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Friday, September 30, 2022

Certification by the United States Supreme Court

Quick question for federal courts folks. Has the U.S. Supreme Court ever certified a question of state law to a state Supreme Court that permits such a certification? I think that the answer is no. But before I discuss why the Justices should certify more often, I want to be sure if they have done so before.

UPDATE: Thanks for the comments sent directly to me with a few examples where the Court has done this.

Posted by Gerard Magliocca on September 30, 2022 at 01:35 PM | Permalink | Comments (0)

Wednesday, September 28, 2022

SCOTUS to continue livestreaming arguments

SCOTUS announced it will continue audio livestream for all scheduled arguments, with the live audience back in the building. This is very good, if surprising. I expected the Justices to treat livestream as a substitute for an in-person gallery and to drop the substitute once the gallery returned, so I am happy to be wrong. It will be interesting to hear the differences when the audio include live-audience laughter.

Note that this announcement limits it to argument, not opinion announcements. Will the Court resume announcing opinions and reading summaries in front of an audience or will it continue to post them in 10-minute intervals on the web site? And if it resumes live announcements, what is the possible argument against livestreaming those as well?

Also noteworthy is that the parade of horribles associated with live media (there is no distinction between video and audio for these purposes) have not come to pass.

Posted by Howard Wasserman on September 28, 2022 at 04:47 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

VAPs and Fellowships 2022-2023

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on September 28, 2022 at 03:40 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (45)

Tuesday, September 27, 2022

Absolutely, Law Schools--and Their Faculty--are Responsible for the Actions of Law Reviews

I take no position on most of the issues discussed in this post about an author's dispute with the Iowa Law Review, which was brought to my attention by Brian Leiter's blog--except that, as Brian writes, it is hard to imagine any scenario where the correct response is publishing an article over the author's own objections. (The older I get, the fewer strong positions I take on anything, except the subjects of anti-inflammatory medicines and arch supports--and I am striving to be more open-minded on those subjects as well. It seems to me that one of the many problems with social media is not that so many people share foolish or dangerous opinions, but that so many people share opinions, full stop. Having opinions has become our most popular and least productive leisure activity.)  

But I want to highlight one aspect of the post. In an update, the author, Prof. Ramsi Woodcock of Kentucky, writes, "When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right." He then recounts communications with Iowa's dean suggesting greater, albeit post-hoc, decanal involvement.

A very small number of student-run law reviews--I can think of only one for sure, although there may be others--are officially and financially independent of their law schools. The rest are part and parcel of the institution and, generally, are folded into students' education officially through credits and other mechanisms. (Even the independent law review(s) are typically intertwined with their law schools in all sorts of ways.) And that leads to the bottom line: of course law schools are responsible for their law reviews, and for the action of those journals and their editors. Insofar as they purport to be scholarly journals, it could not be otherwise; likewise insofar as they purport to exist for pedagogical purposes. And this is not simply a matter of decanal responsibility, although I think it would be a good thing if every law dean read every issue of every journal published at his or her school and sent "Grizzer-grams" to the editors after every one. The same responsibility attaches equally--if not primarily, as a matter of faculty governance and scholarly duty--to every faculty member. We own our schools' journals, morally and professionally as well as otherwise. 

Of course "apathy and avoidance" are a part of why we generally act otherwise. So are the fact that we become accustomed to particular structures, such as the assignment of a single faculty advisor to each journal (which I suppose we could file under "avoidance"), as well as less tangible structures, such as the fact that not every school distributes every issue in print to every faculty member as soon as it is published, announces its publication choices to the faculty when they are made, and so on. There are also reasons that are less blameworthy decisions than mere apathy or avoidance. When I was a faculty advisor, I gave the new editors some general views and goals, but I also told them that this was their work to be proud of, that the decisions and learning were theirs, and that I was there more to support them and run interference when necessary than to intrude into their choices. Some of that approach had to do with a recognition that within the overall scholarly mission of the journal, different years' editors might have different emphases: sometimes editors were more interested in national prestige, for instance, while sometimes they were more interested in making sure that Alabama law and practice were given due attention. But although that was my backstop position--and a convenient one it was, to be sure--in important senses I, and not just I but my colleagues and my dean, were and are still ultimately responsible for our journals. Not doing anything about it most of the time, or talking in general terms about how it's really the student's journal, doesn't alter that ultimate responsibility in the least; those are just decisions about faculty and journal policy for which we, the faculty, are responsible.

I emphasize this in light of the many interesting choices and positions taken by various law reviews over the past several years. (Those choices are admittedly not necessarily vastly different from similar decisions made by faculty-run or professional-society-run journals in other disciplines, lest we lay all this at the feet of the American legal academy's strange reliance on students to do the work of overseeing the place where one third of our work as professors, scholarship, appears.) If a law review decides to issue a statement about one of the articles it publishes, for instance, and if there are questions about such a decision, all of this is ultimately the responsibility of that law school's faculty. If a law review decides to take a position on the BDS movement, one that extends not just to questions of funding but to specific positions taken by scholars in scholarly work, that is not a decision independent of the parent institution, but one in which the law school's faculty and administration must be involved and for which they ultimately must take responsibility--including the responsibility to reject it, if they conclude it is not consistent with the duties of a journal and the obligations of scholarship. Keeping in mind that some law reviews specifically restrict themselves to particular subjects or openly have particular orientations, while mainline law reviews explicitly exist to serve the general and viewpoint-neutral mission of scholarship, if a journal explicitly or implicitly adopts a particular politics or set of viewpoints that alter or depart from its mission and, among other things, affect its publication decisions, who it invites to symposia, or other matters, that is a matter for which the law school and its faculty are ultimately responsible. They might endorse it, in which case they should do so publicly. They might conclude it is indeed an improper departure, in which case they have every right and obligation to stop it. Either way, the responsibility ultimately lies with the law school, not just institutionally or with the faculty advisor but with respect to the individual faculty members. As long as we claim to be a scholarly discipline, the responsibility is indefeasible.

Perfectly reasonable arguments can be made about sub silentio decisions in the past that, one might insist, were not neutral but in fact championed and enforced particular positions and values; not all decisions that might be seen as departing from a law review's proper role are new and not all of them are about today's hot-button issues or share today's consensus. Those, too, were ultimately the responsibility of the faculty and not just the journal. And one might note that there are times when the departure is not something initiated by the law review but by a faculty member. When a faculty member leans on a journal to publish a piece that the journal thinks it ought not publish, for instance, that's a failure of responsibility on the part of the faculty member--and one in which the dean and other faculty must support the journal's resistance. But it does seem to me that a number of mainline journals, at least on a year-to-year basis, have, sometimes explicitly but more often implicitly, made a variety of decisions of late that are not necessarily consistent with their specifically, officially general scholarly mission and obligations. Those decisions might be praised or criticized, defended or questioned. But they ultimately must be supervised by the journals' faculty, including appropriate intervention when it is called for. This is not a violation but a meeting of our obligations as scholars and teachers, both of which surely sometimes includes the duty to say "no" and to make people unhappy. It's a part of the job I don't think we pay enough attention to. The buck always stops with us.       

Posted by Paul Horwitz on September 27, 2022 at 01:08 PM in Paul Horwitz | Permalink | Comments (0)

JOTWELL: Vladeck on Codrington on Purcell

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021), exploring the use of Purcell to avoid challenges to COVID-related voting restrictions.

Posted by Howard Wasserman on September 27, 2022 at 09:31 AM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Monday, September 26, 2022

Situation-Altering Invocations of "Legitimacy"

There have been a lot of interesting interventions in the discussion of the "legitimacy" or "illegitimacy" of the Supreme Court recently. Some of them are simply collecting on my to-read list, so perhaps I should say interesting-looking interventions. But I am looking forward to reading recent pieces by Thomas Donnelly and, especially (based on the abstract), Or Bassok, among others. I think the general question is legitimate, so to speak. But I would add one note of caution about the broader universe of discussions of Supreme Court legitimacy.

At least post-Fallon, legal scholars are already accustomed to parsing the word "legitimacy" into several possible senses, including moral, legal, and sociological legitimacy. I would add one more distinction, which refers less to the meaning of the word and more to the nature of its invocation. There are good-faith descriptive invocations of "legitimacy," of course. There are also performative or situation-altering invocations of legitimacy. They take at least two forms. One is the deliberate invocation of the term in order to create concerns about legitimacy. Sometimes--perhaps often--the phrase "I have concerns about the legitimacy of the Supreme Court," like the injunction not to think about an elephant, is a way of attempting to create concerns about legitimacy.

The speaker may or may not also have genuine concerns of his or her own about Supreme Court legitimacy. But that is not necessarily the point of the invocation and may be quite separate from it. The point is to cause or encourage the proliferation of public concern about legitimacy, so that it takes on a life and momentum of its own, for electoral, political, fundraising, legislative, discursive, purely self-serving, or other purposes. (In a society that treasures and monetizes prestige and commodifies every "creative" or discursive act, self-interest should almost always be a factor in considering even the most sincere actions. One gets more attention for calling a court or decision "illegitimate" than "bad" or "wrong.") The speaker's own concerns about legitimacy may be nuanced and specific; the invocation is not, is perhaps not intended to be, and encourages the generation of non-nuanced concerns about legitimacy. 

No doubt it has ever been thus. I'm reading Brad Snyder's enjoyable Frankfurter bio right now (more on that, and on incipient Frankfurter revivalism, later, I should hope), and one striking thing about it is just how much pretty well everyone named in the book was concerned with naming and capturing the agenda. Capturing it by naming it in many cases: anyone who took con law when I did, and perhaps still today, will not be surprised to see just how much of the received narrative about its history, accurate or otherwise, was crafted on someone's typewriter and went on to become a free-floating, situation-altering "reality." But the phenomenon has certainly not slowed down and, I think, is changed and enhanced by the combination of wicked social media and the modern academic's ambition and language of "public engagement." And that in turn leads to a related but somewhat separate second form of situation-altering invocation of "legitimacy" or "illegitimacy." Invoking legitimacy doesn't just encourage others to have concerns about legitimacy; it encourages them to put any concerns they may have about the Court, or about particular decisions, into the language of legitimacy. Even if the initial invocation is strategic, ultimately that language shapes and constrains our thinking, just as Bakke's invocation of "diversity" created a half-century of diversity-talk, even if we could have been talking and thinking about the same issue through other and perhaps better lenses. 

