the world.

Last year, the Day One Report on noncompetes which Mark Lemley and I coauthored reverberated in President Biden’ competition exec order and we hope that similarly the administration will take action on the ever expanding corporate secrecy practices.

Posted by Orly Lobel on February 2, 2022 at 11:10 AM | Permalink | Comments (8)

Sarat, Law's Infamy

Speaking of self-promotion....!

Anent Howard's post below on the anti-canon, may I note the recent publication of Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. It features chapters by Justin Collings, Sherally Munshi, Robert Tsai, Richard Abel, and Keramet Reiter--and one from me, titled "Fame, Infamy, and Canonicity in American Constitutional Law." Great cover design from the folks at NYU Press.    

Posted by Paul Horwitz on February 2, 2022 at 10:28 AM in Paul Horwitz | Permalink | Comments (0)

Some Side Notes on One of the Controversies of the Day

These days I am affirmatively uninterested in weighing in on the average culture-war controversy, regardless of my views on its merits. In any event, by the time I get around to doing so usually all the obvious points have been made and bones have been well picked over, which just leaves statements of affirmation or solidarity on one side or another--and those really don't interest me. I offer, instead, two side notes on the discussion of Ilya Shapiro and Georgetown Law, repeating once more that they are side notes and that I quite understand that most people with views on the subject are passionate about the the main issues.

1: One aspect of Shapiro's tweets that got less attention, understandably I suppose, is the suggestion that Sri Srinivasan is "objectively" the "best pick" for a current opening on the Supreme Court. I cannot imagine what it means to talk about anyone as "objectively" the best candidate for a Supreme Court seat. Such a creature is a unicorn, not because it's rare but because it doesn't exist. There may be obviously poor and obviously acceptable picks according to the general sense of the legal and political culture of the day. (At least initially. The goal of the politics of the confirmation-and-fundraising process is to paint the nominee as the worst or the best possible candidate, and by the end of that process an astonishing number of people have persuaded themselves that these propositions are true.) But beyond that range there can be no metric that allows us to talk about an objective best pick, in terms of either the "legal" or "political" merits, to draw a weak distinction.

This is not a problem in itself, of course, because being the "best" is not a prerequisite for an Article III judgeship any more than it is for the presidency or most other offices. (If it were a prerequisite, and if there were such a figure, perhaps the President would be better off nominating that person for the district court bench, so that this extraordinary figure could handle the difficult job of intimately affecting people's lives with much less assistance from either counsel or staff. I'm not sure putting the nation's "best" lawyer or judge on the Supreme Court is really an efficient or necessary use of limited resources. The highest or most prestigious office is not necessarily the office that needs the best person; it's just the place that most "best" people are understandably, if unfortunately, eager to get to.) But talking in terms of "objective" best candidates for the office is a problem, I think. It is a problem if the person using the phrase believes it, a larger problem if he or she doesn't but indulges in bullshit language, and a wider problem if it accustoms others to using such language. 

2: One way to think about some of the whole affair is as a reminder that it's not just individuals who are harmed by Twitter and other social media, all the bad habits they cultivate, and all the vicious cycles that eventuate. Nor is it just individuals who are culpable in it. Take the dynamic of major newspapers. They are hemmorhaging traditional readers, traditional advertising revenue, and public trust. They respond in various ways. One is to encourage their reporters to take to social media to promote the paper, their own stories, and themselves, and/or hiring reporters who already have such a profile or are eager to gain one. Another is to focus on newsletters, podcasts, and other subscription features that foreground individual reporters' personalities, and to market those personalities in a variety of ways--an approach that dovetails with the encouragement of social media presence. The reporters--all but the most disciplined and deliberately boring ones, I suppose, but those are not the ones who draw attention and get newsletters of their own--inevitably end up opining, cracking wise, saying something foolish, picking fights or engaging in them, and so on. The quality of the institution declines, and so does the public trust in that institution. The newspaper fires a reporter here, suspends one there, and perhaps issues an official statement paying lip service to the idea that its reporters are supposed to maintain certain limits in how they tweet. All this may be sincere, or damage control, or both. Regardless, it remains heavily addicted to the social-media-personality model. At some point, it is fair to see the institution as being just as responsible for that model's negative features as its positive ones, and as having gambled that a loss of trust and sobriety in the long term is worth it for the sake of hanging on or thriving in the short term. Circuses that put on high-wire acts and advertise the fact that the acts will perform without a net are not trying to kill their performers, but they are selling the exciting possibility of a highly public disaster and so accepting a certain number of foreseeable tragedies. 

