PrawfsBlawg

Pope Benedict XVI's Legal Thought

Like many, I have been reflecting a bit on the work and thought of the late Pope Benedict XVI.  I am not qualified to provide a worth-reading reflection on these matters, but I did want to call attention to a helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

R.I.P.

George Santos, Lies, and Jewishness

I am skeptical of the new state and federal criminal investigations of George Santos will lead anywhere. I am persuaded by Eugene Volokh's arguments that campaign lies cannot be prosecuted--that counter-speech from the press and the rival candidate provide a sufficient check. (See this explanation for how opposition research works and why the Democrats failed so badly). Of course, that position rests in part on the difficulty of separating fact and opinion in political speech and in determining falsity in statements about complex policy and voting records. Santos presents something without nuance or uncertainty-factual and provably untrue statements about graduating from a college or having a grandparent born in one country at one time. But many people in American life, including politics, invent their biographies. I imagine SCOTUS would situated this in its recent line of cases refusing to criminalize politics.

There is a tempting counter argument that a candidate lying to get elected is akin to a job applicant lying in an interview--false statements to obtain a paying job (and the power that comes with it). But I think the public and widespread scope of campaign speech--paradoxically, speech is easier to sanction when it is said to a smaller group than a larger one--distinguishes the cases.

There is a nice question of whether this  affected the election and how that affects our sense of whether government can sanction his lies. Santos did not face a primary challenge for the nomination. He won the general election by more than 20,000 votes. I doubt that,when party affiliation is everything for many voters, 21,000 Republican voters would have voted differently had they known the truth about his background, education, and work history. Seeing the House GOP caucus embracing Santos and laughing about the story bolsters that thought. Perhaps Jewish identity would have prevailed over party identity, revolting against efforts to falsely appropriate our history and culture, especially the Holocaust. But I doubt it would have been 21,000 Jewish Republicans worth.

One unrelated point: Should Jews take pride that a political candidate lied to make himself Jewish and to attach himself to the name "Zabrovsky," the kind of name early-20th-century Jews ran away from. Maybe our societal position is not as tenuous as people fear--at least not in New York's Third Congressional District.

In Memoriam, Megan Fairlie (Updated)

I am sad to announce that my FIU colleague Megan Fairlie died Tuesday, following a lengthy illness. She leaves two daughters, Aileen and Maca.

Megan came to FIU in 2007. She taught Crim, Crim Pro, and PR almost every year, so she taught and touched the vast majority of COL students the past 15 years. She wrote extensively on the ICC and international criminal law. She also was a wonderful friend and colleague; I will miss her contributions to the school's intellectual community.

More details, including about a memorial service sometime in the spring, to come.

Update: The family created a Go Fund Me for Megan's daughters. Please share the link.

More on the "News"--and on "Matrix"

Here’s another item on the state of the news media, and on why we should guard against both the weakening of elite legacy newspapers and the disappearance of local news. The emphasis in this case is on the local side. This one involves a series of recent stories that have been published by Floodlight News, which describes itself as "a nonprofit newsroom that investigates the powerful interests stalling climate action," in collaboration with conventional news organizations. I don't consider advocacy "newsrooms" a substitute for straight news reporting, and I’m uneasy about such collaborations, and about the degree to which NPR and other news entities take money from and work with groups and funding organizations with particular interests and viewpoints. It's a perilous arrangement. But the reporting seems solid.

The stories involve an entity called Matrix LLC, which charmingly and vaguely advertises itself on its remarkable web page as "A Comprehensive Approach to Problem Solving." I'm surprised a phrase like that hadn't already been trademarked by David Brock or Jack Palladino. I would give Matrix a clearer description, but it dislikes clear and candid self-description ("'Invisibility is more powerful than celebrity,' reads a plaque hanging in Matrix's Montgomery office," notes one story). A lawyer for Matrix, on whom more below, calls it “a strategic communication resource for companies in a wide range of industries,” which is close to no description at all. Its clients are equally reticent. Frankly, I'm not sure what to call it. "Political consulting firm" hardly does it justice. "Secretive and pernicious organization" would be a good start. 

The first story, a collaboration between Floodlight and The Guardian that ran in July, describes, inter alia, apparent surveillance of journalists and politicians, often in the interest or at the apparent behest of two major power utilities, Alabama Power and Florida Power and Light (FPL). Drawing on internal documents they obtained, the reporters suggest that such operations were carried out by Matrix employees directly, or funded by and through Matrix.

One line in that story reads: "Matrix also exerted political influence through the press, with its operatives acquiring control of a Tallahassee-based politics news site, The Capitolist. That gave Matrix consultants and FPL executives input on Capitolist stories." That sort of activity is the basis for the two most recent stories, both published this week. The first is an NPR/Floodlight collaboration describing, in awful detail, "six news outlets across Alabama and Florida with financial connections to the consulting firm Matrix LLC." These online news outlets have varied politics but one thing in common, the story suggests: their willingness to carry water for Florida Power and Light and Alabama Power, attacking its critics and those who advocate for such outlandish schemes as actually holding a formal rate hearing for the first time in decades. Here's a passage:

A tally of the five still-functioning sites show they have a collective audience of 1.3 million unique monthly visitors. Many of their consumers are political professionals, business leaders and journalists — people who help set the agenda for lawmakers and talk radio shows in both states.

These readers have been unknowingly immersing themselves in an echo chamber of questionable coverage for years.

Matrix shrewdly took advantage of the near collapse of the local newspaper industry and a concurrent plunge in trust in media in propelling its clients' interests.

"The reduction in just the size of the press corps covering state government has created a vacuum that I think tends to be filled by people who have agendas beyond serving the public interest," says former Miami Herald executive editor Tom Fiedler.

That's true. I've used at least some of these sites. I assumed they were reasonably trustworthy. And they were certainly necessary, given the consolidation, decline, and death of so many local news outlets in this region, as well as the rest of the country. (This also reminds us why it's so important to maintain the quality of elite national newspapers, which have the resources and skills to provide coverage of events beyond Washington, LA, and New York. They can't or won't do so if those resources are devoted instead to daily recaps of jokes on late night TV, light features on Christmas at Dollywood, or major takeouts on 17th century history. Their decline into collections of thought-pieces by grad-school dropouts and wall-to-wall coverage of Twitter controversies disserves news coverage in the hinterlands as well as its power centers.) In their place, we have the sorts of online "news" organizations that have "collectively received, at minimum, $900,000 from Matrix, its clients, and associated entities between 2013 and 2020."

