PrawfsBlawg

Alex Bregman in World Series

Game 3 of the World Series was rained out, with the teams tied 1-1. Alex Bregman homered in Saturday's Game 2; this was his sixth career World Series home run, most among Jewish players, one more than Hank Greenberg (and Joc Pederson).

Civ Pro Halloween

Civ Pro is a spring class around here, so no in-class costumes. Still, I got a visit from a student in my office. She is 4'11" tall; she wore a white t-shirt with the word "statement" on it.

Defending "Your Honor"

I'm grateful to Judge Benjamin Beaton for publishing his article Judging Titles, and to the VC for calling attention to it. Judge Beaton argues against the practice of calling judges "Your Honor," calling it (in the article abstract, at least) "un-American" and arguing that the simple appellation "Judge" is enough. I find plenty of points of agreement. Accidentally calling a judge "Sir" is no hanging offense. Law clerks (and everyone else) should avoid showering judges with obsequies--and that's true twice over for Supreme Court Justices. (I think he's wrong in suggesting that "this manner of speech" might come easier to clerks "who studied under dons and socialized at final and eating clubs." Those types--the U's, as Alan Ross and Nancy Mitford would say--know to the second when and where to shift into the assumed familiarity of informality with the powerful, and don't waste a moment in doing so. His speculation to the contrary is frightfully non-U.) Judges should avoid being changed by the bowing and scraping that surrounds them. All correct. But on the main point, I think he's dead wrong.

From my perspective, Judge Beaton himself helpfully distills into a sentence how and why he is wrong when he asks the rhetorical question, "Why are you addressing my honor (whatever abstract portion that might represent) and not the man in full?" He further elaborates on his error later in the piece by adding, "[T]hat distinction--between a professional duty and a personal rank--is what I'm trying to highlight."

On the first point, it seems to me to be precisely the point that under a sound system of government and of rule of law, we don't have to address "the man in full," and don't, or oughtn't, want to. We want to address the officer: not the whole woman (or man) in full, but the woman in her capacity as the holder of an office, and only in that capacity. We do not want to rely directly on her personal goodness, or the quantum of empathy she possesses (even if it's a useful quality in the performance of the office), or anything else other than her awareness that she occupies an office, that an office is ultimately not a collection of powers but a set of duties--"What are the highest places," asked an English judge long ago, "but obligations of the greatest dewties?"--and that she must fulfill them faithfully.

That is not to say the person is irrelevant, however. "Judges aren't the law," as Beaton writes, and despite his wisecrack I don't think they teach otherwise even at Yale. But the law is not an algorithm and the act of interpreting it is not mechanical. (I don't think anyone would argue otherwise even outside of Yale.) And transforming interpretation into decision and explanation, to use Beaton's terms, is not mechanical either. Certainly it would help if every decision were publicly explained. But judges make countless decisions and micro-decisions, including decisions not to act, that have no occasion for public explanation; and even if it were otherwise, the space between interpretation, decision, and explanation is vast and murky. Some need for character, judgment, and virtue is an ineluctable part of the performance of any office by any actual human being. 

And that, in my view, is where honor, properly understood, comes back in. Calling someone "Your Honor" has nothing to do with "personal rank," but a great deal to do with reminding the judge both that he is supposed to fulfill his "professional duty" honorably, and that his reputation in the eyes of his peers and in his own eyes--his honor, in short--is at stake whenever he performs his office. To treat "professional duty" as if it is quite separable from one's honor, as if it's some job that simply is undertaken during office hours, so to speak, is a mistake. As the sublime Laurence Laurentz would say, "Would that it were so simple."

Beaton objects to the phrase "Your Honor" because he thinks of it largely as a "term of nobility," and equates it mistakenly with "privileges" while contrasting it, equally mistakenly, with "duties." He's only half-wrong on the first point, both because it certainly connects to the history of nobility and because he also acknowledges in the footnotes that the term has long also been specifically connected to the idea of office-holding. And he's more seriously in error on the second point. Honor is precisely what connects the "man in full" to his "duties." Again, he is fair enough to acknowledge this point, albeit somewhat lightly, when he quotes Judge Edward Devitt: "The appellation 'Your Honor' is the trigger which commands our conscience to proper personal conduct and to the faithful performance of our duties." He cannot resist a jibe at Devitt, but Devitt is more right than wrong and more right than Beaton. It's not, pace Devitt, that the "appellation" serves as a "trigger." It's the concept and the virtue of honor that does it, and it's less a trigger than a bell, a reminder that the bell is tolling for the judge. Honor is, in fact, the virtue that connects the office to the man through the very judicial oath about which Beaton has more positive things to say. It's why the judicial oath, like other oaths, is said publicly. The public oath-taking is a forceful notice to the community that the judge has pledged herself and her honor to the sound performance of her office--a pledge of which "Your Honor" is an ongoing reminder. The point is perhaps best made by imagining the phrase spoken, not by rote or for flattery's sake, but in shocked or outraged tones, to remind a judge who has acted improperly that she has just dishonored herself, that the speaker knows it, and (because honor is as much an internal as an external quality) that the judge ought to know it too.

It's not the term that keeps me up nights. I'm more or less fine with whatever Beaton wants to call himself, although formality, like formalism (the latter, at least, in Beaton's view), shouldn't be dismissed too casually. But I think he's wrong about the thinking behind it. And although he falls into what might be thought a very contemporary habit of speaking about honor as aristocratic and archaic, there are plenty of people who could tell him that honor has much more to recommend it than that, that it is far from obsolete and, in altered form, has a full and necessary place in the modern liberal constitutional order, and that it's intimately connected to the "constitutional marriage of personality and impersonality" that is involved in the connection between office, oath, and honor. I don't care too much whether he reconsiders his practice, but he should reconsider his thinking. Just as long as you don't call him late for dinner. 

The Independent State Legislature Doctrine

Some of the briefs in Moore v. Harper are asking the Supreme Court to avoid the constitutional issues presented and find some narrow statutory ground (either state or federal) to resolve the case. Normally, I strongly favor this approach. But not in this case.

I thought that the whole point of taking Moore was to settle the independent state legislature arguments before the 2024 election. A narrow ruling won't do that. Then the Court may be forced to address the issue at the last minute in a heated presidential campaign. That would be unwise. 

JOTWELL: Bartholomew on Ormerod on qui tam

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Peter Ormerod, Privacy Qui Tam, ___ Notre Dame L. Rev. (forthcoming 2023), proposing qui tam actions to enforce privacy rights.

A World Series request

One game of the upcoming World Series must have 

the Phillies wear this:

 

 

 

 

 

 

 

 

 

And the Astros wear this:

 

 

 

 

 

 

 

 

 

 

Wearing those uniforms, the Phillies beat the Astros in the best-of-5 1980 NLCS* 3-2, a series in which four games went into extra innings.

[*] The Astros joined the NL (as the Colt-45s) in 1962. They moved to the AL beginning in 2013 to establish two 15-team leagues with three five-team divisions. Of course, that re-balance was necessary because the Brewers had switched from the AL to the NL in 1998, a move that Commissioner Bud Selig engineered to help the team he had owned for 20+ years and that his daughter ran.

We are all judicial supremacists now

Jacob Sollum at Reason does not think much of New York and New Jersey exercising judicial departmentalism on gun regulation by enacting laws that likely (and in the view of one district judge, definitely) do not comply with Bruen. Note the language Sollum uses--"defying the SCOTUS decision," failing to "respect the constitutional right," "pretending to comply with the Second Amendment." As if the Second Amendment and what SCOTUS says about the Second Amendment are co-extensive.  I thought we liked  allowing the judicial branches to exercise their own constitutional ideas, even if they depart from the Court's ideas. And that they lose before a district judge--bound by SCOTUS precedent in a way the NY and NJ legislatures are not--it is not because they were trying to "fool[]" anyone.

This piece could have been written by an abortion-rights supporter about Idaho, Missouri, and Texas anytime in the 45+ years prior to June 2022. I guess not.

When Did the Civil War End?

No, this is not a trick question with an answer like "Never." I mean when did the war end as a legal matter? The answer for most of the ex-Confederacy was April 2nd, 1866. This is when President Johnson issued an Executive Proclamation declaring the end of the insurrection in every southern state except Tennessee (where the declaration was made in 1865) and Texas (which came later in 1866).

I'm not sure why the President took the view that the insurrection was still ongoing in 1866. One can understand why Lee's surrender was not the end, as there were skirmishes in May 1865. And the military trial of the Lincoln assassination conspirators was held into the summer of 1865. But after that?

