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Friday, March 31, 2023

JOTWELL: Pfander on Elliott on SCOTUS original jurisdiction

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker) reviewing Heather Elliott, Original Discrimination: How the Supreme Court Disadvantages Plaintiff States, 108 Iowa L. Rev. 175 (2022), a takedown of SCOTUS's exercise of discretion in original jurisdiction and some solutions.

Posted by Howard Wasserman on March 31, 2023 at 02:55 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Prosecutorial Discretion and the Indictment of Donald Trump

After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump.  The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.

News of the indictment has sparked an outpouring of intense and diametrically different reactions.  On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning.  On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect.  Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.  The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable.  The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.

I don’t want to wade into the merits and demerits of these opposing views.  Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct.  People on the left are correct that powerful people often do not face consequences for acting illegally.  Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart.  Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray.  Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought.  But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.

People on the right are correct that prosecutors often make decisions for political reasons.  The failed cases above were likely brought with the expectation that a successful prosecution would be helpful in the DA’s next election.  But even when local prosecutors aren’t thinking about their own political future, they will pursue cases to “send a message” to the public.  Thus, if you are a celebrity whose criminal conduct was very public, you may find yourself treated worse than the average defendant so that the prosecutor can appear tough on crime.  Just ask Martha Stewart and Plaxico Burress. 

As the above paragraphs explain, prosecutorial discretion—like all forms of discretion—inexorably leads to similarly situated people being treated differently.  Although equal treatment is the ideal, our legal system often relies on discretion because it is too difficult to specify ex ante what all of the relevant considerations ought to be.  This is one reason that the Supreme Court has given in stating that judicial review of prosecutors’ charging discretion is inappropriate. 

Because we cannot ensure equal treatment through ex ante rules, one might think that we could attempt to do so ex post.  This is what Jim Comey sought to do when he explained why criminal charges against Hillary Clinton were inappropriate.  He explained that DOJ had combed through the previous cases involving mishandling of classified information, identified the enforcement criteria that were used in those cases, confirmed that those criteria were not present in Clinton’s case, and thus determined charges were not warranted.  (If I recall correctly, the enforcement criteria were large quantities of material and/or dishonesty or obstruction on the part of the defendant.  Fun fact:  While neither of those criteria were present for Clinton, both are present in the Mar-a-Lago documents investigation against Trump.)

It might be possible to conduct the same sort of ex post inquiry in the Manhattan case against Trump.  The folks at Just Security have pulled together a document with a helpful spreadsheet of business records cases, which could allow readers to compare the Trump case to previous cases that have been pursued.  Unfortunately, documents like this are limited—they identify only cases that were pursued; they do not and cannot identify similar cases that the Manhattan DA’s office decided not to pursue.

Ultimately, that illustrates why modern prosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.

Posted by Carissa Byrne Hessick on March 31, 2023 at 09:39 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (17)

Is Declaratory Judgment the Answer to Republican Forum Shopping?

UCLA Professor Jonathan Zasloff, my friend and coauthor, has an intriguing article today on The American Prospect, suggesting that the Biden administration can preempt Republican forum shopping by initiating declaratory judgment actions in the DC District Court. Here is the gist of his argument:

What is to be done? The best short-term answer is to beat the Republicans at their own game, and sue first.

As soon as the administration issues a controversial rule that it has reason to know will be challenged by abusive litigation, it should immediately bring an action in federal court in the District of Columbia that the rule passes legal muster. The defendants would be states with histories of filing abusive litigation, as well as groups like Stephen Miller’s America First Legal, which has already proclaimed its strategy of filing abusive suits in front of handpicked judges. No one’s rights are violated by such an action: If Republican AGs want to argue against a rule’s validity, they can always do so. What they can’t do is look for their favorite right-wing judge to give them a preordained ruling.

I am leaving comments open, but will screen for relevance.

Posted by Steve Lubet on March 31, 2023 at 08:58 AM | Permalink | Comments (5)

Thursday, March 30, 2023

Maybe Student Edited Law Reviews Aren't So Bad

Here is Dr. Glaucomflecken on academic publishing in medicine, which is dominated by for-profit journals:


Posted by Steve Lubet on March 30, 2023 at 05:09 AM | Permalink | Comments (3)

Wednesday, March 29, 2023

Do We Need to Expand the House of Representatives?

Danielle Allen, Harvard political theorist and Washington Post columnist, has an essay today on proposals to expand the House of Representatives. She argues,

To get our politics working again, we need a system that delivers energy (the ability for the government to get things done), republican safety (protection of our basic rights), popular sovereignty (adaptive responsiveness to the will of the people) and inclusion (all voices should be synthesized in the national voice of our House of Representatives). Real proximity of representatives to their constituents is necessary for delivering on all those design principles. For that, we need a bigger, and continuously growing, House of Representatives. We need smaller districts and fairer representation between more- and less-populous places.

This seems to make intuitive sense, given that the original House districts under the Constitution had only 30,000 people and the current 435 member House was established in 1929. Allen's column discusses proposals that would increase the House to somewhere between 574 and (fancifully) 9200.

There is a problem, however, that Allen does not address. Smaller districts would be easier to gerrymander; in some cases much easier. Far from getting "our politics working again," smaller districts would add to the logjams.

If you don't believe me, just look at state legislatures in places like Florida, North Carolina, and Wisconsin, where small districts have resulted in entrenched Republican majorities -- and in Florida, supermajorities -- even when the actual votes are almost evenly divided.

The computer-assisted art of drawing partisan districts becomes increasingly refined as districts become smaller, resulting in less democracy, not more.

For all of its design flaws, the U.S. Senate has one great advantage under the Seventeenth Amendment. Elections are statewide and cannot be gerrymandered.

Just take a look at Georgia, where votes have been almost evenly split: The House delegation has nine Republicans and five Democrats, an almost two-to-one division, while the non-gerrymandered Senate has two Democrats. Or Arizona, where the House delegation has six Republicans and three Democrats (two-to-one), while the non-gerrymandered Senate elections were won by two Democrats (one of whom is now Independent). Likewise, heavily gerrymandered Massachusetts and Maryland have recently elected two Republican governors in non-gerrymandered statewide elections.

Of course, constituent communication has greatly improved since 1929, when fewer than half of American households even had radios, so today's larger districts do not necessarily mean less responsiveness.

But the bottom line is that bigger districts = less gerrymandering, and smaller districts = more chicanery.

Comments are open, but will be screened for relevance.


