PrawfsBlawg

Where is the Comparativism in Criticisms (or Defenses) of Originalism?

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. Of course I was aware that Australia has been the site of interesting uses of and debates over originalism, and I am aware that, particularly compared to its first two decades and despite being pooh-poohed by much of the academic and judicial establishment, originalism has become more of a live topic in Canada. (Americans are still accustomed to treating Canada as an originalism-free zone and occasionally pointing to it for that purpose. I think that view is oversimplified, outdated--it certainly used to be quite true--and too inclined to accept the complacent statements of that country's establishment as fact.) But that was the extent of my live knowledge.

In making such an admission, one risks making the fatal error of winning David Lodge's game of "Humiliation." (As the Guardian summarizes it, in his classic academic satire Small World Lodge imagines a game in which academics compete by confessing "embarrassing gaps in their reading. One of the characters in the novel, in his determination to succeed, becomes so obsessed with winning that he admits to never having read Hamlet--as a result of which, he is promptly fired.") Perhaps, in admitting that I hadn't seen much about this in discussions of originalism, I'm neglecting articles or books that no one should admit not having read (or, in fairness, having read and then forgotten). Surely I have, in any event, missed a few exceptions. And one also risks admitting what I think is true: that many American constitutional law scholars, present company included, don't spend anywhere near as much time as they should looking at comparative constitutional law. Of course will find some and perhaps many discussions there, and in doing some follow-up browsing after reading the Times article, I certainly found some relevant treatments, by, among others, Yvonne Tew, Sujit Choudhry, David Fontana, Katharine Young, Ozan Varol, Kim Lane Scheppele, and Lael Weis. All that said, and keeping in mind that originalism and originalist theory are things I read about in the course of general reading in my field rather than focusing my own research on those topics, I think I can say with confidence that as a general reader of this sort, I would remember it if the topic came up with any real frequency.

I wanted to test my intuition, so I did a very rough Westlaw search. I started with articles written by some of the most publicly prominent critics of originalism--not necessarily the best or deepest critics, but some of the critics who are most likely to get lumped into standard "For leading criticisms of originalism, see, e.g.," footnotes, and to write books or op-eds designed to influence general professional-managerial class assumptions about the topic. My focus was on domestic constitutional law scholars who meet that definition; I did not include comparativists. And I looked within that set for 1) relevant references to any of the countries that have been cited as using originalism of some form, including Malaysia, Singapore, Turkey, India, Australia, and Canada, or 2) relevant references to the authors I have noted above. I should note that there are debates about whether what some or all of those countries are doing (or debating: there are now a few Canadian judges who would describe themselves as originalist, but it's still far more a matter of minority academic argument than of judicial practice) can really be called American-style "originalism." That's fine. I would have accepted some acknowledgment of those debates as relevant.

As I say, it's a very rough search. I'm sure it could be done better. It certainly is not fine enough to reveal all the exceptions. But it does a reasonable job of showing the general norm, at least for this set of authors. And I did a couple of follow-on searches, expanding the list of authors and of sources the authors might refer to, including, at the bluntest level, a reference to a standard casebook like Tushnet and Jackson's comparative constitutional law book. 

You will not be surprised, given the windup, to hear that relevant references almost never came up. There were two real exceptions. Jack Balkin, having been pushed on this point by two comparativists--you can't get more of a pushback than an article (by Kim Lane Scheppele) titled "Jack Balkin is an American," even if I am not convinced by that article's assertion of just how nonexistent originalism is elsewhere--gives genuine discussion of the topic in more than one article, including his initial response to those pieces. And while I am, again, inclined to think he overstates the rejection of originalism elsewhere, Jamal Greene has given serious consideration to the topic of judges in other nations using some form of originalism. (David Fontana's useful piece "Comparative Originalism" is a response to one such article from around 2010, and my sense from an outside perspective is that it successfully encouraged Greene to go further in treating the topic in subsequent pieces.) Greene is certainly a prominent scholar and critic of originalism and Balkin is certainly a prominent scholar and something of the topic as well.  

And that's just about it. An occasional glancing reference to Canada or Australia at most; usually not even that and, in the case of a couple of the most publicly prominent academic critics of originalism, critics who also retail their criticisms in the popular press, absolutely nothing. On their map, "the United States" might as well be retitled "The Known World" and the rest nothing but blank space. Once you start not seeing references in these writers' work to comparative constitutional methodology (including, in at least the countries mentioned above, originalism or debates about originalism), you start not seeing it everywhere.

This would not be so surprising coming from con law scholars making glancing references to originalism. One doesn't expect every piece of domestic legal scholarship to look at how other nations do things. (That is, one isn't accustomed to expecting it. Maybe the low expectation is the problem. Does it really make sense to write regularly about, say, an area of private law without discussing the jurisprudence in that area of other common-law countries?) And as I've said, I do comparative work all too seldom. But in the areas I write about most often, I at least read and sometimes discuss what is done in other countries. How could one not do so? So I do find it surprising that if one is writing a major article, let alone an entire book, focusing on and criticizing a particular method of constitutional interpretation, there would be no reference at all to countries whose experience might confirm, confound, or complicate one's criticisms. If all you focus on is a method, surely you should be interested in the absence or, as we have seen, presence of that method elsewhere. I don't expect everyone to be aware of the experience foreign judges interpreting the constitution of their host country; I wasn't. But since, as it turns out, there are scholarly treatments of the practice, and more broadly of originalism abroad, I ought to expect those who focus closely on the topic of originalism to know that and include it in their discussions. 

The same thing can be said of advocates of originalism, and the same results apply. A similar Westlaw search conducted with prominent academic/public defenders of originalism substituted for the names of its prominent critics revealed virtually nothing of relevance. Again, there were exceptions, most prominently William Baude. For the most part, however, the cupboard was bare of any revealed knowledge of or interest in full-on or trace practices of originalism in other nations' courts.

One can offer all this simply to point out an interesting point in an interesting news article, or, in a friendly way, as notice to these scholars of a missed opportunity. Or one could offer it to point out the unfortunate frequency with which scholars of domestic constitutional law fail to look to comparative materials. Comparative constitutionalists already know this, of course, but it never hurts to remind the rest of us.

I am inclined to say two more things. Two fairly standard criticisms of originalism, which thus are relevant for both the critics of originalism and its defenders, are that it is impossible and exceptional: it can't be done, and the idea that it can and must be done is uniquely, oddly, unfortunately American. Again I quote the passage from the Times: "Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said." I do not say that these judges succeed, either in getting to any accurate sense of original intent or in channeling social change to the political branches rather than the judiciary. But it is striking nonetheless that they choose this method and for these reasons. Depending on how much they actually succeed, surely this is relevant to the question of impossibility.

On the second point, it does seem true to me that the United States, and American constitutional law, among other aspects of American life, often involves a sense of exceptionalism and parochialism. It's a sense that tends to be shared by both champions and critics of the United States or particular legal or constitutional policies, since both are animated by a sense that this country has a unique and perhaps providential greatness--or is failing to live up to a unique and perhaps providential greatness, or is living up to a unique quality of sin and evil. (In this country, the Puritan past is never dead; it's not even past.) But writing about originalism as if it is an utterly American sin (or virtue), while betraying no interest in whether the practice has occurred or continues to occur elsewhere and despite the presence of relevant information about that very topic, not only makes any such criticism (or defense) less than definitive. Surely it is also a perfect example of American exceptionalism and parochialism.  

 

 

A Podcast on "Are the Federal Rules of Evidence Unconstitutional?"

I had a great time being interviewed on Excited Utterance about my recent paper, "Are the Federal Rules of Evidence Unconstitutional?"

My conversation with the terrific host Alex Nunn is available here.

 

Labor Law Group 2022 Meeting Program - cohosted by USD's Center for Employment and Labor Policy (CELP)

next week we are excited that the Labor Law Group 2022 Meeting is coming to USD - the first big event that our new Center for Employment and Labor Policy (CELP) is co-hosting. Professors Ruben Garcia and Labor Law Group Chair Jeff Hirsch put together the panels which include:

Discussing Discrimination

Speakers:    Brad Areheart, University of Tennessee College of Law

                        Marcia McCormick, St. Louis University School of Law

                        Rachel Arnow-Richman, University of Florida Levin College of Law

                        Michael Green, Texas A & M School of Law

Moderator:    Nicole Porter, Chicago-Kent College of Law

Hot Topics in Labor Law

Speakers:   Roberto Corrada, University of Denver, Sturm College of Law

                        Charles Morris, Emeritus, SMU Dedman School of Law

Lea VanderVelde, University of Iowa College of Law

Moderator:    Ruben J. Garcia, William S. Boyd School of Law, UNLV

The Local Labor Movement in Southern California

Mikaiil Hussein, President, United Taxi Workers of San Diego

Starbucks United Worker, Long Beach

Peter Zschiesche, Labor’s Alliance, San Diego

Technology in the Workplace

Speakers:    Matt Bodie, University of Minnesota Law School

                        Cindy Estlund, NYU School of Law

                        Jeff Hirsch, UNC School of Law

                        Orly Lobel, University of San Diego, School of Law

Moderator:    Jeff Hirsch

Worker Centers at the Intersections

Speakers:    Sameer Ashar, UC Irvine School of Law

                        Llezlie Green, American University Washington College of Law

                        César Rosado Marzán, University of Iowa College of Law

Moderator:    Noah Zatz, UCLA School of Law

All About Arbitration

Speakers:   Lise Gelernter, Emerita, University of Buffalo School of Law

Martin Malin, Emeritus, Chicago-Kent College of Law                               

Moderator:    Cyndi Nance, University of Arkansas, Fayetteville

 Organizing and the Law: Lessons from California Hotel Sector Campaigns

Innovating Work-Law Enforcement

Speakers:    Catherine Fisk, University of California, Berkeley School of Law 

                        Ruben J. Garcia, William S. Boyd School of Law, UNLV

                        Charlotte Garden, University of Minnesota Law School

 

Integralism Gets its Soft Launch

I had always assumed, based on my reading in the area, that any prospect of an American integralist state was a dead letter, but that if it did occur it would involve burrowing from within rather than a more forceful, open, top-down approach. I was wrong on both counts. I was right on a third point, but it's hardly anything to boast about. Most serious students of integralism had predicted that, when it finally came about, its political and intellectual leadership would come not from Cambridge or Heiligenkreuz or the back pages of an obscure journal like Newsweek, but from Kanye West.