On the Road Again: The Equality Machine Book Talks

I am very excited to share that today is the publication day for The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs ).

I wrote this book - which is deeply personal to me - as I believe it will be to every reader - because I felt compelled to shift the debates we are having about technology to a more constructive proactive direction that celebrates the stories of leaders who care about equality and are leveraging automation and digital tech for good. I wanted to ask not only what’s wrong about tech but also what’s right - and how we can scale the best - in every aspect of our lives from jobs to health to media to dating and family. The Harvard Magazine wrote about the book today:

"What’s right with technology and artificial intelligence? Outside Silicon Valley, few people ask the question that way. Lobel, Warren Distinguished Professor of Law at the University of San Diego, does, beginning by recounting her daughter's type 1 diabetes—and the smartphone apps that help safely track her blood-sugar level and insulin pump. She then crafts a sweeping call for designing technology and AI with quality and social benefit in mind."

I am so grateful to the many friends and colleagues and my family who helped shape the ideas and research of the book and supported me in the long months of writing. And to the amazing people who I interviewed for the book and their stories are told to inspire us.

Would love for all to join the conversation - here’s to a bright future! I will be in Philly and Boston this week for book talks and next week San Diego, then Seattle, SF, some virtual talks, Tel Aviv and more - come say hi!

Philadelphia: Penn Law Oct 20 https://pennlaw.cvent.com/c/express/80801f0b-937b-4eef-a3f4-442cae09f80a 

Boston: Harvard Coop Bookstore Oct 22

San Francisco/Virtual: PLI Online Platforms & Popular Technologies Oct 24 https://www.pli.edu/programs/O/online-platforms

San Diego:  Warwick’s La Jolla Oct 27 https://www.warwicks.com/event/lobel-2022

                          AALS January 2023

Seattle: Town Hall Seattle Nov 3 https://townhallseattle.org/event/orly-lobel-with-beverly-aarons/

Virtual: Center for Data Innovation Nov 8 https://datainnovation.org/2022/11/book-talk-on-the-equality-machine-with-orly-lobel/

                                     McKinsey Author Series Oct 18     

                                    The Conference Board

 Tel-Aviv: Bar Ilan University December 12

                      Tel-Aviv University December 19

 

Revisiting the Koufax Curse

The Forward published my essay revisiting the Koufax Curse. The piece updates my 2020 study (conclusion: Teams still lose when their Jewish players play and should lose more); considers performance for 2022 (YK 5783) (conclusion: Relievers had a rough day); and revisits whether Max Fried would have pitched on Yom Kippur had the NL East been on the line.

Five teams with Jewish players are in the Division round. Fried got rocked in Game 1 of the Braves-Phillies series and will pitch a deciding Game 5 Sunday if the Braves can come back to win Game 4 (losing 4-2 in the 6th inning). Bregman has several key hits as the Astros staged two come-from-behind wins to lead their series with the Mariners 2-0. Relievers Scott Effross (Yankees) and Eli Morgan (Guardians) and back-up catcher Garrett Stubbs (Phillies) have not appeared.

Staying in your lawyering lane

Popehat offers a thread on bad lawyering arising from the recording of several Los Angeles City Council members and a union leader using racist slurs in discussing redistricting. An attorney for the LA County Federation of Labor emailed the LA Times, which obtained and published the recordings, threatening to sue. The latter was egregiously wrong (as the Times' lawyer demonstrated in a thorough response)--SCOTUS and SCoCA precedent protects publication of truthful, lawfully obtained information, including material that a third party unlawfully intercepts and passes to the paper, so long as the paper was not involved in the unlawful interception.  In fact, Bartnicki arose from an illegal recording of a conversation between two unions officials during contentious negotiations.

Popehat's thread focuses on the union attorney's "epically foolish" email. He offers three reasons she might have sent it: 1) She is a bad lawyer, which is unlikely in this case; 2) She is an expert on labor law but knows nothing about the First Amendment, so strayed from her area of knowledge; or 3) her client forced her to do this. The solution to # 2 is to recognize your lane and never send something like this without consulting an expert.

I want to add more to # 2. A colleague insists that every student should take First Amendment because every lawyer should know the basics of free speech. Even if you do not practice in the area (and most do not), that basic knowledge informs what you do. And a rudimentary knowledge of basic First Amendment principles can help you avoid errors on those principles.

Yale responds to Judge Ho

NLJ story here. The school revised its free-expression policies to include three conditions on protesting/disagreeing with a speaker: no blocking access to the event or facility; no disrupting the event and university operations; no compromising the safety of those attending or other members of the community. Dean Gerken sent a letter to the community highlighting the hiring of a new dean of students, the revision to the code of conduct prohibiting surreptitious recording of classes and other school events and activities, and a commitment to students resolving disagreements in-person.

I do not know whether it satisfies Judge Ho's complaints about free speech on campus, which I found disingenuous; they equate protest and criticism of an invited speaker with cancellation or drowning out. Free speech means sit-and-listen and hope the speaker deigns to engage with you or go away; anything else violates free-speech norms. The new policies seem to leave room for that sort of counter-speech so long as they do not "disrupt" or "block access," vague and capacious terms that could create problems if applied too broadly. (For example, a sufficiently large peaceful protest outside a building forces people to navigate a crowd to get inside--I would hope the school does not treat that as prohibited blocking).

Grand Juries and the Unitary Executive

I was reading an account of Robert E. Lee's indictment for treason. In May 1865, a federal district judge in occupied Virginia convened a grand jury to consider an indictment of Lee and others. A true bill was returned. I gather that no prosecutor was involved. This action created a firestorm and President Andrew Johnson ordered the indictment dismissed.

The fact that grand juries could indict people on their own at common law in cases where they could draw on their personal information and experience poses an interesting exception to the unitary executive theory. A President, of course, still retained control over bringing the prosecution. But he did not have full control over the indictment decision, which was an important one.

I am unclear if this sort of independent indictment could still happen today. The Federal Rules of Criminal Procedure do not seem to require a presentation by a prosecutor, but I do not know the case law well.

The Franchise: Sandy Koufax and Yom Kippur

The new podcast The Franchise: Jews, Sports, and America, hosted by Meredith Shiner, dropped its first episode, on Sandy Koufax and Jews playing on Yom Kippur. I discuss my Koufax Curse study (around the 11:00 mark).

I learned one new thing: Max Fried was one of the cursed in 2019. Pressed into first-inning relief when the Braves' starter surrendered four runs, Fried was almost as bad, giving up another four earned runs in less than two innings of work. According to journalist Jeff Schultz, Fried was fasting when he entered the game. He had anticipated that he would not be needed to pitch until later in the game, after sundown and the opportunity to eat something before taking the mound. Other pitchers make a similar Yom Kippur compromise--going to the park, dressing, and being available to pitch while fasting.

Northwestern University Law Review 2023 Symposium

From the editors of the Northwestern University Law Review:

The Northwestern University Law Review is excited to be accepting proposals for its 2023 Symposium, to be held in October 2023.

The Law Review will consider submissions until November 7, 2022. Symposium proposals should be submitted via Google Form. After November 7, 2022, the Symposium Committee will review all submissions. Organizers should expect that they may request more detailed information. The Law Review will notify organizers whether they remain under finalist consideration by November 14, 2022.

A strong Symposium proposal should do all of the following in at least 2-3 pages:

• describe the Symposium idea and its contribution to legal scholarship in as much detail as possible, including the proposed event’s originality, timeliness, and societal impact. 
• list potential Symposium speakers and panelists that would add to the academic quality and diversity of perspectives at the event;
• list potential authors who could write articles and/or essays for publication by the Law Review;
• include a draft budget outline and any secured or potential funding sources.

Questions should be directed to Senior Symposium Editor Sarah Wolf-Knight at [email protected]. You can find more information on the Law Review's website.

Advice from an "Other Other Legal Academy" Tenure Committee Chair

Back in 2017, I found myself appointed to our Tenure Committee, the thirteen-person group that does the detailed work of tracking the teaching, scholarship, and service of pre-tenure professors on our now "unified" faculty (i.e., all "doctrinal," clinical, and legal practice skills professors).  The Tenure Committee makes recommendations to the full tenured faculty, which has the final faculty say on tenure decisions. I had to miss my first meeting because of a conference commitment and was horrified to find that, in my absence, the committee had elected me the chair.  That job ended this past June 30, when I went on phase-out, removing myself from the ranks of the tenured, and ending my eligibility to serve.