Posted by Steve Lubet on March 29, 2023 at 07:21 AM | Permalink | Comments (8)

Tuesday, March 28, 2023

More on "Civil Discourse" and Judge Duncan

I was substantially offline for a while, and so missed a number of updates and posts -- scroll down, and read them all! -- regarding Judge Kyle Duncan's appearance at Stanford Law School.  (For my earlier take on what I continue to regard as the very bad behavior of some SLS students and a SLS administrator, go here.)  And, several Prawfs colleagues have weighed in on the follow-up news items, including Judge Duncan's recent talk at Notre Dame (which I did not attend), Dean Jenny Martinez's lengthy open letter (which I thought was very good), and Dean Tirien Steinbach's Wall Street Journal piece (which I thought presented a version of the SLS events that departed non-trivially from what took place).

It is often important and welcome to achieve disagreement, and Howard's recent post on Judge Duncan's Notre Dame speech suggests that we have.  (Yay, us!)  Although I generally endorse the all-in-free-speech-libertarianism vibe of the Sullivan quote, I continue to think Howard is wrong to characterize/frame disruption, insults, "public shaming," etc., during an invited lecture, organized in accord with normal procedures, in an academic setting as "counter-speech."  Putting aside all state-action issues:  To say that, in this particular context, the norm is that the invited speaker gets to speak without disruption is not to question, at all, the idea that "debate on public issues should be uninhibited" or to disagree that such debate may include "vehement, caustic, and sometimesly unpleasantly sharp attacks on . . . public officials."

I also think that the comparison suggested in an earlier post of Howard's doesn't work.  The decision by a university administrator not to permit, in a particular setting, a student group's proposed drag show implicates, it seems to me, different norms than does the decision by various students (and Dean Steinbach) to disrupt a lecture that was -- again, in accord with regular, established procedures -- approved. The former is a determination (which might well be mistaken) that a particular event is not appropriate in a particular context; that latter is a determination to undermine an event that was found to be appropriate for that context.

Posted by Rick Garnett on March 28, 2023 at 03:55 PM in Rick Garnett | Permalink | Comments (21)

Dean Angela Onwuachi-Willig at FIU

FIU will host our Sixth Decanal Lecture (the first since COVID), with Angela Onwuachi-Willig (BU), on How To Build an Antiracist Profession, 12:30 p.m. EDT today (Tuesday). Livestream here.

Sixth Decanal Lecture v3

Posted by Howard Wasserman on March 28, 2023 at 06:25 AM in Teaching Law | Permalink | Comments (0)

Did Robert Costello Breach Michael Cohen's Confidences?

My new essay is up at Law&Crime, discussing Robert Costello's grand jury testimony in the Stormy Daniels case. Here is the gist:

Attorney Robert Costello May Face Ethics Questions for 'Hatchet Job' on Michael Cohen

If Manhattan district attorney Alvin Bragg decides against indicting Donald Trump for the Stormy Daniels payoff, it will be at least in part thanks to the hatchet job attorney Robert Costello did on star prosecution witness Michael Cohen. Or so says Alan Dershowitz.

In a recent interview with Fox News host Maria Bartiromo, the acclaimed former Harvard law professor opined that Costello's testimony before the grand jury "has proved that the main witness is going to be a perjuring liar on the witness stand." Thus, according to Dershowitz, if Bragg "uses Cohen as a witness, he could actually lose his bar license. It's unethical to put a witness on the stand who you know is lying, and he has to know that Cohen will be lying."

Dershowitz is right that there is a lurking ethics issue, but it is Costello's problem, not Bragg's.

You can read the entire essay at Law&Crime (not paywalled).

Posted by Steve Lubet on March 28, 2023 at 04:52 AM | Permalink | Comments (0)

Monday, March 27, 2023

Call for Papers - Sixth Junior Faculty Forum on Law and STEM

from Mark Lemley, David Schwartz, and Christopher Yoo:

 The Northwestern, Penn and Stanford Law Schools are pleased to announce a Call for Papers for the Sixth Junior Faculty Forum on Law and STEM, which will be held at Stanford on October 27-28, 2023. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM). The forum is currently seeking submissions from junior faculty in any discipline interested in presenting papers at the forum. The deadline for submissions is May 31, 2023.

A group of junior scholars will be chosen on a blind basis from among those submitting papers. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

We invite submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

  • Artificial intelligence
  • Autonomous vehicles
  • Biometrics
  • Bitcoin and other blockchain technologies
  • Chat-GPT and large language models
  • Climate change technologies
  • Computational law
  • Cryptocurrency and NFTs
  • Customized medicine
  • Genetics and epigenetics
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience and law
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Spectrum policy
  • Synthetic biology
  • Virtual and augmented reality

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented. Suggestions of possible commentators are also welcome.

There is no publication commitment. Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, authors must be teaching at a U.S. school of higher education in a tenured or tenure-track position or as a Visiting Assistant Professor or Fellow and must have received their first tenure-track appointment no more than seven years before the conference. Authors in tenure and tenure-track positions will be given priority. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2013. We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting are not eligible. Authors may submit only one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be submitted to [email protected]. The deadline for submissions is May 31, 2023. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls. Any questions about the submission procedure should be directed both to Professor Mark Lemley ([email protected]) and Gisele Darwish Brown ([email protected]).

FURTHER INFORMATION: General information about the Forum is available through this link. Inquiries concerning the Forum should be sent to Mark Lemley at the Stanford Law School, David Schwartz at the Northwestern University Pritzker School of Law, or Christopher Yoo at the University of Pennsylvania Carey Law School.

Submission Deadline is May 31, 2023. We will notify applicants as soon as practical thereafter whether their papers have been selected.

Posted by Sarah Lawsky on March 27, 2023 at 12:04 PM | Permalink | Comments (0)

Judge Duncan still does not get it

I was not at Judge Duncan's talk at Notre Dame last week, have not seen video, and have not read a transcript. I have only Bloomberg's with-a-gain-of-salt reporting. Whatever the sins of the most-disruptive Stanford students at Stanford, Duncan continues to recast the protest (and perhaps all criticism of him) as something other than the exercise of free speech the First Amendment envisions.

According to Bloomberg, the students acted wrongly because they "'staged a public shaming.'" Duncan had "harsh words for the Stanford protesters on Friday, saying they were there to 'heckle' and to 'shame.' 'Let’s say the quiet part out loud. The mob came to target me because they hated my work and my ideas,' said Duncan."

Yes, and? Heckling and responding negatively to a speaker is counter-speech. Public shaming is counter-speech. Targeting a government official for criticism because they hate his work and ideas is counter-speech. In fact, it seems to me exactly what people are supposed to do in response to a government official's disagreeable actions. Note Duncan's move here--criticizing his work and ideas, least in anything other than a polite conversation in which he is under no obligation (or inclination) to engage, is mob behavior. To criticize ideas is to censor those ideas.