The Lost Right To Jury Trials

I want to highlight a new article in the Duke Law Journal by Andrea Roth on "The Lost Right to Jury Trials in 'All" Criminal Prosecutions." A cute point that people make in Con Law classes is that we do not always take the Constitution literally. And an example is that Article Three says that "all" criminal prosecutions must be by jury, but the Supreme Court held decades ago that "petty" offenses can be tried without a jury. Now we have a strong historical analysis of that issue that makes a convincing case that the Court was wrong.

 

RIP: Cecilia "Cissy" Marshall, 1928-2022

The Washington Post reports that "Cissy" Marshall, Thurgood Marshall's second wife and the guardian of the "reputation and legacy" of the late civil rights giant and Supreme Court justice, has died at the age of 94. Its obituary is interesting and moving, if rather brief. The Times has not gotten around to running its obit yet, although I am reasonably sure it will. (Only "reasonably" sure, because the Times's obituary selection choices have become ever more unusual, unpredictable, and occasionally rather arbitrary. Although I was saddened to learn of the death of the fellow who voiced Batman in cartoons, I am still waiting on a Times obit for Joseph Raz.)  

A Legal History Moonshot

I was thinking recently about what might be a "moonshot" project during my sabbatical. In other words, basic research that may well yield nothing but would have a large payoff in the unlikely event that there is something.

One possibility would be to go through each and every member of the Joint Committee on Reconstruction (especially the more obscure ones) to see if any of them wrote anything about the deliberations. The work of the Joint Committee is one of the great mysteries in constitutional history. The most prominent members--people like John Bingham and Thaddeus Stevens--did not leave behind any records about what occurred behind closed doors. And probably no member did, as you would think that if someone had we would know about that.

If I try, I'll report back on any discoveries. 

JOTWELL: Campos on Francus on the Texas Two-Step

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. Online 38 (2022), another discussion of the use of bankruptcy in mass tort.

Holmes and Alito

Paul has offered detailed comments on the NYT story about the Hobby Lobby leak and the broader anti-choice campaign to, as Paul puts it, "meet, cultivate, and influence the justices through friendship and other contacts." Some regard the latter as the greater scandal.

Some of the hand-wringing about the "influence peddling" sent me to Justice Holmes, the House of Truth, and Holmes' many about free speech with Learned Hand, Harold Laski, Walter Lippmann, Zachariah Chafee, Felix Frankfurter, and others in 1919, during the eight months between Holmes' majority opinion in Schenck and his dissent in Abrams. Put differently, progressive activists and other non-parties and non-colleagues engaged with Holmes in-person and by mail in social, non-judicial settings, attempting to influence and change (ultimately successfully) his First Amendment views; those changes reflected in subsequent opinions, which the Justice's supporters praised and celebrated. This effort spread beyond free speech to bigger progressive causes such as labor organizing and workers' rights (with which Holmes was on board).

What, if anything, provides a meaninful difference between Holmes' engagement with Hand, et al. and Alito's engagement with Schenck, et al.? (Note I am focused not on the Hobby Lobby leak but on the broader campaign to kibitz with the Justices).

The money presents the obvious variance. Some people donated substantial sums (including to the Supreme Court Historical Society) for the access Alito (as well as Thomas and Scalia), which was not the case with Holmes and his clique. But I do not know how important money is to this story. Donors did not give money to the Justices. The money placed them in the room with Alito, just as participating in 1910s progressive politico-legal circles put people in the room with Holmes.

Many of Holmes' conversations (especially his exchanges with Hand) were general and philosophical, less overtly ideological, partisan, or political; Holmes was talking to academics (Laski, Chafee, Frankfurter), judges (Hand), and journalists (Lippmann). The people engaging with Alito are activists, part of a large, coordinated political and social movement revolving around these issues. Again, however, many of those in the House of Truth were activists committed to political causes who joped to sway Holmes to their positions (some of which Holmes shared, others of which he had to be convinced).

The difference may be "times change." Paul discussed the different ethical norms of the early-and-mid-2oth-century Court and the Justices' deeper immersion in politics. But a colleague with knowledge of this period on the Court offers another difference--political, social, and impact-litigation movements of the '10s and '20s wielded less influence on the Court as an institution and thus were smaller and less well-organized. Brown demonstrated how these movements can succeed on the Court on a massive scale. Subsequent movements--including Schenck and the anti-choice movement--are larger, better organized, better funded, and more committed to wielding power to political ends. Laski and company played minor-league ball, a difference in kind from modern social-movement machines.

End-of-Semester Speeches

In this New York Magazine story about Sam Bankman-Fried and his law professor parents, there is a passage that many law students and law professors will relate to:

Barbara Fried, too, made a deliberate practice of being emotionally generous and warm with her students. She wanted to guide them toward being whole people, not just cogs in the legal machine. “At the end of the semester, my torts professor literally went, ‘Okay, that’s torts!’ and left the room,” another former student told me. Fried, on the other hand, “gave this beautiful speech that we’ve all talked about for literally years.” She started by telling her students about her own personal reckoning: “sitting in a Chinese restaurant one day, realizing that “the goal of life is not to die with all of your options still on the table.” She closed with a poem, “Sometimes,” by Sheenagh Pugh. It’s about life defeating us often but not all of the time. “Sometimes a man aims high, and all goes well,” the first stanza ends. “Sometimes our best intentions do not go / amiss.” Fried received a standing ovation.

Tastes differ on such matters. But I have given both sorts of speeches in my own time and it is not clear to me that the second type is preferable to the first. 

 

The Court and Politics: An Update

Two points, which seem to fit reasonably well into what I wrote on Saturday about the latest Supreme Court fracas:

1) "If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?"

Of course there have been calls for investigation, by both senators and advocacy groups. Of course that is reasonable and at least "ostensibly" legitimate. Of course senators are always fundraising off of these actions, for themselves and for funds to donate to colleagues and candidates as deposits in a favor bank. And of course the press releases by these groups are never far from the large, brightly colored "DONATE" button on the website. Like sharks, they must keep moving and feeding or they will die. 

2) In today's follow-up story in the Times, there is this passage:

Louis J. Virelli III, a professor at Stetson University College of Law, said in an interview that a law requiring the justices to disclose whom they meet with, especially parties who may have interests in a decision, would be constitutional, and it might restore some of the public’s faith in the institution.

I have no beef with the "parties who may have interests in a decision" point. But I wonder how broad a scope of disclosure Prof. Virelli has in mind when he suggests that the justices "disclose whom they meet with." Does that include all social contacts and friendships? Only official in-chambers meetings--which presumably would create an incentive for an increase in the number of unofficial meetings out of chambers? Given that some of these meetings and social contacts are only, in the words of my earlier post, potentially corrupting, rather than actually corrupt, would a list of disclosures restore faith in the institution? Or would it actually serve to undermine it even if those contacts are proper in law and in intent? One can imagine a justice meeting with a bishop, for instance, for legitimate or at least non-illegitimate reasons. One could then in turn imagine an advocacy group researching that bishop and discovering various anti-abortion speeches, and using that contact to raise money questions about such contacts. Obviously the polarities could be changed depending on the justice, the person the justice meets, and the group capitalizing off of the disclosure. All this relates to the questions I asked on Saturday: "What is the right balance between isolation and non-isolation for judges and justices?" and "Would we be worse off without any insider culture?" 

I am not against doing anything at all. (Regardless of whether this story pans out in full; as I wrote a couple of days ago, even if the Justices acted appropriately, if naively, the story at least suggests pretty unimpeachably that some individuals or groups sought to meet, cultivate, and influence the justices through friendship and other contacts.) But I'll repeat what I offered on Saturday: "Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed?" We might indeed want to establish, in law or by norms, new rules governing justices' contacts. But in doing so, we should ask just how insulated we want the justices to be--and one natural and predictable response to an onerous or "transparent" and thus weaponizable disclosure rule would be for the justices to retreat into isolation rather than have any social or professional contacts at all--and seek rules that make sense in light of that desired end-state. 

And we should still ask why the hell we invite the justices to things like the FedSoc or ACS, the AALS, and individual law schools. I still don't see much of a point and I still think there is a small-c corruption to it that outweighs any actual edification we get from such appearances. But I should apply to that assertion the same caution I urged of others: namely, that we should always ask what the right default level of either contact or isolation is for judges and justices. 

 

Leiter Lateral Moves with Tenure 2012-2022 - Analysis

This report looks at Brian Leiter's information about tenured lateral law professor moves between 2012 and 2022, inclusive. (Links to each of the specific posts used are below.)

Number of Moves and Movers

Between 2012 and 2022, Leiter reported 883 moves. This report focuses on the 759 moves that were not moves to or from an administrative position, such as Dean or President.

While there were 759 such moves, there were only 671 individual law professors who made moves ("movers"), as a number of faculty moved more than once between 2012 and 2022.

1 move: 592 faculty members. 2 moves: 70 faculty members. 3 moves: 9 faculty members.

Schools From Which People Moved

Of these 759 moves, faculty moved from 194 different schools; thus nearly every law school was the source of at least one move (there are only about 200 law schools).

More than 10 and less than or equal to 15: American University; Duke University; George Washington University; University of California, Los Angeles; University of Colorado, Boulder.

More than 15 and less than or equal to 20: University of California, Berkeley; University of California, Irvine.

There were 16 moves from the University of California, Berkeley, to another school, and 16 moves from the University of California, Irvine, to another school. These two schools together were thus the source of about 4% of the total moves reported, though they are less than 1% of the total law schools.

Hiring Schools

These 759 hires were at 160 different schools--again, almost all law schools.

The schools with the most tenured lateral hires in this time period overall were University of Virginia, 28 hires; Georgetown University, 21 hires; University of California, Los Angeles, 21 hires; University of California, Berkeley, 20 hires; University of California, Irvine, 19 hires.

Looking year by year, the biggest single hiring years for a given school were University of Michigan, in 2022, with 12 hires; University of Virginia, in 2020, with 9 hires; University of Virginia, in 2021, with 8 hires; Texas A&M University, in 2015, with 7 hires. (These were the only instances of more than five reported hires by a school in any single year.)

24 of the hires came from foreign institutions to U.S. law schools, and 16 of the hires went from U.S. law schools to foreign institutions.

10 of the hires came from schools that were not a law school, and 11 of the hires went to schools that were not a law school.