I was just going through some old computer files and found some bullet points that I must have written in 2018 as content for an internal program on pre-tenure scholarship we never formally conducted.  I'm sure I said all of these things informally to somebody at some point.  In the spirit of Jeremy Telman's views on scholarship in the "Other [non-elite] Legal Academy" and my response (to the effect that I never felt that level of distance from my perch in a law school ranked somewhere outside of the US News top 100), I offer them  in their almost unexpurgated original.  They are one person's view; your mileage (and that of equivalent committees or faculty members at your particular school) may vary:

1. Don’t get hung up on rankings when placing articles.  Yes, if you are on the faculty at a top 50 school, the placements may make a difference.  For everybody [else], except at the extremes, there are no significant pluses or minuses.  Yes, a placement in a T17 flagship will get you lots of points, and a T50 placement significant points, and a placement in a specialty journal in the unranked 4th tier will get some head scratching, but in between it doesn’t make a lot of difference.  The key thing is to be good and to be productive.  See histogram in the blog post.*  (I don’t like many of the heuristics, but the idea of placing articles in law reviews at schools ranked higher than your own doesn’t offend me.)
2. Aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
3. With the shorter pieces, take a shot at a peer reviewed journal.  It takes longer, but it really is a professional affirmation.  Steel yourself for evil reviewer #2, however, who hates your piece, your school, and you.  (Most peer reviewed journals have a word limit - usually 10,000.)
4. People react far more to the gestalt of your CV than to individual items.  Hence, a lengthy list of long and short pieces has a nice visceral impact to the point of “productive scholar.”
5. “Law and ....” is good.  So is borrowing from other disciplines of law.  But it is a two-edged sword.  If you are a tort specialist borrowing from Nietzsche, show the piece to somebody with Nietzsche chops and then put that person’s name in the starred footnote.  Disingenuousness is not your friend.
6. When you submit, you certainly can play the expedite game, but my personal view is that it’s moderately unethical to submit to law reviews for which you would not accept an offer if it were the only one you got.  
7. Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
8. Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.

* That is exactly what my notes say, and I've linked the PrawfsBlawg post from 2018 to which I was referring that included the histogram.

Category Two and Justiciability

I am writing a book on Justice Jackson's concurrence in Youngstown. In this post, I advance a tentative idea about Category Two cases (the "zone of twilight") where Congress did not authorize or prohibit the presidential action in question. My idea that is that these cases are non-justiciable and that the concurrence is not at odds with that conclusion. 

Let's start with a basic observation about the three categories. Category One expressly refers to "the widest latitude of judicial interpretation" in considering a presidential action authorized by Congress. Category Three also refers to judicial review in saying "Courts can sustain exclusive presidential control in such a case only by disabling from acting upon the subject." Category Two, though, never refers to courts at all. It speaks only of "an actual test of power" in the zone of twilight.

Why might Category Two have omitted an express reference to courts? One thought is that Justice Jackson looked to Augustus Hand's opinion in United States v. Western Union Telegraph Co as inspiration. We know this because of a note in Jackson's files on the case and by his citation of the opinion in Footnote 2. In Western Union, Judge Hand said that he doubted that a claim of presidential authority "based not upon an original prerogative but upon congressional acquiescence was a justiciable matter, and whether a court should interfere to define or support it; for the basis of the right would then depend on the interrelations and mutual accommodations of the Executive and Legislative Departments of the government."

You can read Category Two as taking the same non-justiciability position, though some lower federal courts have reached the merits when they are consciously in Category Two. I would argue that extending the political question doctrine into this realm is a good idea for democratic accountability reasons and because there is no principled way to resolve those disputes in the courts. I'll save that argument for the book. 

The only wrinkle is that Justice Jackson included a footnote in his discussion of Category Two. In that footnote, he did cite some cases, including Ex Parte Merryman, Humphrey's Executor, and a few more. But he did so in a way that suggested that judicial action was either ineffectual or impossible to explain logically.

The Equality Machine - book out next week!

I am so very excited to share that my new book is coming out in exactly one week from today - The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022).

The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid case studies, analysis, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets - from media to healthcare -that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.

Science just reviewed the book ("a masterful analysis"). Kirkus review is here ("a compelling, hopeful, enthusiastic yet measured argument for technology’s potential to promote equality across many facets of culture and industry.") I am also very grateful for the advance reviews by colleagues including Larry Lessig, Martha Minow, Jonathan Zittrain, Adam Grant, Angela Duckworth, Dan Ariely, Gillian Hadfield, Frank Pasquale, Kate Darling, Jonah Berger , Oren Etzioni, and Dan Pink. 

I will post separately about upcoming talks in Philadelphia, Boston, Seattle, San Diego, Tel Aviv and more. But meanwhile - would love for all to read, share, and help spread the word - you can order the book now - hardcover, kindle, audible, everywhere you get your books. And looking forward to hearing your reactions and continuing the conversation!

Christina Bohannan for Congress

I'm not generally nuts about using this site for such things, but in this case my confidence in the fundamental decency of the person wins out, and so I must note that Christina Bohannan, a law professor at the University of Iowa with whom I had the honor of serving as a fellow law clerk some few years ago, is running for Iowa's first seat in the House of Representatives. She currently serves in Iowa's House of Representatives. Her campaign site is here. Given her bio, which you can read there, I can perhaps ease my reluctance to post about politics by claiming some connection between this post and some of what I wrote here yesterday.    

Overdetermined at 22

Criticisms of Judge Ho's so-called boycott of Yale students for clerkships seem to me somehow unnecessary, because the thing itself is so obviously wrong. But I think it's worthwhile emphasizing two points made in this post by Jack Goldsmith, because it makes points seen less often elsewhere and in doing so makes larger points about the American law school--and law school commentary--universe. Goldsmith writes, in part:

Ho's boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively....[T]he proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.

Quite right, on both points. In reverse order: 1) The average law entering law student is in the neighborhood of 22-24. Many law students enter their first year straight from an undergraduate degree, or with a year or two of work in between. Meanwhile, despite the occasional effort to push back, the clerkship decision--both to apply and to select the clerk--is pushed back ever further. Of course many students have a "politics" and for some of them a good portion of their life has been formed around those politics. But it should hardly be assumed that most students of this age have a fully formed politics, or that those politics are firm, or indeed that they have much of a politics at all. To select for a "liberal" or "conservative" law student of that young age is to over-select those who are highly committed or highly shallow--or, and perhaps even most likely, both. Correspondingly, it under-selects for those who have other interests besides politics, or have not formed a deep set of politics and are wise enough to know it. It also arguably under-selects for those prospective clerks whose primary interest in the law is in the law, as a deep and involving subject of its own, and not in the law as a vehicle for the achievement of their (quite possibly shallow, inexperienced, and underdeveloped) politics and a further credential on the road to party apparatchik status.

2) No doubt Yale and other elite schools, more than most law schools, are populated by students who already know what they're doing--who already have plenty of advice and lore and inside baseball under their belts. Among other things, they knew enough to apply to Yale, notwithstanding the cost of the education and the costs involved in moving. (See "hierarchy, reproduction of.") Many prospective or entering law students do not. They might be brilliant and full of promise. But they do not know the extent to which one's choice of law school matters and how--that it affects one's clerkship prospects, job opportunities at certain kinds of firms, prospects as a law professor, and so on. Perhaps they are first-generation college students, or first-generation law students. Perhaps they aren't but simply aren't fully acculturated into our somewhat bizarre educational ecosystem. Surely even some of those who end up at Yale either do not know when they select from among law schools that they might want to clerk, or why they might benefit from clerking, or even that this is an option. It's certainly true for many law students in many places. Nor, even if they have such an interest, do they yet know how to go about it and what things they might want on their resume in order to enable to make judges to make shallow judgments about that student's "politics." 

Judges are free to decide that they are not interested in students in either of these piles and would rather economize or eliminate risks by ordering someone ready-made, who at 22 already has an allegedly fully formed politics, an allegedly fully formed legal politics on top of that (since the two need not be precisely the same), and on top of this already has a full stock of appropriate connections and social and cultural capital. Based on a couple of decades of experience with my students at various sorts of law schools, I cannot help but think that judges who go this route are both missing an enormous number of great potential clerks, and risking over-selection of the kinds of clerks who are assuredly "bright" but might or might not match some of these others in depth of interest in the law, in wisdom, in commitment, and in the capacity for growth and to be surprised in and by life. 