Duncan continues to harp on "civil discourse" as the only form of appropriate discourse. But that encounters two problems. First, it ignores the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (Maybe this is why conservatives are so hot to overrule New York Times). Civil discourse is perhaps an ideal; it is not the limit of the First Amendment. Second, Duncan concedes it appropriate to abandon civil discourse at times; writing in the WSJ, he justified his in-the-moment rudeness towards the students because sometimes anger is the appropriate response to “vicious behavior.” But that is a fancy way of saying "they started it." And, of course, the students would say he started it through a judicial decision rejecting, in dismissive tones, concerns about how the government addresses trans people. The students viewed that decision as an example of vicious governmental behavior, therefore, on Duncan's argument, anger should be the appropriate response.

Duncan is not talking to me or trying to convince me. But like many other "free-speech warriors," he cannot help but reveal the thinness of his actual support for free speech other than his or the speech he likes.

Posted by Howard Wasserman on March 27, 2023 at 10:40 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

NYC/New Haven - today and tomorrow

Quick note because I want to see all you friends in the neighborhood - 

Today Monday March 27 at 530 at the Meatpacking District in NYC I am giving a public talk at Dentons - spanning tech policy and competition policy and recent developments with FTC rule on noncompetes. Come if you can!

Tomorrow at 5 - Tuesday March 28 - Equality Machine book talk at Yale (Horchow Hall) - would love to see New Haven friends!


Posted by Orly Lobel on March 27, 2023 at 10:07 AM | Permalink | Comments (0)

Should Law Students Get Paid for Their Work on Law Reviews?

My new essay at Washington Monthly is about a recent proposal to pay law students for their work as law journal editors. I am in favor, although not entirely for the reasons the students put forward.

Here is the gist:

Washington Monthly

Should Law Students Get Paid for Their Work on Law Reviews?

A group of NYU law students recently raised the novel proposition that they should be paid for their work as law journal editors. The students pointed out that they do a job “performed by full-time staff and tenured faculty in other academic disciplines.” 

It is a bargain that the great majority of law professors have been ready to make, receiving almost guaranteed publication somewhere and freedom from tedious work, in return for empowering students with editorial control, for nearly all scholarly publications.

Without reasonable compensation, many economically disadvantaged students must forgo the resume enhancement of journal membership in favor of a part-time job, creating an uneven playing field in recruiting interviews. And the idea may have other virtues as well, although not the ones put forward by the NYU students.

The New York University Law Review, for example, has over 60 senior editors and about 80 staff editors. And NYU has eight other journals, with probably at least 400 more editors. Even just $5,000 per semester—covering only about two hours daily at $25 per hour—would come to over $5 million annually.

NYU could, however, agree to pay for, say, 10 or 20 editors for each journal—at an annual cost of perhaps $200,000—while eliminating all other positions. That would quickly reveal just how important payment really is for the disappointed 400 students.

Without the near guarantee of publication somewhere, law professors would be motivated to improve their submissions, and many would probably give up writing altogether.

So, paying student editors seems like a win-win outcome for the quality of legal scholarship, although it would be a lose-lose for the students who would no longer have the opportunity to serve on journals and for the professors who may find themselves with nowhere to publish their completed articles.

You can read the entire essay at Washington Monthly.

Posted by Steve Lubet on March 27, 2023 at 10:06 AM | Permalink | Comments (0)

Sunday, March 26, 2023

"Inflection Point, noun"

Interestingly, in the revised edition of his Devil's Dictionary, Ambrose Bierce defined "inflection point" as: "A thing whose two common traits are that it is both widely observed and nonexistent. Said to relate etymologically to a frolicsome mythical animal that appeared often on the editorial page but never in nature." 

Posted by Paul Horwitz on March 26, 2023 at 11:27 PM in Paul Horwitz | Permalink | Comments (0)

SG to the Court: Originalism Requires Jury Lawfinding

A month ago, the Solicitor General reported to the Court that defendants have been denied the right to the full jury trial intended by the Framers in every case, state and federal, which has been tried at least since the end of the 19th century. Smith v. United States  is a venue case; I wrote about the venue issue at SCOTUSBlog. But in addressing the venue question, the SG revived a controversy with comprehensive implications. The SG explained that one of the “original purpose[s]” of venue, and “one at the center of the Framers’ debates on the issue, was to allow the jurors to serve as the conscience of the community through interpretation of law.” (Br. at 9) Quoting Drew Kershen’s work Vicinage Part II, the SG explained that venue provisions were designed to “enable the jury to ‘serve as the conscience of the community.’ That concept included ‘not simply [the jury’s] interpreting the law’ to apply to the facts, but the jury’s potential ‘to disregard clearly applicable law’ with which it disagreed.” (Br. at 29). The Framers’ juries, in the SG’s view, had not only the raw power of nullification against the law, but the institutional duty and responsibility to mitigate application of laws which would otherwise be unduly harsh. To be sure, as the SG pointed out, the Supreme Court rejected that role for the jury in the 7-2 decision in Sparf & Hansen v. United States, 156 U.S. 51 (1895). But while the majority marshalled much judicial authority, it was the dissent which was most interested in the views of the Framers and the leading authorities at the time the Constitution was adopted. The SG’s brief declared, in effect, that the dissenters were right.

The SG’s position is consistent with the view that many academics have taken in scholarship over the last several decades. Joan Larsen asserts that “the jury of the founding generation had powers and rights that went beyond the fact-finding power of the modern jury. The Founders' jury also had the right to judge the law, a right that criminal juries would not lose until well into the nineteenth century.” Jenia Iontcheva Turner claims that “[t]he authority of the criminal jury to determine law as well as facts was taken as self-evident in many colonies.”  According to Rachel Barkow, “there is evidence that, both before the Framing and for a time thereafter, juries were deciding questions of law.” Darryl Brown claims that “juries at one time explicitly possessed the power to judge the law as well as the facts.”

To be sure, some scholars disagree or find the evidence more mixed: William E. Nelson seems to report variation among colonial jurisdictions, and Stanton Krauss doubts what he calls the “conventional wisdom” about early jury authority. However, the point of originalism as I understand it is not to assess colonial practice, but to ascertain what the Framers intended. The SG has supplied a specific answer to that question.

I am in no position to opine on the ultimate issue. But this is a Court which believes the proper method of interpreting the Constitution is originalism. It is not fanatical about following existing precedent which was, in its view, erroneously decided.  The Court is also willing to dig deep; the Court quite recently rejected the non-unanimous jury based on a careful examination of historical practice. And few would deny the Solicitor General’s insight and influence on the interpretation of the Constitution. Accordingly, every criminal defense attorney in the United States should take this as a command, starting now, to contend that the Solicitor General is absolutely right, and that faithful application of the original public meaning of the jury trial right requires instructing jurors that it is up to them to determine not only what happened, but whether it was wrong. The Solicitor General may recant or the Supreme Court may ultimately read the history differently. But it is difficult to overstate the transformation of the criminal justice system which would ensue if juries were allowed to acquit simply because they, functioning effectively as a legislature for a particular case, did not find that a person should be convicted. The Solicitor General’s brief makes jury law-finding a live issue that must be addressed.