We are accustomed enough in other areas of politics to attempting to distinguish between genuine grassroots sentiment and astroturfing. The astroturfing may ultimately succeed in creating grassroots sentiments that we should take seriously, but at least at the outset we are accustomed to treating those efforts skeptically, knowing that some sort of game is afoot. I would say the same thing about the profusion of invocations of concern about the Court's legitimacy, first from professionals and then from everyone else. Some of them are entirely sincere. But not all of them, even by ostensibly reputable people, are. And the second-order invocations of legitimacy concerns that they encourage may be sincere, but may also just be a case of people fitting a different concern--say, about hating a particular decision or wanting a different political lineup on the Court--into the only, or most prevalent, or most convenient, language that is available to them. That is so even if the actual concerns were or are somewhat different, such that we would think more clearly and be better off talking in terms of good or bad decisions or outcomes, or about who we want to have and exercise power. I am focusing in particular on efforts to encourage the belief that the Court is illegitimate, because that involves changing a perceived baseline and because it involves adopting a particular linguistic frame. But surely something similar can be said about language that treats the Court as legitimate or reassures others that it is and that there's nothing to see here. I believe there is a real legitimacy issue here, and probably that there is always such a concern, at least along some dimensions of the word. But we should approach invocations of legitimacy and illegitimacy with some skepticism, recognizing that some first-order invocations are astroturfing, and some subsequent invocations are a matter of adopting language that has been foisted upon the subsequent speaker with the intent of shaping, harnessing, and, in some ways, limiting their vocabulary and worldview. We should remember that when people say "legitimate" or "illegitimate," they may actually care about something else, or at least that they did before they were chivvied into adopting a particular linguistic framework.  

Posted by Paul Horwitz on September 26, 2022 at 12:44 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, September 22, 2022

UVA - Karsh Center for Law and Democracy Fellow 2023-2024

From the University of Virginia School of Law:

The University of Virginia School of Law seeks a Research Assistant Professor of Law to serve as the Karsh Center for Law and Democracy Fellow (“Karsh Fellow”). This non-tenure-track Academic General Faculty position will start near the beginning of the 2023-24 academic year and have a fixed-term appointment of two years. The position offers compensation of $70,000 plus benefits.

The Karsh Center is a nonpartisan legal institute at the Law School. The Center’s mission is to promote understanding and appreciation of the principles and practices necessary for a well- functioning, pluralistic democracy. These include civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law. The Center supports these essential features of our democratic life through rigorous and cutting-edge legal and interdisciplinary scholarship, curricular offerings, and academic programs such as conferences and workshops. The Center’s aim is to advance the values of law and democracy within the academy and in public discourse.

The Karsh Fellow will conduct research and refine their scholarly portfolio with the goal of obtaining a tenure-line faculty position at a law school. The Karsh Fellow will be mentored by Law School faculty, be able to attend and participate in faculty workshops, and have the opportunity to teach a course. The Karsh Fellow will also have the opportunity to network with other democracy-related programs and scholars at the University of Virginia. 

The Karsh Fellow will work under the direction of and closely with the Karsh Center’s faculty directors, Professor Bertrall Ross and Professor Micah Schwartzman. While the Fellow will dedicate significant time to pursuing their proposed research projects, the Fellow will also provide administrative support to the Center, and assist with programming, maintain the Center’s website and related publications, and manage the Center’s budget. The Fellow may also be called on to help design and implement new Center initiatives.


Candidates must have a J.D. degree from an ABA accredited law school or foreign equivalent degree. Experience in legal practice or a judicial clerkship strongly preferred. Candidates must have strong potential for success on the legal academic market, as evidenced by an outstanding academic record, a clear research agenda, and recommendations from legal scholars. Strong interpersonal skills, including the ability to communicate effectively and professionally in writing and orally, and strong managerial and organizational skills are also required.

To apply, visit https://uva.wd1.myworkdayjobs.com/UVAJobs, search for Requisition R0040373, complete an application online, and upload a cover letter, curriculum vitae, academic agenda, and contact information for three references.

Posted by Sarah Lawsky on September 22, 2022 at 09:11 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Lawsky Entry Level Hiring Report 2022

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2022. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Spring Reported Entry Level Hiring Report 2022, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2022/05/lawsky-entry-level-hiring-report-2022.html.

Here is the full spreadsheet:

There were 119 tenure-track hires at U.S. law schools reported, at 76 different law schools.

Q: How does 119 reported hires compare to past years?

This is a big jump—more than any other year since the market shifted after 2012. The average number of hires per year since 2014 is 81. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year; click on pictures for larger versions.)


It would useful to know the percentage of those who registered with the AALS who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. This graph and chart compares the hiring in Year X to the number of forms in the first distribution in Year (X - 1) (because those are the people who were hired in Year X). Reported hires per FAR form also took a jump.


Q: You say the hires were at 76 different schools. How does that compare to previous years?

More schools hired than any year since 2012.


Q: How many reported hires got their JD from School X?


Harvard: 19; Yale: 18; Stanford: 6; NYU: 5; Duke: 4; Cornell: 4; Chicago: 3; Georgetown: 3; UCLA: 3; Virginia: 3; Northwestern: 3; Berkeley: 3; Penn: 3; George Washington: 3; Fewer than Three: 39

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Columbia; Illinois; Michigan; Minnesota; Wisconsin

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Arizona; Athens; CUNY; Davis; Dayton; Denver; Emory; Freiburg; Ghent; Hastings; Hebrew University; Howard; Humboldt; Irvine; Miami; Nat'l Chengchi U; New South Wales; Nigeria Law School; Richmond; Shenzhen; Southern Illinois; Suffolk; Temple; Trinity; Tulane; Utah; Vanderbilt; Washington & Lee; West Virginia

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

93 (about 78%) had a fellowship; 59 (about 50%) had a clerkship; 79 (about 66%) had a higher degree. 5 people had none of these credentials. This is consistent with prior years.

Venn diagram:


Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--a shift starting in 2017 is apparent:


2012: 20% all three/8% none; 2013: 17%/4%; 2014: 21%/1%; 2015: 20%/1%; 2016: 17%/1%; 2017: 31%/0%; 2018: 30%/2%; 2019: 30%/0%; 2020: 34%/1%; 2021: 26%/0%; 2022: 24%/4%.

Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.


NYU 18; Harvard 14; Columbia 6; Chicago 5; Duke 5; Stanford 5; Penn 4; UCLA 4; Yale 4; Georgetown 3; Michigan 3; Fewer than Three 37.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 78 “highest” advanced degrees broke down like this:


Doctorate: 51; Masters: 19; LLM: 7; MD: 2

Topics ranged all over the maps. For the 51 Doctorates, a number of topics had multiple hires, including Law: 12; Political Science: 9; Economics: 6; Philosophy: 5; History: 5; Anthropology: 3. The other doctorate topics, each of which had one hire, were American Studies; Public Policy; Public Affairs; Psychology; Education; Biology; Criminology; Chemistry; Communications; Business; Social Policy.

Q: What is the percentage of doctorates over time?

Comparable to recent years.


Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

86% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both.

Q: How long ago did these reported hires get their initial law degrees?


Zero to Four Years (Graduated 2018-2022) 18; Five to Nine Years (Graduated 2013-2017) 54; Ten to 19 Years (Graduated 2003-2012) 43; Twenty or More Years (Graduated before 2003) 4.

Q: How do the "time since initial degree" numbers compare to previous years?

Consistent with prior years.


Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Originally posted 5/12/2022; revised 5/13/22, 5/14/22, 5/30/22, 6/12/22, 6/15/22, 6/21/22, 7/4/22, 9/22/22, and 10/8/22 to add hires and to tweak and make numbers slightly more accurate across the board.

Posted by Sarah Lawsky on September 22, 2022 at 06:14 PM in Entry Level Hiring Report | Permalink | Comments (0)

Still getting procedure wrong

Following last night's Eleventh Circuit benchslap, Judge Cannon sua sponte modified her order by excluding seized materials from those to be reviewed by the special master and striking two paragraphs ordering the SM to prioritize and make available to plaintiff's counsel the documents marked classified.

Two problems, I think. The amended order moots the 11th Circuit stay and thus Trump's appeal of the stay. The court of appeals only stayed the order as to the documents marked classified; since the order no longer affects those documents, there is nothing to stay. But that highlights the second problem--how does Judge Cannon have jurisdiction to modify the order? The government appealed the entire order, although it sought a stay only of the part related to classified documents (so it could continue the criminal investigation pending appeal). But if the entire order is in the 11th Circuit, how does Judge Cannon have jurisdiction to modify it? The unstayed portions must be complied with (i.e., the SM proceedings go forward). But the district court should not have the power to change an order that has left the district court and is on appeal--otherwise a district court could hamper appellate jurisdiction by repeatedly changing the orders in the case.

What am I missing?

Posted by Howard Wasserman on September 22, 2022 at 12:39 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 20, 2022

The wrong abstention

The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.

I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.

Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.

The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.

But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.

Posted by Howard Wasserman on September 20, 2022 at 06:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A state could stop this in the Fifth Circuit

I have not had much to say about the Fifth Circuit's abomination in NetChoice(Mike Masnick at TechDirt offers a good summary). The First Amendment analysis is absurd; it should be stayed soon; SCOTUS must grant cert (given the nature of the internet, the Court cannot allow this circuit split to survive); and I hope reversed later this Term by (at worst) 6-3 (Gorsuch is the only person about whose vote I am unsure). Someone said it reads like a Twitter rant and I think that is fair.