What strikes me particularly is the "them that's got shall get" aspect of the conventional approach and of Ho's unfortunate contribution to it. (It is hardly limited to clerkships, of course. Even among those who already have a fair amount of cultural capital, things like fellowships which now act as a primary route to teaching, serve to funnel more inside information to a small number of people who already knew to apply for fellowships. They enhance the qualities of those fellows, up to a point--not all the accepted lore and advice in these communities, it seems to me, is good or accurate--but also further concentrate that information, and that then exacerbates the credentialism, risk-aversion, and conventionality of law school hiring.) The Internet, where Ho's announcement has drawn the most attention, democratizes all this to a degree. But my overall sense is still that Ho's announcement was a piece of inside baseball, retailed to the kinds of listeners and media sites where and for whom inside baseball is already common, to be consumed and enjoyed (with outrage being one form of enjoyment) by those who are already into inside baseball. I think Ho's speech, and any resulting actions, are more likely to achieve nothing at all than anything in particular. But if they did, the losers would be the folks Goldsmith is referring to: those who might contribute to any judge, including conservative ones, and to the work of the courts altogether, despite--or because of--the fact that at 22, they don't already have an off-the-rack politics and set of ambitions, or knowledge about how to signal it with the appropriate shorthand. 

Search for New Director of the Washington Library at Mount Vernon

I share the relevant portion of the following search announcement to anyone who might be interested.

-----------------------------------------------------------------------------------------------------------------------------------

The Position 

Reporting to Mount Vernon’s President & CEO and serving as an integral member of the leadership team at one of America’s most storied public history sites, The Executive Director of the Washington Library is charged with fostering scholarship surrounding George Washington and his era, leading impactful academic and public programs, and growing the breadth, depth, and significance of the library collection. This is a compelling opportunity for an innovative, visionary leader to direct the preeminent center for the study of our first President as it celebrates its tenth anniversary in September 2023 and charts the course for its next dynamic decade, including Mount Vernon’s programming around the significant anniversaries recognizing America’s 250 in 2026 and George Washington’s 300th Birthday in 2032. 

The position calls for substantial scholarly knowledge of the Founding Era, a knack for developing innovative and compelling ways to connect with multiple audiences, strategic vision, administrative acumen, inspiring management, entrepreneurial drive, and a passion for the life of George Washington and the long, rich history of the Mount Vernon Ladies’ Association. 

KEY RESPONSIBILITIES 

● Develop and execute the strategy to maintain and cultivate the reputation of the Washington Library as the premier center for the study of George Washington and his era while actively seeking ways to make the history relevant to a variety of audiences; 

● Manage a dedicated and hard-working professional staff including librarians, historians, and program directors to serve the MVLA mission the estate, researchers, and the general public 

● Effectively disseminate scholarly research and other relevant knowledge to a wide range of external audiences on numerous platforms; 

● Promote the leadership and civic values exemplified by George Washington; 

● Maintain and expand public and private events at the Library, including those as a place to convene for relevant conversations on George Washington’s legacy, leadership, and preservation; 

● Build collections of the Library to encourage research and support preservation; 

● Develop and foster external partnerships intended to strengthen the dual preservation and education missions of Mount Vernon; 

● Connect and align programs with the broader estate’s priorities; 

● Assist in fundraising for specific Library programs and initiatives; and 

QUALIFICATIONS AND EXPERIENCE 

Mount Vernon seeks an accomplished, enthusiastic, and experienced leader with outstanding interpersonal, communication, and management skills. This individual should be committed to promoting Washington’s life and legacies to future generations and furthering the important mission of the MVLA. 

The successful applicant will be an established Ph.D. who has published in the field and has taught at the University level or has related experience in a historic museum, society, or research library. The best candidates will demonstrate new and exciting ideas on how to impart the legacy of George Washington and his continuing relevance today. We look forward to meeting candidates who are charismatic, creative, enterprising, and who possess an energetic leadership style. 

TO APPLY 

A letter formally exploring the reasons the candidate would like to be considered, a full curriculum vitae, and three references sent to the attention of Leah Noce, Director of Human Resources, via email [email protected], will open the candidate to consideration. Screening of applications will begin immediately and continue until the completion of the search process. All inquiries, nominations/referrals, and applications should be sent electronically and in confidence to: Leah Noce, Director of Human Resources, via email at [email protected] 

Constitutional Creationism

I will be on sabbatical next year and hope to write up some new projects. One is what I like to call "constitutional creationism." This is a phenomenon whereby courts and scholars claim that a principle or a doctrine was settled from the moment of ratification or initial application when the idea, in fact, evolved over time.

Take a simple example: "The Decision of 1789." The First Congress, the story goes, established the precedent that the President could fire Cabinet officials at will. But this question was not settled by the Decision of 1789. Congress's right to limit the President's discretion in this regard was widely discussed during the debate on the Censure Resolution of Andrew Jackson and the impeachment trial of Andrew Johnson. "The Decision of 1868" might be a better way of describing the principle.

Here's another example. In overruling precedent, courts sometimes say that the prior decision was wrong ab initio. Why say that instead of "times have changed?" A decision could be wrong from the moment of decision, but I'm not sure that's an accurate description of all of the cases that are so characterized.

Legitimacy and stability is an underlying concern for these sorts of interpretive moves. But I'll say more about that in another post. 

JOTWELL: Mullenix on Dodge, Gardner, & Whytock on Forum Non Conveniens

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing William S. Dodge, Maggie Gardner, & Christopher A. Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. (forthcoming 2023).

The Unveiling; Extreme Punishment: Two new books about Dan Markel's Life and Death

Two new books are now out about the life and death of our dear friend, founder of Prawfsblawg Dan Markel. Both are highly recommended!

The first is by Ruth Markel, Dan's mother - from the publisher:

Ruth Markel’s tenacious fight for justice on behalf of the murder of her son, Dan Markel, and the struggle to be legally reunited with her grandchildren.

Ruth Markel is the mother of the late Dan Markel, a noted law professor who was murdered in Tallahassee, Florida in 2014.

In The Unveiling, she describes her experiences since the day of Dan’s death from several distinct perspectives:

• As a devastated mother with the unique human perspective of becoming a homicide survivor and victim.

• As a woman whose attempts to achieve normalcy and live a healthy life are continually interrupted by painful reminders, a rollercoaster of hearings, frequently changing trial dates, verdicts, and appeals.

• As an engaged citizen using what she has learned to help other victims of homicide and violent crimes recover from trauma and begin an optimistic outlook on life.

• As an insider who shows how our collective network of family, friends, and experts—including a murder coach—have helped her family remain involved, motivated, and hopeful.

• As a grandmother who had not been allowed to see her grandchildren in many years, she used advocacy to inspire the Florida State Legislature to pass a grandparent visitation bill.

• And as an experienced author of nine books using the written word to effectively address the shift from grief to promise.

The second is by Steven Epstein - Extreme Punishment - from the publisher:

A devoted father. One of the most accomplished criminal law
scholars in the country. Someone wanted him dead. But why?

On the morning of July 18, 2014, 41-year-old Florida State law professor Dan Markel dropped his boys off at preschool, hit the gym, and headed home to his quiet, tree-canopied neighborhood. Within seconds of pulling into his garage, two .38-caliber bullets fired from point-blank range were lodged in his brain.

His brutal slaying defied explanation. The case went stone cold for nearly two years before dogged pursuit by the Tallahassee Police and the FBI resulted in the arrest of two life-long criminals who had driven 10 hours from Miami with one singular purpose: to murder the esteemed professor. Were his ex-wife Wendi Adelson and her South Florida family the masterminds behind this horrific crime?

EXTREME PUNISHMENT is the riveting story of a divorce between two law professors that spiraled out of control, wealthy in-laws hell-bent on revenge, an unlikely love triangle, and the relentless quest to bring Dan’s killers—all of them—to justice.