695 hires came from a U.S. law school and went to a U.S. law school.

Relative Rankings

U.S. law schools have historically been ranked by U.S. News. For each of the 695 moves from a U.S. law school to a U.S. law school, I compare the U.S. News rank of the two schools. For this purpose, I use the historical ranking of each law school--what's likely the most recent ranking the mover would have had access to at the time of their decision. For example, if the move was reported in 2011-2012, and the person came from School X, I use the U.S. News ranking of School X that was published in 2011 (what U.S. News calls the 2012 ranking).

That said, rankings at a close-up level can be quite misleading. It is moderately more informational to group the moves, so that only a move "up" or "down" more than five ranks (number picked essentially arbitrarily) counts as an upward or downward move, and anything else is considered to be a move to a school of roughly the same rank. Thus, for example, a move in 2012 from the University of Chicago to NYU is considered a move with "No Big Rank Difference" (the schools happened to be ranked one apart that year).

About 63% of the moves were to a higher-ranked law school using this approach, and about 15% were to a school of roughly the same rank.

Up > 5: 443 moves. Down > 5: 125 moves. No Big Rank Difference: 106 moves. Cannot Compare: 21 moves.

Even grouping the moves this way can be misleading. For example, many of the moves that were "down" more than five U.S. News rankings were actually "up" in scholarly ranking, based on the Sisk citation count study. 34 of the moves "down" more than five U.S. News spots were between schools where both schools are in the top 50 for scholarly impact, and of those 34, 11, nearly a third, were moves to schools currently ranked higher in scholarly impact.

Returning to the U.S. News rankings, of the 674 moves where comparison of numerical ranks is possible, and looking only at moves up more than 5 in the rankings, the average move up was 38, and the median move up was 31. The largest move up was 145, and there were 15 moves where the person "jumped" more than 100 ranks.

No comparison is possible where one of the schools is unranked. Of the 21 moves where no comparison is possible, 9, or 42% of the moves where no comparison is possible, involved moves to or from UC Irvine in years before UC Irvine was ranked (because it was a new law school, it was not ranked until 2016).

Of the 759 reported lateral hires, 165, or 21%, were at schools ranked 10 or better at the time of the hire. Such schools represent, obviously, only about 5% of U.S. law schools.

Leiter Reports

2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012

Thank you to Brian Leiter for collecting this information each year and for helpful suggestions about how to approach this analysis.

FDR's Gambit

I want to give a shout-out to Laura Kalman's new book, entitled FDR's Gambit: The Court Packing Fight and the Rise of Legal Liberalism, which is sure to become the definitive account of 1937.

Please Be Interesting!

Today's New York times story in which, to quote the lede, "a former anti-abortion leader has come forward claiming that another breach occurred in a 2014 landmark case involving contraception and religious rights," can fairly be described as scandalous, and as such will give rise to all sorts of uninteresting commentary. Although I think that "novelty," as it is treated, is an immensely silly standard in legal scholarship, I acknowledge that no such standard applies to public commentary or should. Although public commentary often favors "fresh" takes, mostly they only need be hot, no matter whether they are stale and rewarmed or not. And a "take" doesn't need to be "novel" to be true or make a useful contribution. (The same can be said of legal scholarship, which is one reason the novelty fixation is so silly.) Nevertheless, given the amount that will be said about this, it would be nice if people--especially people who know better--tried to ask slightly more interesting questions about the latest news. I don't think most of the questions below are terribly interesting and they are certainly not novel, but they might do for a start:

1) One is more a comment than a question and is decidedly not novel: In politics, or law-and-politics, the scandal almost always is not what is illegal but what is legal. One might add, the scandal is not just what's legal, but what's legal and accepted the vast majority of the time. To put it in question form: How many of the actions discussed in this story are not only legal but generally taken for granted? When do we bother noticing them and when are they treated as just part of the way the world works? 

2) What is the right balance between isolation and non-isolation for judges and justices? One possible result of a story like this is that the justices will retreat ever further into monkish existences. Perhaps they should; perhaps they can't be trusted to do otherwise, or can't trust others not to abuse their access. Certainly there will be calls for the justices to change their behavior as a result of this story. And it is certainly a common observation that judges and justices should in all sorts of ways retreat from many aspects of their former lives. But it is also common to hear complaints that the justices, especially, are too insulated from real life, too disconnected from the currents of the times. What's the right mix? In thinking about that, we should not take the current default, or some imagined current default, as a given. 

3) Is it the current degree of insulation that is aberrant, and not the departures from that insulation? I offer this in no way as exculpatory of any particular current conduct. But the story of the Court in the 20th century, as a minimum, and of its justices' contacts with politicians and others, without excusing any particular conduct today, is one of frequent contact with--indeed, immersion in--political life and political friendships by the justices. This relates to question 2. We might ask: Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed? Ruth Bader Ginsburg's friendship with Nina Totenberg, for instance, was certainly corrupting for Totenberg and arguably was mutually corrupting. But those sorts of friendships were the norm when Washington was treated as a closed society in which relationships between powerful and engaged people extended across party lines, but those relationships in general were accepted and part of the currency of life in the capital. That relationship was rightly cited as an example of "insider culture." I am no fan of insider culture (which is not limited to the capital; it's a feature of life for many well-connected and affluent people, including legal academics). But would we be worse off without any insider culture? (And do we have the worst of all possible worlds right now--two polarized inside cultures instead of a single, bipartisan inside culture?)  

4) What kinds of social and professional contacts are corrupt, and what are merely corrupting? Meeting with litigants is corrupt. Is meeting with Supreme Court Historical Society donors corrupt, or merely corrupting--in the way, common to many rich or powerful people ( including the ones you probably admire), that living in a world in which one's contacts with most "regular" people are limited but it is common to hob-nob with the powerful, the wealthy, those who donate to one's favorite causes, those who provide hunting lodges and other nice places to get away from it all, and so on, is corrupting? (AOC supporting the Met, for instance, or other major arts institutions in New York City, is not corrupt. AOC being invited to attend and be photographed at a Met gala is corrupting.) 

5) Should we reexamine other aspects of insider culture or of celebrity-justice culture, aspects that come closer to our own doorstep? Some of them are obvious. The justices arguably shouldn't speak at events like the annual conferences of the Federalist Society or the American Constitution Society. Why anyone wants them to is beyond me. Other than the lure of celebrity, why invite someone to say something that will surely be uninteresting? What person with a rich and full life could possibly enjoy putting on uncomfortable garb to eat poorly prepared chicken or salmon, while listening to someone delivering a semi-informed or trite speech about why cancel culture is bad or stare decisis is good? The lure of celebrity is corrupting and degrading for the audience; but the lure of being celebrated is corrupting and degrading for the justices, and regardless of whether we treat such speeches as raising any conflicts of interest or poor perceptions, they ought not do it.

But how about the AALS? Again, I see no particular reason why we should invite justices to speak at the annual AALS convention, as that organization has done several times, and not much reason why we should invite most lower court judges to do so either. There's no point inviting them if they're going to say something uninteresting, and they're not really supposed to say something interesting. So why bother? What are the motives for issuing such invitations--and for accepting them? And why should individual law schools invite justices to speak? Why do they invite them to speak? To paraphrase Posner, schools of veterinary medicine study dogs; they don't invite them to give full-attendance talks to the student body, along with a more exclusive kibble luncheon with the dog for faculty and specially invited guests. I should think that other than mere habit, one reason we do so is marketing, both to students and to the outside world. Another, which is part of the marketing, is selling the appearance of access or impressiveness for that institution. A third is an attempt to curry favor with or influence the justices for a limited purpose--namely, encouraging the justices to hire clerks from that school. A fourth, somewhat incidental but real, is attempting to influence the justices in precisely the way that is mentioned in the Times story: ensuring that the justice "hear[s] from people who would hail them as heroes" for doing one thing or another. I attended a luncheon with then-Justice Kennedy at one law school I taught at, where most of the faculty used their time with him to fawn over and thank him for his opinion in Lawrence. I'm sure it was sincere, but I'm not sure it was seemly and they surely hoped to encourage him to issue more opinions along the same line. A fifth is impressing current or potential donors to that school, who may well end up being invited to share the kibble at that exclusive luncheon with the justice. 

Isn't all of this not only corrupting but, still worse, uninteresting? On the other side, if the justices are there for public relations purposes, what business does a law school have allowing itself to be used for such efforts--indeed, subsidizing them, including by sending very nice planes to pick up the PR person and putting them up in a luxe hotel? How much of this sort of thing do we take for granted in our own corner of the world and how corrupting is it? 

6) The story of law and social movements is certainly not limited to the story of influencing judges; it is mostly not about that. But some efforts in this space are aimed at doing precisely that. What constitutes a legitimate deliberate effort to influence a judge's vote and what constitutes an illegitimate one? 

7) How much of Mr. Schenck's story is, in effect, yet another effort to gain influence or power or money? The story notes that Schenck "is trying to re-establish himself, now as a progressive evangelical leader." In plain English, that means that he would like to gain influence or power or money in a slightly different circle than the previous one. Even if the "regret" that he now expresses and describes as a motive for speaking out is sincere, is it not also a motivated sincerity, or at least one that he is putting to work for himself? (There are so many ways to monetize sentiment in America that I wonder if we shouldn't have a line on the tax form for "passion" or "conviction" or "sincerity.") If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?

Incidentally, while it seems quite true that Schenck attempted to learn the outcome of cases, and while the fact that he might be as highly motivated in his disclosures now as he was in his efforts then doesn't mean he's speaking inaccurately, his current possible motives should affect how we read the evidence here. One can still read the story and conclude both that Schenck acted reprehensibly and that Justice Alito was a fool for allowing such people to be or remain friendly with him. But anyone who has made even part of the journey from innocence to experience is surely aware that in this sort of world, people routinely exaggerate their own importance and wildly exaggerate what inside knowledge they actually have. It is possible that Schenck, and Schenck's moles, learned nothing. (Even when they are not exaggerating, of course they can still puff and profit from their access. One can assume the truth that Nina Totenberg had a special friendship with Ruth Bader Ginsburg, while noting that taking the extra step of converting that friendship into a book contract--and a book in which Totenberg, like Schenck, profits from sharing her after-the-fact Hamlet-like ambivalence about its propriety--and thus turning that friendship into a profit-making enterprise, as so many of Ginsburg's friends and relations did with her complicity, involves its own forms of exaggeration.) 