But the timing of this story is fortuitous. The Society for the Advancement of Judaism, an NYC Reconstructionist synagogue that has rented space to a local Republican organization refused to do so for an event with election-denier Dick Morris. The organization is protesting, insisting that this is not about Morris and election denialism but about a new general refusal to rent to Republicans--while the Temple could legitimately decide it does not want its forum used for election denialism, denying the forum to all Republican speech is different. NetChoice rested on a similar distinction--while sites perhaps can take steps against Nazi speech (which the Court dismissed as hypothetical), taking steps against "mainstream" conservative or Republican views is "censorship" that the state can stop.

Privately owned speech spaces (this Temple or the comedy club in Halleck) provide the best analogy to social-media sites--a privately owned space in which speech can occur, opened to speakers. Under the Fifth Circuit's logic, a state or city could pass a law preventing such spaces from "censoring," at least as to the "ordinary Republican speech" this organization says it intends to present.

Posted by Howard Wasserman on September 20, 2022 at 08:47 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, September 19, 2022

Content Moderation in Jeopardy (or: that time the Fifth Circuit cited my platform law scholarship in a really bad decision)

The Fifth Circuit handed down a highly problematic decision end of last week - putting in question all platform content moderation. The court upheld the Texas law that allows the state of Texas and individual Texans to sue companies if they “censor” an individual based on viewpoints or geography by banning them or blocking, removing or otherwise discriminating against their posts.

This law, and a similar Florida law, goes against what content moderation is. The 11th circuit held the similar Florida law unconstitutional and now the path is ripe for a SCOTUS decision. The 5th circuit at some point in its very long decision nods to academics who have been writing about Platform Market Power (citing my work with Ken Bamberger) to conclude that platforms are nothing like newspapers and because of their market dominance do not have the right to decide what content to allow or remove.

Eric Goldman at Santa Clara who is a leading section 230 scholar is planning a thorough post about the decision so be on the lookout for that. Meanwhile, last week too, the Biden administration announced a vague call to reform Section 230 as part of its vague open-ended principles for platforms, rehashing the same old - more privacy, less AI bias. In my forthcoming book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I highlight the fallacies of privileging privacy over much needed data collection, and creating a double standard for automated decision-making when so much of human decision-making is biased and flawed. Privacy and anti-bias measures are of course important principles but we need a much richer, comparative advantage analysis to get the policy right.


Posted by Orly Lobel on September 19, 2022 at 05:07 PM | Permalink | Comments (3)

Federer and McEnroe (Updated)

Roger Federer announced his retirement last week. He will play the Laver Cup (a Europe v. U.S. exhibition tournament) next week, then hang it up. Federe has not played in more than a year and has missed big chunks of the past several seasons with various injuries. He lost his last match at 2021 Wimbledon quarter in straight sets, with a third-set bagel, at one point slipping and falling on an easy volley; you could tell his body was no longer right.

I am an inveterate Federer-stan. I stayed in his camp in the G.O.A.T. debate--until it became impossible to deny reality that Nadal or Djokovic was better. This is true on any measurement: 1) Grand Slams championships (Nadal 22, Djokovic 21, Federer 20*); 2) Weeks at # 1 (Djokovic); 3) Head-to-head (16-24 v. Nadal, 23-27 v. Djokovic). What is left for Federer-stans is the inarticulable grace and artistry--Federer and his game looked different than everyone else, beautiful beyond ordinary tennis. It is telling that in the coronation of U.S. Open champion Carlos Alcarez as the next great player, he is described as combining the best of Djokovic and Nadal; no one mentions or compares him to Federer, because no one replicates Federer's game.

[*] Sports what-ifs are easy, but Federer should have 22. He inexplicably gave away a 2-set lead to Juan Del Potro at the 2009 U.S Open Final and blew two match points against Djokovic in the 2019 Wimbledon Final.

I circled around to John McEnroe. Like Federer, McEnroe's game looked different than everyone else, having some balletic beauty that no other players (even players with a similar serve-and-volley style) shared or replicated. And that grace and beauty elevates the player in the history, even if the numbers do not match the memory. That is partly why we remember McEnroe's relatively brief run at the top. And it is why we will remember Federer in a place even when the record book places others ahead of him.

Update: A fellow Federer-stan suggests additional metrics under which Federer retains G.O.A.T.-ness. Federer's peak 4 1/2-year run (2003-2008) is unrivaled. He spent 237 consecutive weeks as world # 1 (almost double Djokovic) and remained # 1 from the beginning of 2005 to the end of 2007. Aside from two losses to Nadal in Paris, he was so far above the rest of the world. He made the semis in 46 tournaments, including 23 in a row; even if he did not win, he was always in the hunt. (Similar to Jack Nicklaus who has the most major titles and the most second-place finishes). Points well-taken.

Posted by Howard Wasserman on September 19, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, September 18, 2022

Teaching, Learning, and Coding

One of my reasons for blogging this month was to articulate (more for myself than anything) the parallels between lawyer-like thinking and code-like thinking that I always understood in a macro-sense, but which became even clearer in the micro-sense when I decided to learn some actual code.  Jeremy Telman's response to my response to his post on scholarship in the Other Legal Academy seemed to bear on that (or maybe I'm stretching to see the connection, but whatever....).

In his view, "the differences in teaching in the OLA and the LA drive everything else."  Jeremy thinks he teaches his students contracts differently than he would if he were in what he calls the Legal Academy: focus on bar preparation; intense and frequent written homework assignments; in-class midterm; paternalistic measures such as taking attendance and banning laptops.  

I don't teach that way.  My approach is, I suspect (and to use some modern jargon), metacognitive along the lines of the the lawyering-coding parallels.  Would that work at Jeremy's school? Once again, I suspect there is an "other other legal academy" that is neither Harvard or Stanford (where the 25th percentile LSAT score is 170) nor OCU (where the 75th percentile is 152 and the 25th is 146); our school reported 75/50/25th percentile entering LSAT scores of 158/154/150. We have students who struggle with the curriculum.  But, as Jeremy (and my colleague David Yamada) point out, we have the advantage of being in Boston.  We get students who've chosen Suffolk over Northeastern or Boston College (or even BU), often because of generous financial aid, as well as evening students that usually include a raft of patent agents whose academic credentials include Ph.Ds from places like MIT, Harvard, Princeton, Johns Hopkins, and Michigan (Go Blue!).  

I do believe, with Jeremy, that it's a lot different teaching at a school like Suffolk than at an "elite" school.  Until the phase-out, I taught four classes a year (usually 12 credit hours) without relief for scholarly productivity, despite my logical but completely futile argument to the deans that if I got no relief then colleagues who didn't write really ought to be teaching 24 credit hours.  Oh well.  I don't believe, however, that I teach my subjects any differently than I would at an "elite" school.  Indeed, were an "elite" school to ask me to teach, as a podium visitor, contracts or intro to business associations (feel free to ask, by the way), I would use the same materials and the same approach I use at Suffolk.

It's that approach, and the "aha" moments about it from my summer project of learning computer coding that I'll reflect on below the break.

The parallels between learning how to code versus how to lawyer didn't jump out at me in the first couple lectures on the C language.  They did, and in spades, once I realized I had internalized the basic syntax of coding.  I had a problem to solve, and the trick was finding a piece of code that worked.  After I had moved from C to Python to JavaScript, I discovered that I could do a Google search that would give me code for almost anything I wanted to do.  Sometimes the first attempts worked; sometimes they didn't.  Sometimes the result was elegant; often it was not and I learned later how to make it more so.  What continued coding did was to give me mastery over more, for want of better words, theories and rules for getting the result I wanted.

That is the relationship between syntax and substance in lawyering, and some students pick it up more quickly.  At the very outset, I describe contract lawyering as an exercise in which we have a real life narrative that we need to translate into the logical code of the law, namely a series of "if-then" inferences that taken together generate from the facts of the narrative a legal conclusion that the client wants.  The students who struggle, I think, see it not as lessons in practice but as simply as information to be absorbed and regurgitated. Slide9

What you see at the left is the graphic I use when teaching the classic contract law chestnut Lucy v. Zehmer.  That is the case in which two guys, at a restaurant/bar and maybe having had a couple too many, agree on the sale of a piece of property, documented on the back of a restaurant check, but sophisticated enough to call for a clean title condition.  And the principle from the case is the one in the red rectangle - we'll decide whether the conditions of a binding promise exist not by what you stored subjectively in your head, but by the objective interpretation of what you said and did.

What the graphic is saying is that there is a way of getting to the issue that is code-like, using Restatement (Second) of Contract rules as functions.  What I want is a program that returns an answer to the question "is there a contract?"  Both §1 and §17 give you functions.  Under §1, it's a contract if there's a promise for the breach of which the law gives a remedy.  To resolve the question under §1, you'd need to run the "promise" function, which is §2, and then figure out that you'd need to run three different "enforceability" functions - §17 consideration, §90(1) promissory estoppel, or §86(1) promissory restitution. To resolve the question under §17, you need to show a bargain in which there has been a manifestation to a mutual exchange and a consideration (or one of the other "non-consideration" binding conditions in §§82-94).  In a wonderful demonstration of circularity, you go to §3 which tells that an agreement is a manifestation of mutual assent and that a bargain is an agreement to exchange promises and/or performances for each other.  Which takes you back to the promise function under §2 and the core of the Lucy v. Zehmer problem, which is whether Lucy's particular manifestation justified Zehmer in understanding that a commitment had been made (because if it did, all the other pieces fall into line to spit out the answer "yes, there is a contract").