In the piece, "All of the media organizations deny their coverage was shaped by those payments and deny they acted unethically." In the same story, the editor in chief of an outlet called Alabama Political Reporter "acknowledges that Matrix also paid for reporters to do research for the firm, an atypical practice for newsrooms." His deathless justification: "We have to make money." Particularly poignant, albeit disgusting, is the story’s discussion of an outlet called Florida Politics:

Of all the leaders of sites with links to Matrix, only one, Florida Politics Publisher Peter Schorsch, acknowledges he doesn't observe traditional journalistic practices when deciding what to cover.

In an interview, Schorsch says he practices "combination journalism": He says Florida Politics' coverage is not dictated by advertisers, but it often gives them favorable coverage. And, he says, sometimes he gives them more coverage.

"Once a relationship is developed, if they come to us with the pitch [to cover a story], yes, they are going to be at the front of the daily line as opposed to a national advertiser making a pitch who I've never dealt with before," Schorsch says. "I will say there's a very big wall in our operations" between advertisers and coverage.

A 2021 invoice shared by Schorsch shows that Florida Power & Light paid the site $43,000 for advertising, enough to cover the cost of a full-time reporter. Schorsch says his reporters do private research for clients too, though he would not specify what that entailed.

By his own account, Schorsch also was paid roughly $100,000 by Apryl Marie Fogel, the publisher of Alabama Today, another of the Matrix-linked sites. The money went for help with "editorial and digital tech services," he tells NPR and Floodlight. Fogel, who is also former Matrix CEO [Jeff] Pitts' romantic partner, received more than $140,000 from Matrix, the firm's records show. (She declines to comment on her ties to Matrix, saying "not my monkeys, not my circus.")….

[Schorsch] defends his model of journalism.

"I'm not trying to pretend that I'm an angel or anything like that," Schorsch says. "But ... man. If I go, there's nothing left in this f***ing space. There's like the Tampa Bay Times, the Miami Herald, and you're down to nothing."

It should be obvious that there is journalism and there is not-journalism. "Curatorial journalism," for example, is not actually journalism. And certainly "combination journalism" is not either. What three decades of enthusiastic references to “democratizing the press,” “citizen-reporters,” “public journalism,” “cheap speech,” and so on miss is professionalism, a concept that does not include within it detailing one's reporters to do "private research for clients." At that point, you might as well call yourself a private investigative agency that happens to publish a pamphlet from time to time to amuse the public. But Schorsch isn’t wrong when he says there's not much left in this f***ing space.

The third, but I hope not the last, story, also with NPR, is no less astounding. You should just read it. In short, it describes a freelance producer who did work for ABC News in Florida—while also taking thousands of dollars from Matrix and apparently using her credentials as an alleged journalist to attempt to undermine and embarrass individuals whose positions were uncongenial to Florida Power & Light.

The usual denials and refusals to comment are involved. An added twist is that the two leading figures at Matrix, Joe Perkins and former CEO Jeff Pitts, fell out when Pitts left the entity and are in litigation, so there are plenty of opportunities for each to blame the other. In other stories, when asked what Matrix has actually done for them, its clients have said things like, "As you know, under current law, consultants and advertising firms are not required to detail expenditures....Matrix has assured us that should the law change, they will be more than happy to comply." It is apparently unthinkable that a Matrix client might volunteer information about what Matrix did for it, or instruct its client to do so. (The client in this case is the mayor of my university’s hometown, Tuscaloosa’s Walt Maddox.)   

I should add that I’m less concerned here about lawbreaking; it's not clear any is alleged. Rather, I'm disturbed by the corruption—in the sense, more important than the narrower sense of dishonesty or illegality, of moral contamination or depravity. Most corrupt conduct is perfectly legal. It's the way the world works, although being comfortable with phrases like "it's the way the world works" is itself pretty good evidence of one's corruption. (The older I get, the more I appreciate the value of naïveté. The journey from innocence to experience is a lifelong one. The journey from experience to corruption is short and swift.)

I should be clear that the corruption doesn’t run along partisan lines. As the stories note, Matrix was happy to subsidize "news" outlets of varied politics, as long as they came through in the clinch. The list of folks who have used Matrix's services or received its money, only some of whom have ended up in prison or other legal trouble for various things, cuts across party lines, even though Alabama is largely a one-party state. It includes former Democratic governor and convicted felon Don Siegelman and former Democratic gubernatorial candidate and current Tuscaloosa mayor Walt Maddox. But it has also helped Republicans, business interests, business-aligned PACs, and so on. It includes some politicians I used to respect, although respecting someone who consorts with Matrix is impossible for a decent person. Using corruption in the small-c sense, I have long held that the problem with my home state of Alabama is that it leaped directly from 19th-century corruption into 21st-century corruption without much of a 20th-century good-government phase. Matrix is the dictionary definition of 21st-century corruption, and it is bipartisan. Its corrupting effects are evident. Maddox used to be thought of as a pretty decent mayor. It's been some time since anyone sensible has said that about him.

That took me a little further afield, for reasons I'll note at the end. But the connection to the news is evident. Only some of our readers live in the usual metropoli, and even those places have been losing their newspapers at a rapid rate. (I won't speak of broadcast news, for evident reasons.) If you live in most of the country, you too have probably turned to what look like independent online news sources that cover news or local events in your state or region. Of course it's the Internet, and you may approach them with reasonable skepticism—as you may also approach more established news entities. But if they look legitimate, seem to act legitimate, and occasionally carry a useful and decent story, you may think you are getting a proper substitute for the local papers we used to have. The Matrix stories indicate otherwise. As the story about the ABC producer suggests, these activities make it hard to assume that even established news entities are able to police their own field. As for the others: well, "We have to make money." 

Personal disclosure: Stories about Matrix are particularly interesting to me because it was heavily involved in my wife's unsuccessful reelection campaign when she served on the Tuscaloosa City School Board, with Matrix having been paid some $100,000 by a slate of candidates in that local school board race. (The why is beyond me. But construction is a big deal in any city.) Its clients included my wife's successful opponent, Cason Kirby, a graduate of my law school who paid Matrix some $20,000 during that campaign and who now has the dubious honor of having acted as a lawyer for that entity. (His wife, Madolyn Kirby, was or is a Matrix employee, including being paid by Matrix while serving, apparently without salary, as campaign manager for Walt Maddox’s gubernatorial campaign.) It was also paid by Lee Garrison, the apparent architect of running that slate, who while on the board regularly advocated for the school system's bond business to be handled by the investment banking firm of Frazer Lanier. After his political service, he went to work for that firm, which later on, over objections, became the sole firm handling a $500 million urban development plan that has been Mayor Maddox's signature project. Finally, a breeding ground for both employees and clients of Matrix is the Machine, a student group, also secretive and pernicious, that has operated at the University of Alabama for decades and was involved in helping defeat my wife. 