Self-promotion on social media is increasingly the coin of the realm for any number of ambitious public-facing institutions--including law schools. Perhaps it is not an institutional focus. But law schools, like newspapers, magazines, political parties, and plenty of other organizations, unabashedly like having prominent people, and a social media presence has become a major component of prominence. Law schools, by and large, like boasting of having someone who is well-known, and part of that means having someone who writes op-eds, appears frequently in the press--and is widely followed on Twitter. (The most frequent rationale I hear from law professors for being on Twitter is "self-promotion.") At least on social media, "prominence" is hard to distinguish from "personality," and "personality" at the margins easily becomes "notoriety." Because social media prominence depends substantially on speaking frequently, speaking wittily or vigorously, and speaking bluntly or provocatively (the two easiest routes to a widely noticed statement of 280 characters or less; I'm sure there are lawprofs who devote their Twitter feeds to long variations on "It's complicated," but I doubt they get the lion's share of the attention), it is a high-wire act. Unlike most circus acts, there is definitely no net. 

I do not think law schools, or their marketing folks, are actively seeking notorious hires. I do think they are as eager as anyone else to boast of having famous people. Georgetown's announcement of Shapiro's hiring emphasized not only his skill and experience, but his status as "one of the premier public commentators on constitutional law" and spotlighted the fact that he "appears frequently on radio and television commenting on Supreme Court decisions and other constitutional matters." The announcement closed, as contemporary press releases often do, with, "Follow the Constitution Center on Twitter at @guconstitution and Shapiro at @ishapiro."

One may be inclined to say, "That's just how things are done today," or to distinguish a law school's marketing and PR operations from the rest of the institution. I'm not sure either statement is accurate or sufficient. (I might add that I often think of "making a splash" as one piece of a decent faculty hire, and I seriously doubt I am alone in this.) Of course none of us are thinking, "We certainly hope our eagerness for institutional public prominence will eventuate in a painful and embarrassing controversy." But we might consider the degree to which our institutions, like many others, are dependent on or addicted to a model in which a certain number of painful and embarrassing controversies are an inevitable and predictable feature--not some unpredictable accident, or unexpected failure on the part of the prominent person one set out to hire, or intrusion on the normal life of the institution from the barbarians outside the gates, but something in which we are actively and eagerly participating and for which we bear our own share of culpability. This is not the world we happen to live in. It's the one we have chosen and continue to choose. 

       

 

Posted by Paul Horwitz on February 2, 2022 at 10:20 AM in Paul Horwitz | Permalink | Comments (0)

Teaching anti-canon

Gerard and Eric Segall reflect on teaching Roe/Casey, perhaps for the final time, in the shadow of Dobbs and the prospective end of constitutional protection for abortion. Gerard also notes that the end of affirmative action may be looming, raising similar issues for teaching Baake and Grutter.

It raises interesting questions about when and how to teach anti-canon, previously canonical cases that no longer are good law. Should we still teach abortion or affirmative action as "this is what the law was for 50 years and this is how and why it ceased to be the law?" Does it matter that the old law remains relevant to the sub-constitutional law being enacted in states and in Congress affecting the rights at issue (that is, as students watch states ban abortion, should they understand what the law was that stopped and now allows that)? Is it time-limited--teach it to the next generation of students (e.g., those who are teens now) who have living memory of these rights, then phase it out over time? Is there a difference between anti-canon that has been overruled in an area that remains alive as part of constitutional law, so teaching it shows doctrinal evolution (e.g.Korematsu, Lochner, Plessy, Dred Scott)? Specifically for Con Law, does it depend on whether we conceptualize the course as teaching current (judicially enforced) constitutional doctrine to people who need to take and pass the bar exam (and who may encounter a remote constitutional issue over their careers but likely will not practice "constitutional law") or as something like a constitutional history course?

I do not teach Con Law, but we have had similar discussions in Civ Pro. I continue to teach Conley (which, in fairness, continues to be sort-of good-ish law), but I have reduced Pennoyer to a five-minute lecture on the power theory of jurisdiction (although time constraints drove this choice more than no longer valuing the case). The difference is that no one saw Twiqbal coming, the way we are watching Dobbs and Harvard like slow-moving freight trains. Even Egbert, while calling on the Court never to extend Bivens to the First Amendment or any other case not named Bivens, is not calling on the Court to overrule Bivens and eliminate damages actions against federal officers.

Posted by Howard Wasserman on February 2, 2022 at 09:57 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

For Those of You Keeping Score At Home

Congressman Cawthorn filed a lawsuit yesterday in federal court seeking to enjoin the state election proceeding challenging his eligibility to appear on the primary ballot. He makes some constitutional arguments and one argument based on the 1872 Amnesty Act. Today the North Carolina Supreme Court hears oral argument in the redistricting litigation there that probably needs to be resolved before there can be any decision on his eligibility.

Posted by Gerard Magliocca on February 2, 2022 at 08:29 AM | Permalink | Comments (0)

Tuesday, February 01, 2022

Why I stopped allowing comments to posts

This was an attempted comment on my post (on which I forgot to close comments) about a First Amendment controversy that garnered national media coverage and a federal court of appeals opinion. I think it shows why I made the correct decision.