Praise for this book:

“Empathetic, engrossing, and impeccably researched, EXTREME PUNISHMENT is the single best piece of reporting I’ve read on the Dan Markel case. Like the best true crime books, it says as much about the law and society as it does about Dan’s murder and the subsequent trials. A genuine revelation.”
—Matthew Shaer, Creator and Host of Wondery’s Over My Dead Body podcast

“EXTREME PUNISHMENT is a rich, detailed, well-researched telling of the murder of Dan Markel. But it’s not the crime that will keep you turning the pages in what will become a classic on the shelves of true crime enthusiasts. What makes this book special is the people involved in this twisted story, the wildly exciting characters you soon realize are just like you and your next-door neighbors. Maybe even your in-laws. Perhaps even your ex-spouse.”
—Rod Kackley, award-winning journalist and author of 32 books, including THE MURDER OF KELSEY BERRETH
and THE MURDER OF THORA CHAMBERLAIN

”Steve Epstein’s sharp new true-crime rips the lid off the whole sensational story about a wrecked relationship gone horribly awry. Top notch.”
—Ron Franscell, New York Times bestselling author of THE DARKEST NIGHT and SHADOWMAN

“EXTREME PUNISHMENT is a compelling and masterfully told story illuminating the lives of real people caught up in a shocking murder. The startling and complex twists in a war between two families and the unpredictable turns of real courtroom drama will satisfy any true crime lover and anyone else with a passionate interest in human relationships. This outstanding book is a ‘can’t-put-it-down’ to the last page. A must-read.”
—Jennifer Zedalis, Senior Legal Skills Professor, Director of Trial Practice, and Assistant Director of the Criminal Justice Center, University of Florida Levin College of Law

“A truly fascinating and addicting read. In EXTREME PUNISHMENT, Steve Epstein meticulously provides insight into the myriad of personalities and entanglements surrounding the tragic murder of Dan Markel. He has taken a most complex case and synthesized it brilliantly into a riveting and obsessive read.”
—John D. Singer, Co-founder of Singer Deutsch LLP and preeminent NYC and California employment attorney and legal commentator

“EXTREME PUNISHMENT is the book those of us who have been mesmerized by the search for justice in Dan Markel’s murder have been waiting for. Steve Epstein takes the reader through all the twists and turns of this remarkable case and provides richly textured insights into the lives of the people involved in, and affected by, this American tragedy.”
—Paul Caron, Dean of Pepperdine University Caruso School of Law and Founder of TaxProf Blog, a leading source of information about Dan Markel’s murder

 

Jewish pop culture without Jews

For Shabbat, two items about Jewish pop culture and non-Jews and the relation between them.

• The Patient tells the story of a serial killer who holds a psychiatrist hostage, seeking therapy to stop him from killing. Non-Jew Steve Carrell plays the explicitly and deeply Jewish therapist, Dr. Alan Strauss. This character's Jewishness goes beyond the name; it is central to the character and the story. Strauss mourns his deceased wife, a Reform cantor; he is estranged from his son, who became Orthodox; flashbacks show tension points around the wife singing at the Orthodox wedding and giving ice cream to her non-Orthodox daughter's children when the Orthodox son's grandchildren cannot have it (long explanation of the laws of Kashrut). The most recent episode, Kaddish, revolves around Strauss reciting the Mourner's Kaddish for his wife.

Carrell (as ever) is great in the role. But the show highlights the representation question--when should a Jewish actor play a character so identified with Jewishness. This is not an incidentally Jewish character where the writers happened to give him a Jewish name; Strauss' Jewishness and Jewish faith is inextricable from the story. Showrunners Joe Weisberg and Joel Fields (both Jewish; Fields' father was a rabbi) said the original version of Dr. Strauss was not necessarily Jewish; that part of the character filled-in as the project developed. Carrell does an OK job with the prayer (which, FWIW, is Aramaic rather than Hebrew), although he recites it with an Eastern-European-cum-old-Jewish-Brooklyn-man tone different from his normal speaking voice.

• Bad Sisters is a pitch-black dramedy in a small city in Ireland; it tells the story of four sisters plotting (and perhaps succeeding?) in killing their fifth sister's abusive husband. This decidedly non-Jewish show features Leonard Cohen's Who By Fire in the opening credits. That song is inescapably Jewish--even by Cohen standards. It riffs on Unetanneh Tokef, a central (and troubling, to many) piece of the Yom Kippur liturgy that asks who will live and find peace and happiness and who will suffer and die and how in the coming year, mitigated by prayer, righteous actions, and returning to Hashem. I have not figured out why they chose this song, beyond it being great. Certainly not for its Jewish themes. Maybe because it is about punishing a person for his misdeeds? Maybe because it lists different ways someone might die, some of which feature in the actual plot?

I Fought the Law (the IRS) and the Law Won

Perhaps you've read about the legislation to provide an additional $80 billion in funding for the IRS so that it can hire more agents to go after high income and corporate tax avoiders and evaders.  The first-world story you are about to read might not have occurred if I had been able to get in touch with one of those agents.

It is also a story that suggests perhaps, in my phase-out from full-time teaching, I have too much time on my hands.

The story is about a $311.82 issue I've had with the Internal Revenue Service since this past June.  Here is the punch line.  If the IRS penalizes you $311.82, you try to reach a live person via their 800 number.  But you cannot do so because there is no live person available at the other end. You write letters and get computer generated responses.  You contact the Taxpayer Advocate Office, and it declines to advocate for you.  

At that point, your only recourse is judicial and it turns out, as a practical matter, you have none.  Now that is probably an "access to justice" issue that affects millions of other cases - the legal system simply does not accommodate small matters very well.  And, as I just explained to my wife, there is no small claims court in the federal judicial system.  So even though I have cases indicating (if you keep reading, you can judge for yourself), that I have an open-and-shut winner against the IRS, unless I'm prepared to foot $640, more than double the amount at issue, to pursue it, I've reached the end of the line.  Hence, this cri de coeur.

And, to spare those of you who couldn't care less, it all comes after the break.

The story begins last April.  We have a CPA who does our taxes for us.  We are relatively old, so we've saved some money and it's invested in the markets.  2021 was a good year, but the first quarter of 2022 sucked, so the irony was that we had to pay a lot of money in federal income tax in April 2022 for investment gains that had long since disappeared.  (As I said, first world problem, but whatever....)  Our CPA e-filed four documents for which we were going to have write checks - 2021 income tax to the U.S. and Massachusetts and 2022 estimated taxes to the U.S. and Massachusetts.  On April 14, my wife wrote out four consecutive checks.  I put them in four correctly addressed envelopes and stamped them.  I walked down to the U.S. Post Office mailbox on the corner of Richdale Avenue and Walden Street in Cambridge and deposited all the envelopes.

Let's say that the four checks in the check register were numbered as follows:  1552 - Commonwealth of Massachusetts; 1553 - U.S. Treasury; 1554 - U.S. Treasury; 1555 - Commonwealth of Massachusetts.   When I looked at our bank statement two weeks later, I could see that checks 1552, 1554, and 1555 had cleared (including one of the checks to the U.S.).  Check 1553, the big one for 2021 income tax, had not.  

There is an 800 number to call the IRS about questions like this.  I tried it on several occasions.  One goes through a whole series of prompts before getting the following message and a hang-up: "We are sorry but due to volume we cannot take your call now."  I tried looking at my account in the IRS's online system and found that it was only current as of the end of 2020.

Now I felt like I was between a rock and a hard place.  I called our CPA. He told me the IRS was extremely slow because of COVID and its lack of staff.  The IRS website itself has a form for getting reimbursement for stopped check fees because it is so likely to have lost it.  But I didn't want to stop the check and pay again on the likely chance that the IRS was just ... slow ... and was ready to cash the check.

So I waited.

On June 6, the IRS issued us a CP14 notice for the unpaid taxes (i.e., the amount of check 1553), a late penalty of $311.82, and interest of $178.19.  I immediately stopped payment on the check, and paid via an electronic bank transfer the amount of check 1553.  I declined to pay the penalty and interest.  I looked up on the IRS website how to dispute a penalty.  It said that to dispute a penalty one should call the toll-free number in the upper-right hand corner of the notice.  The only problem was that the CP14 notice had no toll-free number.  And I called the general toll-free number (see above), which resulted in the same "sorry, too much volume" hang-up.  

Hence, on June 13, I wrote a long letter to the IRS office in New York that issued the notice (this time sending it certified mail).  It laid out all the facts and requested cancellation of the penalty and interest.  

There was no response until mid-August when I got a computerized form letter from somebody in the Memphis, Tennessee office of the IRS, acknowledging receipt of the June 13 letter, completely ignoring what it said, and stating that I now owed the penalty of $311.82 plus additional interest.  There was no phone number or any other instruction about how to dispute the finding.

I called my CPA.  It turns out there is a double-ultra secret practitioner phone number to the IRS.  We called it, and ended up with the same "sorry, too much volume" hang-up.

Then it occurred to me to contact my congressperson.  A real (and helpful) person in her office got back to me promptly and said he would contact the Taxpayer Advocate Office of the IRS on my behalf.  When I figured out what that was, I told him "thanks" but I could do it myself.  He told me it was already done and he'd get back to me with the answer.  