I think this disclosure is called for, but it does not affect the accuracy of anything I wrote about, or my concerns about the corruption of--among many other things--state and local news sources. It affects only my sense of pleasure in sharing these stories.  

 

Twitter as Institutional and Self-Corruption

At his Substack page, Josh Barro has a useful intervention into the relationship between Twitter and journalism. As a former journalist--very briefly, but it was a formative experience--with an abiding interest in the press and its role both in the First Amendment and in our social, legal, and political firmament, I found it to be a good one-stop source of reasons why the addictive relationship between legacy press institutions and social media has been so damaging. I say so somewhat sympathetically, since it is clear that the managers of those institutions hoped they would help stave off decline in an industry facing so much competition from online sources and so much apathy from readers. But only somewhat sympathetically, since it has long become clear both that this is a dubious hope and that the strategy has maimed the patient to a degree that calls into question the point of keeping it alive. Barro's bottom line is that rather than demand that journalists recently thrown off Twitter (quite wrongly, although I think Taylor Lorenz is a one-person wrecking crew for the quality of any serious newspaper she has worked at) be reinstated, newsroom managers should treat the event as "an opening for [them] to do what they ought to have done long ago: Order their employees to drop their Twitter addictions, stop sharing their pithy opinions in an effort to build a personal brand, and get back to work." Some arguments he offers, mixed with a few observations:

• "Twitter’s usefulness for reporting has sometimes turned into a dependency." Quite right. It is astounding the number of stories in the Times--the serious paper I read most frequently, despite its evident flaws--that report on Twitter controversies, rely on tweets for color and quotes, or use Twitter as their sole or near-sole fund of sources. As he notes, using social media as a databank for sources and quotes is "also biasing and distorting — the loudest voices on Twitter within a given field, such as medicine, often aren’t representative of broad opinion within the field." And it fosters incredible laziness. Former American Lawyer editor Steven Brill, a great journalist in his own right, used to instruct his reporters, when working on a piece about a lawyer at a firm who declined to cooperate with a story or profile, to pick up the phone and call every single person at that firm until they found people willing to talk. When Woodward and Bernstein received a list of employees of CREEP, they visited every person on that list, in person and often multiple times. That's called "shoe-leather reporting"--talking to numerous people, reading innumerable documents, and doing it all over again. Trawling or cherry-picking social media is no substitute for it. But it is easy--and, not insignificantly for newspapers, fast and cheap. 
• "Twitter has made it very difficult to enforce editorial standards." That's a correct claim, in my view, although very broadly stated and without much causal explanation in itself. But Barro offers more here. One problem, he notes, is that reporters' addiction to opining online has damaged readers' trust. Of course this is not the fault of social media alone; in the last several years many journalists have argued that journalists ought to abandon what's been called "a model of professed objectivity." I think they're wrong. (And the rote response that "objectivity is a myth" is woefully insufficient. Of course it is: It's an organizing belief and model of conduct, one tied to that institution's model of professionalism. That it is not perfectly achievable has been understood by just about everyone always. It is still a better organizing ideal for most news organizations than the alternative--and although its contemporary critics argued that abandoning it would help readers, lead more clearly to truth, and avoid obfuscation, it has achieved none of those results. Exploring the nature of a myth is always useful; equating "myth" with falsehood or assuming that the opposite of that myth is necessarily a good thing is fatuous.) Twitter and other social media have intersected with that point because loudly stating those views online drives up the (online) popularity of those individuals and is good for their personal advancement and their egos. That doesn't mean it's good for their institutions or for journalism.  Barro adds that the tendency toward conformity online, the desire to keep one's admirers and avoid getting shot at from within one's own lines, exacerbates the tendency of the reporters who are eager to share their views and politics--which are generally the same views, within the elitepress--to fall in line and avoid messing with the conventional wisdom of the moment, while causing others to remain silent for the same reasons. 
• Barro argues that "Places like The New York Times — having observed that their staffs are constantly expressing their biases out in the open, in a format that admittedly gets a lot of engagement — have increasingly brought that viewpoint-driven journalism into their news pages, becoming explicitly liberal rather than implicitly so." Again, I think this is right. To use the overused buzzword of the day, we might see this as a problem of political economy. In their effort to survive, newsrooms have been less likely to insist that journalists maintain professionalism and more likely to give in. That's true both at a micro level, since individual reporters develop their own fame and constituencies online and make it costly to resist them, and at a macro level, as newsrooms both adapt to and buy into the raft of premises that encourage some reporters to opine all day long. That is not to deny the presence of sincere beliefs about these things. But like anything else in America, these beliefs are also monetized and incentivized, and their formation and growth is in part a matter of the economic incentives to act in this fashion and then construct, knowingly or not, a set of beliefs and rationalizations to justify it. Many newspaper reporters who abandon old-fashioned standards of professionalism to opine about politics and culture "sincerely" believe what they argue, but those views are also shaped by ambition and the love of fame. Many newsrooms that justify this behavior "sincerely" believe they are evolving to meet changing views and a new generation of reporters, but those views are also shaped by a love of clicks, a need to survive, and a fear of online and offline staff rebellion which they lack the backbone to resist. (A.G. Sulzberger has many possessions, but a backbone is not one of them.) 
• Barro argues that "marinat[ing] in the stories and the viewpoints about those stories that dominate on the platform" has "impaired news judgment." One might fairly observe, perhaps by quoting Pauline Kael, that reporters at the Times and similarly elite institutions were always marinating in something, a culture or locale that affected their worldview. But that does not make his observation incorrect. The stories and debates that draw the most attention on Twitter and other social media do not necessarily reflect the lived experience of millions of other people and most certainly do not necessarily reflect their priorities; but they increasingly seem to dominate what gets reported and how--and what gets neglected. I don't mean that in a conspiratorial sense, but in the sense that the fact that their staff live in a 24-hour world of artificial controversy has led these papers to ignore or give unduly short shrift to many other stories while focusing inordinately on the kinds of pseudo-events and pseudo-controversies that dominate that space and get attention there. 
• Barro argues also that Twitter and other social media sites, or semi-social media sites like Slack, have encouraged newsroom revolts. He adds, "Of course, a lot of people like the idea of more worker power, but the workers here tend to have bad ideas about how to run a news organization because they are so ideologically unrepresentative." I would put the latter point a little differently. I agree that they may well have bad ideas about how to run a news organization, but I'm not sure the problem is ideological. It's more that they don't care about running a news "organization" qua organization. Their interests are more personal and individual than institutional. In truth, many of them doubt the value of institutions altogether, at least insofar as those institutions act as if they have a particular function--and thus limits on what is within the expertise and jurisdiction of that institution, and on what they should and should not do, concern themselves with, or allow within the context of that institution's operations. Others, to be sure, are pushing on the definition of the institution and its function, and this is a natural and valuable part of debate and change within institutions. But in some cases the argued limits are so vaporous, the arguments for the interconnectedness of everything (and thus the obligation of the institution to do and say everything) are so vague and encompassing, the institutional loyalty is so thin, and the sense that an institution has particular functions and limits, that this is a good thing, and that people who want to do other things might perhaps do so elsewhere, is so lacking that the position is closer to calling for the dissolution of institutions and institutionalism than of calling for their evolution or reform. To maintain institutions under those circumstances requires managers who have both a sense of what the institution is there for and a willingness to assert and defend that sense, including against its own members. Although many discussions of these issues focus on the younger rebellious generation and its arguable errors, the primary responsibility and the greater problem is the lack of either will or a clear sense on the part of the older managers. The greatest crisis of our time is institutional, and the crisis lies as much or more with those who are charged with maintaining them as with those who are challenging or simply not interested in them.
• As Barro notes, that institutional point is closely related to another one: individual reporters, especially star reporters, "have gained unsustainable power at the expense of institutions." (As he notes, citing a useful piece on the relationship between stars and institutions by economist Allison Schrager, this issue is not limited to newspapers, but applies to a number of institutions today.) "One reason it’s been hard to rein in reporters on Twitter is they have their own reasons for behaving as they do." By being loud and opinionated and frequent in their tweets and posts, they get attention. (Not that that had anything to do with the rise of Prawfsblawg!) They become famous. They become "brands." They can monetize those brands. They can advance their own careers, with or without any benefit accruing to their institutions. The quality of their underlying and actual work, the thoughtfulness of the opinions they needn't voice but keep voicing anyway, the falsifiability of their claims, their willingness or unwillingness to admit error or correct the record, all these have some effect. But all of these are dwarfed by their fame and their "brand." (Not least because of polarization: their friends will happily forgive their errors or skip checking for them, and their adversaries will realize their own reputational and financial gains by harping on those errors. In the status game, polarization is a win-win scenario.) They needn't care about their home institutions; they can always leave, and as long as they remain, their weak-willed managers will probably give in to them. Of course part of this is about money, for both the reporter and the home institution, and about self-advancement in a fairly mundane sense. But money is not the only good people like to amass, and surely the profit to their status and ego is a significant element.