That is the syntax in a nutshell.  Once you have it, learning more rules simply gives you more options, more theories, more efficiencies, more flexibility.  Assume somebody appeared (as perhaps in Lucy) to be drunk.  You could construct a theory that the drunkenness is evidence that Zehmer was not justified in understanding a commitment had been made.  It turns out there may be an even more elegant solution if you turn to the code offered by §16, which specifically addresses whether contract duties are created when somebody appears to be intoxicated.

When I coded my accounting exercise, I had a similar experience.  I set up a table in HTML that was to contain the income statement and balance sheet.  The point was to have those documents update with the correct bookkeeping entries over time as the narrative continued and the student answered the Q&A correctly.  When I started, I thought that I need to have data in the table cells from the get-go, which I would then use JavaScript to change.  There is a function in JavaScript for replacing a string of characters within a table cell.  For reasons I won't elaborate on now, it worked but it was balky.  I mentioned it to David Colarusso, featured in the video above, who knows a ton more about coding than I do, and his response was "Why are you using the replace function?  If you have the cells created, you can just insert data into them."  Sure enough, I did what he said, eliminated dozens of lines of code, made the presentation far more elegant, and ended the balkiness.  

The commonality between the lawyering and the coding is the meta-understanding.  To see that there is a more direct or elegant solution in each case, you first have to understand the syntax by which any theory or solution gets created. (I just went through the same thing figuring out how to put "padding" around the Colarusso video above, float it to the left, and reduce its size relative to the text. It involved going to the HTML version of this post in TypePad and altering the embed code that I got from YouTube.).  The other commonality is the aspect of creativity or pattern recognition that gets you from narrative to a rule or a theory or a piece of code that is useful in solving the problem (otherwise known in law school as "issue-spotting" or determining the "I" in "IRAC").

Based on student feedback over the years, I am positive that my approach resonates with students.  I have no idea whether that correlates with their success in the class or in law school. Nevertheless, I observe the common student clamor for determinate answers to their "but what if" questions - as though there were a clear outcome with a slight change in the facts of the hypothetical.  My response is invariably along these somewhat metacognitive lines:  you need to return to the original modus ponens logic of the rule used in the first hypothetical and then decide once again if the new narrative supplies facts that satisfy the "if"conditions of the rule.  When I get feedback to the effect that I don't answer their questions, I know that they didn't like that response.

The bottom line is that I think my approach works with enough students where I teach (and where there is significant support for students who the school believes based on past data are likely to struggle with the bar exam).  I think there's enough theory (indeed, students consider me "theoretical") to satisfy the best students at the most competitive schools.  I do not know if it would work for Jeremy.

Posted by Jeff Lipshaw on September 18, 2022 at 12:23 PM | Permalink | Comments (2)


Saturday marked the 50th anniversary of the 1972 series premier of M*A*S*H*, a show I watched religiously on first-run and re-runs beginning around 1978-or-so through the 1983 finale (still the highest-rated non-sports television show) and beyond. I am sure I have seen every episode at least 5-10 times. I pop-in on it on MeTV every so often; I can identify most episodes within about 5 seconds. It has not aged well in many respects, although as a former show writer pointed out, it takes place in an Army camp in the middle of a war in the early 1950s; of course the behavior taking place there is unacceptable in 2022.

Many of written about the show's change in tone over 11 seasons; the process began with the cast changes in the fourth season (replacing the commanding officer and second-banana doctor with more serious and fully formed characters) and accelerated over time the final eight seasons. Much of this focuses on the show's anti-war attitude becoming more text in many of the stories, the show becoming what we now would call a "war dramedy."

Here is a different way in which the tone change presents. I can think of three story lines the show repeated, in whole or part. The first time, within the first three seasons, it was played mostly for laughs, without getting into depth or nuance or considering the bigger picture or issues; the second time, sometime later in the run and with new characters, the show took the issues seriously and considered broader ramifications.


    • Conducting fake surgery. White Gold (Season 3) Hawkeye and Trapper slip something into the drink of Col. Flagg (a recurring military-intelligence officer played for dry laughs) to mimic symptoms of appendicitis and remove his appendix; they want to stop him from taking medical supplies to trade for information. Preventative Medicine (Season 7) Hawkeye does the same to a reckless commander who is causing casualties in absurd numbers, but B.J. objects and refuses to participate in a violation of his oath. The button on the episode is more wounded coming in and that removing one cause of death and destruction in war does not stop the larger toll of war.

    • Summary Executions. Officer of the Day (Season 3) Col Flagg (he's back) wants the camp to release a wounded North Korean guerilla so he can execute him in Seoul; Hawkeye and Trapper sign-off at gunpoint, then sneak Klinger (whom Hawkeye had promised a trip to Seoul) into the ambulance. Guerilla My Dreams (Season 8) A South Korean officer wants the camp to release a wounded woman, whom he says is an enemy guerilla; the officer has a reputation for torturing suspects. Hawkeye et al resist and try to sneak her out of camp, only to have the Korean soldiers stop them at gunpoint and take the woman away. The woman speaks of how she hates the American soldiess and would gladly kill all of them.

    • Adopting war orphans. Kim (Season 2). A wounded, seemingly orphaned little  boy, is brought to camp. Rather than send him to an orphanage, the camp keeps and cares for him for a time, prompting Trapper to decide to adopt the boy; the process of doing so is presented as relatively simple. (The mother is found at the end). Yessir, That's Our Baby (Season 8). A baby (the child of a Korean woman and American G.I.) is left at the camp; they try to get her sent to the U.S., but no one (Red Cross, Army, South Korean government, State Department) will cut through red tape and work with them. At one point they raise the issue of adopting her and are told "not a chance." Because the child is half-American, she cannot be placed in a Korean orphanage; they leave her at a monastery.

This is not a comment on which is "better." Only that it illustrates how the show evolved and became more complex over time.

Posted by Howard Wasserman on September 18, 2022 at 10:36 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Saturday, September 17, 2022

Law Review Meta Rankings, 2022

Annual update of law review meta rankings from Bryce Newell. A separate chart compares five years of studies.

Posted by Howard Wasserman on September 17, 2022 at 10:50 AM in Teaching Law | Permalink | Comments (0)

Friday, September 16, 2022

University of Alabama School of Law Symposium on Constitutional Ethnography

I'm happy to pass along my colleague Deepa Das Acevedo's invitation to an upcoming symposium on constitutional ethnography, hosted by the University of Alabama School of Law. It will be held on October 14, and features a keynote address by Princeton's Kim Lane Scheppele. Y'all come!  



Posted by Paul Horwitz on September 16, 2022 at 04:12 PM | Permalink | Comments (0)

An Empirical Analysis of the Environmental Law Hiring Market - Erwin Guest Post

The following is a guest post from Alex Erwin:

As readers of this blog are well aware, Sarah Lawsky annually collects data on the legal academic job market.  Her entry-level hiring reports offer fantastic insight into trends in the overall job market.  I personally found her reports incredibly useful when preparing to go on the market.  That said, I have always wondered how general market trends hold up across subject-specific submarkets.  I have seen discussion in the comments and elsewhere about different fields of law having different hiring standards, but, when I went searching, I did not find anything specific about my own field, environmental law.  When I went on the market last year, I wanted to know more about who was getting hired in environmental law and what kind of credentials they had.  Like any good academic, I funneled my job hunt anxiety into data analysis! 

I pooled the spreadsheets from 2011 to 2022 and filtered them down to include only new hires with an interest in environmental law, natural resources law, and/or energy law.  Since 2011, 62 new hires had a recorded interest in at least one of these subjects.  Environmental law professors (ELPs) were somewhere between 5 – 6% of all hires. 

I found, perhaps unsurprisingly, that the credentials that seem to be important for success on the overall market were still important in the environmental sub-market.  92% of ELPs either had an additional degree and/or did a fellowship/VAP, and 0 ELPs were hired without either an additional degree, a fellowship/VAP, or a clerkship. 

However, I did find some key differences.  Additional degrees were more common among ELPs (79%) than across the market as a whole (58%).  Conversely, fewer ELPs clerked (43%) than the rest of the market (57%).   To me this makes sense.  Environmental law is a highly interdisciplinary field, and many ELPs chose to presume graduate education in a different environmental field rather than increased generalized legal training via a clerkship.  ELPs had degrees in everything from ecology and genetics to philosophy and history. 

Additionally, ELPs were less likely to have gone to a "T-14" law school for their JD.  60% of new ELPs got their law degree from a “T-14” law school.  75% of new hires on the overall market went to a “T-14” law school.  However, only 3 ELPs were hired at schools ranked higher than the one they attended for law school.  So while the degree institute is perhaps less important in this subfield, it still is clearly a limiting factor on where you are likely to be hired. 

Here are a couple of other interesting tidbits: 

  • Since 2017, 50% of ELPs hired have a doctoral degree.   
  • 66% of ELPs practiced law in some capacity before entering academia. 
  • 60% of ELPs hired were women, while women make up only 46% of hires on the overall market since 2011. 

Finally, two of the last three years have been strong for environmental law hiring (9 – 11% of the overall market in 2020 and 2022).  It will be interesting to see if this is the beginning of a new normal for environmental law hiring, or if these are merely outlier years.  It is possible that environmental law as a field has become more in demand as topics like climate change and environmental justice become increasingly prominent in public discourse. 

If you want to know more, please check out the full report (available here on SSRN)!  There are interesting statistics I did not include here and lots of pretty graphics.  Please feel free to reach out to me ([email protected]) with corrections, criticism, or comments, if you just want to chat. 

For any aspiring environmental law professors, good luck!  I hope you find this edifying rather than anxiety inducing.  Feel free to reach out.  I am happy to share whatever advice my many mentors shared with me or to talk about my own experience on the market.  Thanks again to Sarah for letting me guest post here and for collecting all of this data! 

Posted by Sarah Lawsky on September 16, 2022 at 11:13 AM in Entry Level Hiring Report | Permalink | Comments (0)

Thursday, September 15, 2022

And isn't it ironic? Don't you think?

It's like Nazis who can get a stay.

It's Yeshiva when they can't get a stay.