A few days later, the Taxpayer Advocate's response turned out to be: (a) I could submit evidence that I had sent the check (e.g. a certified or registered mail receipt), or (b) throw myself on the mercy of the IRS by filing the one-time in a lifetime request for waiver of a penalty for not having paid one's taxes.  I objected to (b) on the grounds that I had paid my taxes, and to (a), after a brief bit of research, on the grounds that (i) 26 U.S.C. §7502(a)(1) states that the date of postmark of something mailed to the IRS is the date of filing or payment, (ii) if the USPS or the IRS loses the envelope then there is no way to see the postmark, (iii) there is no requirement of mailing by certified or registered mail, (iv) in the normal course, the envelope should have been postmarked on the date I dropped it in the mailbox, and (v) there was evidence of mailing, i.e., my testimony that I had in fact mailed it.  That didn't get a rise out of the Taxpayer Advocate Office.

At this point, I was fed up and didn't want interest to keep piling up, so I paid the outstanding claim for penalty and interest with an electronic transfer.

But being, as I am, slightly obsessive about stuff like this, and a lawyer to boot,  I did some research. I quickly found several cases in which petitioners won against the IRS on the basis of their oral testimony that they had deposited the filing or the payment in the US mail.  (See Jones v. U.S., 226 F.2d 24, 28 (1955) ("We take judicial notice of the fact that the overwhelming majority of taxpayers who live elsewhere than in the centers where the offices of collectors are located make their returns and present their claims for refund, and the like, through the mails. Even great numbers of those living in the immediate neighborhood of a collector's office doubtless follow the same practice; and the procedure is encouraged by the collectors since it tends to conserve the time of those officials and their staffs. Reliance upon the mails as the medium through which such deliveries for filing are made may be said to be all but universal."; Wells v. C.I.R., 22 T.C.M. (CCH) 169 (1963); Walter M. Ferguson, Jr., 14 T.C. 846 (1950) ("The final issue has to do with the penalty determined for the alleged failure ... to file a return for 1945. The Commissioner makes and could make no sound argument in light of the evidence. It is unnecessary to decide whether there was a ‘filing.’ This would not be the first time that a collector had lost a return. Even if no return was filed, the failure was due to reasonable cause (failure of the mails) and not to willful neglect ..., so in no event would the penalty be proper.")

A miscarriage of justice and the law is on my side! Now I was prepared to do something I had never done in forty-three years of being a lawyer - file a lawsuit against someone on my own behalf. (The congressperson's office noted that, once I was litigating, House of Representative rules prohibited its further involvement.)

What I discovered is that filing a claim in the US Tax Court, particularly in the small cases division, is really easy.  You can do it in pro per even though I signed as the lawyer for my wife and me.  You can file electronically.  I checked off that I was filing in regard to a disputed notice of deficiency, put together a short but thorough statement.  The $60 filing fee seemed like a reasonable bet against my chances of winning this case.  On August 30,  I filed in the U.S. Tax Court, requesting trial in Boston, seeking reimbursement of the $311.82 penalty and the interest.  (I wasn't sure if the filing fee would be a taxable cost when I won, but I threw that in too.)

Let me note, at this point, that I understood I probably didn't have a good case on the interest.  It was set statutorily at five percent, and that seemed excessive to me versus what I would have earned on the money, but the government would have a reasonable position that I, and not it, had the use of the money for the couple months.  But I was prepared to go to the mat on the penalty.  Millions for defense but not a penny for tribute!

On October 4, I received an email notice that there was a new filing in my case.  I eagerly logged went into Dawson, the Tax Court case management system, expecting to see the government's groveling response.  What I found instead was a motion to dismiss my case for lack of jurisdiction in the U.S. Tax Court.  More quick research.  Well, it turns out I assumed (and we know what that stands for) that the August letter was a notice of deficiency for failure to pay the penalty and interest.  It was not.  Penalties are not deficiencies.  And the U.S. Tax Court has no jurisdiction over disputes about penalties.  I spoke to the lawyer for the IRS, agreed that he was right and that I would concur in the motion and a dismissal without prejudice, and vented to his sympathetic but powerless ear about the injustice of it all.

To be fair, even the Taxpayer Advocate Office within the IRS recognizes this particular unfairness, and have said so in a legislative recommendation recommending that the Tax Court be given jurisdiction over penalty disputes.

Nevertheless, where we stand now is this.  I recognize that I really only have a good case for recovering the $311.82 penalty.  There are courts with concurrent jurisdiction over this claim:  the US Court of Federal Claims and the US District Court for the District of Massachusetts.  The fee for filing a claim in either one of them is $402.  To use the electronic filing system in either one, I would need to become a member of the bar of that court (which I could do) at a cost of $238.  

I have thought about whether making the point is worth $640 and the burden of drafting and filing pleadings for a federal court, as well as burdening the dockets of already overburdened courts.  I decline to do that.  Rather, its value to me is as a story I can now use when telling others with relatively trivial claims that sometimes there's just no justice in the world, and the law can't do everything.

So I give up.

"Blowing Up Law School?"

I have a few thoughts on Slate's article about constitutional law teachers and the current Supreme Court. The propositional question it asks is, "Law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?" I should say that the article, and the people quoted, do a tremendously powerful job of voicing anger, disappointment, and grief over the Dobbs decision. My only hesitation in posting anything about the article was that 1) of course, I have no desire to exacerbate those feelings, and 2) as I suggest below, the article is and isn't about Dobbs in various ways. It is not framed as being about Dobbs, but Dobbs is virtually the only thing it discusses. That makes it hard to judge, when reading the article, how independent of Dobbs the question asked by the author and the responses given in it actually are. Certainly it is not as if the Court has not issued other opinions that are subject to the same criticisms. In any event, most of my thoughts about the article are not directly about Dobbs as such. So here are a few observations:

1) Constitutional law is not law school. It's certainly far from covering the whole of the legal curriculum. It interests me, but I would not call it the most difficult or interesting subject in the law. It's not even close to being the most important course students take in their first year of law school--if they take it in their first year at all. There are certainly reasonable arguments that constitutional law should be a mandatory course at some point in law school, but they are only reasonable, not airtight. An article about the difficulty of teaching constitutional law is a perfectly reasonable subject. But this is a competitive marketplace, so naturally the headline talks about "Blowing Up Law School." The accepted if imperfect rule is never to blame the writer for the headline, and for the most part the story is more narrowly focused, but as the quote above suggests, it does tend to elide constitutional law with the whole of the law that is taught in law school and practiced by lawyers.

I do not suggest that other subjects in law are wholly "legitimate" or that those subjects are not also "politics," in the broad sense of the word. Legal Realism was not primarily a constitutional law-driven movement and its primary examples came from private law. The difference, among other things, is between a very slow and a greatly speeded-up film--between Warhol's Empire and an early Chaplin reel. Private law's politics operated over ages--and still do. American constitutional law, by contrast, has only had a couple of centuries to go through the contortions and political debates that occurred over much longer periods of time in, say, property or torts; moreover, stability and predictability are more important in those areas than in constitutional law. I welcome a certain amount of healthy cynicism and crises of faith with respect to any legal subject, torts and property included. But certainly there are other subjects that seem to occasion less of it, and most law students focus on those subjects most of the time. It is of course possible that one's reaction to a lawless Supreme Court might affect one's faith in any judicial interpretation of law at all, in any area and at any level. And, as I suggest again below, I have some sympathy with a sense of lack of faith in judicial interpretation of law tout court, although not specifically because of the current Supreme Court. But I am not at all sure that's the logic at work in this story. Perhaps one should just charitably read the headline out of the story and the word "constitutional" into any reference to law in its text. It would be interesting to read the views of someone for whom this Court has indeed eroded their faith in law altogether, and in teaching law. But I don't think that's this article.    

2) Constitutional law is not just constitutional rights. Only two contemporary Supreme Court decisions are named in the story: Trump v. Hawaii and Dobbs. Dobbs is a rights case and Trump v. Hawaii is read and reacted to strongly mostly for its effect on rights, although it is also a structure case. But that case only makes an appearance at the article's outset; the rest of the article only discusses Dobbs. What about federalism and separation of powers? I don't mean that as a defense of the Court's recent decisions in those areas--in this post I'm not defending the Court's work in any area--and certainly there's plenty of ferment on the Court in separation of powers law. Nor, to repeat what I acknowledged at the outset, do I ignore the point that Dobbs was profoundly consequential and involved profound reactions. But just as con law is not the whole of the curriculum in law school, rights are not the whole of the curriculum in constitutional law, and there are perfectly reasonable arguments that they're not the most important or consequential part of the curriculum in that subject. (They are also arguably not the most interesting part of the curriculum to teach. I write on rights, but often find teaching structure to be a more rewarding aspect of teaching the main constitutional law course.)