8) Is there any good news to be taken from the story? I think the answer is yes. The story includes three, or perhaps two-and-a-half, brush-offs, from Roberts, Kennedy, and Scalia. (Scalia indicated a willingness to meet with an anti-abortion activist, while also stating that he could not and would not assist that activist's group.) I suppose the bad news is twofold. First, people who are willing to abuse the current system, to abuse what is legal but potentially corrupt, are playing the odds, and the rebuffs are easy to accept as part of the game, as long as someone occasionally succumbs or willfully cooperates. (And even if no justice does succumb, the people engaging in this conduct can still fundraise on the basis of their supposed closeness to the justices. Those Supreme Court Historical Society donations are sound financial investments.)

Second, the justices don't talk much about any of it. I have no interest in listening to a talk from judge or Justice X, at the AALS or my own law school or anywhere else, about the rule of law or the long arc of justice or the importance of stare decisis or of textualism. I can read that kind of thing in my monthly bar journal. But any of these topics would be worth the ticket: "How I Negotiated My Book Deal." "Summer in Salzburg." "Powerful People I Have Known." "How Rich People Try to Get Close to Me and How Often I Let Them." "Why I Shut Off Most of My Old Relationships and How it Might Distort My Worldview." "The Paranoid Style in Judicial Life." "Why You Really Invited Me to Give This Talk." "What People Want From Me and What They Actually Get." "'Yes, Sir, Mr. Justice,' or Why I Don't Retire." "Living With Temptation." Those might actually be useful and informative talks.       

The Textual Canons in Contract Cases: A Preliminary Study

I've just released my forthcoming paper in the Wisconsin Law Review about how the linguistic canons are used in contract cases in two jurisdictions (NY and CA).  I have a few follow-on projects flowing from this essay, so please let me know if you have comments or thoughts.  Here is the abstract:

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ use within practices of statutory interpretation.

Sabbatical=More Blogging

I'll be on sabbatical next semester. While I will be working on a new book and other projects, I also expect to blog more often. I have thoughts on the cases pending before the Court that I just haven't had time to write up, but soon I will have the time.

I would add that the disarray on Twitter might lead to something of a blogging renaissance. I'm not interested in joining a social media network named for an extinct animal, and I've always preferred the longer form that blogs provide. Perhaps this makes me an extinct animal, but so be it.

The Performative Judicial Opinion Style

Today Mark Walker, Chief Judge of the United States District Court for the Northern District of Florida, granted a preliminary injunction blocking enforcement of Florida's awful "Stop WOKE Act." The opinion is over 100 pages long, putting one in mind of the old saying, attributed to a number of people, "I would have written you a shorter letter, but I didn't have the time." Given its length I haven't had a chance to read it properly. Howard is welcome to it. I wanted to use it to say something about style in judicial opinions.

From the very outset of the opinion, I was put in mind of Richard Posner's excellent 1995 piece on judicial opinion writing style. In that piece Posner contrasts the "pure" opinion style, which he characterizes as having a "lofty, formal, imperious, impersonal, 'refined,' ostentatiously 'correct' (including 'politically correct'), even hieratic tone," with the "impure" style, which "tend[s] to be more direct, forthright, 'man to man,' colloquial, informal, frank, even racy, even demotic." Posner, of course, prefers the impure style and, at his best, was a master at it. He goes on to argue that the pure and impure styles map, roughly, on to different "jurisprudential stances:" respectively, the formalist and the pragmatic. But he acknowledges that the fit is imperfect and that the writing styles lie on a spectrum, rarely appearing in anything like a clear undiluted form. And he acknowledges that the impure style has its risks. It can easily curdle into something different and worse: 

In repeatedly complaining about the impersonality of the pure style, I run the risk of seeming to endorse the very emotionality, sentimentality, and egoism that was characteristic of much Romantic and Victorian poetry and that T.S. Eliot and other modernists denounced. The arch-sentimentalist, and some might even say the arch-egoist, of the American judiciary is the recently retired Justice Blackmun. Blackmun did not try to disguise or discipline the strong feelings that many of the Court's cases aroused in him; he seemed (not only in his opinions but also in his public comments about the Court) to have insisted on “letting it all hang out.” Although his opinions in these cases depart from the professional norms that I am associating with the “pure” style and are certainly not lacking in “voice,” the departure is not in the direction of the school of Donne or Eliot. The “voice” is rather that of Joyce Kilmer or Norman Rockwell. Whatever the merit of Blackmun's positions on such matters as abortion, capital punishment, sexual equality, the exemption of baseball from the antitrust laws, or the duty of states to protect people from private violence, the opinions in which he expressed his heartfelt views on these subjects are embarrassing performances precisely because they seem the unmediated expression of self. They are maudlin (DeShaney), melodramatic (Webster), unreasoned (Roe, Callins), narcissistic (Casey), sophomoric (Roe's history of abortion from ancient Persia on and the ode to baseball in Flood v Kuhn), and gratuitously indecorous (Michael M.).

I would say three things about Posner's taxonomy. The first is that time has perhaps been unkind to his effort to link the pure style to formalism and the impure to pragmatism. Or perhaps he was right at the time but things have changed. In any event, impurity is the order of the day on the Supreme Court and elsewhere. I think that change is mostly to the good, although I find that many of those informal opinions in some places easily fall from the conversational and memorable into the chatty and cute. It is good that judges are writing more directly, but not so good that the federal courts have used the glibly humorous phrase "But wait, there's more" 31 times in their opinions, all of which started appearing in 1996 (a year after Posner's article was published) and mostly in the past dozen years or so. (In an illustration of the point that pure and impure get mixed, note that on nine of those occasions, the judge chose the worst of all possible versions of the phrase: "But wait, there is more.") But the impure style is now as likely to appear in formalist opinions as in non-formalist opinions. I haven't searched the literature closely but I suspect some updating work is needed on this point and that the results would be interesting.  

The second is that it seems to me that the narcissistic opinion--the emotional, sentimental, often egoistic, undisciplined opinion--occupies a larger space than Posner assigned to it and fits awkwardly into the pure/impure division. Indeed, like the saying that Washington is a city with Southern efficiency and Northern charm, this sort of opinion is often notable for selecting unerringly from the worst of the pure style and the worst of the impure style and combining them. Although Posner's language strikes for the jugular here, I'm also not sure it's quite right. Or, if he is, it might be that more can be said about styles of opinion that are closely related to and adjacent to the narcissistic style.

We might imagine a new category: the performative judicial opinion. I mean performative not in J.L. Austin's sense of "performative utterances," but in the colloquial sense in which it is often used these days: speech that carries the air of having been undertaken more to "increase one's social capital" than "because of one's devotion to a cause." It is, of course, the kind of speech that is so very common on social media and has gone on to infect any number of other speech institutions, such as newspapers, as well. (What is an ad slogan like "Democracy dies in darkness"--which is quoted in Judge Walker's opinion--if not performative speech, especially once people treat it as anything other than what it was in the first place: a calculated marketing effort?)  

The performative judicial opinion maps considerably onto the narcissistic opinion--and there is certainly an enormous amount of narcissism in "performative speech"--but is not an exact match for it. The voice is not that of Kilmer or Rockwell, but that of the kind of poorly edited, overheated speech a self-smitten politician or activist of whatever political stripe might deliver to an overly receptive, easily impressed audience. It's not the speech of Twitter, but the kind of speech one might anticipate being well-received by people on Twitter. It reads as if the author hopes it will be puffed and passed along by a credulous mediocre journalist of the corresponding political persuasion: a mash note on Slate, or on The Federalist. But like the narcissistic opinion, it is regularly characterized by the maudlin, the melodramatic, the sophomoric, the gratuitous, the indecorous. 

It also seems very popular to me. Perhaps that's because it's the kind of opinion that's most likely to appeal to the kinds of credulous, partisan, or unserious writers who are then eager to broadcast it to all and sundry, while more workaday opinions go unnoticed and certainly unquoted. But that suggests a one-sided relationship, and I think the symbiosis is coming from both sides and that no shortage of judges are happy these days to engage in precisely this kind of intentional but fundamentally undisciplined opinion writing. Perhaps it has something to do with broader changing standards of speech and behavior--and perhaps those standards are not just changed, but fallen or degraded. One would like to attribute it to a particular appointing president. Surely, if anyone would be inclined to set loose on the world writers of narcissistic and undisciplined judicial opinions, it would have been President Trump. But I don't think that's the case. Polarization and culture wars, as well as the appearance of culture-war issues on the judicial docket (or the turning of issues into culture-war matters) have certainly contributed to its popularity for writers at both poles. What else could one call Judge Oldham's concurring opinion in the en banc Fifth Circuit in this Term's Cochran v. SEC case if not undisciplined, gratuitous, sophomoric--performative? On the other side of the culture wars, what else could one call the Georgia trial court opinion that Howard writes about below? Both call desperately for attention, not just substantively but stylistically--and get it.  

People (including me, no doubt) tend to applaud dreck--speeches, slogans, cheap appeals to sentiment, and so on--when it appeals strongly to their priors, or at least let it pass without focusing on and critiquing the style used. What could be more eloquent and beautiful to one's eyes than someone agreeing with one's deepest feelings or views? And they are happy to excoriate it when it comes from the opposite side, because it is easier to spot in those circumstances. But I would like to see more examination of the performative judicial opinion as a style. There is much to be said about it. That's true not just from the stylistic perspective but for whatever insights an examination of the performative and/or narcissistic opinion might yield into the state of judging, the relationship between judging and polarization, the degree to which courts have become accustomed to writing for politically and culturally siloed audiences, and the relationship between lower courts, which mostly are free to play their own games, and the Supreme Court, which plays another. 

The third and final thing I have to say will not be surprising: Whatever I may feel about the outcome, I find it hard to describe Judge Walker's opinion, with all its mix of high and low, pure and impure, as anything but performative, and perhaps narcissistic, as a matter of opinion-writing style.  

Jewish baseball update

Max Fried finished second in NL Cy Young voting, finishing far behind the Marlins' Sandy Alcantara, who won all first-place votes. Fried becomes the third Jewish pitcher not named Koufax to finish top-two in Cy Young voting (along with Steve Stone's 1980 win and Joe Horlen's 1967 second-place finish).