I would add that because the data show a strong liberal identification in reporters at elite newspapers, a lot of this can be viewed in tediously political or ideological terms. (I leave out things like magazines that take openly political views, and where it is perfectly natural that most people who work there will be associated with a set of political and cultural views.) But that seems beside the point. Their politics dwindle in importance next to their revealed preferences. They may call themselves liberal, progressive, conservative, anti-liberal, anti-capitalist, anti-elite, pro-justice, communitarian, integralist, or anything else. But their actions suggest the standard American loves: of fame, status, and money. Those are the truest, deepest politics of most social-media celebrities who are both addicted to those sites and addicted to leveraging them for personal gain, whether in financial or ego terms. (This is true even of some of the voices who rail most loudly about things like "disinformation" and "misinformation," however poorly defined, and argue for greater control of social media and perhaps of information more generally. They may believe these things; but what matters most is that they have built a profitable brand by arguing for them on social media.) Unless they are willing to take strong stands and suffer for them in the short run, institutions are no match for this kind of rampant self-serving individualism.

We could call this a social-media problem, or we could see it as a cultural problem, an institutional crisis more generally in contemporary society, that is amplified and exacerbated by social media. Either way, I think Barro is right to see the current moment not in pro- or anti-Musk terms but as an opportunity that has been handed to legacy news institutions. They ought to use the moment to reassert a modicum of responsible control: to take their reporters, qua reporters, off Twitter and other social media and to break a cycle of addiction that has not only failed to rescue them but has done incalculable damage to them as institutions.  

Does any of this apply to other institutions? Does it apply, for example, to academics, including legal academics? Does it apply to their own relationship to Twitter and other social media, their own interest in individual self-advancement, their own ideological conformity, their own damage to the general profession and particular institutions they are supposed to serve, and the failure of their institutions to address it--indeed, in many cases, those institutions' complicity in encouraging it? That question will have to wait for another time. (But the answer is yes.)  

What if "You've Got Mail," but Jewish?

In considering whether When Harry Met Sally . . . is a Jewish movie, I argued no one would believe so if you replaced Billy Crystal with Tom Hanks--and get You've Got Mail. Behold Hanukkah on Rye, the 2022 Hallmark Chanukkah movie that earns such Hallmark-high praise as weirdly good and terribly sweet.

At some level, I have the same complaints I level at all of these movies--they place Chanukkah at the center of the adult (as opposed to kid) Jewish lifecycle and calendar and ascribe the holy day a force it does not have for most Jewish adults. Adults in these stories mark the year and their lives by Chanukkah. So from last year's Eight Gifts of Hanukkah:

    • A Jewish contractor tells his Jewish client that construction on her optometry office-a business with no discernible connection to Judaism or the holiday--will "be done by the Eighth Night of Chanukkah."

     • That client's ex wants to get back together because "maybe it's the holiday, but I have been taking stock of my life." Umm, we have a month plus ten days devoted to that, nowhere close to this time of year.

    • A family gathers for the first night to light candles, etc., then the child in the family asks whether she can "unwrap her Chanukkah presents"--as if anyone in a real conversation in that context would need the adjective. OK, that may just be bad writing, but it illustrates how these movies find it necessary to hit everyone over the head with the fact that these people are Jewish.

Although these recent movies have included Jewish actors and crew, they continue to present Chanukkah as "Jewish Christmas"--that most wonderful time of year when we gather we family, do not want to be alone, and make a lifetime of memories that guide us through life.