I understand why the article's focus is on rights, and I also understand that rights are more often more interesting than structure to journalists, including legal commentators in places like Slate. But the exclusive focus is still somewhat odd, and more could have been said about whether and how one affects the other.

One might add that just as con law is not the whole curriculum and rights are not all of con law, the Supreme Court is not the whole of constitutional law. I am curious how these professors now feel about lower courts, and about the executive and legislative branches as constitutional interpreters--and all of these sources should be a much larger part of the constitutional law curriculum than they currently are. If they now feel that the Supreme Court is utterly lawless, do they feel the same about constitutional law writ large? After all, constitutional law as an interpretive exercise is undertaken by many others besides the justices, and they all ultimately occupy those positions of interpretive power through politics. Is this just about the current Court? (Some of the people quoted do suggest that they will now be widening their focus beyond the Court when teaching. That's a good thing! But it's good regardless of their thoughts, or anyone else's, on the current Court. Despite valuable efforts in this area, most constitutional law casebooks still have an unhealthy fixation on that one court.)      

3) You were warned. As I suggested the other day, American law professors have an odd relationship with things like Legal Realism and Critical Legal Studies. The latter, of course, is a critique of "legal liberalism" and thus, unsurprisingly, it was routinely attacked or dismissed by legal liberals. In its time, Legal Realism had its own critics. These days, I would say, Legal Realism is supposed to be taken for granted and, although CLS gets nowhere near the attention or use it deserves, except from a very few people on the legal left and right, everyone is happy to talk in general terms about "critical theory," various forms of critical theory in law, and "critical thinking," in a way that suggests that they are adherents to these approaches.

But more legal scholarship suggests that they are not adherents than that they are. The average article criticizing, say, laws that restrict schools' ability to teach "critical theory" is much more likely to engage in standard doctrinal analysis, along with a sweeping and fairly uncritical invocation of liberal values, than to use, engage with, or take seriously any actual critical theory. Few legal liberals or progressives today would sign on to Paul Carrington's famous suggestion that it might be best for Crits to "depart the law school, perhaps to seek a place elsewhere in the academy." But that is because they recognize the value of co-optation, domestication, lip service, indifference, and dismissal, along with changes in fashion. (At least Carrington took CLS seriously.) For the most part, they remain in thrall to Carrington's belief in "keep[ing] the faith of the secular religion." For all that law professors like to see themselves as worldly, they are still no less attached to the "romantic innocence" which Carrington urged law professors to bring, unashamedly, to "the ultimate issue of their profession." Much of the language of the contemporary law professors quoted in the Slate piece is equally religious, right down to the telling appearance of the word Carrington uses--"faith." Of course a loss of faith can be brutally unsettling, even leaving aside the substantive right at issue. But one might point out that the faithful were urged all along to bethink that they might be sorely mistaken in their faith.

The Slate article seems to assume it would be a mistake for constitutional law professors to "embrace torpid nihilism." It does not, however, explain why it would be a mistake, other than perhaps for more or less religious reasons. Nor does it explain why the nihilism must be "torpid." (Nor, for that matter, does it consider the possibility that there might be any tertium quid between nihilism about law and "keeping the faith of the secular religion" of law.) 

Not wholly incidentally, it's striking that while Carrington's article warned of the danger of teaching the "nihilism" of CLS in law school, he confidently assured his readers that "[t]he professionalism and intellectual courage of lawyers does not require rejection of Legal Realism and its lesson that who decides also matters." Perhaps this was a matter of holding on to what had long since been domesticated and then taken for granted, while seeing the new "threat" as entirely different in its dangers. I'm not sure. I am sure that to believe and assert with equal confidence that Legal Realism and "who decides also matters" were just fine, while CLS was a four-alarm fire, requires a great deal of finesse and a certain amount of skillful management of cognitive dissonance. These are traits most of us make use of a good deal of the time. One might, with complete sympathy, make a similar observation about those who until recently were comfortable teaching that constitutional law always involves some politics and is shaped by it--comfortable, say, relating Frankfurter's quip about the death of Chief Justice Vinson being the first evidence he had seen of the existence of God--but are now shocked and disappointed to the point where teaching the subject is now a new challenge, seen as different in kind and not just degree. If one credits the folks quoted, it apparently took a fair amount of management of cognitive dissonance to teach confidently and comfortably before Dobbs. Perhaps that decision simply reveals to them just how much of that management was occurring all along. 

4) It's not new. I tend to think very little, if anything, is truly new. Hell, saying "it's not new" is old hat. With or without arguments about differences in degree and differences in kind, people can or ought to be able to understand that. But my colleagues sometimes have an odd relationship with history, as Americans seem to in general. For example: One might have expected the names "Bush" and "Gore" to come up somewhere in the article. Bush v. Gore was the first 21st century crisis of faith in constitutional law; it was experienced as such very viscerally by plenty of participants in the interpretive community at the time (at least they said they experienced it as such); and it occurred not very long ago. That case is never mentioned.

One might also read this ageless article about the Harvard Law Review Forewords, and remember that the Forewords in its first years were dominated by "heavy-handed criticism" of the Court for departing from "law" properly done. (See footnote 52 of that article for examples.) One might read the recent Frankfurter biography and the withering, often despairing views of Frankfurter and Hand concerning the Court of that era. I understand that Justice Douglas has been off the Court so long that entire careers teaching constitutional law have elapsed since his death, but I imagine that Douglas alone, in his life and on the page, was responsible for his share of crises of faith in constitutional law as a serious enterprise. We--casebooks, histories, con law teachers, and so on--tend to teach the Lochner era and the Court in the first term of FDR as part of an already-completed historical narrative in which, roughly speaking, good triumphed over evil. When I took constitutional law, three years before Lopez, in 1992, a good deal of history simply ended in 1937. Momentous things happened after that, but they were all just part of the project of living on the other side of the the end of history. But it surely did not seem that way to participants at the time. People nevertheless continued to teach the occasional constitutional law course back then. (To be sure, constitutional law had not yet begun absorbing much of the available oxygen in American law schools.) One cannot say, in a "people were tough in those days, compared to us softies" way, that those teachers were just acting professionally and didn't talk about their feelings so much--and not just because it is entirely understandable to have strong feelings about Dobbs. They had feelings then, and talked about them, if in a more highfalutin way. My God, did Frankfurter emote! And it should be said that even if one treasures Roe v. Wade, or at least the right it announced, it is surely fair to say that it might have given rise to the occasional twinge of reflection on the role of reasoned elaboration versus taking on the role of a "policy council," to quote one of the people quoted in the Slate story. 

In short, the 20th century alone supplies more than ample evidence that there were contests that all along created a sense of crisis over the feeling that law, or at least the law of the Supreme Court, was the ever-changing product of "politics and power" rather than "law and reason." And I stop with the 20th century only because my own knowledge of the 19th century is not strong enough to rhyme off evidence from that period, the Civil War notwithstanding.

One can argue differences of degree and kind, as I said; and one can argue differences in the surrounding political structure. But I'm not just suggesting that earlier episodes could have given rise to crises of faith about law and the Court. They did give rise to crises of faith. And there were enough of them--crises that we already teach, or are supposed to, or could--that it's surprising that it took Dobbs, or this Court in general, to finally be overwhelmed by the question how or why one teaches constitutional law. One could argue that all this is different, and one could get along fine until now, because those earlier crises ended in the right way. But that was always a bad canned narrative, people have understood it to be such for at least a quarter-century if not all along, and all of this evidence has been and is already available to us. None of this is meant to minimize changes in the nature of politics and political structure that have enhanced one's sense of crisis (also not entirely new, of course) or, more directly, to minimize heartfelt reactions to Dobbs. It's the novelty that's in question.

5) There's not much in here about actually teaching constitutional law. The quoted question with which I began this post is actually a good one: How do you actually go about teaching constitutional law while it is in flux and, on the assumption of the article, the rulings are both explained by politics and under-explained as a matter of legal reasoning? How do you go about instructing them in these circumstances? A perfectly good question, although, again, any tour of conference notes past suggests it's not or shouldn't be a new one.