Yale withdraws from US News

Dean Gerken's announcement. I do not think about legal education and metrics enough to predict what this will mean. I am curious to hear other people's thoughts, in particular for schools in the middle of the US News pack. Update: Harvard, too.

Effective v. Enforceable

Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:

The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.

The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).

Why Not Just Do a Better Job of Outsourcing?

Sasha Volokh, expanding on a quote he gave in a short piece in the Washington Post, offers some reasonable thoughts on the question of educational diversity and Supreme Court clerkships. He poses the question as follows: "Given all that, what should a hiring judge do, who is busy, has a huge pile of resumes to go through, and has very limited information? Is there enough of a correlation between law school ranking and likely clerkship quality that judges should use the law school ranking as a strong factor in their decisionmaking?" He concludes that "[I]t's a not unreasonable preference for U.S. Supreme Court Justices who are busy and have to make decisions based on very incomplete information; I might well do the same if I were a Supreme Court Justice."

As I said, this is reasonable. I am more inclined to mild agreement than to disagreement. But it doesn't seem sufficient--and the more I think about it, the more insufficient it seems. I would have thought that to the extent that we value educational diversity in Supreme Court clerkships--and I do, although I'm not sure how terribly important it is who gets to serve as a Supreme Court clerk--the answer to the question, how do I get there despite the competing demands on my time, would be the same answer we give in other situations where a decision-maker has limited time: to delegate or outsource, or delegate or outsource more, with that goal in mind. 

I have in mind a few different kinds of outsourcing. As Sasha notes, the preference for an extraordinarily narrow and rather parochial band of law students does not hold as strongly on the federal circuit and district courts or on the state courts. And he also notes that the Justices are presumably looking for "the standard characteristics that judges value in clerks: better able to read and understand a lot of complex law stuff, better able to write clearly and persuasively, etc." Fair enough. Doing well at a prestigious and competitive law school is an okay proxy for standard characteristic that judges value in clerks.

As it turns out, though, doing well as a clerk--in other words, actually displaying characteristics as an actual clerk that an actual judge values highly--is an even better way of identifying the presence of characteristics that judges value in clerks. The justices already outsource a good deal of their clerk-selection work, as well as training, to other judges. It is well within their power to outsource even more. And if they value educational diversity but value their time more, they are free to tell judges who would like to see their clerks going on to spend a year working at the Court that they, the justices, want those clerks to come from a wider range of schools, and without any loss in quality. It's true that by way of further economizing on time, some justices rely on particular "feeder" judges. The justices are similarly free to tell those feeder judges that if they want to continue "feeding," they had better work harder to find law clerks from a wider range of schools who are excellent, or train them into excellence. Presumably some of those feeder judges will be willing to do so, for the sake of advancing their clerks, maintaining their prestige and relationships, or for other reasons--including that they agree with the sentiment and, given the push, would be happy to work harder to see it happen. If not, as Bud White would point out, there will be ten more judges willing to take their place as feeders.  

Lower court judges are not the only source to outsource to. To the extent that the current justices use clerkship selection committees, they are free to demand of those committees that they seek and find the best possible prospective clerks who have graduated from somewhere outside the usual-suspect schools, at whatever additional cost in time and effort, and provide further grooming if and as necessary. Most justices used to wholly delegate their clerkship selection, and managed to find perfectly serviceable clerks. They relied, to be sure, on Harvard or Yale professors selecting Harvard or Yale students. But the justices now have more clerks who end up teaching in a wider range of schools--and the students they recommend will, unlike many of that earlier generation of clerks, have already gone through substantial training in judicial chambers elsewhere. In any event, it doesn't matter where the people to whom they delegate clerkship selection are teaching, if they are teaching at all. It just matters that they be instructed to increase their time and effort in order to find suitable prospects somewhere other than the usual 10 or so schools. If that means making a lot of calls to colleagues at other schools or traipsing around the country, so be it. That's not the justice's problem.   

Doing well as a law clerk is, as I said, a pretty darn good way to spot someone who has the characteristics of would do well as a law clerk on the Supreme Court, and a more accurate way than just looking for someone who did well at a usual-suspect law school. That is one reason the justices don't just pick clerks fresh out of law school anymore. Really, in looking for their clerks from among the ranks of people who have already clerked, they are delegating two things: search costs, and training costs. We might also say of this trend that they are outsourcing to time: rather than reducing their search costs by looking to a particular school, or in addition to doing that, they are reducing those search costs, and reducing the error costs that result from "incomplete information," by looking to candidates who have already had to hone and demonstrate their legal skills by doing actual legal work. But there are still other ways of spotting prospects, other qualifications or experiences, that are more accurate than just looking at law school performance.

One, unsurprisingly, is actually practicing law. Nor is it surprising that justices have realized this and have increasingly hired law clerks who have practiced law for a few years, or even practiced and then taught law for a few years. (It's not surprising for a second reason, which is that the phenomenon also reflects the increasing bureaucratization, professionalization, and depersonalization of the judicial system. Judges are welcome to talk about the chambers "family" and such stuff. But the judicial system is indeed a very large system, chambers are not families or hereditary fiefdoms but miniature firms, and judges should--and their actions en masse suggest that they increasingly do--act accordingly. That means hiring lawyers to serve as special-assistant junior lawyers to the justice.) It is easier and more reliable to say of someone who has performed exceedingly well at an appellate firm or in the Solicitor General's office that she has the "characteristics" of an excellent appellate law clerk than to say it of someone who did super-well in her first year of law school. That's true even if the excellent appellate lawyer graduated from Podunk U and the first-year student excelled at one of the usual-suspect schools. So another option for justices who value educational diversity is to use their ample knowledge of and relationships with law firms and government legal offices that specialize in the kinds of skills they're looking for, urging those employers to talent-spot from a wider range of schools and pass along their best young prospects.

Sasha's reasonable opening premise is that justices rely on a small number of schools because they have limited time and incomplete information. It's clear that judges are already using a variety of means, such as insisting on prior clerkships and looking at prospects with a longer amount of actual legal experience, to reduce the "incomplete information" problem. And we might also view all of this as a form of reducing search costs--specifically, reducing them by making other people, such as feeder judges and law firms, put in the time and work of finding and training the folks who eventually end up spending a year or two on First Street. My suggestions involve giving new search criteria to lower court judges, clerkship selection committees, and legal employers, and insisting that they maintain the same quality level but look more widely. I am thus also suggesting that all these delegates be given a more demanding and time-consuming job than the one they currently do. But I'm not sure why this is a problem. Or, to be more accurate, I'm not sure why it's my problem, or the justices' problem. They are apparently already quite content to ask others to work hard on their behalf. Asking others to work even harder on their behalf does not seem like much of a stretch, especially in light of the fact that many of those people might agree with the goal of enhancing educational diversity in the Supreme Court clerkship population. Indeed, as is often the case with bureaucratic institutions--and this is essentially what we're talking about here--those subordinates might be eager to increase clerkship educational diversity, and welcome the instruction from the delegating justice to do so, even if that entails additional work. Sometimes the reason something doesn't happen in an institution is that everyone wants it to happen and is willing to work harder to see it happen, but everyone is waiting for a first mover. 

But let's say that's not the case. Let's say the justice's delegates would rather look only at usual-suspect schools, or would rather not incur additional search costs. Let's say the justice wants educational diversity but, to do so, is going to have to make others suffer more, lose more time given over to the task of ensuring it, and perhaps even lose some of her own already-limited time and have a more unpleasant life as a justice. My answer is roughly the same: So what? The burden on those delegates sure ain't my problem, and it doesn't seem like much to suffer for the pleasure and privilege of serving as a delegate. In some cases, it's a burden the delegate ought to be taking on anyway. Elite law firms or government offices, for instance, may prefer to look at only a few schools when hiring, but I think that's a lousy preference and they should be pushed to alter it. Just as institutional clients are increasingly demanding that law firms hire and staff their cases for diversity, and in doing so may alter those firms' hiring practices despite settled and perhaps lazy habits, so the justices' insistence on educational diversity in the serious-prospect clerk pool can do the same--for firms, for elite government legal offices, and for lower court judges, especially those "feeder" judges who enjoy holding and passing along the keys to the kingdom. As for the justices themselves, if the reason judges run to Harvard and Yale for their clerks is to save time in a crowded schedule, one answer to that dilemma is: spend more time looking more broadly, suffer a more inconvenient life accordingly, and perhaps burn out more quickly. Being a Supreme Court justice is not supposed to be a pleasant job and certainly ought not be a lifetime job. And there's always another bus pulling in to the station.

I should be clear that none of this is an assault on Sasha's position. His views are, as I said in my very first sentence, reasonable. He may, for all I know, agree with most or all of what I've suggested here. And conversely, despite everything I've suggested here, I understand and, in a rather abstract way, agree with the general proposition that it is reasonable--or, as he rightly puts it, "not unreasonable"--for a justice to economize on time and compensate for incomplete information by relying on the usual-suspect schools in selecting law clerks. I just don't think that's enough, and as I think about it, it seems to me nowhere near enough. For one thing, as I've suggested and as we all know, judges already don't consider that sufficient and already do more than look at where their clerk prospects went to school. And the kinds of things they do look at or insist on, such as proven skill as a law clerk and, increasingly, proven skill as a law clerk and practicing lawyer, suggests that they already recognize the rather substantial space between "not unreasonable" and "a good and sufficient idea." Indeed, it's quite possible that those criteria now do most of the heavy lifting in clerkship selection, with the prospective's law clerk just serving as a very rough and imprecise first cull of the applicant pool. The less work the school does in actually sorting the pool for quality and suitability, the less reason there is to think of it as being anything more than "not unreasonable" at best, and the more reason there is--if we value educational diversity in law clerks--to use other measures of culling the pool, even if those measures involve giving different instructions to one's delegates and insisting that they do more work. Those delegates have plenty of incentives to do the extra work, may themselves believe that the goal of educational diversity among the Court's law clerks is worth incurring that extra burden, and certainly have plenty of competitors who would be willing to take their place even if substantial labor were involved. 

Of course two or three things are possible in explaining why this doesn't happen more. One is that judges, like everyone else, may be acting "not unreasonably" but also lazily, relying on custom and habit whether it comports with their normative preferences or not and whether or not the custom and habit make all that much sense.