It's the biggest case that the Court didn't take

And who would've thought? It figures.

Posted by Howard Wasserman on September 15, 2022 at 10:19 AM in Howard Wasserman | Permalink | Comments (1)

Law School Exceptionalism

One more thought on the Yeshiva case. Cardozo Law School has LGBTQ+ student organizations and responded to the university's recent appeals with a public statement reaffirming support for the community and student organizations and stating that the university's efforts "do not pertain to the Cardozo School of Law and will have no impact on law school policy." This is consistent with the position of Albert Einstein Medical School and some graduate programs, whose student populations are less Orthodox and whose curricula are less steeped in Orthodox teachings.

This offers an important example of "law-school exceptionalism"--central universities recognizing that law schools are unique entities and treating them different than other campus units in terms of faculty governance, student life, student control, etc. It was a central feature of the late-2oth/early-21st-century heyday of legal education. It allows a law school to have an LGBTQ+ student organization where the university has decided that such a group--and the rights for which it fights--runs contrary to the institution's core educational values. Whatever its views on the merits of anyone's position, the university will not micro-manage the law school on such matters and will leave it to its choices and preferences. Some is accreditation-driven--law schools can argue that requiring it to eliminate such groups would run afoul of the ABA and AALS. Some is competition of the market--law schools can argue that they cannot attract sufficient top students in New York if they run a school perceived as unwelcoming to LGBTQ+ students.

Law-school exceptionalism also is, in some places, a vanishing virtue. As the nature and perceived value of legal education have changed, so has (some) university willingness to allow law schools to operate with such procedural or substantive independence. This could provide an interesting test of Yeshiva's commitment to this ideal. Cardozo's statement on the litigation suggests the dean feels confident the university will not turn this into a larger issue of central control. But it is a piece worth watching as this case proceeds.

Posted by Howard Wasserman on September 15, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Morissette, J., dissenting

A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.

Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."

In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?

Posted by Howard Wasserman on September 15, 2022 at 09:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 14, 2022

The Dormant Commerce Clause and Unreasonable Burdens

Next month the Supreme Court will hear a significant Dormant Commerce Clause--National Pork Producers Council v. Ross. The case involves a challenge to a California law that prohibits the sale of pork within the state unless the pigs were treated in a way that meets certain minimal criteria for animal rights. Pork producers (who are mostly outside of California) argue that this law imposes an intolerable burden on interstate pork commerce and should be invalidated.

This is an interesting case for at least two reasons. First, the Court rarely strikes down a state law simply because that law burdens interstate commerce. Typically there must be or is a discriminatory intent. Here, though, there is no such intent and the argument is based entirely on the burden imposed. Second, a burden rationale means that a small state like Rhode Island could pass an identical law but a large state like California cannot. This is an odd conclusion, which suggests to me that the whole notion that laws can violate the Dormant Commerce Clause based solely on their burden is wrong, or at least should not be expanded. Granted, you can evade this problem by saying that either any state can do something or none can, but if that is true that any state law that imposes a burden could be a problem because what if all 50 states do the same.


Posted by Gerard Magliocca on September 14, 2022 at 04:58 PM | Permalink | Comments (0)

Tuesday, September 13, 2022

The politics of abortion (Update)

Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.

[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.

I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?

So what do Graham and Senate Republicans hope to get out of this?

    1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.

    2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.

    3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."

[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.

    4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.

    5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.

Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and  hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."

Posted by Howard Wasserman on September 13, 2022 at 04:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

14th Annual Lesley K. McAllister Symposium on Climate and Energy Law

named after our beloved colleague -

14th Annual Lesley K. McAllister Symposium on Climate and Energy Law

Please Join Us!

This year the University of San Diego School of Law will host its Fourteenth Annual Lesley K. McAllister Symposium on Climate and Energy Law. The Symposium will be an in-person event with an added virtual option for attendees. This event is co-hosted by the Energy Policy Initiatives Center (EPIC) and the San Diego Journal of Climate & Energy Law.

November 4, 2022
San Diego, CA

This year, legal and policy experts will explore the role of law and policy to accelerate pathways to net zero emissions, including efforts to reduce GHG emissions, preserve existing carbon stocks, and remove from the atmosphere and store permanently any remaining emissions.

Posted by Orly Lobel on September 13, 2022 at 02:11 PM | Permalink | Comments (0)

Monday, September 12, 2022

AALS New Voices in Administrative Law 2023

Call for Submissions: AALS New Voices in Administrative Law 2023

The Association of American Law Schools (AALS) Section on Administrative Law is pleased to announce the “New Voices in Administrative Law” program for the 2023 AALS Annual Meeting, which will be held in person in San Diego. The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. We welcome submission of early-stage drafts and encourage eligible scholars to participate. As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 3:00 to 4:40 p.m. Pacific time on Saturday, January 7, 2023.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Glen Staszewski at [email protected] by Friday, October 28, 2022, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 9, 2022. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers

If you are interested in serving as a reviewer this year, please email Professor Jamelle Sharpe at [email protected] as soon as possible.

For All Participants

Please be aware that selected participants and commentators must register for the AALS Annual Meeting. Please submit any questions about the New Voices Program to Professor Glen Staszewski at [email protected].

Reminder: Nominations Due for the Emerging Scholar Award by Sept. 30, 2022


In January, the AALS Administrative Law Section recognized Benjamin Eidelson and Blake Emerson as co-recipients of its second annual Emerging Scholar Award. Nominations for this year’s award are due on September 30th. Self-nominations are welcome! Full-time faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are eligible. To nominate someone, please send an anonymized version of their work to Professor Mila Sohoni at [email protected] by September 30, 2022. (Any reasonable effort to strip identifying information is fine.) Any substantial scholarly work—whether a law review article, monograph, or chapter—published in final form between September 1, 2021, and August 31, 2022, is eligible. The work may be on any topic related to administrative law, although the award selection committee may favor work with greater general applicability. We will present the award at the AALS Annual Meeting in January. Please direct any questions to Professor Mila Sohoni.

Posted by Orly Lobel on September 12, 2022 at 04:03 PM | Permalink | Comments (0)

JOTWELL: Carroll on Greene & Renberg on judges without J.D.s

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022), examining the phenomenon of low-level state judges who do not have law degrees.

Posted by Howard Wasserman on September 12, 2022 at 02:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, September 10, 2022

The Other "Other Legal Academy" - Scholarship

Jeremy-Telman-scaled-e1598277351203My friend Jeremy Telman (Oklahoma City University, left) has a series of three posts at ContractsProf Blog on his experience as a teacher and scholar in what he refers to as the "Other Legal Academy" or OLA.  His thesis is that there are at least two legal academies, one elite ("The Legal Academy") and one consisting of unranked law schools (the OLA) and they "meet fleetingly." (Full disclosure: Jeremy's post on scholarship has a picture without link to his edited volume Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence (Springer, 2016).  I contributed a chapter.)

The posts deal, respectively, with hiring, scholarship, and teaching.  They are provocative, overly modest about Jeremy's own accomplishments, and fodder for my own promised reflections toward the end of a career in what Jeremy might think of as part of the OLA.

This sentence triggered my initial and visceral response to his distinction between The Legal Academy and the OLA:

But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.

I asked Jeremy how many OCU faculty had moved laterally since 2007 (when I started teaching), because my experience at Suffolk was that a substantial number of my colleagues who got tenure at Suffolk moved on to schools up the food chain - for example, Jessica Silbey to Northeastern and then to Boston University, Hilary Allen to American, Frank Rudy Cooper and Leah Chan Grinvald to UNLV (the latter as dean).  His answer was very few.  I have had colleagues whose scholarly work I know is widely read and influential, including David Yamada on workplace issues (such as bullying), Michael Rustad on tort law, John Infranca on housing communities, Marc Rodwin on health care, and most recently, Sarah Burstein on design patent law.  (There are others as well.)  

Yet for reasons best explained by the US News ranking algorithm, Suffolk currently sits in the #122 bracket along with Albany, Mercer, Baltimore, and Dayton, just behind the #118 group (Chapman, Hofstra, Tulsa, West Virginia) and just ahead of the #127 group (Cleveland State and St. Thomas (MN)).  Indeed, the impact of that algorithm (LSAT scores and bar passage rates) combined with past decisions on class size have caused Suffolk to flirt with over the last ten years, but never succumb to, the unranked list at the bottom where you find OCU and others.

There's no question that it's different being at Suffolk is different than being at Harvard, Yale, Stanford, or even BU. Nevertheless, and despite my unusual path to a faculty and perhaps even to tenure, I never felt like I was on the outside of The Legal Academy looking in as a scholar.  Below the break, I'll reflect on that. (And perhaps touch on Jeremy's reactions to hiring and teaching in later posts.)

1.  In 2004, I was the general counsel of a chemical company in Indianapolis.  For reasons too lengthy and, perhaps, sensitive, I had time on my hands and contacted the then-dean at the IU-Indianapolis law school (now McKinney) about teaching a course on entrepreneurship and venture capital as an adjunct.  I was shocked to find him recruiting me as a potential director of the school's nascent center on entrepreneurship and technology.  Even then, I could see that being a center director but merely as an adjunct faculty member was a losing proposition.  I said, "I'd have to be on the faculty."  He said, "That would be almost impossible; you've never published any scholarly work."  I had no idea what that meant, having been a lawyer in the real world for 25 years at that point.  I went home, and looked into what legal scholarship was.  I consulted a couple of law school classmates who were on "elite" faculties.  I had an idea for an article arising out of one of our board members' concern about being named as the Audit Committee Financial Expert under Sarbanes-Oxley.  I called the dean.  "Okay, fine, if I need a publication, I will write and publish one." I started writing it on Memorial Day, 2004 and finished it by July 4, 2004.  