As it turns out, however, there is very little in the article about that question at all. The questions asked turn out to be more "Why bother teaching it?" or "How can I teach it without despairing?" or "How can I teach these cases when I despise the results?" These may also be important questions, but they're not the same question as the one I quoted or that I rephrase above. 

I would have liked to have seen an effort to answer this other question. It is difficult to teach the law if it changes too often. It is difficult to teach a mode of argument built around history and tradition, neither of which are our field, and hard to do a serious job of evaluating the method and its application in individual cases with any clarity in a 50-minute period. (Or, perhaps, at all.) Of course, one can say very interesting things about history and tradition as a method or methods. But it's much harder, without a pile of evidence, to say something useful about each case, each of which necessarily involves its own pile of materials on history and tradition. One can say what the test is, but so what? (I once tried teaching Heller first in the con law course, as one or two casebooks suggest. It was a mistake. "Which heap of historical argumentation do you credit more?" is not a productive teaching question. A good intro case, even today, should involve a more robust mix and better proportion of different modes of argument.) 

But it should be said that this part of the question is not new either. I cannot say whether it is endemic to law altogether, but it certainly is endemic to constitutional law. Genuine constitutional balancing, of the sort I learned as a Canadian law student, is also easy to describe but also pretty vapid, except insofar as one has skill at reading the mores and assumptions of Canadian judges, which is where all the work is done. We can tell students what Justice Kennedy said in some of his monumental opinions, but the law reviews are full of 80-page monuments, now moldering, to the proposition that it was easier to quote him than to understand exactly what he meant; and, of course, the nature of double helices is also well outside our expertise. In short, it's a general problem. But it's one that certainly also applies to the contemporary Supreme Court.

I grant that this question would not get the attention of general readers like the ones the article actually answered. But it would be of great interest to constitutional law teachers--"thousands" of them, according to the article, but even counting the entire Yale faculty that is surely an exaggeration--including the large number who may have grand and/or angry thoughts about the Court and the law but also have more quotidian concerns about teaching it. Judging by faculty website bios, about as many people quoted in the article do not teach the main constitutional law course or courses as do, although most of them teach relevant related courses. That's fine given the actual focus of the piece, but it's unfortunate that more workaday con law professors weren't sought out and quoted. They might have reframed the question. They might have the same concerns and they might not. They might have the same answers to the question--but they might also have some novel or unexpected ones.  

Trump v. CNN

Donald Trump has sued CNN for reporting and op-eds comparing him to Hitler and using the term "Big Lie;" he seeks $ 475 million in damages.

This lawsuit demonstrates something I have argued for awhile--the call to overrule New York Times as shorthand for rejecting or limiting actual malice is a red herring, distracting from a broader attack on political speech, criticism of government and other influential persons, and the First Amendment's broader speech-protective superstructure. A host of First Amendment principles destroy this case, regardless of actual malice. Everything the suit complains about is political speech and criticism, opinion, and rhetorical hyperbole--all at the core of First Amendment protections; it points to no provable and verifiable statements of fact that can form a basis for defamation liability. The suit would overrule the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It is difficult to imagine a clearer example of caustic and sharp rhetorical hyperbole than comparing a political leader to Hitler.

The suit also suggests that because CNN purports to be a news organization, it enjoys less First Amendment protection--including the loss of protections of actual malice--than other speakers. It argues that actual-malice protection should not apply

where the media defendant is not publishing statements to foster debate, critical thinking, or the 'unfettered interchange of ideas' but rather seeks to participate in the political arena by offering propaganda.

This is insane on several levels. It suggests there is something called "propaganda" entitled to less protection; it allows government to define and draw the line between that and fostering debate; and it insists there is a distinct category called "news" (never defined) and limits certain media speakers to that category. The irony of this media/other speaker distinction is that it turns NYT on its head. The Court has long debated but never resolved whether NYT applies to nonmedia defendants. Trump's suit goes the other way--media defendants enjoy less protection than other speakers.

This is an absurd suit that should go down in flames at the 12(b)(6) stage and should result in sanctions for the ethically challenged lawyers who filed this. In addition, Florida's anti-SLAPP statute could rear its head. The statutory dispositive motion does not apply in federal court. But Florida's statute contains a unique fee-shifting provision--fees are available for any action that is "without merit," not limited to actions  rejected under the special anti-SLAPP motion (as in most anti-SLAPP laws). One judge in the Southern District of Florida has applied the statutory provision (which should apply in federal court) to award fees where the action was dismissed on an ordinary 12(b)(6). Trump thus could be on the hook for attorney's fees for this abuse of process.

The Fried Curse?

A potential Jews-in-Baseball moment on the horizon this week.

The Braves lead the Mets by two games in the NL East with three games to play; the Braves' magic number is one. The Braves also own the tiebreaker--if the teams finish tied, the Braves win the division. But suppose the Mets win the next two games and the Braves lose the next two; the teams are tied entering the final game of the season, to be played at 4:10 p.m. on Wednesday--Yom Kippur.* Braves ace Max Fried would be scheduled to pitch and would be the guy the Braves want in a seeming must-win game. Will he pitch? And if he does, can he overcome the Koufax Curse?

[*] It could be a very Jewish game. The Marlins feature two Jewish relief pitchers--Jake Fishman and Richard Bleier.

Unsurprisingly, I am not a fan of MLB's bloated post-season. But I do like that it set the system to incentivize teams to win the division. The NL East winner gets a first-round bye and will not play until next Tuesday or Wednesday. The loser plays a best-of-3 series this weekend, then would face the 110-win (with three games left) Dodgers in the next round. A team may want to use its best pitcher in this game. If they win, he can be fully rested to start Game 1 after the bye. If they lose, he misses the short weekend series. Will Fried be the man, even on Yom Kippur day?

Maybe Dobbs is different

During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."

But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T₁ can be punished or sanctioned at T₃ after precedent changes and that conduct loses its constitutional protection at T₂. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.

If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.

I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.

The Misguided Law Review Note Preemption Checks

It is that time of year that law review students are writing their student notes - choosing their topics, scoping and outlining. I've been struck by how worried they are about being preempted -- many of the students seem to hold this idea - passed on by their law review senior editors - that if someone else is writing or has published an article somewhere on the same topic, then it is redundant. I try to disabuse them from this idea that there can only be one scholarly article on the topic and that originality = novel topic or even novel argument. Originality is an original analysis and an original voice. Seriously, some students do a search, find another article that was written about say, cap and trade energy regulation and decide it is preempted for them. Indeed, I advise my students that when choosing a paper topic - they will encounter one of two problems (always): they will either feel there has been too much written about their issues or too little. I  tell them that normally the first problem is the better one - because it means this is an area of significance, an issue that is of public debate, that people care about the topic and that writing in this sphere - say, content moderation or major questions doctrine or new frontiers of tech antitrust policy - will mean you are joining a vibrant conversation. Finding an original angle, building an original analysis, bringing in interesting and surprising and counter-intuitive arguments, evidence, comparative insights, analogies, methodologies, histories,  to support the discussion are ways to contribute something original to an important legal debate.

Legal Realism Sometimes

The New York Times editorial today marking the impending start of its term is unexceptional. That is unsurprising; this is the role of newspaper editorials. The only surprise is that I read any of it. But having done so, I was struck by one line: "It is precisely during times like these that the American people need the Supreme Court to play the role Chief Justice Roberts memorably articulated at his own confirmation hearing — that of an umpire calling balls and strikes, ensuring a fair playing field for all."

I am not sure anyone, possibly including the Chief, believes this line. Certainly mockery of Roberts's line is standard-issue for most observers and critics of the Court. Among those observers and critics we can count the editorial page of the New York Times. In the past, it has called the line "simplistic" and suggested that it had been subjected to a "brilliant demolition" in a speech by then-Justice Souter. Another time, it referred sympathetically to criticism of "the notion that constitutional interpretation is merely a robotic task of calling balls and strikes." They may be mistaken or misled by by professional duty and self-conception, but I would guess with some confidence that every member of the current Supreme Court believes in the concept of "calling balls and strikes" more sincerely than any member of the New York Times editorial board. 

I have no quarrel with today's editorial in general, although I also have no interest in it. (To be uninteresting and unquarrelsome is, again, is the role of newspaper editorials.) I do find interesting the degree to which many people and institutions slip in and out of legal realism, at one moment scoffing at the idea that law could be other than political and, in various senses, interested, partial, and policy-oriented, and at other times invoking various clichés, previously "brilliantly demolished," to praise, condemn, or urge a judge or court, or appeal to the public, according to the needs of the moment or the state of their sentiments. Critical thinking is a fair-weather habit.