Another is that the justices may not especially want or care about educational diversity among their law clerks. Some justices clearly and explicitly do, but most may not. That is perhaps understandable, given that the justices themselves are selected from among an extremely narrow band of law schools, for reasons that honestly don't make much sense politically or even practically. One reason for that, in turn, might be that although elected officials with law degrees are themselves likely to come from a broader range of schools, their top staff, who are charged with finding prospective justices, may come disproportionately from the usual-suspect schools and, whatever their ostensible political views, make usual-suspect elitist assumptions about credentials and clubbability, and about talent and where to find it. As is usually the case with the reproduction of hierarchy, the old TV-commercial phrase "You're soaking in it now" seems appropriate. Perhaps they care about it enough to pay lip service to it, including by insisting that the only reason they turn to the old standbys so often is to save on time and ensure consistent quality. But there are lots of things to do about that, many of which they already do, and they could indeed always spend more time and suffer a little more for it--or make their delegates do so, at little or no cost to their own time. So it may be the case that they care about educational diversity a little--but not much, and not enough to do much about it. Some candor about this, from the justices or their delegates, might be refreshing. The phrase "my conduct with respect to educational diversity among my law clerks is not unreasonable" is perfectly consistent, given the scope of a phrase like "not unreasonable," with "I really can't be bothered to do more." It's human, unattractive, and honest. 

A third possibility is that whatever lip service the justices, or others, pay to the idea that terrific law clerks can come from many law schools, or perhaps any law school in the country, they do not actually believe it. They may sincerely believe that those two, or five, or ten law schools are not only the best law schools in the country, but also the sole repository of the best law students in the country. They may sincerely believe it, but not openly believe it. It is relatively rare to find someone like Justice Scalia, who said when asked about this, "By and large,...I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest." (Note his enjoyable distinction between having the best students and actually being the best schools for training lawyers.) But it may be that many people do in fact agree with Scalia, including most of the current justices--and many others off the Court, including the many judges, professors, and others who participate in or influence the system of clerk and judicial selection. 

Most of us, at least outside the top ten schools, have said countless times that our best students are at least the equal of the best law students anywhere in the country. One reason we say this is because we think it's true, having seen how terrific these students are; I have taught at six different law schools, with widely varying student bodies and US News or other rankings, and I think it's true, although in my experience, it's also true that what we might think of as the law-related social capital of those best students does indeed vary between schools. Another reason we say it is that it's encouraging to the students, diplomatic to our colleagues and others, and just plain prudent to say so. But it's far from clear to me that our revealed preferences are consistent with these kinds of statements and beliefs. And the justices' actions, for the most part, are not consistent with them either. Sasha, with an assist from Scalia, suggests a reason why one might think otherwise: the top schools are able to admit the students with the best metrics, everyone cares about those metrics and thinks they have real descriptive and predictive value (despite whatever they may say to the contrary), and then those best students are thrown into competition with each other and the very best emerge from that competition. It is, in particular, the competition between and consequent sorting among those high-metric students that does the work, with maybe a little law-teaching making a small contribution and a lot of law-exam grading making a very large one. (I am sure the faculty at top-ten schools will be glad and proud to know that, on this view, the primary and overwhelming contribution they make to what one of those schools calls "mak[ing] an impact in the world at large" and Justice O'Connor called "the path to leadership" is...grading exams.) The top student at second-tier school X may be absolutely extraordinary. But she didn't have those metrics, and so is not that great; or she had the metrics but not the competition, and so...is not that great.

Scalia aside, not many people say this. Although he initially frames the question in terms of economizing on time and dealing with incomplete information, and despite saying that he has had "Supreme-Court-quality students here at Emory," which is not exactly a bottom-of-the-barrel school in any event, Sasha does say something like this in his quote in the Post story, in which he says, "I really would trust an A-student at Harvard or Yale more than I would trust an A-student at Emory to be a Supreme Court clerk." Quotes may be taken out of context, but he says something similar in his post: "[I]f you look at a Harvard student and a lower-down-school student with identical credentials on paper, including identical grades or class ranks, identical-sounding recommendations, etc.[,] the Harvard A student is likely to be a better clerkship hire." These statements aren't just about search or information costs, it seems to me. (They are also not relevant to Supreme Court clerkships, it also seems to me, because at that stage you are already looking at more indicative information, such as how they performed for a lower court judge or in practice. At that point, they are being observed by an experienced judge or practicing lawyer and directly compared to other clerks and young lawyers from that and other years, including clerks and lawyers from the usual-suspect schools.) In any event, whatever they might say about the not-unreasonableness of sticking with a few schools because of time constraints, relatively few people would say that the top students at those schools are just better than the top students other than those at about ten out of some 200 law schools, full stop. 

Perhaps that's because not many people actually believe it. But I think the number of judges, law professors, and other gatekeepers who do believe it is a good deal larger than the number who say it. If we leave out the question of "law-related social capital," especially in light of the fact that at the Supreme Court clerkship stage the social capital gap has narrowed because we're talking about prospects who have started amassing that capital as clerks or in practice, I think it's not true. But the flip side of my earlier doubt about how important it is who gets to serve as a Supreme Court clerk is that I doubt it it would hurt the sound development of the law if the person clerking there got her A's at Emory, or Alabama, or a great many other schools, rather than Harvard, especially in light of whatever else they've done since graduating. I think it would be good for the Court and the justices, and a good in itself, if they did indeed do a better job of looking more widely and achieving greater educational diversity in their clerk hires. And given the interconnectedness of the legal system and its credentialist hierarchy, I think it would also redound to the benefit of better, smarter, and fairer hiring by lower court judges and by elite law firms and government legal departments. (And perhaps, eventually, deus volent, by law school faculty hiring committees.) Personally, I don't particularly care if it means the justices have to work harder, spend more time, and take more risks. But given the enormous amount they already outsource and the ease with which they can make educational diversity, with any additional costs imposed on their delegates and not themselves, I can't see why they don't do a better job on this without incurring much of cost or risk. Unless they either don't care, or have what at that point, given all the other and more reliable inputs, would be a far less rational preference for usual-suspect graduates. Which is not "not unreasonable." 

  

A Changing Vantage Point

In the new Section Three paper that I'm writing, I will make the following point about a basic difference in constitutional attitude between 2022 and 1868.

When Section Three of the Fourteenth Amendment was written and applied, the discussion focused almost entirely on the wisdom of taking away the civil right of some citizens to run for office. Indeed, the Supreme Court was asked (though did not decide) if Section Three could be squared with the Privileges or Immunities Clause. The premise was that running for office was a privilege or immunity of citizens. You see this thinking even in the 1970s, as the Section Three amnesty given to Robert E. Lee and Jefferson Davis talked specifically about restoring their citizenship. In other words, you were not an equal citizen if were ineligible to hold office.

Today, though, we think of exclusion from office as more about the interests of voters. When the disqualification litigation against Donald Trump gets underway, litigants are more likely to concentrate on whether his voters are being harmed (or democracy in general) rather than on Trump's personal right to serve.

What accounts for this shift? Well, democracy is given more weight in 2022 than in 1868 due to the expansion of suffrage and the direct election of Senators. I'm not sure if there is more.

Georgia trial court rejects judicial departmentalism

A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.

Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a  law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.

Here is the topper:

What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.

If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.

One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.

Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:

    • Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.

    • How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.

A Hung House of Representatives

If we lived in a parliamentary democracy, we would probably be holding another election in six months. When one party holds only a one or two seat majority, as may well be the case in the House when all of the votes are counted, the chamber becomes unstable and impossible to govern. Section Three challenges will be brought against a couple of Republican members. People die, get sick, or resign, which could change majority control. Electing a Speaker may take weeks. And a handful of members can hold up any bill. Yikes.

This kind of deadlock has occurred in the past, but I think only when there was a third party in Congress (like in the 1850s, when it sometimes took months to elect the Speaker). 

Chamber of Commerce on corporate speech

The chief legal officer of the U.S. Chamber of Commerce told a Fed Soc panel (paywalled) that corporate activism--particularly so-called "ESG (environmental, social, and governance) investment--is First Amendment protected corporate speech. The statement comes days after Sens. Chuck Grassley, Tom Cotton, Marsha Blackburn, Mike Lee and Marco Rubio-- anticipating a Senate majority--sent a letter to numerous law firms threatening them with investigations for assisting corporations in that activity.

So two issues for the other side of the political and ideological spectrum:

• Will the Chamber of Commerce pursue this First Amendment position in court and in legislative chambers if and when Republican officials come after some of these companies and their lawyers?

• I thought FedSoc and the conservative constitutional movement oppose canceling, threatening, or targeting lawyers for representing clients on causes of which they disapprove. It was bad when people criticized or sought to impose market consequences on firms helping Donald Trump and his minions bring frivolous cases to overthrow the election with frivolous cases. Apparently it is ok to threaten government action against law firms that helping companies take steps not to help the environment or the common good.

Section Three: The Sequel

I'm pleased to say that I will participate in a 14th Amendment Symposium organized by the Penn Journal of Constitutional Law in January. At that Symposium, I'll present a paper (not yet written) tentatively entitled: "The Shadow of the Past: Section Three of the Fourteenth Amendment and the January 6th Insurrection." More on this in the coming weeks.

Argument in Talevski

Here is my recap of Tuesday's argument in HHC v. Talevski, considering whether any Spending Clause enactments can be enforced through § 1983 litigation. I remain bad at predictions, but best guess: The Court will not categorically reject § 1983 enforcement, perhaps unanimously. But a majority will hold that FNHRA precludes private enforcement (the SG's position) because of the statute's comprehensive administrative scheme.

Coenen & Coenen, Principles of Constitutional Structure

I'm happy to recommend Principles of Constitutional Structure, a new book in West's hornbook series that, as the ad copy says, "offers an overview of federalism, the separation of powers, and related matters of constitutional structure." It's by Dan T. Coenen & Michael Coenen. Although it grew out of a book on the Commerce Clause by Dan Coenen, I was drawn to it by its broader scope and specifically its treatment of separation of powers. I can't say I've read it from cover to cover, but what I've read is clear, interesting, and well-sourced. Kudos to the Coenens. 

How's That Leak Investigation Going?

Remember the Dobbs leak? And the leak investigation? No? That's probably what the Supreme Court wants.

I don't think that the Justices want to know how who the leaker was, and I certainly think that they do not want anyone outside the Court to know. So far, so good. 