Posted by Jack Chin on March 26, 2023 at 07:03 PM in Criminal Law, Judicial Process, Legal History | Permalink | Comments (4)

Two Jews in the starting rotation?

The Atlanta Braves placed started Kyle Wright on the IL and announced that rookie Jared Shuster will begin the season in the starting rotation. Shuster is Jewish. Which means 2/5 of the Braves starting rotation--Shuster and staff ace Max Fried--is Jewish. Since most Jewish pitchers in recent history have been relievers, I am pretty sure this is a historical first. Gilten Alter indeed.

Posted by Howard Wasserman on March 26, 2023 at 04:21 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, March 25, 2023

Ruth Markel (Dan's Mom) on Unorthodox Podcast

Ruth Markel (Dan's Mom) appears on the latest episode of the Unorthodox podcast (around 15:00 mark), talking about Dan, grieving, her book, and her efforts on grandparents'-rights legislation.

Posted by Howard Wasserman on March 25, 2023 at 03:17 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Still more on Stanford (Updated)

 Steve (welcome!) reports (with a copy of Dean Jenny Martinez's letter) on the for-the-moment resolution of the Stanford-Kyle Duncan debacle. A couple of points.

Martinez recognizes that some protesters--those who waved signs, those who snapped or hissed, those who asked provocative or even obnoxious questions--engaged in protected counter-speech for which they should not be punished. The letter also references a "non-disruptive level of audience reaction" as protected and appropriate in the forum, an important recognition of the gradations at work. Within the space reserved for a speaker event, it is not a simple binary between silently listen, display signs, and ask questions on the one hand and complete chaos on the other; oral counter-speech remains permissible prior to the point of disruption (wherever that begins). FWIW, Judge Duncan has not made similar distinctions; he expressed particular annoyance with the snapping.

As to my point about asymmetry: The President of West Texas A&M prohibited student organizations from putting on a drag show (scheduled for next Monday), calling it "derisive, divisive and demoralizing misogyny" and akin to blackface, and insisting that, despite the adult audience, drag shows cannot be harmless. The student group has sued and should win the TRO allowing them to hold the event. (Interestingly, the President recognizes that his decision violates the First Amendment but says he does not care). So again--obnoxious counter-speech v. formal state prohibition on student speech. Yes, there are counter-examples on both sides. But a trend is developing. Plus, I wonder how Judge Duncan--and his insistence that speakers be allowed to speak without interruption no matter how offensive the speech--would rule if he is on the Fifth Circuit panel for any appeal in that case.

Update: Popehat weighs in and again gets everything right.

Posted by Howard Wasserman on March 25, 2023 at 10:17 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Puttin' on the Ritz

This week's Saturday Music Post is "Puttin' on the Ritz," written by Irving Berlin in 1927 and introduced by Harry Richman in a 1930 film of the same name. That was only three years after the "The Jazz Singer," so "Puttin' on the Ritz" was one of the first songs to become famous from a movie. It has been more closely associated with Fred Astaire, who also recorded it in 1930, and sang and danced to it in the 1946 film "Blue Skies." And of course, Gene Wilder and many others. The clips are at The Faculty Lounge.

Posted by Steve Lubet on March 25, 2023 at 05:24 AM | Permalink | Comments (0)

Friday, March 24, 2023

How else are you supposed to do it?

Journalist Jason Garcia is upset that the Speaker of the Florida House acknowledged that the bill altering state defamation law is "intentionally unconstitutional" and designed to trigger litigation and provide SCOTUS an opportunity to overrule New York Times and other defamation precedent.

Put aside that "intentionally unconstitutional" should mean, at most, "unconstitutional as judicial precedent understands the First Amendment" and that a legislature can hold and act on competing constitutional understandings. But even at the most judicial supremacist, what else is a legislature supposed to do if it believes judicial precedent wrong and wants to challenge (and change) it? If a state cannot do what Florida is trying here,  judicial supremacy means the popular branches lack the power to disagree with the judicial understanding or to create mechanisms to express that disagreement and urge the court to change path. The Court's word is not only final but unchanging and irrevocable.

Posted by Howard Wasserman on March 24, 2023 at 06:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More Stanford

Stanford's DEI Dean Tirien Steinbach (currently on leave) has responded to Judge Kyle Duncan with her own oped in the Wall Street Journal, titled "Diversity and Free Speech Can Coexist at Stanford."

Here are some key passages:

Some protesters heckled the judge and peppered him with questions and comments. Judge Duncan answered in turn. Regardless of where you stand politically, none of this heated exchange was helpful for civil discourse or productive dialogue.

[T]he administration and I welcomed Judge Duncan to speak while supporting the right of students to protest within the bounds of university policy.

I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people. My intention wasn’t to confront Judge Duncan or the protesters but to give voice to the students so that they could stop shouting and engage in respectful dialogue. I wanted Judge Duncan to understand why some students were protesting his presence on campus and for the students to understand why it was important that the judge be not only allowed but welcomed to speak.

This explanation will be persuasive only to those who have not listened to the full audio recording of the event or watched the video of Steinbach scolding Duncan and expressing her approval to the hecklers of "what is going on here." To put it as plainly as possible, it was not Steinbach's job to get Duncan to understand the protesters (which was a pointless undertaking in any case, given what we all know about Duncan). It was her job to enforce Stanford's policy against disruptions so that the Federalist Society members could hear their guest.

The WSJ essay is here. It is paywalled, but most universities have subscriptions.


Posted by Steve Lubet on March 24, 2023 at 07:31 AM | Permalink | Comments (0)

Wednesday, March 22, 2023

Stanford Update

Stanford Dean Jenny Martinez has distributed a 10-page letter to the law school community, with a thorough discussion of the recent disruption of Judge Kyle Duncan's lecture. Unlike the earlier apologies from Martinez and President Marc Tessier-Lavigne, the new letter unequivocally condemns the disruption and calls administrators to account for failing to intervene when the heckling became intense. 

Some key passages:

The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed.

The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

Associate Dean Tirien Steinbach is currently on leave.

[I]t should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard (boldface original).

[W]ith respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction (boldface original).

Dean Martinez also commented on the hateful and perhaps threatening messages that students and administrators, including Dean Steinbach, have received, promising an investigation and referrals to law enforcement if warranted.

You can read the letter here.


Posted by Steve Lubet on March 22, 2023 at 03:43 PM in 2018 End of Term | Permalink | Comments (0)

Tuesday, March 21, 2023

Name Calling at Stanford

The Hill has published my take on the recent incident at Stanford, where students shouted down a federal judge who returned the rudeness in kind.