HoR does not suffer from those problems because it is not an original story. It is a Jewified You've Got Mail, with identifiably Jewish characters played by Jewish actors and set within the eight days of Chanukkah. The timing sort-of makes a little sense because the story revolves around latkes and a secret latke recipe, although it still centers Chanukkah as the time of year where Jews gather, take stock of life, long to find love, etc. Anyway, Jacob, the fourth-generation operator of LA-based deli Zimmers, relocates to New York to open a new location on the Lower East Side; Zimmers is known for combining old-time Jewish deli with modern takes and a wider menu. Molly is preparing to take over Gilbert's, her family's fourth-generation, very traditional, but secretly struggling, deli in that neighborhood--if she only can figure out how to make a good egg cream (hint: stir the chocolate into the milk before spritzing the seltzer). Meanwhile, their respective bubbes sign them up for a mysterious New York-based matchmaking service in which people write handwritten letters to a pseudonymous match ("David" and "Beth") that a courier collects and delivers. Multi-generational family dynamics appear to center the  final act.

Some non-Jewish-focused spoilers on HoR after the jump; if you do not want to know how the movie ends, stop reading.

I will leave with this point. I can give Hallmark credit for wanting to depict Jews at Christmas, the only people in the Hallmark Cinematic Universe who want to stay in The Big City. But then tell a somewhat realistic story of American Jews. If it wants a December-based Jewish-American rom-com, set it at one of the Matzah Balls in many cities on Christmas--events designed for young Jewish singles to meet. Or at a Christmas-day Chinese restaurant comedy show. Importantly, neither story has anything to do with Chanukkah--which may be over or not have begun on December 25; each is about how Jewish-Americans make a unique culture in the larger society. If Hallmark insists on  a Jewish-holy-day-themed story, set it at Passover or Yamim Noraim--the days that matter on the Jewish calendar. Otherwise there are better Jewish rom-coms that need not squeeze into a short holiday.

OK, now the spoilers. What I find interesting about HoR as a riff (generously) on YGM--the movie corrects the two things people find unrealistic and arguably problematic about the source material.

As in YGM, Jacob figures out that "Beth" is Molly and tries to use it to his advantage, although not as manipulatively. YGM ends with that reveal and she acts it happily without thinking more about. In HoR, Molly learns about this about 20 minutes before the end, and is (rightfully) pissed off--he was dishonest with her and used that information to his advantage. Yes, the advantage was love, but still. It takes awhile and several different conversations with different people to bring her down from the point.

Unlike YGM, Zimmers does not put Gilberts out of business as Fox Books (inevitably) crushed the independent bookstore. There is something hinkey in YGM's story of "you destroyed my multi-generational family business and put me out of work, but I am in love with you" story. HoR changes that because despite its obvious political conservatism, Hallmark hates capitalism. Zimmers is not a franchising behemoth; it remains family-owned, just with a less-traditional approach. Jacob helps Molly (something Tom Hanks never did for Meg Ryan); he tries to convince his family to find a new location and he works with Molly on a bunch of Chanukkah-themed promotions at Glberts. Finally, the families learn of an historical connection and end the story by combining businesses in New York (in a way that would undermine both in real life--again, I do not think Hallmark understands capitalism).

AntiJewishness: Societal or Individual

Rob Eshman is on to something. We miss something when we amplify individual antisemitic acts or statements but ignore the broader context or reaction by government and the rest of society. What matters more in evaluating American Jewry's position and security--that Kanye runs around saying bad things or the near-universal condemnation; that someone vandalizes a synagogue or that government and the rest of the community respond appropriately.

Eshman's argument sounds in a piece of the debate over hate speech. Nazi Germany became Nazi Germany because law and government policy instantiated Jewish inequality and broader society shared--or do not push back against-- the views reflected in those laws. It did not become Nazi Germany by allowing individuals or groups to spout Jew-hating ideas. And we do not become Nazi Germany because Twitter is loaded with assholes.

Eshman captures his point in two sentences: "No Jew in the history of Judaism ever looked smart by saying things aren’t as bad as you think," but "that's an argument for nuance, for data that reveals a deeper understanding of where we stand before we decide to flee."

I serve on the board and exec comm of my temple and we will participate this year in an ADL-sponsored educational program on antisemitism. I want to try to keep Eshman's point in mind.

Automation & Higher Ed

I was delighted to see this thoughtful review of my new book The Equality Machine in Inside Higher Ed focused on some of the questions nearest and dearest to prawfs' hearts: the future of the professor and higher education as AI becomes more and more part of our learning and teaching. In The Equality Machine, I have a chapter that considers robots and automation in education but does not delve into universities and higher ed. Here's the review:

If the dream of creating high-quality/low-cost scaled online programs is ever to be realized, artificial intelligence—AI—will likely be the key enabling technology. The job of the AI in a scaled (high-enrollment) online course will be to optimally connect the instructor to the learner. The AI will determine when the human instructor should coach, encourage and engage with the learner—and when to hold back. The professor and the AI will collaborate to scale the relational model of learning that is the secret sauce of effective instructional practices.

Integrating faculty and AI to scale quality online learning is, to my knowledge, today more an idea than a reality. After reading The Equality Machine, however, I’m more hopeful than ever that this vision will come to fruition. While not focusing on higher education, the book provides enough examples of the transformative powers of digital technology to enhance human flourishing that some level of academic techno-optimism may be warranted.

Lobel, a law professor at U of San Diego, sets out to counter the conventional wisdom that technologies like AI offer more threats than benefits. The book traces a range of examples where the principled and ethical use of big data analysis and AI are being utilized for progressive aims. Examples include using digital technologies to expose and correct discrimination in hiring, promotion and compensation. Gender and racial pay and position gaps can be more effectively addressed with good data, enabling employers and employees visibility into the persistent labor market inequities.

Some of the most powerful examples of the potential for digital technologies to improve well-being described in The Equality Machine come from the domain of health and health care. Lobel describes the efforts of pioneering physicians and researchers to pair clinicians with algorithms for earlier diagnosis and individualized treatments. Soon, AI-enabled medical devices such as insulin pumps will dynamically adjust dosage levels to avoid health crises for diabetics before they occur.

Likely the most controversial parts of The Equality Machine will be Lobel’s thinking on the future of sex robots. As with the entire book, Lobel’s thinking on technologically enabled intimacy bots is nuanced, balanced and complicated. She examines the negatives of reinforcing existing sexist and racist stereotypes of the sex-tech industry but ultimately comes down on the side of optimism. Smart sex robots have the potential to relieve loneliness and enhance happiness, and their creation should be met with less fear and more thought, debate and discussion.