SCOTUS questioning

What should we call the Justice-by-Justice questioning tacked onto the open questioning in SCOTUS arguments. (This is a vestige of the process from telephone arguments during COVID). During Tuesday's Mallory arguments, Justice Sotomayor called it "round-robin," a term I have used informally. But that does not seem accurate--a round-robin is a tournament format in which every team faces one another. Obviously the Justices do not face one another. And round-robin does not describe one competitor facing each of nine opponents.

In a more formal writing, I used  "serial questioning" or "sequential questioning," either more accurate. This is a series of questions by a series of Justices, asked sequentially.

(Guest Post) The Mallory Argument on Personal Jurisdiction via Corporate Registration

The following is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western); this is the latest in a series of posts on the case. I have been focused on elections and Tuesday's other argument, but I hope to add something  to this discussion later this week.

The Supreme Court heard argument yesterday in Mallory v. Norfolk Southern Railway Co., which addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see here, here, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.

Originalism and the Historical Archival Brief

Mallory’s primary argument is that the Pennsylvania statute is constitutional under the original public meaning of the Fourteenth Amendment. His merits brief includes an exhaustive compilation of state statutes during the 1800s tying corporate registration to a state’s adjudicative jurisdiction, with the first of these statutes appearing in the 1820s. This listing is not a surprising strategy for a plaintiff confronting a Court that has a reputation for being sympathetic to business interests while also (at least sometimes) singing the praises of originalism. Such historical archival compilations may become as commonplace in constitutional cases before the Roberts Court as the Brandeis brief was during the Lochner era.

But several Justices questioned the impact of these statutes, as did the railroad. Justice Barrett doubted that all the listed statutes were on point—some involved questions of service of process and others did not authorize all claims against the registering defendant, but rather only claims brought by a resident of the forum. The railroad also argued that most of the statutes were distinguishable and that nineteenth century cases did not support that jurisdiction was appropriate under these statutes when the plaintiff was a nonresident and the cause of action arose outside the forum. Mallory responded that all the statutes were relevant, while admitting that there were very few cases that employed these statutes in “foreign cubed” cases, where neither the defendant nor the plaintiff was a resident of the forum and the events giving rise to the claim occurred outside the forum. The statutes were more commonly applied in “foreign squared” cases, where at least the plaintiff was a resident of the forum. But in response to Justice Alito, Mallory maintained that the existence of the statutes was enough—he did not have to show a tradition of those statutes being applied by the courts to establish original public meaning.

Justice Thomas asked a question that he was able to avoid (by discounting the many proffered analogies to gun restrictions in the Founding and Reconstruction eras) in his opinion this summer in New York State Rifle & Pistol Association v. Bruen—how many state statutes are necessary to establish the original meaning? Mallory responded that was a difficult issue, but thought the compilation of statutes in the brief satisfied the requirement. But that would not be the case, of course, if the Court views the statutes as distinguishable.

Registration as Consent?

Justice Thomas also embarked on questioning that became a consistent theme throughout the argument—is the Pennsylvania statute really evidence of consent? Justice Kagan queried whether the registration-to-do-business form could be a form of actual consent when it does not specify the consequences of the registration: “All the piece of paper does is comply with a state law requirement that everyone who does business in the state has to make their identities known . . . [s]o where is the consent to jurisdiction in that?” Wasn’t any such “consent” therefore fictional, and how would that differ from a statute providing that intrastate business activities would subject a nonresident corporate defendant to general jurisdiction? The railroad also hammered this point, arguing that ex ante consent was only permissible in a private contract (apparently like the adhesion contracts corporations force on consumers with arbitration agreements or forum selection clauses), but not in an agreement with the state.

Mallory responded that pieces of paper matter—incorporation is a matter of filing papers that grants the state general personal jurisdiction, and the same should occur when a nonresident corporation registers to do business and the state by statute specifies the jurisdictional consequences of that registration. This was supported, Mallory continued, by the longstanding history and tradition of statutes and judicial decisions recognizing registration to do business as a constitutionally permissible method to obtain consent to personal jurisdiction.

Chief Justice Roberts replied that “history and tradition move on” and indicated that the minimum contacts analysis in International Shoe Co. v. Washington dispensed with these older cases. But Mallory maintained that International Shoe recognized jurisdiction based on “consent to be sued or authorization to an agent to accept service of process.” He continued that consent was a traditional basis of jurisdiction—like the tag jurisdiction upheld in Burnham v. Superior Court—and could exist side-by-side with the minimum contacts standard (although no one discussed how Shaffer v. Heitner might impact that possibility). Justice Gorsuch also rallied to Mallory’s defense, arguing that, if tag jurisdiction can exist alongside International Shoe, so can consent jurisdiction through registration.

Justices Kagan and Kavanaugh were concerned that this would effectively undercut the “at home” standard for general jurisdiction from Daimler AG v. Bauman and Goodyear Dunlop Tires Operations, S.A. v. Brown. Justice Kavanaugh noted that, if the Court found in favor of Mallory, “every state could have a statute like this,” meaning “that every business would be at home throughout the country.” This would, as the Second Circuit colorfully maintained, rob Daimler of meaning “by a back-door thief.”

Corporations v. Natural Persons

Justice Gorsuch answered this concern by returning to tag jurisdiction, reiterating a question from his concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court: why should corporations have special protections from jurisdiction based on registration when individuals in a forum state can be tagged? Mallory agreed that there was no basis for such a distinction: “Obviously, the language of the Fourteenth Amendment speaks to persons, and it doesn’t create . . . a person that’s entitled to better constitutional rights because they were birthed by filing a piece of paper in Virginia as opposed to . . . being birthed by a mother at a hospital.”

The railroad, of course, had a different view. Tag jurisdiction against natural persons, the railroad contended, was supported by a longstanding historical tradition, while there was only a smattering of statutes and almost no cases indicating that registration could support general jurisdiction. The railroad maintained that the old service of process statutes referenced in Mallory’s brief were simply not enough. And tag jurisdiction was also different since a person can only be in one state at a time, while a corporation might be coerced to consent to jurisdiction simultaneously in each and every state.

The Unconstitutional Conditions Doctrine and State Sovereign Interests

In addition to the argument that its registration was not a form of consent, the railroad pushed the argument that any consent would be an unconstitutional condition. The railroad claimed a right to be free from general jurisdiction when it was not “at home” in the forum, urging that coercing its agreement to jurisdiction to secure its right to conduct business in Pennsylvania would be unconstitutionally coercive. Although its brief was more nuanced, acknowledging the possibility without agreeing that consent through a registration statute might be permissible for claims by state residents, the railroad insisted on a bright line during oral argument that any consent outside the contours of specific jurisdiction was an unconstitutional condition.

Mallory countered that the unconstitutional conditions doctrine did not apply. He said that the history and tradition of these registration statutes removed them from scrutiny as an unconstitutional condition. Also, the greater power of a state to totally shut down a market includes the lesser power to obtain a consent to jurisdiction.

Mallory had immediate pushback from Justices Kavanaugh and Alito on whether a state today could shut down a market under the dormant Commerce Clause. Mallory urged that under the original meaning a state could do so, while recognizing the tension with the Court’s dormant Commerce Clause cases. Here Mallory may have missed an opportunity to distinguish between intrastate and interstate business activities, although it was alluded to by Justice Jackson—while precedent establishes a state cannot bar a nonresident corporate defendant’s interstate activities, it might (at least arguably) have the ability to exclude a corporation for failing to register when it performs a sufficient quantum of intrastate business activities, as we discuss in a prior writing.

And speaking of our writings, Justice Sotomayor asked Mallory about the amicus brief that we co-authored with Robin Effron, Jack Preis, Jeff Rensberger, and Aaron Simowitz. She referred to our position that consent through registration to do business could be constitutional, but only if the state has a sovereign interest in the dispute. And, if our argument was accepted, what would be the sovereign interest in this case? Mallory urged that historically a sovereign interest was not required (which we dispute in our brief). He then continued that even if a sovereign interest was necessary, Pennsylvania had a state interest in opening its courthouse doors to everyone. He pointed to state constitutional right-to-remedy and open-courts provisions, urging they established a foundational understanding that a resident should have a forum, with states also having a sovereign interest in treating residents and nonresidents the same. But the Court’s past cases, as we point out in our brief, have distinguished between a state’s sovereign interests with respect to residents and nonresidents.

In a lengthy follow-up question, Justice Kagan seemed skeptical that Pennsylvania had a sovereign interest. The railroad also pointed out that Pennsylvania had not asserted a sovereign interest in the case by trying to defend the constitutionality of the statute. Yet perhaps there is an interest in the case due to the amount of business that the railroad does in Pennsylvania. Indeed, it appears the reason the suit was filed in Pennsylvania is that the union lawyer soliciting these carcinogenic exposure cases was based in Pennsylvania and then referred Mallory to Pennsylvania counsel, which is not surprising when more of the railroad’s employees work in Pennsylvania than in any other state.

Daimler Revisited?

Justice Sotomayor expressed her continued disagreement with Daimler, using this case as an illustration. Even though it was not in the record, an amicus brief detailed that the railroad operates more track and has more employees in Pennsylvania than it does in any other state in the union. While recognizing the possibility of coercion in registration in cases of smaller companies, there was no injustice here when the railroad was conducting that much business in the state. The only reason it was not “at home” in Pennsylvania was that it had its corporate offices in Virginia and identified Virginia as its corporate headquarters and principal place of business.

It’s not clear, though, that any other Justice desires to revisit Daimler. Justice Jackson appears to favor Mallory on a waiver theory—the railroad waived any ability to assert its due process rights by registering to do business. Justice Gorsuch (perhaps joined by Justice Thomas) seems willing to uphold jurisdiction based on the original meaning of consent-by-registration statutes and a comparison to tag jurisdiction for natural persons, with the unequal treatment “due process Lochnerism for corporations.”

But the remainder of the Court appears disinclined to hold for Mallory. Some Justices discussed our intermediate position of requiring a state sovereign interest, and the United States also recognized that there could be situations where a registration statute might support jurisdictional consent when specific jurisdiction is not present. But historically, the United States continued, these registration statutes were limited to claims either by a forum resident or that had some other relationship to the dispute, echoing the position we took in our amicus brief.

Oral argument showed that the Justices had very different views about the basis for constitutional limits on personal jurisdiction. Justices suggested approaches for resolving the case that ranged from due process to principles flowing from the dormant Commerce Clause to unconstitutional conditions—a set of topics where each one, on its own, has given rise to a thorny doctrinal tangle. Clearing a path to five votes won’t be easy.