I cannot now recall if I used ExpressO.  I have a vague recollection either of making hard copies and mailing them, or emailing them separately, in a fit of self-delusion, to law reviews at Harvard, Yale, Stanford, Columbia, Michigan, and for some reason I don't now recall, Wayne State.  Within a week or two, an editor at Wayne State emailed me to say that it had accepted the piece, and I went bouncing up and down around the house like I had just won the U.S. Open.  

One of those law school classmates (Douglas Baird) said to me, "You need to post it on SSRN."  I replied, "What is SSRN?"  I posted it.  Later, Avery Katz (who had summer clerked at my law firm in Detroit and knew my wife from when they were kids) sent me a note to the effect that Larry Solum had posted the article on his "influential blog." To which I believe I responded, "who is Larry Solum and what is a blog?" (NB: while there are portions of that piece I still like, I cringe every time I look at it or think about its puerile naïveté, notwithstanding the fact that it has been downloaded more than 1,000 times on SSRN, no doubt as a result of its truly bizarre and suggestively interdisciplinary title.)

At some point, one of the faculty members at IU-Indianapolis sent me a video file of a talk Ron Krotoszynski (now at Alabama) gave on how to play the law review placement game. The upshot of all this was my reaction to the process: "Damn, this is fun."  So, over the next six months or so, I wrote and placed two more pieces, one in the DePaul Law Review and one in the Temple Law Review.  (Those two pieces involved an email exchange I initiated with Richard Posner, who, to my complete shock, graciously responded, but that story will have to wait for another post.)

My point is that, while my initial forays weren't the elites, they weren't chopped liver either, and I felt like I had entered the mainstream of legal scholarship, whatever it was, even before I had a full time academic position.  

2.   A theme of Jeremy's post is his despair over the quality and the fate of his own scholarship: "very few people care about what I write as a scholar...." "I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned...." "I do regret that I don't think I will ever know if my scholarship is any good...."  First, I think his despair about being unread is unwarranted.  I speak from experience when I say that, if you decide to spend a lot of time writing about the work of Hans Kelsen, you are already speaking to a relatively limited audience.  Nevertheless, I went to his SSRN page expecting to see a mere dribble of downloads.  Instead I found thirty-four papers, twenty of which had in excess of 100 downloads, twelve in excess of 200, four in excess of 300, and one just about to reach 500.  [I have a question in at SSRN about the percentage of posted papers that achieve those benchmarks, so I won't guess, but I know I would be happy with that kind of reception for my own work!]

But, second, is it any good?  That is such an interesting and complex question, particularly in academia, because the criteria are not solely objective.  Another well-known blogger is currently posting the h-index of law professors.  The h-index measures a professor's productivity (at least on Google Scholar) as well as the citation impact - your h-index is the highest number h of your papers that have been cited h times.  As of right now, Cass Sunstein (there's a shocker) leads the pack with 172.  Understand what that means.  He has written 172 pieces that have been cited at least 172 times.   My h-index is 12.  I believe the highest h-index at Suffolk is Michael Rustad's 34.  Marc Rodwin's is 29. David Yamada's is 18.  John Infranca's is also 12 (and he's been at it not nearly as long as I) and Sarah Burstein's is 8, but they are both youngsters.  Google also uses something called the i10 index, which is simply the number of your pieces that have been cited ten times.  Cass Sunstein's is 692.  For that, there are simply no words.  My i10 index is 19, which I've justified with the notion that I've been writing academic articles since 2004, making it eighteen years, that I consider one significant piece a year to be on par for a productive law professor, and thus I have at least one ten-citation piece for every year I've been doing this.  That's my story and I'm sticking to it.

But, of course, we all know that you can write good stuff without having astronomical h-index numbers.  The subject matter makes a big difference.  And you can be widely cited as an example of getting something totally wrong!  

The far more fascinating subject (to me, at least) is the subjective assessment of scholarly legal work as "good," particularly in light of disciplinary boundaries.  Before I was a law professor, I was the chief legal officer for a couple big organizations, which meant that, in making my own decisions in hard cases, I often had to rely on the judgments of experts in fields I knew little about, and whose views either conflicted or were inconsistent with each other.  I have written about that.  Louis Menand and Michele Lamont have each written about the benefits and costs of disciplinary boundaries in academia.  Menand described interdisciplinary anxiety as being "about the formalism and methodological fetishism of the disciplines and about the danger of sliding into an aimless subjectivism or eclecticism." Lamont studied how judgments got made for interdisciplinary grant approvals, concluding that there is no canon for judging interdisciplinary work, and it "struggles with the concurrent polarities of “expert and generalist criteria (what one respondent [in Lamont’s study] defines as ‘virtuosity and significance’).” Indeed, Lamont wrote: "given the emergent quality of the standards of evaluation for interdisciplinary genres, panelists readily fall back on existing disciplinary standards to determine what should and should not be funded."

Which brings me back to my experience.  In his post on hiring in The Other Legal Academy, Jeremy quotes Orin Kerr: "To have a realistic chance, a candidate usually needs either a VAP/fellowship or a PhD. — and everyone knows it."  (Jeremy's point is that may be true for Orin's Legal Academy, but not for Jeremy's.) Credentials are simply easier heuristics for expertise and what is good.  Historically, law professors, even those doing "law and ..." have been autodidacts with JDs, the prime example being Cass Sunstein himself, whose degrees (and their dates) look a lot like mine!  (Obviously, that is where the comparison rightly ends; see above h- and i10 indices.)  What I found from 2004 to 2007, while I was considering that odd late-career jump to academia, was that the world of legal academic split into two categories, one in which my lack of credential was the basis for ignoring me (or at least not returning emails), and a larger one that invited me into the conversations about which I was interested.  That has been no different at Suffolk.

3.  In 2007, we moved to Cambridge and were fortunate enough to buy a house next door to, and connected by a gate with, a wonderful family one of whom was and is a pretty renowned Harvard evolutionary biologist.  We have spent many a Saturday or Sunday late afternoon, going through the gate and sharing a bottle of good or not-so-good wine, comparing notes about research, peer-review and getting published, teaching, faculty dynamics, and our shared interest in ultimate questions (telos being a particular interest of mine, and telos or "purpose" being a fascinating aspect of adaptation).  Honestly, despite the gap in the relevant prestige of our institutions (and our respective careers), the worlds seem remarkably similar.

4.  In short (and this has been anything but), I think Jeremy has overstated the case by focusing on law schools at the extremes of the rankings.  I don't know whether Orin is right about the required credentials to be hired in today's market - it looks to me that the market favors applicants for the first time in years - but I suspect there is still a substantial job market where  you still have a good chance of being hired as a JD-autodidact.  A wise mentor back in 2005 or so told me that I was going to have a hard time getting hired because I wrote to please (or teach) myself rather than inserting myself into existing and ongoing debates.  That was simply a realistic assessment of credentialism back then and it's probably still true.

I agree with Jeremy completely about this: if you can get it, it's a great job, paying significantly more than entry level positions in most other disciplines. More importantly, as the explosion of journals has demonstrated over the last twenty-five or thirty years, unlike philosophy or history professors, the overwhelming majority of our students have no interest whatsoever in following in our academic footsteps, and unwittingly subsidize our ability to write about whatever we damn please and usually publish it somewhere.  Carpe diem.

Posted by Jeff Lipshaw on September 10, 2022 at 08:19 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (7)

Friday, September 09, 2022

The queen is dead, long live the king (Updated)

Three thoughts, as someone who, when my wife and kid woke up early to watch William and Kate's wedding, joked "didn't we fight a war so we didn't have to do this?"

• TIL they change the words to the British national anthem. It makes sense, but I had never gotten confirmation (since hardly anyone is alive who remembers anyone other than a queen).

• The combination of the events in the U.K. and ongoing political events here highlights something Gerard has written about--the possible gains from separating the roles of head of state and head of government. The U.S. is unusual in being a stable liberal democracy that combines those roles. Perhaps a central executive of some stature, disengaged from partisan competition and policymaking, can help lower the political temperature and avoid things such as one side's refusal to accept electoral defeat. On the other hand, Elizabeth's statute came from serving for 70 years and becoming indistinguishable from the nation. A figurehead HoS also presumes unified legislative/executive control. So maybe our system is too far gone.

Update: David Frum frames it around two interesting points. One is separating the trappings of wealth and power and actual power--the person with the trappings has no power, the person with power has no trappings, lives in a small house, and regularly encounters rudeness (think of Question Time). The other is how accidental both systems are. The Constitution modeled presidential power after monarchical power as it existed in in 1787, only for the British to organically limit that power in the following years. The British couch an evolving system in long tradition, while the U.S. tries to pull an ancient system into the modern world.

• Chief Justice Rehnquist wrote in Hustler that "our political discourse would have been considerably poorer without" political cartoons--not only for the caustic (and sometimes tasteless) satire and criticism that brings down the powerless (as Rehnquist emphasized), but for their ability to wordlessly capture a moment and an emotion. Behold:


Posted by Howard Wasserman on September 9, 2022 at 02:45 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, September 08, 2022

Dall-E Made an Uncanny Picture of My Kids - Part I

Seriously. There have been such headlines, but I tested it myself. I signed up on Open AI for an account and got approved quite fast. I spent the day coming up with prompts that would result in images that look like my kids. At first, it was really off. Then I got better (the AI was always quite good, you just need to learn to speak its language). Then I actually gave a really thin prompt: Three Daughters at the Beach Chagall-Style and the result was something so uncanny and similar ("it's literally us" one of my kids said) that my family couldn't believe my story about how it was just based on a thin prompt. I too have doubts on whether the AI somehow learned something about me from previous prompts? Or is it just that we are all quite similar in the end, and we read confirmation and see similarities and uniqueness (especially when backs are turned like in this picture) when its really quite generic (and definitely not a Chagall).

Post number II will be about some of the policy implications of Dall-E art. 