Here is the gist:

The Hill

Chaos and rudeness at Stanford 


It is unusual for a controversial event to end with absolutely everybody looking bad, but that is what happened on March 9 at Stanford University Law School, when the Federalist Society chapter sponsored a talk by Judge Stuart Kyle Duncan, an ultra-conservative firebrand appointed by President Trump to the Fifth Circuit Court of Appeals. The judge, the student protesters and an on-scene administrator all played to type, exhibiting arrogance, intolerance, and irresponsibility, respectively, that combined to make the afternoon a fiasco for all concerned.

The loud heckling started almost as soon as Duncan began speaking, frequently drowning him out and making it impossible for the Federalist Society members to hear their guest. The insults ranged from pointed to shockingly vulgar, continuing almost nonstop for about 12 minutes until Duncan asked for an administrator to intervene.

Up stepped Tirien Steinbach, the associate dean of diversity, equity and inclusion (DEI).

She commended the protesters for “what is going on here,” took a few more jabs at Duncan, and finally reminded the students that “you do not need to stay” and asked them to “give space” for Duncan to answer questions.

Although the heckling had abated and the most exercised students were gone, Duncan called the remaining questioners “infantile,” “ridiculous” and “a bunch of hypocrites,” singling out one as an “appalling idiot.”

In later interviews, Duncan continued to call the protesters idiots, their tactics “dogshit” and DEI Dean Steinbach “creepy.”

Going forward, perhaps we can hope that students will learn to exercise better judgment. We ought to expect it from administrators. We must demand it from judges.

You can read the entire essay in The Hill (no paywall).

Posted by Steve Lubet on March 21, 2023 at 10:02 AM | Permalink | Comments (0)

Monday, March 20, 2023

President Debs

Let's try out a fun constitutional counterfactual. Suppose Eugene Debs had won the 1920 presidential election from prison. (He received 1,000,000 votes.) What would have be the appropriate resolution?

  1. The outgoing President (Woodrow Wilson) should have pardoned Debs so that he could serve.
  2. The presidential electors pledged to Debs should have voted for his running mate, Seymour Steadman, who was not in prison.
  3. Debs should have resigned after being sworn in.
  4. Debs should have pardoned himself after being sworn in.
  5. Debs should have just served as President from prison.

Note that today you could imagine a 25th Amendment solution to this problem. But that was not an option in 1920.

UPDATE: Warren Harding did pardon Debs in 1921. Wilson refused to do so.

Posted by Gerard Magliocca on March 20, 2023 at 03:16 PM | Permalink | Comments (0)

Match Day for Med Students

Last Friday was "Match Day," when senior medical students learned whether they had matched with their preferred residency program. With over 43,000 applicants rank ordering programs, which in turn rank ordered the applications, the process generates plenty of data about the medical profession, given that today's residencies affect the distribution of physicians for decades to come.

According to MedPage, three of the most in-demand programs were in surgery -- orthopedic, plastic, and thoracic -- and the fourth was radiology. In contrast, the programs left with unfilled positions -- more openings than applicants -- were all forms of primary care, mostly those with frequent patient contact: family medicine, internal medicine, emergency medicine, pediatrics, and psychiatry. Not coincidentally, no doubt, those are also the lowest-paying specialties, even though they account for the most common patient interactions. This is not a good trend.

There is also some interestingly encouraging news. It appears that the Dobbs decision may have had an impact on med students' preferences. As reported in the Journal of General Internal Medicine:

In a survey of more than 2,000 current and future physicians on social media, we found that most (82.3%) would prefer to work or train in states with preserved abortion access. In fact, more than three-quarters (76.4%) of respondents would not even apply to states with legal consequences for providing abortion care. The same holds true for states with early or complete bans on abortion or Plan B. In other words, many qualified candidates would no longer even consider working or training in more than half of U.S. states.

[These] preferences persisted across medical specialties and subspecialties, underscoring the essential truth that abortion rights and access affect the entire physician workforce and, thus, the whole healthcare system.

While 77.8% of respondents report that their preferences are influenced by patient access to abortion care, others also prioritize preserved access for themselves or their partner (56.1%) or other family members (42.5%). This should not surprise us: physicians are human beings, too, with healthcare needsopens in a new tab or window and personal lives that are not wholly defined by their career choices.
Of course, it remains to be seen whether stated preferences will be reflected in actual choices. It is hard to imagine that many aspiring oncologists will turn down residencies at Houston's MD Anderson Cancer Center, for example, although they may still decide to practice elsewhere post-training. Dobbs was only decided last year, so the longer term effect on physician supply will take a while to develop.

Posted by Steve Lubet on March 20, 2023 at 10:00 AM | Permalink | Comments (0)

Saturday, March 18, 2023

The Draft in Youngstown

In prior posts, I've mentioned that a staple of constitutional argument is: "We can draft you, therefore we can do blank to you." Another example of this is Chief Justice Vinson's dissent in Youngstown:

"Seizure of plaintiff's property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization, and allocation of materials."

Posted by Gerard Magliocca on March 18, 2023 at 01:36 PM | Permalink | Comments (0)

Is the ham green?

A break for something non-serious. Although Rick and Paul still might believe me wrong:

"I do not like green eggs and ham." What color is the ham on the dish that Sam-I-Am does not like?

The cover shows both as green--he does not green eggs together with green ham. But in my mind, I always have read green to modify eggs, while ham is unmodified--he does not like green eggs together with ham, regardless of the color of the ham.

If we focus on author intent, presumably Geisel signed off on the cover and his intent is that both food products are green. But is that the best interpretation of that language? What do ordinary rules of English and statutory construction tell us?Green_Eggs_and_Ham

Posted by Howard Wasserman on March 18, 2023 at 12:35 PM in Howard Wasserman | Permalink | Comments (8)

Saturday Music Post -- The Gambler

For about the past four years, I have been posting music clips every Saturday morning at The Faculty Lounge. The posts always have a theme. Sometimes it's a song, as interpreted by different musicians. Sometimes it is the work of a single artist or group. There have also been posts devoted to instruments, musical styles or eras, and sometimes just common words or ideas in the lyrics (sunshine, motherhood, birds).

Today's Saturday music post is "The Gambler," which you can find here.