Justice Harlan and Justice Black

I'm reading Peter Canellos's biography of Justice Harlan (the elder). One thing that stands out is Harlan's rhetoric on race when he ran unsuccessfully for Governor of Kentucky in 1871. There is a definite connection between his defense of civil rights and racial equality on the stump and what he said later on the Court.

I am also struck by the parallels between Justice Harlan and Justice Hugo Black. Both men stood alone in arguing that the Bill of Rights should apply to the states. And both took strong positions on racial equality in spite of their southern or border state roots. Yet both also were members of nativist organizations before reaching the Court. Black was a member of the Ku Klux Klan. Harlan was part of the Know-Nothing Party.

Perhaps there is something in the idea that converts are the loudest members of the choir. In other words, the revulsion or regret that both Harlan and Black felt about their past associations made them stronger advocates for rights and equality from the bench.

§ 1983 and the Spending Clause

SCOTUS hears argument Tuesday in Health & Hospital Corp. v. Talevski, considering whether Spending Clause enactments (there, the Federal Nursing Home Reform Act of 1987 ("FNHRA")) can be enforced in damages actions under § 1983. I am covering the case for SCOTUSBlog; here is my case preview.

This is the latest in the Court's move to limit private rights of action, but with an important twist. The supposed separation of powers arguments driving limits on Bivens and implied statutory rights of action--Congress, not the courts, should make the policy choices and balancing of interests in creating private rights of action and Congress has not done so--do not apply. Congress made that choice in enacting 1983 as a free-standing cause of action and including the phrase "and laws" to allow plaintiffs to enforce statutory rights beyond constitutional rights. Not that I do not expect the Court to find some new means to its preferred end of limiting private litigation. Just that the recitation of separation of powers will not do it in this case.

JOTWELL: Effron on Simon on bankruptcy as aggregate litigation

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Lindsey D. Simon, Bankrtupcy Grifters, 131 Yale L.J. 1154 (2022), which considers bankruptcy as a tool of aggregate litigation and the problem of solvent debtors running to bankruptcy to avoid mass-tort litigation.

Adjectives and verbs

When Donald Trump ran for President in 2016, there was a lot of talk about whether he was racist, which allowed him to defend himself by insisting he is "the least racist person" anyone has ever met. I wrote a post at the time arguing that it was a mistake to speak of whether some one "is ____," as opposed to whether the person "does ___ things." Stated differently, it is the difference in the law of evidence between "who someone is" and "what someone does." The former is unhelpful because it is impossible to look into someone's soul, it can be repeated as an insult, and it is too easy for them simply to deny that is "who they are." The latter allows us to evaluate conduct--the policy you propose would treat Muslims differently than other religious groups. Even if you are not a racist, you advocate a policy that is (whether in purpose or effect) racist.

This is playing out in the kerfuffle over the Brooklyn Nets' Kyrie Irving's tweets promoting a movie containing antisemitic ideas and messages. The Nets suspended Irving on Thursday and he apologized late on Thursday. That apology comes after several days of refusing to do so, which he explained as "I initially reacted out of emotion to being unjustly labeled Anti-Semitic." That is, he resisted when the framing was who he is rather than what he did--posting something and promoting a movie containing false and antisemitic statements. Again, a more useful framing.

Jotwell: Two articles on Supreme Court communication

I'm not as good as Howard at regularly posting pieces from Jotwell, where I help with the con law section, but--here's a jot about two articles, one by David Fontana and Christopher Krewson and the other by Barry Sullivan and Ramon Feldbrin, on, as it were, wholesale and retail communication by the Supreme Court. Here's the intro:

The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?

Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.

And something from the end:

Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.

In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.

In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.

Enjoy--and, of course, check out both articles!

Northwestern University Law Review’s Winter Exclusive Cycle Opens December 1

From the Northwestern University Law Review:

The Northwestern University Law Review will hold a winter exclusive cycle, accepting submissions from December 1, 2022 to January 6, 2023. Manuscripts submitted by January 6 will receive a decision by January 28, 2023.

Interested authors should submit their manuscripts to the Northwestern University Law Review via Scholastica, though there are supplemental terms that accompany winter exclusive cycle submissions. To begin, authors who submit through our winter-exclusive track agree to withhold their Article from submission to any other publication until receiving a final decision from the Northwestern University Law Review. Moreover, participating authors agree to accept a publication offer, should one be extended. In addition to a complete manuscript, we ask that authors submit (1) a cover letter that includes your name, Article title, word count, phone number, and email address and (2) a CV or résumé.

Additional information may be found on our Scholastica page. However, please contact Senior Articles Editor Regan Seckel at [email protected] if you have questions regarding the Winter Exclusive Cycle.

Showing off or good writing and telling the difference

Third Circuit Judge Stephanos Bibas warned of "judges gone wild" in a speech before Harvard Fed Soc. He called out "the show off, [for whom] it seems to be all about the judge's musings, even the judge's ambitions to be notice." Jonathan Adler comments.

Coincidentally, Eleventh Circuit Judge Adalberto Jordan presented FIU's Judicial Lecture on Wednesday. The conversation turned to writing style and when a "turn of phrase" is warranted and useful. As an example, Jordan wrote the majority opinion declaring invalid Florida's "Docs v. Glocks" law prohibiting doctors from inquiring about the presence of guns in their patients' homes. Speaking of the plaintiffs' reasonable fear of discipline, he wrote that doctors "who are looking down the barrel of the Board's disciplinary gun, are not required to guess whether the chamber is loaded." Is that showing off and playing to Twitter? Or is it good writing? Is the answer, as Jordan added, you can't force it or overdo it?

Update: Richard Bales (Northern Kentucky) shares a piece he wrote some time ago on prudence in using references--use references and in ways that are self-explanatory and remember that the point is to "lead your reader to a deeper understanding of your topic-not to impress the judge with your wit or your knowledge of cultural arcana."

FemTech

Today in my innovation seminar we are thinking about FemTech - the field of research, entrepreneurship, and technology innovation addressing women's health - and beyond - issues. FemTech is growing, and there has never been a more exciting, and at the same time, challenging moment to use technology to correct the gender health and research gaps . As a new report shows, clinical trials too often are based on unrepresentative groups and data. Technology can help us study and track and learn about patterns and solutions to health issues, but of course technology can also serve to monitor women's reproductive choices in illegitimate ways. We are reading today for class this, and I assigned a listen to this excellent podcast, https://femtechfocus.org/podcast/ 

Any examples of successful or much needed FemTech innovation most welcome! Here at University of San Diego we are also starting a local accelerator FemTech innovation engine.

 

More on SB8 and its imitators: NYT v. Sullivan as Historical Analogue

Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan--a campaign of private civil litigation designed to chill conduct through costly litigation and liability--offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.

Here is the abstract:

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.

This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.

The Problem With Too Much Data Privacy

I have a short piece, related to my new book The Equality Machine, and current research - a law review article called the The Law of AI for Good, this week in Time called The Problem With Too Much Data Privacy.

Here is a taste:

Privacy has long dominated our social and legal debates about technology. The Federal Trade Commission and other central regulators aim to strengthen protections against the collection of personal data. Data minimization is the default set in Europe by the GDPR and a new bill before U.S. Congress, The American Data Privacy and Protection Act, similarly seeks to further privacy’s primacy.

Privacy is important when it protects people against harmful surveillance and public disclosure of personal information. But privacy is just one of our democratic society’s many values, and prohibiting safe and equitable data collection can conflict with other equally valuable social goals. While we have always faced difficult choices between competing values—safety, health, access, freedom of expression and equality—advances in technology make it increasingly possible for data to be anonymized and secured to balance individual interests with the public good. Privileging privacy, instead of openly acknowledging the need to balance privacy with fuller and representative data collection, obscures the many ways in which data is a public good. Too much privacy—just like too little privacy—can undermine the ways we can use information for progressive change.

Affirmative action alternative? (Guest Suzanna Sherry)

The following post is by Suzanna Sherry (emerita at Vanderbilt and friend of the blog).

On Monday, the U.S. Supreme Court heard oral arguments about the legality of affirmative action. Some time before the end of June, the Court may well hold that it is illegal – either under the Constitution, a federal statute, or both – for colleges and universities to use race as a factor in deciding which students to admit. Conservatives hope, and liberals fear, that this will mean the end of affirmative action in educational institutions.

It won’t. Elite colleges and universities will quickly adapt, changing their admissions policies to achieve their goal of a racially diverse student body while purporting to be race-neutral. It will take only three easy steps.

Step one: Make the submission of SAT or ACT scores optional (some universities have already done so). This will break the applicants for admission into two pools. One, the test-submission pool, will consist of students who earned high scores on the tests. It will be almost entirely white and Asian-American. The other, the no-submission pool, will consist of students who either did poorly on the tests, or did not take a test because they feared they would do poorly. This second pool will contain applicants of all races and ethnicities.

Step two: Establish criteria for admission from each pool. For the test-submission pool, the criteria will presumably be the traditional ones: test scores, high school grades, recommendation letters, and interviews. For the no-submission pool, the criteria will sound good, but they will be vague and infinitely malleable: drive to succeed, the ability to overcome obstacles, a commitment to making the world a better place, and the like. And, surprise, surprise, it will turn out that Black and Hispanic applicants meet these criteria more frequently that white applicants do, at least according to the admissions officers’ evaluations.

So the students admitted from the submission-pool will be almost all white or Asian-American. The largest percentage of students admitted from the no-submission pool will be Blacks and Hispanics, who are currently being admitted through affirmative action program. Admittees from this pool might also include applicants with other desirable attributes, such as offspring of alumni or big donors or celebrities, royalty from around the world, and the occasional prize-winning oboist desperately needed by the school’s orchestra.

Step three: Determine the distribution of students who will be admitted from each pool. This can be a fixed percentage (60% from one pool and 40% from the other), or a minimum or maximum (at least 40% from one pool, which is the same as no more than 60% from the other pool). The distribution can be stated as a goal – which allows some deviation – or as a mandatory result of the admissions process.

It might take a year or two to get the criteria and the distribution just right. But in short order, these elite colleges and universities will have the same racial distribution that they do now. And because there will be two separate pools and no objective criteria by which to compare applicants in the no-submission pool, there will be no way to prove that race played any role deciding who gets admitted.