That's OK, Howard. You can keep deleting my posts. Just know that when you post incessantly about Jews and Israel (including in the context of baseball, where 99% of the players obviously aren't Jewish), let alone prohibit comments on such posts, you confirm most of the world's views about American Jewry: you are self-obsessed, selfish, and lack any ability to see how you are perceived by others. I sincerely wish you knew, for EVEN ONE MOMENT, how much harm and grief your lot causes Jewry in other countries. For the love of Hashem, stop and think about why you're posting so much about the tribe and the Aretz on a blog that's ostensibly meant for ALL American law professors. Get your head out of your own ass, for fuck's sake.

Posted by Howard Wasserman on February 1, 2022 at 05:47 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Taking Pico for a ride and other preocedural musings on removing books

Some thoughts on the flurry of efforts to remove* books and materials from school libraries and curricula.

[*] Some people are upset about the use of the word "ban" in this context since the books remain available from other sources. That is a dumb argument, but I do not feel like fighting it.

This offers an opportunity to revive and underrated William Brennan First Amendment opinion--Board of Island Trees v. Pico. A plurality (Brennan for Marshall, Stevens, and most of Blackmun) held that the First Amendment limits school power to remove materials from the library based on disagreement with the content or ideas expressed in those books. The Court is more deferential to school boards than it was in 1982, so perhaps this will not fly. But it is an argument worth watching.

Many efforts give parents private rights of action to sue over  stuff they do not like. Republican officials laud themselves for following the Texas S.B. 8 trick of using the threat of civil litigation and damages to influence behavior and believing that will avoid federal litigation, while not realizing that not everything is S.B. 8. Schools and school board must make any changes to curricula or libraries, even if those changes are made on threat of a private suit and private liability; that provides a government target for a suit challenging any removal on First Amendment grounds. Imagine anti-Ruby Bridges Parent A threatens a suit because the book makes his child feel bad that his grandparents opposed school integration and the school, fearing liability, removes the book; to the extent that raises First Amendment issues, I-would-like-my-kids-to-know=history parent X who want the book to remain can sue the board to enjoin removal. The latter parent's First Amendment rights should prevail over the former parent's state-law rights.

Going further on procedure: Perhaps Parent X can intervene in Parent A's suit against the school, arguing that X's kids have a First Amendment interest that will be impaired by the state suit and that the school will not sufficiently vindicate? Alternatively, perhaps Parent X, seeing Parent A's suit, can ask a federal court to enjoin Parent A's state lawsuit because the judgment in that suit would compel the government to remove some materials and thereby violate Parent X's (kids') rights? This would seem to fit three exceptions to § 2283 (depending on timing) and not be barred by Younger.

Finally, a matter of state procedure: If the removal of Ruby Bridges is required by state law because its presence  makes A's kids feel uncomfortable, does the removal of Ruby Bridges make X's kids feel uncomfortable, by denying the basic history of Louisiana in the 1950s? Perhaps A and X can sue the school for competing judgments. Or X intervene in A's suit to protect state-law interests in not having his kids feel uncomfortable. The key to defeating S.B. 8 is that "any person" can include a friendly plaintiff who wants to help Whole Woman's Health litigate the law. "Discomfort" is a similarly boundless concept that goes both ways and can allow some unexpected claims from unexpected sources.

Posted by Howard Wasserman on February 1, 2022 at 04:11 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

VAP Search: University of Buffalo School of Law

The University at Buffalo School of Law, SUNY seeks a Visiting Assistant Professor in the field of racial justice, beginning in the summer or fall of 2022.  This is a full-time, two year, non-tenure track faculty position for a legally trained individual who plans to pursue an academic career in law, and to address the issue of racial justice through scholarship and teaching. The Visiting Assistant Professor can expect to gain experience teaching at least one core legal subject and at least one other course focused centrally on some aspect of racial justice.  The Visiting Assistant Professor will receive mentorship in both teaching and scholarship, and step-by-step preparation for the academic job market.  The Law School encourages applications from candidates prepared to contribute, through research, teaching, and service, to a diverse and inclusive community of inquiry. The University at Buffalo is an equal opportunity employer and welcomes all to apply, including veterans and individuals with disabilities. Applications must be submitted at https://www.ubjobs.buffalo.edu/postings/32975.  Inquiries may be directed to Guyora Binder, chair of appointments, at [email protected].

Posted by Howard Wasserman on February 1, 2022 at 03:26 PM in Teaching Law | Permalink | Comments (0)

Rewriting the Electoral Count Act

There is momentum in Congress for amending the Electoral Count Act to clarify some of the ambiguities that caused problems following the 2020 presidential election. These legislative discussions, though, need to consider some of the issues raised by Section Three of the Fourteenth Amendment, as outlined in my new essay with Bruce Ackerman.

Posted by Gerard Magliocca on February 1, 2022 at 01:52 PM | Permalink | Comments (0)

Optimizing Law Review Submissions - Lederman and Choi Video

Very informative video from Professors Leandra Lederman and Jonathan Choi about law review submissions, featuring Abbi Semnisky, an Indiana Law Journal Executive Articles Editor. (This is part of Prof. Lederman's overall extremely informative and cool video series, Break Into Tax.)

 

Posted by Sarah Lawsky on February 1, 2022 at 07:44 AM in Law Review Review | Permalink | Comments (0)