Posted by Steve Lubet on March 18, 2023 at 06:47 AM | Permalink | Comments (0)

Friday, March 17, 2023

Just the Last Paragraph

I also think Howard's "asymmetrical censorship" post is wrong--I think! I am sure I disagree on some issues voiced there and in his post before that. But I wanted to focus solely on my disagreement with his last paragraph. Unfortunately, the more I wrote, the less sure I was of the meaning of that paragraph. I think the problem has to do with a sudden switch from one reasonably apt point (which is not to say I agree with it) to a different and inapt point. Here's that paragraph: 

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

The National Review piece  urges Stanford and other law schools to discipline disruptive behavior by students, up to and including reports to the bar. (Based on other recent extrajudicial writings by Judge Ho on this subject, the editorial may be "controversial" and might even be right, but I doubt it was interesting or deep.) For public law schools, of course, imposing discipline is indeed invoking the force of the state. For private law schools, imposing discipline is only a second-order invocation of state force, which does not enter into play unless and until a student refuses to accept the discipline. At that point, however, the recalcitrant offender will be subject to ejection, ultimately backed by state force. And because law is a licensed profession that draws on delegated state power, any character and fitness examination is also backed by the force of the state. Law schools that report students to the bar for cheating, for instance, or notify the bar that a student has flunked out, has no business serving clients, and thus should not even be considered for licensure, are also engaging in Coverian violence--justified Coverian violence, in that instance. (The judges also kind of urge Stanford to notify potential employers of disruptive students. I say "kind of" because they offer this suggestion only if universities are unwilling to enforce the speech policy the judges think they should have or already have in place. As written, it's a stupid and ill-thought-out suggestion. But it does not involve state force.)  

It is not clear to me from what I have read of the student protests exactly what they want, and it would be a mistake in any event to attribute a single motive to a potentially disparate group. But I take it that some of them want Stanford to take the position that certain would-be speakers should not be allowed to speak at their school. I imagine that some of those holding such a view think Stanford's policy should actually be enforced, so that a speaker barred by such a policy will be, you know, barred. In the limit case--say, a person who is refused access as a visiting speaker but shows up anyway and commandeers a room--I imagine they will desire that state force be applied to prevent the trespass. (I hope that's their desire, since the alternative would be private violence.) It is possible that some of the students do not want such a policy, and believe only that Stanford should have a policy that there are no rules governing any form of spoken response to visiting speakers, or that its policy should be that there are no rules for counterspeech for some speakers, whether designated by the university or chosen in the moment. I could imagine an unattractive but reasonably consistent anarchistic version of this view, in which the rule on campus is that there are no rules. Every other version, every version that involves any selectivity at all--for instance, the version that distinguishes sufficiently-bad-opinion-holding visiting speaker Duncan from unobjectionable-opinion-holding visiting speaker Whitebread, or the version that distinguishes Visiting Speaker Lopez from Regularly Scheduled Class Lecturer Professor Lopez-Prime, such that students may shout imprecations at Lopez during his or her talk but will face discipline for doing the same thing to Lopez-Prime while he or she is teaching a class--at some point relies on the knowledge of the availability, at the end of the road, of the use of state force. "This is our jurisdiction!" ain't just a slogan. If we're going to "unmask" state violence, or whatever the academic cliche of the day is, we might as well do so thoroughly.    

So: These two judges urge universities to have one policy enforced by schools: discipline students who are disruptive in ways that, on this account, prevent speakers from speaking their piece at an appointed time and place. And they think law students who are sufficiently disruptive in this fashion should be reported to the bar, just as other students who are disciplined for misconduct are potentially reported to the bar. And the students, or some of them, appear to want schools, or at least their school, to have a different policy, one with uncertain bounds but that ultimately consists of a policy about what is or is not allowed by way of response to speech they object to in a law school. Neither are thinking of the sheriff as such, but both ultimately rely on state enforcement of whatever policy is in place. Are they wildly disequivalent or asymmetrical? No. 

This is what confuses me, because Howard makes a different comparison in the paragraphs leading up to this one. He compares private or semi-private efforts to prevent people from speaking or to penalize them from speaking, which can range from the uncontroversially acceptable to the questionable but relatively trivial to the serious and wildly disproportionate, to organized legislative efforts, popular of late at least as public political tactics, and which sometimes make their way into generally applicable law, to regulate speech. One may reasonably think both are serious. But one may certainly think with some good reason that speech-suppressive legislation is more serious and different in kind from private enforcement of would-be speech norms, including those that speech to suppress speech, even if one thinks some or all of these forms of private enforcement are also bad and serious.

If that is the asymmetry he is talking about, well and good. One can argue over the particulars, but I am not disturbed as such by the view that more formal and public efforts to control disfavored speech are more serious than more informal and private efforts to control disfavored speech. (That's fine with me in part because I'm an old-fashioned civil libertarian, the sort that used to be a card-carrying member of the former version of the ACLU, with a healthy distrust of government power, who believes there is some value to the public-private distinction. I'm not sure that's the current view of the intelligentsia, both generally and within the legal academy. For those who believe that the distinction between public and private power, including in the area of speech, is vastly overstated or false or outdated, which I don't think includes Howard, I would think it should be much harder to make an argument for "asymmetry." If anything, people with those views should be drawn to the "symmetry" side of the argument.)

But the examples in his last paragraph, which he seems to present as continuous with or the culmination of his early paragraphs, strike me as entirely inapt on this point. What the last paragraph describes is two sets of stakeholders both urging law schools themselves to adopt and/or enforce particular speech policies. Neither set is urging a law, or that a policy be imposed on the law schools by someone or something else. Any serious state action in either case is only an indirect consequence of the law schools setting and enforcing their own policies about speech: it comes about only if students fail to comply with the speech policy urged by each. It is reasonable to say that it's a mistake to treat as equivalent a law requiring a particular set of speech policies, imposed on universities by legislatures, and a protest, however inconsistent with academic values it may be, attempting to deny a platform to disfavored speakers. But this is not the example he uses in his last paragraph, since this is not what Judges Ho and Branch demand in their editorial, which--like the students--is demanding that Stanford or other law schools, of their own volition, take a particular approach to campus speech. What he does discuss, if dissected a little more thoroughly, is equivalent, or at least far more equivalent than what he talks about elsewhere in his post. He simply takes a sudden wrong turn at the end.  

Incidentally, the solution to such a dilemma, when presented by the stakeholders as a policy demand and not imposed by the state, is obvious and easy. Law schools considering policies that affect the exchange of ideas on campus can listen to the views of stakeholders such as students, alumni, donors, practicing lawyers, and so on. Then, acting through faculty governance and not just administrative fiat, they should select the policy that is most consistent with their academic status, their academic mission and duty, the demands of their discipline, and the trans-disciplinary norms and duties that constitute the academic profession and environment as a whole. They should make that choice and that policy clear, and they should actually insist on enforcing it. Listening to other stakeholders may be informative. But once the time to choose actually arrives, they must choose and enforce the policy most consistent with the duties and values of the academy, without regard to what any other stakeholders, including students and alumni, think or want. A law school's speech policy is a matter of faculty governance and faculty governance is not shared with students, sympathetic or otherwise, or with Judges Ho and Branch. They're all free to argue against and about it. But we are not free to delegate that decision to them, and it must ultimately be based on what academic duty demands. A law school (or a university) that does otherwise has simply failed in its duty. So there's really no hard problem on that part of the issue.  