Posted by Orly Lobel on September 8, 2022 at 09:24 PM | Permalink | Comments (0)

The Civil Rights Act of 1866 and Reconstruction

People commonly say that the Fourteenth Amendment was ratified, in part, to constitutionalize the Civil Rights Act of 1866. Indeed, there is an ongoing debate among scholars about how the 14th Amendment did that.

But why is the premise correct? Congress enacted the Civil Rights Act of 1866 on the authority of the 13th Amendment. And in the Civil Rights Cases, the Supreme Court passed on the question of whether the Act was a valid exercise of congressional power under the 13th Amendment.  

It is true that John Bingham did not think that the 13th Amendment authorized the Civil Rights Act of 1866. But he was alone among Republicans in Congress in believing this when the Act was passed. Why then do people keep saying that one part of the original public meaning of the Fourteenth Amendment was constitutionalizing the Civil Rights Act? Even if other members of Congress besides Bingham said this when the 14th Amendment was under discussion, I'm not sure that's enough evidence. Or at least I'd want to see how many people said that and who they were before I made up my mind.

Posted by Gerard Magliocca on September 8, 2022 at 09:20 AM | Permalink | Comments (0)

Wednesday, September 07, 2022

Conflict experts fight about Star Wars

Now for something completely different, after the jump. (H/T: Former Prawfs guest Scott Maravilla). And watch for Star Wars, Negotiation, and Conflict Resolution, edited by Noam Ebner (Creighton) and Jennifer Reynolds (Oregon), coming soon.



Posted by Howard Wasserman on September 7, 2022 at 03:13 PM in Culture | Permalink | Comments (0)

Tuesday, September 06, 2022

And Then There Was One

Today Couy Griffin was ousted from office by a New Mexico court for violating Section Three of the Fourteenth Amendment on Jan. 6th, 2021. I'll have more to say about that later, but for now I just wanted to note that this is the only pending case on Section Three. The Georgia Supreme Court last week affirmed that Representative Taylor-Greene is eligible to run. (Her 11th Circuit appeal is still pending, but one would think that would now be dismissed as moot, though perhaps not unanimously.)

By the way, the last person ousted from office by a court was a state judge in Louisiana. This decision in 1869 rested on the federal statute that readmitted Louisiana to the Union after the Civil War. But since the statute said that Section 3 must be enforced by the newly readmitted states, you could argue that this was, in fact, a Section 3 case. 

Posted by Gerard Magliocca on September 6, 2022 at 03:01 PM | Permalink | Comments (0)

Monday, September 05, 2022

Iowa Law VAP and Fellowship - 2023-2024

From the University of Iowa College of Law:

The University of Iowa College of Law seeks applicants for the Hubbell Visiting Assistant Professor and the Iowa Law Faculty Fellowship

The Iowa Faculty Fellowship 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. The Hubbell VAP will teach in the environmental law curriculum and will be encouraged to pursue independent research. Both programs provide research and teaching opportunities, faculty mentoring, and career development for promising legal scholars and teachers aiming to launch new careers in legal academia.

Review of applications will begin immediately and will continue until the positions are filled. For more information, please contact Chris Odinet, chair of the Faculty Appointments Committee, at [email protected]. Applications for the Iowa Faculty Fellowship can be submitted here and the Hubbell VAP here.

Posted by Sarah Lawsky on September 5, 2022 at 04:32 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Does lawyering matter?

Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.

But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.

The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.

Posted by Howard Wasserman on September 5, 2022 at 01:07 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, September 04, 2022

An Old Law Prof Learns to Code - Part 1 - Introduction

image from youtu.beI'm stretching for the segue, but references to Markie seem to be popular.  (I  took the video at the left to prove to my skeptical wife that he did in fact come when I called.) 

The horse segue is this: I had never gotten on a horse, except for maybe a pony ride when I five, until 2009, when I was 55.  A friend here in Michigan had a horse, there was a gorgeous riding facility nearby, and it looked cool.  I knew vaguely that there was a difference between English and Western riding but that was it.  I knew nothing about dressage versus hunter-jumper versus eventing versus equitation versus Western Pleasure versus barrel racing.  So I asked somebody "what discipline I should learn?"  The response was to learn English because it was easier to go to Western if one didn't like it than the other way round.

If you know anything about computer coding, I apologize for the ensuing naïveté. You are entitled to react "duh, of course that is how it works."  But, as with riding, I knew there was C++ and Python and Java (which I didn't know had no relation to JavaScript) but I had no idea what that meant.  As I mentioned before, my ventures in the guts of coding (since a couple days of BASIC in high school) were pretty much limited to inserting a hyperlink into a blog comment for the purpose of shameless self-promotion of articles I had posted on SSRN.  I certainly had no experience with anything that looked like this (see below the break for some more on this):

//Fahrenheit Celsius Conversion//
#include <stdio.h>
int main(void)
int Fahrenheit, Celsius;
printf("Enter a Fahrenheit temperature as an integer:");
scanf("%d", &Fahrenheit); Celsius = (Fahrenheit - 32)/1.8;
printf("\n %d Fahrenheit equals %d Celsius. \n\n", Fahrenheit, Celsius);
return 0;

When I started the exercise in June, I just wanted to see what coding involved, but I also wanted a goal. I came up with the idea of encoding the exercise I use in Business Entity Fundamentals to teach income statements and balance sheets to law students and then somehow to deliver it to them.  It's not pretty, but I created something you can see here.

More importantly, I had a number of "aha" moments about similarities both in (1) the logic of coding and lawyering, something I've written about extensively, and (2) the practice of each skill.  But I don't want to bury that lede, so wait for "Part 2 - Aha Moments."

If you are curious and are on a MacBook, try the following.  Good luck.

1. Copy this from the first // to the last } :

//Fahrenheit Celsius Conversion//
#include <stdio.h>

int main(void)
int Fahrenheit, Celsius;
printf("Enter a Fahrenheit temperature as an integer:");
scanf("%d", &Fahrenheit); Celsius = (Fahrenheit - 32)/1.8; //note the silent conversion
printf("\n %d Fahrenheit equals %d Celsius. \n\n", Fahrenheit, Celsius);
return 0;

2.  Open Word or Pages on your computer and paste it.  Save the document on your Desktop but as a .txt (Plain Text) file.  Call it something like "demo" (don't use the quotation marks).

3. It will show up on your Desktop as an icon.  Click on the name "demo" and change it to "demo.c" (without the quotation marks).  The computer will ask if you really want to do that.  Say yes, "use .c".

4.  Go up to the top right of the menu bar and open the search function (the magnifying glass).

5.  Where it says "Spotlight Search", type in: terminal  ... then hit "return".  A window will open up with a line that looks like this: ~>

6.  Type in:  cd desktop  ... then hit "return."  It should return a line like this: ~/desktop>

7.  You now are in your Desktop directory.   At the prompt, type in:  gcc -o demo demo.c   then hit "return." You have now asked the computer to translate that language you saved as demo.c into a new file called "demo" that consists of binary code of zeroes and ones.  If all went well, it will return a line like this: ~/desktop>   If you did anything wrong, it will spit out error messages.*

8.  If you type in ./ and then the program name at the prompt, the computer will execute the program.  So, at the ~/desktop> prompt, type in: ./demo

9.  You have written and executed a program that converts Fahrenheit temperatures to Celsius.  The computer will ask you to enter a Fahrenheit temperature as an integer.  If you do and hit return, it will give you the answer.

* My colleague and law and coding guru David Colarusso observes that computers are like the most anal and obnoxious cite-checking law review editor you've ever encountered.  Even posting this exercise, I made several mistakes along the way, like forgetting to include > after "stdio.h" (which, by the way, tells the program to include the standard input-output code from the C language).

Posted by Jeff Lipshaw on September 4, 2022 at 08:57 AM in Lipshaw, Teaching Law, Web/Tech | Permalink | Comments (1)

Friday, September 02, 2022

CFP: Memphis Law Review: (How Much) Should We Pay Them?

The University of Memphis Law Review writes to share our call for papers for our upcoming Spring 2023 Symposium with you, your faculty, and your colleagues.  This year’s Symposium is titled “(How Much) Should We Pay Them? The Shifting Legal Landscape of Collegiate Competition” and will take place on February 24, 2023.  We hope that you will share this call for papers, which can be found here, with your law school’s faculty.

While the Supreme Court’s recent decision in NCAA v. Alston marked a major shift in the way collegiate sports operate in the United States, the full ramifications of that decision are not yet apparent.  Although the broad question of whether college athletes may be paid has been answered, there are still significant issues that should be raised and addressed now, before a new system of athlete compensation at the collegiate level begins to fully take shape.  Possible topics to be addressed may include:  frameworks for collegiate sports gambling; resolution of employment and labor disputes; and regulation of name, image, and likeness (NIL) compensation.

The University of Memphis Law Review invites manuscripts from all points of view for publication in Volume 53 and presentation at our Spring 2023 Symposium.  We hope that you will send this Call for Papers to your colleagues, as we seek to meaningfully contribute to the national discourse on collegiate sports and competition.  If you or a colleague wishes to participate, please submit a manuscript or abstract to our Symposium Editor, Alex Daichman, at [email protected] with “Collegiate Competition” in the subject line.  The deadline for submitting a manuscript or abstract is October 15, 2022, but we are happy to work with any interested authors or speakers who anticipate any difficulty in meeting this deadline.  Should you have any questions, please direct them to Alex Daichman, who will be happy to answer them in a timely manner.

Posted by Howard Wasserman on September 2, 2022 at 05:17 PM in Teaching Law | Permalink | Comments (0)

Legal Podcasts

As you get ready for the long weekend, here are some podcast recommendations if you're interested.

My favorite legal or constitutional podcast (which I often have on in the car when I commute) is Amarica's Constitution. It's useful to listen to Akhil Amar's views (either on current events or issues raised in his books and articles), but another terrific feature is the dialogue that he has with his co-host (or host) Andy Lipka. A podcast needs more than one voice to work well, and in this case the two voices complement each other really well. And they do one every week! How they manage to find the time is beyond me.