While The Equality Machine seeks to offer a positive vision for technology in advancing social justice, equality and happiness—the book is by no means a defense of big tech. Lobel is highly skeptical that the tech industry will prioritize inclusive and pro-social applications and systems in the absence of scrutiny, regulation and advocacy. The book offers ideas about how to engage with the tech industry to shift incentives toward promoting equitable design.

In reading The Equality Machine, I kept wishing for Lobel to turn her analytical lens to issues of tech, companies and higher education. What might we envision as the role of platform companies, big data and AI in creating accessible, affordable and high-quality online degree programs? Where are the artificial intelligence and university leadership communities coming together? How might we extend the idea of creating equality machines to the working of higher education?

 

Infield Fly strikes again

Writing about the Infield Fly Rule produced one key takeaway--it is everywhere. Once we see what defines the play and warrants a rule change--unexpected action, substantial advantage and exclusive control to actor, inability to counter--it is easy to find other sports responding to similar plays with similar rules changes.

The NFL offers the latest example. It "reinterpreted" a rule to prohibit teams from holding the ball on top of (as opposed to on) the kicking tee on kickoffs. This placed the ball an extra 1/2-inch off the ground (1 1/2" inches rather than 1"), allowing the kicker to get under the ball more and gain more height and hang-time on the kick, allowing the coverage team to get downfield quicker for shorter returns. And it worked--the Raiders' opponents averaged more than four yards fewer per return than league average.

This possesses all the features of the infield fly situation--teams ordinarily place the ball on the tee rather than on top of it; the kicking team controls how the ball is placed on the kick-off; it gives them what appears to be a substantial advantage on the play; and the receiving teams cannot counter the play because the coverage team's extra running head start overwhelms even the best blocking-and-return schemes. This is what leagues impose limiting rules (or limiting interpretations) to eliminate that unusual play and thus the extraordinary advantage.

The NFL did not explain the reinterpretation in these terms. It said the practice produced the same effect as using a 1.5" tee, whereas the rulebook limits tees to 1". Still as Deadspin says, it is hard to believe the league would have cared unless it produced a meaningful one-way benefit and incentivized other teams to do the same.

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Changing arguments

 Mike Dorf and Will Baude discuss changing dynamics at SCOTUS arguments--including an increase in justices cutting off attorneys, demanding yes-or-no answers to nuanced questions, and not letting them give reasonable answers and making long arguments in the form of questions. Baude argues they increasingly sound like congressional hearings and attributes a number of possible causes, including the new round-robin format, increased polarization, and live-streaming. For what it is worth, at least they sound like they know what they are talking about in their questions, unlike most legislators.

While listening to the 303 argument and before seeing Will's post, I had the idea that the individual-justice questions portion sounded different, with lawyers not bothering to answer many "questions." At one point,the Colorado SG expressed "hope" that he might be able to answer someone's question, because that did not seem to be the point of the exchange.

I hope the blame does not lie with livestreaming. Many of us spent many years arguing for televising arguments, believing the Justices would not undermine their institution.

Crooked State Elections

I wasn't thrilled with the argument in Moore. The Court seemed to converge on the position that Chief Justice Rehnquist's concurring opinion in Bush v. Gore should become the law. This is not good for a couple of reasons. First, Rehnquist's opinion was not well-reasoned. Second, adopting his position will create an excuse for lots of election related litigation over state courts allegedly misinterpreting state law. No matter how deferential the standard of review is, everyone will want to test it out in 2024 and cause mischief

There is no great solution to the problem of a crooked state election (say, Lyndon Johnson stealing his Senate seat in 1948). Congress is not well-situated (especially these days) to resolve such issues. Neither is the Supreme Court. State courts also have their problems, but I'm more inclined to just leave it with them.

AALS in San Diego 2023! Things to do and plan for!

AALS 2023 is coming to town! I can't wait to see hundreds of colleagues coming down here for several event-packed days. Keep in mind that in addition to the regular program there are quite a few satellite conferences being put together by organizations such as ACS. 

Still- it's SAN DIEGO. In January! It's warm and sunny and there is so much to do and see. 

first - all are welcome to USD Law School AALS Reception at Roy's Restaurant 333 W Harbor Dr. January 6 at 6-8pm.

next, here are my top 10 [which is really top dozens but sneakily categorized in ten]:

1. La Jolla Cove. The rocks, the cave, the seals, the birds. It can get stinky but it’s a good kind of stench. Eat breakfast at Brockton Villa to watch the natural beauty, the swimmers, and the kayaks. Have drinks at sunset at George’s, Dukes, Eddie Vs, Herringbone, Puesto or any one of the other upscale dining places. The Cottage, Sugar and Scribe, Brick and Bell, Parakeet, The Living Room are all nice for lounging or brunch. Bring your laptop to the Living Room for an office setting with a view. Walk up along the village to the art galleries, fun boutiques, and the La Jolla Museum of Contemporary Art. Visit Trilogy for an amazing rooftop vegan eateries and aerial yoga. If you have time on the way back, drive up to Mt. Soledad for 360 degrees of all of San Diego. The cross at the top has been giving the 9^th Circuit quite the headache for years.
2. La Jolla Shores, Scripps Pier, Birch Aquarium, Glider Port, Black’s Beach. You can walk from the shores all the way to UCSD and the Salk Institute, walk down to Black’s Beach where clothes are optional. The Birch Aquarium has stunning views and educational hands-on activities – it’s small and intimate - it’s not Sea World if you know what I mean (Sea World can also be on your destination plans particularly if you are coming with kids). La Jolla Shores is known for its Italian food (though little Italy downtown definitely competes) - you can find just next to the beach at the shores - Piattis, Osteria Romantica, Barbarella...all good choices,
3. Torrey Pines Reserve. 1750 acre cliffs above the beach, coastal wilderness, trails for all hiking levels. Breathtaking. Stop for tea at the Lodge at Torrey Pines, a beautiful hotel/spa/golf course that is an architectural homage to California Arts & Crafts Movement.
4. Balboa Park. "1,200-acre of park, natural vegetation zones, green belts, botanical gardens, and walking paths, over a dozen museums, several theaters, and the world-famous San Diego Zoo. There are also many recreational facilities and several gift shops and restaurants within the boundaries of the park. Placed in reserve in 1835, the park's site is one of the oldest in the United States dedicated to public recreational use."
5. Coronado Island. Take the ferry or drive the long bridge (it isn’t really an island but a peninsula). Go ice-skating outdoor on the beach at the stunning Hotel Del Coronado.
6. Crystal Pier. Pacific Beach just south of La Jolla has a long boardwalk, beautiful beaches, and you can run or walk from the Crystal Pier all the way to Belmont Park, the historic amusement park founded in 1925, and ride the wooden roller coaster. If you see Slomo rollerblading along the way, say hi and tell him you watched the documentary about him in the NY Times and here (short of it - he's a former neuroscientist/psychiatrist who decided on radical lifestyle change: "do what you want to" one of his oldest patients told him is the secret for a longlife, so now he roller-blades on the boardwalk every day all day long in slow motion).
7. Sunset Cliffs. If La Jolla is the upscale village, and Pacific Beach is the student surfer hangout, Ocean Beach is the hippie beach community. Each unique and fantastic in its own way. In between all of them are Mission Beach and Mission Bay – where you can, like with PB, rent bikes and roller blades and ride for hours. Also a good place to practice your stand up paddleboarding. 
8. Old Town. History, culture, authentic Mexican food. Right next to our beautiful USD campus. Convoy is close by - home to wonderful and numerous Asian eateries -- Korean (Korea House, Tofu House), Chinese (Jasmine, Emerald), Japanese (Sushi Boat)...
9. Encinitas. Another awesome beach community, with world-famous surf. Go meditate at the Zen Garden at the Self Realization Fellowship (check to see if it is open). If you are coming with the family, Legoland as well as the Safari Park are nearby in Carlsbad; Solana Beach and Del Mar are also pretty great. This Del Mar restaurant was just awarded three Michelin stars! 
10. Gaslamp District and Seaport Village. This is right where the AALS conference takes place so you will figure it out. But make sure you walk all the way to the Harbor, Embarcadero and the USS Midway Museum. Perhaps even go whale watching or just a short harbor cruise between panels.