Posted by Paul Horwitz on March 17, 2023 at 04:13 PM in Paul Horwitz | Permalink | Comments (0)

On why I think I am (mostly, generally) right

I appreciate Rick's response to my post on Stanford. I want to hit a few points.

• I said at the outset of my post that I vastly overgeneralized. To the extent I overstated the point or understated lefty's willingness to use state power to target speech, mea culpa. Yes, the left (often?) uses formal state power to suppress speech (and I oppose those efforts when they happen). But I stand by the point that in the current political-cultural narrative of "both sides suppress speech," the juxtaposition is young "social-justice warriors," often but not always on campus, making a lot of noise and complaining about "harmful" speech, compared with whoever Florida went after yesterday (the state is trying to strip the Miami Hyatt Regency of its liquor license over a drag show). I cannot think of a current Democratic-controlled state undertaking efforts mirroring what is happening in Republican-controlled states. Maybe campus speech codes? Maybe states using existing public-accommodations laws against expressive businesses? What else am I missing?

• I hope my post did not read as a defense of what the students or associate dean did; I am not sure I know enough to say. We might describe their conduct many ways--rude, obnoxious, unprofessional, counter-productive, many others. I do not believe we can describe it as falling outside of the First Amendment--especially the hostile signs and questions that created a nasty environment but did not prevent him from speaking. So I am troubled by the suggestion (to be clear, from Judges Ho and Branch, not from Rick) that the government should deny bar membership because of obnoxious-but-protected speech.

• I have read reports (yes, grain of salt and all that) that Judge Duncan was videoing protesters outside the building and the room and perhaps making negative comments to them (that is not clear). But it suggests that Duncan adopted an adversarial posture with people independent of the in-room disruption, people who I think we agree behaved in an appropriate manner towards a speaker this dislike. I admit I do not know how things would have gone had the protest remained silent or outside and he been able to give his prepared remarks and then respond to questions. I infer that his response to the question about the pronoun case would have gotten the same "read the opinion" response.

• Do we have a good sense of who did what among students in the room--who silently protested,* who asked questions,** who shouted and disrupted? And how does that affect how we evaluate the behavior of other audience members and of Judge Duncan. Video shows Duncan giving dismissive responses to some actual questions. Who asked those questions? If A acts like an idiot and interrupts, does that justify a non-response or dismissive response to a legitimate-if-challenging question from B, who did not join in the circus? In a mixed audience, how should we expect the speaker--especially a speaker who is an Article III judge--to engage with those who disagree  but attempt to engage?

[*] I believe silent, non-disruptive-if-distracting protest offers a fourth option to the three that Rick identifies.

[**] Can questions for an invited speaker be hostile? True, it may not be the best way to get a good answer. But does it fall outside expressive norms?

• At bottom, I think I come out that there is blame to go around here. It ought not fall on one side.

Posted by Howard Wasserman on March 17, 2023 at 01:43 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Equality Machine Symposium Essays on Yale Journal of Regulation are up

The essays are all here - except for my response essay which will appear tomorrow. I cannot even express how grateful I am to have this set of brilliant readers approach the book with a critical and constructive eye, which was exactly the goal of the book.

Symposium on Orly Lobel's "The Equality Machine"

Can We Build an Equality Machine? An Introduction, by Rachel Arnow-Richman

*This is the introduction to a symposium on Orly Lobel’s The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, selected by The Economist as a best book of 2022. All posts from this symposium can be found here. Further reviews can be found at Science, The Economist, and Kirkus. Consider these paradoxical […]

Posted by Orly Lobel on March 17, 2023 at 12:47 PM | Permalink | Comments (0)

John Bingham and the Fifteenth Amendment

Travis Crum has an excellent new draft paper on "The Unabridged Fifteenth Amendment." One reason that I like the paper and the topic is that John Bingham is accurately depicted as a Radical Republican. 

Bingham is often described as a moderate. This is wrong, as I tried to show in my book about him. He was a formalist, which in a certain sense is moderate. But the formalist positions that Bingham took were radical under any reasonable definition of that term. With respect to the Fifteenth Amendment, Professor Crum shows that Bingham consistently took the broadest view of what the Fifteenth Amendment should include. (I talked about this somewhat in my book, but "The Unabridged Fifteenth Amendment" does a far better job.) Bingham lost that debate, but he lost on the radical side.

Posted by Gerard Magliocca on March 17, 2023 at 09:48 AM | Permalink | Comments (0)

Thursday, March 16, 2023

On "Asymmetry" and "Civil Discourse" -- Or, Why Howard is Wrong

In my view, the treatment of Judge Kyle Duncan at Stanford Law School was awful.  And, in my view, the efforts of a number of academics and commentators to downplay the awfulness of that treatment is depressing.  

More specifically, though:  My colleague Howard has two recent posts on the matter that, I think, are mistaken.  First, in "Asymmetrical Censorship", Howard contends that the "left" censors using private power while the "right" does so using state power.  This contention, it seems to me, is wrong.  It's not wrong, of course, to distinguish (both normatively and in terms of effects) the censorship that is imposed by private power from the censorship that is imposed by state power (and both kinds of censorship exist).  But it seems, to put it mildly, incongruent with the facts to suggest that the "left" eschews using state power to silence/punish expression.  [Ed.: Insert here a gabillion links.

In his other post, Howard returns to a position he has developed in other posts, and says that "the 'civil discourse' trope . . . is and always has been bullshit."  No, it isn't. (He also says, in passing, that Judge Duncan "went to Stanford itching for a fight . . . and would have been as dismissive and rude to silent protesters."  I have no reason, and neither does Howard, to think this is true.  We both do have reasons, though, to think that Judge Duncan was set up, and that the Administrator prepared weird and offensively condescending remarks for delivery.)  It is not "bullshit" to endorse a norm that, when speakers are invited, in keeping with established procedures, to deliver remarks, in a space that is not Speaker's Corner [especially a higher-education space], those who dislike the speaker, or his or her views, should (a) attend and listen, and ask questions in keeping with usual practice; (b) avoid the event; or (c) protest the event, outside the space.)

It's also not too much to think that students at one of our nation's best law schools should be able to better express disagreement with a speaker's (in their view) misguided views than to yell about the speaker's and his or her spouse's intimate practices.  But, I guess, that's a separate question.