Another podcast that I like is Divided Argument with Will Baude and Dan Epps. There is more of a Supreme Court focus to this one, but again you have two voices rather than one, and the two voices offer a healthy mix of agreement and disagreement banter. They are not doing a new one every week to be sure, but when they record the quality of the discussion is always really high.

Finally, the podcasts produced by the National Constitution Center are also excellent. (Disclaimer--I've been on a couple of them).

I wish I had the time to listen to more podcasts, as I know there are many others that are great. But my commute is only 75 minutes long.

Posted by Gerard Magliocca on September 2, 2022 at 02:32 PM | Permalink | Comments (0)


Img_1667_medOne of the things I committed to early on in my blogging career was never to engage in online dialogue with someone whose identity I didn't know.  Hence, I never get involved in debates in the comments with anonymous posters.  Sorry.  Nevertheless, a commenter to the last post wanted to know more about Markie, and I'm a complete sucker for that.  It's like asking me to show you pictures of my grandkids.

Markie, officially registered as Mark of Mine, is a 22 year old half-Arabian, half-Hackney gelding who stands roughly 15.3 hands.  He resides at Torch Valley Farm in Ellsworth, Antrim County, Michigan, where he is one of the very few Democrats but is on good terms with everyone, including the poor county clerk whose election night coding error on a Dominion voting machine has been fodder for the conspiracy theorists.  I don't have the heart to ship him back to Boston with me in the winters because he has a ten acre pasture that he shares with his good friends Drifter, Sully, and Tango. I have owned him for four years but leased him for two summers before that, when his prior owner gave him to me because she was moving away and she knew I would spoil him rotten.

He and I have ridden together in a couple dressage schooling shows over the years.  This video is from Cedar Creek Crossings in Kingsley, Michigan last July.  Ignore the rider who should have known better than to get in Markie's way and admire the horse instead.

Posted by Jeff Lipshaw on September 2, 2022 at 12:31 PM | Permalink | Comments (0)


IMG_0367Earlier this year, I signed a phase-out agreement with Suffolk University, probably two years earlier than I had originally planned.  You give up your tenure and agree to teach half-time for up to three years (at your option) and there's a small (nay, insignificant) financial incentive.  You have to take the deal before the end of the year in which you turn 70, which for me is still two years away.  But I think COVID and Markie (see left) pushed me to pull the cord sooner.  On July 1, 2022, I ended fifteen years of tenure-track and tenure (begun when I was 53), the longest I ever kept one job.

My relationship with PrawfsBlawg spans more than my academic career. I started as a frequent commenter back in 2005 or so, while I was still the GC of a chemical company. Dan Markel invited me to guest blog in the summer of 2006, just before I started a visiting gig at post-Katrina Tulane. The "raw" in Prawfs still lingers in the annual hiring and law review submission posts, but the raw profs I met in 2006 (particularly at the Law & Society meeting in Baltimore) are mostly now well-established mid-career or senior scholars and teachers.  Some are even deans.  Since I was already medium well done when I started this, I'm now well overcooked.  But I've succumbed to the self-indulgence of semi-biographical work along the way, like how to get hired on tenure track when you've been out of law school for twenty-six years or reflecting on law scholarship and teaching having gotten tenure at age 59.  Why stop now?

This is the first summer since 2008 (I think) that I've not committed myself to publishing a piece by getting a summer research stipend.  Over the last several years, I have written a lot about computation and lawyering. That included positing a robot lawyer that I named after Judge Amalya Kearse, predicting the persistence of "dumb" contracts, and comparing human and computer decision-making.  It involved digging deep into the differences between, on one hand, the discrete and binary and, on the other, the continuous and analog.  But my actual coding experience was limited to the Basic we spent learning in my high school pre-calculus class in 1971, some Boolean stuff on an Excel spreadsheet,

and knowing how to click "HTML" in the upper right corner of TypePad to code a block quote that looks like this.

Hence, my summer project was to learn enough computer coding to make something of practical use.  I started with "Hello, World" exercises in C, then Python, then Javascript and HTML (all in my Visual Studio Code text editor).  By the end of August, I'd created two online interactive exercises to teach accounting to my business law students and a self-executing practice exam review for first-year contracts.

So stay tuned if you like.  I am going to post a little bit this September about being in the September of one's career and about computer coding and lawyering.

Posted by Jeff Lipshaw on September 2, 2022 at 08:01 AM in Blogging, Lipshaw, Odd World, Teaching Law | Permalink | Comments (7)

Thursday, September 01, 2022

Religiously Affiliated Law Schools conference . . . coming up!

After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro.  I hope to see MOJ bloggers and readers there!  Here's the conference info.  The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools".  Come join us!

Here is the program:

Conference Program

Thursday, September 15 

  • 9:00 - 9:30 am - Breakfast and Welcome
    Elena B. Langan, Dean and Professor of Law, Touro Law Center
    Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

  • 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
    Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
    Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
    Brad J. Lingo, Dean, Regent University School of Law     
    Judith A. McMorrow, Professor of Law, Boston College Law School 

  • 10:30 - 10:40 am - Break

  • 10:40 - 11:40 am -- Religion and Faculty Hiring
    Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator 
    John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
    Michael A. Helfand,  Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law 
    Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
    Catholic University of America, Columbus School of Law

  • 11:40 - 11:50 am - Break

  • 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
    Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
    Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center 
    Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School 
    Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit

  • 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery

  • 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)

    Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
    Marvin Krislov, President, Pace University  
    Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
    D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School

  • 3:40 - 3:50 pm - Break

  • 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
    Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
    Fayneese S. Miller, President, Hamline University 
    Rod Smolla, President, Vermont Law and Graduate School
    Michael Waterstone,  Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law  

  • 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library

  • 6:00 pm - Dinner

Friday, September 16

  • 9:00 - 9:30 am - Breakfast

  • 9:30 - 10:30 am Religion and the Practice of Law (I)
    Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
    Jeanne Bishop,  Assistant Public Defender at Cook County Public Defender's Office
    Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance  
    Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN) 

  • 10:30 - 10:45 am - Break

  • 10:45 - 11:45 am - Religion and the Practice of Law (II)
    Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator 
    Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
    Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
    Boston University School of Law
    Randy Lee, Professor of Law, Widener Law Commonwealth 

  • 12:00 - 1:00 pm - Lunch and Keynote Address
    Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
    Fordham University School of Law

  • 1:00 - 2:15 pm - Religious Liberty Advocacy
    John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator 
    Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
    Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
    John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
    Lori Windham, Senior Counsel, Becket

  • 2:15 - 2:30 pm - Closing Remarks
    Elena B. Langan, Dean and Professor of Law, Touro Law Center
    Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

Posted by Rick Garnett on September 1, 2022 at 01:48 PM in Rick Garnett | Permalink | Comments (2)

Thoughts on the Trump special master suit (Updated)

A couple quick thoughts on Donald Trump's attempt to appoint a special master to do something (I do not believe Trump's attorneys understand what a special master can do). A hearing on the motion is scheduled for later today.

• DOJ wanted to argue that Trump cannot make an FRCrP 41(g) motion for return of property because the government documents taken under the warrant do not belong to him (even if the search was unlawful). Trump replied that he has standing to contest the search (which he obviously does) but said nothing about a 41(g) motion. The problem is DOJ using "standing"--with its constitutional implications--to describe it. This is another example of the term confusing things. Everyone uses it as a synonym for "he cannot prevail on this issue under this law because he has no affected legal rights," but in a way that unnecessarily draws Article III into what should be a discussion of substantive merits or procedural rules.

• This thing is a procedural mess. Trump filed a new civil action that was neither a pleading nor motion, arguably in the wrong division of the SDFla, and without affecting service. Judge Aileen Cannon issued a minute order asking Trump to clarify what the hell this thing is (I warned my students to never do anything to be on the receiving end of such an order, although I doubt Trump's lawyers) care; he supplemented the papers, although barely and not in a way that offered a meritorious substantive argument or complied with procedural rules. Judge Cannon then indicated a preliminary inclination to grant the request and ordered expedited briefing. That brings us to today. By the FRCP, none of this should have happened. Trump initiated a new civil proceeding without filing a complaint, moved the court for relief without establishing jurisdiction (essentially asking the court to superintend the magistrate in a separate existing proceeding), and never served or obtained a waiver. But the judge did not care and is plowing ahead. In this Serious Trouble episode (around 20:4o), Ken White says "Sometimes, federal judges just get kind of fed-up with procedural niceties and just want to cut to the chase." Descriptively true, but it kind of undermines everything some of us do for a living. (I suppose the response to a student who tried to raise this point would be that judges are more likely to do this in a case involving the former President of the United States facing a federal indictment, but you are not likely to represent the former President of the United States, so you need to follow the rules).

• We begin discussing the jurisdiction of the Courts of Appeals in Fed Courts next Tuesday, which means we should begin discussing mandamus the following week. Which is good, because if Cannot gives Trump anything, the government is going to mandamus her, probably successfully. And the fact that the judge flouted procedure as she did should factor into the court of appeals reasoning on whether to grant the writ.

Updates: Reports on the hearing suggest she is inclined to appoint a special master to review all documents, along with Trump's team but not the government, including for executive privilege (which should not be in play here). She also seems inclined to enjoin DOJ from continuing to review the documents for purposes of a criminal investigation (while allowing ODNI review to continue). In other words, she is going to enjoin DOJ from investigating a crime in a case in which no complaint has been filed. If these reports prove true, it may suggest this is not a federal judge who wants to cut to the chase at the expense of procedural niceties but a judge who does not know what she is doing.

As to # 3, perhaps knowing how this is going, the government asked the judge to issue a formal injunction, which is immediately reviewable as of right. This avoids government having to satisfy the heightened requirements for mandamus (although I imagine they are satisfied here).

Posted by Howard Wasserman on September 1, 2022 at 08:59 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)