There is still more. Here's for example a top 25 free things to do. And feel free to add your own San Diego favorites in the comments or ask me any questions that you might have about planning your trip. Here's to a great #AALS2023!

Which side of the bench?

Here is a different way of studying SCOTUS arguments--which side of the bench is most active in questioning and draws the most attorney attention? For right now, the answer seems to be to Chief's left/attorney's right--Alito, Kagan, Kavanaugh, and Jackson.

This is of limited long-term use (as opposed to looking at individual justices) because seating changes frequently. It might have been of interest with the long Breyer-juniormost Court (1994-2005). On the other hand, I would not be surprised to see the current Court remain for the next 7-10 years, so maybe that will give us a longer sample.

JOTWELL: Michalski on FJC on pro se electronic filing

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing the Federal Judicial Center's study of electronic filing by pro se litigants.

Quick thoughts on 303

I found a few interesting things in the questioning of Kristen Waggoner, counsel for petitioner in 303 Creative. (Mike Dorf has more about the "culture war" lines in the argument).

I

Although Waggoner repeatedly disavows it, 303 is arguing for First Amendment protection of implicit endorsement of an idea, rather than for the words spoken. Justices Sotomayor, Kagan, and Jackson peppered her with questions (real and hypothetical) about purely informational web sites--"Mike and Mark are getting married on this date at this place and these are the people in the bridal party." Even if that is 303's speech, it says nothing about marriage, same-sex marriage, or the righteousness of same-sex marriage. The First Amendment argument is not about the words being uttered on the web site, but that providing that information requires her to implicitly express her approval of same-sex marriage.

An exchange with Justice Barrett, designed to help Waggoner show that this is about speech rather than customer identity, drives the point home. Barrett offered two hypos of cis-het couples whose story (to be told on the web site) includes political statements--one that "we would have gotten married even if we were not cis-het because it doesn't matter" and the other "we were married to other people when we met at work, realized we were meant to be together, so we each got divorced six months later and now begin our lives together;" Waggoner said 303 would not do those web sites. Barrett's hypos involve objections the words and message written on the page--"everyone who finds their soul mate should get married, regardless of sexual orientation or gender identity." Most sites do not include such messages. The objection cannot be to the factual statement that Mark and Mike are getting married on June 10; it must be to the implicit endorsement in the artist announcing that fact. The follow-up should have been whether 303 would refuse to design a purely informational site--"Lily and Luke are getting married on this date at this place"--if she knew that Lily and Luke had divorced other people to be together. Would she consider that a similar implicit (and objectionable) endorsement of their marriage or their conduct?

The question becomes whether the freedom of speech protects against such implicit endorsements not grounded in the words themselves. The Court has pushed the complicity-in-sin idea through free exerise, but never through speech. What is the best way to read Hurley? One is that the parade organizers were compelled to send an implicit message of endorsement by including GLIB--having to include the group endorses the message that it is ok to be gay and Irish. Another is that GLIB itself sent an express message--possibilities and pride to be LGBT and Irish and with LGBT Irish people marching in the New York parade--that the parade was compelled to incorporate into its overall message. If Hurley means the latter, this case does not fit because Mike and Mark are not sending a message about LGBT rights by getting married--unless everything LGBT people do sends a message about LGBT rights.

II

I will admit to being annoyed by Waggoner's refusal to admit that, under her position, a web designers can refuse to do pages for mixed-race, mixed-religion, or (per Sotomayor's hypo) disabled couples. All entail the same endorsement. And the First Amendment does not turn on the "honorableness" of the message or distinguish between ideas we find odious and ideas we respect--if the seller of expressive products has a right not to sell where the product sends an objectionable implicit message, the nature of the message does not matter, only that the seller objects. Own it.

III

Waggoner repeatedly tried to generalize the principle--that it protects not only her Christian-web-designer-who-hates-same-sex-marriage, but other, left-leaning people, such as a "Democrat publicist" or "lesbian graphic designer." Dorf points to the adjective in the former as a culture-war dog whistle. I find the latter telling because it conflates identity with viewpoint--supposedly what she is not otherwise arguing. I doubt that most lesbian web designers object to opposite-sex marriage or would refuse to design page for a cis-het couple because it sends a message of approval for opposite-sex marriage. The refusal certainly would not be because of her LGBT status. That example--which she surely prepared, given how frequently she used--says a lot about how Waggoner sees the connection between identity and ideas.

J. Edgar Hoover

I would highly recommend Beverly Gage's new biography of Hoover. People from many legal disciplines will find this book useful given the FBI Director's broad reach and skill at institution building. There is also great stuff in the book on a host of specific issues. For example, I was unaware that there was a detention of some German-Americans during World War I that was a forerunner of what was done to Japanese-Americans in World War II (and explains why Hoover opposed Japanese-American internment). 

Copyright and Compelled Speech

In listening to the argument this morning, I thought about the following test that the Court could use. There seemed to be agreement that "artists" cannot be compelled by anti-discrimination laws to produce their art against their deeply held beliefs. But how do you know whether someone is an artist as opposed to an ordinary business, which can be so regulated?

Why isn't the answer "if their work can be copyrighted?" This standard would distinguish, for example, a baker from a photographer. You can't copyright a cake--food is functional. You can, of course, copyright photos.

This line-drawing isn't perfect. I tend to think of a baker as being more artistic than a website designer. But the point is that we should not make these judgments based on our aesthetic views. Copyright provides an objective and well-settled line for these assessments.

Oral assessments (if not exams) (Updated)

Responding to Gerard's post: In Fed Courts and Civil Rights, a chunk of the grade (about 30/165 points) is based on oral arguments. I usually have 20-30 students in each. The class gathers for a full day at the end of exams. Each student argues one case and judges one case. A petitioner and respondent argue the case before a panel of 3 students and me. It is a lot of fun and the students enjoy it. And it allows me to test them in real-time--to push back and/or correct their understandings and arguments and thus to measure how well they get stuff.

I have not been able to pull the trigger--which I think is what Gerard is suggesting--on making it the sole big assessment. That comes from a written opinion on a third case (as well as two smaller in-semester papers). I am not sure our internal academic policies on the curve and blind grading allow it. But it is an interesting thought would make my life easier. And that other people, such as Gerard, would consider it suggests it is worth thinking more about.

PS: A colleague described doing oral exams years ago at another school, in Fed Courts. He met with each student and had a conversation about some subjects or issues. Sometimes, to ease student discomfort, he took it outside--they walked around campus talking about federalism.

Update: One more thing, perhaps against the idea. In litigation, the balance between oral and written has shifted overwhelmingly towards the latter--fewer appeals get oral argument, fewer trial motions get oral argument, district judges spend less time on the bench. So do we do a disservice by emphasizing oral over written in getting them ready to practice?

Oral Exams

There was an essay in the NY Times yesterday about the virtues of oral exams for undergraduate or graduate students. I've always wondered about trying this out in a small, upper-level course. My smallest class had 5 students (in Admiralty) and they were a terrific group who would have aced an oral exam. But it was a night class and I didn't want to impose on them by scheduling another in-person evening session. The next time that I teach Admiralty, though, maybe this would work out. 

I'd be curious to know if any law faculty use oral exams and, if so, how you do that. Thanks.

Did the Court Have Jurisdiction in Dobbs?

In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights. 

This point came up in a roundabout way. When making its case to overrule, the Court stated that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” As one salient example, the Court observed: “The Court’s abortion cases .… have ignored the Court’s third-party standing doctrine.” The Court then dropped the following footnote (with citations shortened):

“Compare Warth v. Seldin, 422 U.S. 490, 499 (1975), and Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 15, 17-18 (2004), with June Medical, 591 U.S., at ___  (ALITO, J., dissenting), id., at ___ – ___ (GORSUCH, J., dissenting) (collecting cases), and Whole Woman’s Health, 579 U.S. at 632, n. 1 (THOMAS, J., dissenting).”

The clear import of this passage is that abortion providers should not be afforded third-party standing to assert the rights of their patients. More specifically, the Court indicates that the June Medical and Whole Woman’s Health majorities were wrong to find that the abortion providers had standing. The dissenters in those cases, it seems, now hold sway. And, in fact, all three cited dissenters—Alito, Gorsuch, and Thomas—joined the Dobbs majority.

But Dobbs itself was a third-party standing case brought by an abortion provider on behalf of its patients. So if the Dobbs majority didn’t believe that there’s third-party standing in these types of abortion disputes, how could it reach the merits—much less overrule decades of precedent and install a completely different doctrinal rule?

One possibility is that the majority felt that it could rely on third-party standing precedents that it disagreed with. This solution must lean quite hard on the idea that following precedent is always or almost always permissible. If the Court is ever subject to an obligation to overrule case law, after all, that duty would probably arise when the majority itself concludes that the very precedents essential to its present use of jurisdiction are incorrect. 

Moreover, the Court’s overall discussion of precedent seems inconsistent. How could the Court have permission to rely on admittedly erroneous third-party standing precedents even as it insisted that Roe and Casey had to be overruled?

Another possibility is that most members of the majority believed both that the third-party standing problem was prudential and that case-specific prudential factors supported overlooking the problem. Perhaps the state defendants didn’t do enough to challenge third-party standing, or the courts below didn’t adequately opine on the issue, or the Court could rely on its own discretionary decision to decline review of this question.

But, consistent with case law, the relevant justices have emphatically agreed that third-party standing rules exist primarily to protect the interests of the asserted rights holders. So it would be very strange if the choices of non-rights holders, namely third-party litigants and courts, could deprive rights holders of the ability to protect their own rights. 

Underscoring this point, the Dobbs majority ultimately relied on the specific merits claims and concessions that the third-party litigants made. For instance, the Court repeatedly cited the abortion providers’ dubious claim that no half measures were available. Would the actual rights-holders have been as eager to raise the stakes in that way? 

A final possibility is that the majority felt that it could hold the Dobbs dissenters to their jurisdictional views. After all, the dissenting justices have insisted that there is third-party standing in cases like this one. But is jurisdictional turnabout fair play?

It’s especially hard to see how Justice Thomas, whose vote was critical to the outcome, could exercise jurisdiction in Dobbs. In the past, Thomas has argued that this kind of jurisdictional defect is constitutional in nature and, therefore, both non-waivable and non-prudential. In a pre-Dobbs post, I suggested, based on his prior opinions, that Thomas might accept the jurisdictional conclusion of most justices. Again, however, it seems that most of the Court saw a jurisdictional problem in this kind of case.

Does all this mean that Dobbs is extra-jurisdictional and, therefore, not a valid precedent? Perhaps—or perhaps not, depending on one’s views of standing and precedent. 

I’m more confident about two related points. First, Dobbs’s willingness to exercise jurisdiction makes sense only if there’s a lot of discretion at work here, either at the level of precedent or internal to the doctrine of third-party standing (or both). Second, the majority’s apparent use of discretion is both unexplained and objectionable, based on what those very justices have previously argued.

Cross-posted on Re's Judicata

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.