Posted by Rick Garnett on March 16, 2023 at 06:15 PM in Rick Garnett | Permalink | Comments (14)

Asymmetrical Censorship

Conventional wisdom holds that "both sides" want to restrict speech and lack respect for the First Amendment and free speech values. But that "both sides" framing overlooks the mechanisms through which each side disrespects speech. Vastly overgeneralizing and we can find exceptions, but:

    • From the left, private persons or entities exercise some form of free speech to oppose or counter speech and speakers they do not like--shouting down speaker, banning speakers from social-media sites, boycotting speakers, etc. That is, what gets framed as "cancel culture," especially on college campuses. One can disagree with such tactics. And these tactics can run afoul of some neutral rules--such as the rules governing a forum. But we cannot deny that those exercising it are: 1) private persons and 2) exercising some form of their own expression, however stupid we might believe them to be.

    • From the right, officials use the power of the state to silence speakers--banning drag shows, making some classroom speech unlawful, threatening reprisal against speakers who criticize government officials, arresting protesters and journalists, overruling speech-protective precedent to make suing critics easier, etc.

It seems to me that one is worse, because one has many more formal and practical consequences. But the intense pull of "both sides" in national coverage requires that a sophomore at Oberlin is as great a threat as the governor of Florida (and wannabee president).

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want  Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

Posted by Howard Wasserman on March 16, 2023 at 04:21 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Science Based Medicine and Masking

As some readers may know, I have been involved for many years in exposing flawed research and unfounded claims for the treatment of chronic fatigue syndrome/myalgic encephalomyelitis (ME/CFS), and more recently long Covid. This has led me to Science Based Medicine, an invaluable website that is "dedicated to evaluating medical treatments and products of interest to the public in a scientific light, and promoting the highest standards and traditions of science in health care." As explained on the website,

Online information about alternative medicine is overwhelmingly credulous and uncritical, and even mainstream media and some medical schools have bought into the hype and failed to ask the hard questions.

We provide a much needed “alternative” perspective — the scientific perspective.

Good science is the best and only way to determine which treatments and products are truly safe and effective. That idea is already formalized in a movement known as evidence-based medicine (EBM). EBM is a vital and positive influence on the practice of medicine, but it has limitations and problems in practice: it often overemphasizes the value of evidence from clinical trials alone, with some unintended consequences, such as taxpayer dollars spent on “more research” of questionable value. The idea of SBM is not to compete with EBM, but a call to enhance it with a broader view: to answer the question “what works?” we must give more importance to our cumulative scientific knowledge from all relevant disciplines.

SBM does not only critique so-called complimentary and alternative medicine (CAM), however. The site also addresses mainstream studies that are underpowered or misleading, which gets me to the point of this post. Much has been made, especially in the right-wing media, of a recent Cochrane report has been said to conclude that masking is ineffective against Covid. In fact, that was not the conclusion of the study, nor could it have been given the flaws in methodology, despite frequent talking points to the contrary.

SBM has had two extremely informative posts on the Cochrane report, which I will excerpt below.

First, from Steven Novella, a founder of SBM and a clinical neurologist at Yale:

Let’s take a look at the recent Cochrane review. This is a review only of controlled studies – the kind of study that is most likely to underestimate the effect of mask-wearing. They did not included other kinds of studies. Not all of the studies reviewed were of COVID – they included studies of other respiratory viruses (which therefore may be different) and they included studies that were not taking place in the middle of a pandemic. This is a huge red flag, as it is pretty clear from existing data that masks only work in high-risk situations.

The one study they included of health professionals in a high risk setting only compared surgical masks with N95 masks, which showed no statistical difference, but did not compare either to no mask. Also, health care professionals are the most likely to engage in the full range of protective behavior (distancing, hand washing, protective face shields, gloves and gowns). Given this, it is not surprise that the difference between a surgical mask and an N95 mask was not statistically significant.

But the biggest error I see in reporting this study is the conclusion that it shows that “mask mandates don’t work”, when that was not even studied. Studies looking specifically at mask mandates show that they do work.

Second, from David Gorski, a surgical oncologist at Wayne State:

I want to ask: What is it about Cochrane and EBM fundamentalists who promote the EBM paradigm as the be-all and end-all of medical evidence, even for questions for which it is ill-suited, that can produce misleading results?

Cochrane meta-analyses are notoriously tricky to do. First of all, you have to decide what the question is. Then you have to decide what studies out there address the question. Then, for the case of something like masks, you have to realize that you will, by the time you go through the literature and apply EBM standards to them, looking the highest quality RCTs, you will be looking at only a small, highly select part of the literature. While this is fine for new drugs and asking if they are efficacious, for a multifactorial question like whether masks slow the spread of COVID-19 at the population level, a large amount of compelling and high quality scientific evidence could well be excluded because the EBM paradigm demands it.

Yet, as I like to point out, no EBM adherent seriously doubts that smoking and tobacco can cause lung cancer, heart disease, and a host of other maladies, even though there is not and never will be an RCT testing whether smoking causes these conditions because such a study would be profoundly unethical.

There is much more to the Novella/Gorski critiques of the Cochrane report, including information about the lead author, who is a frequent confrere of anti-vaxxers.

But this is already a long post, so let me just suggest that it would be highly informative to check Science Based Medicine daily. There is almost always something interesting.

Posted by Steve Lubet on March 16, 2023 at 08:00 AM | Permalink | Comments (0)

Wednesday, March 15, 2023

Stanford, preferred first speakers, and the nonsense of "civil discourse"

Grading has denied me time to write about the Stanford debacle. I somewhat was waiting for Ken White to cover it, expecting that I would share his take--and I do.

I will add the following: This demonstrates why the "civil discourse" trope--students should not protest, they should sit quietly and politely listen to the speaker, then engage with the speaker in a "Platonic dialogue"--is and always has been bullshit. The speaker bears no obligation to engage with the questions. And Judge Duncan did not engage--including with actual, thoughtful (if pointed and hostile) questions. When someone asks the speaker about something he wrote (such as the opinion refusing to allow a prisoner to use his proper pronoun), "read what I wrote" is not engaging in civil discourse. And acting as if he was not on the panel is certainly not. That the questions and questioners were hostile does not excuse non-answers; it shows how those who censor speech use "politeness" and "civility" to silence counter-speech.

I like Ken's framing of the point: "The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one."

I also reject the framing of this as a "shouting down" issue. Yes, the protesting students prevented him from speaking, in violation of Stanford's forum policy. But if the students had done what the policy allows and urges--oral protests outside the building, silent protests through t-shirts and signs inside the room--Duncan would have responded the same way. He went to Stanford itching for a fight--not sure whether I buy the theory that he sought to raise his profile for a SCOTUS appointment--and would have been as dismissive and rude to silent protesters. No student should have the temerity to protest him--free speech means sit there and listen to what he has to say.

Chris Walker (now at Michigan) visited FIU this week. He shared that when he taught at The Ohio State University, Fed Soc invited a speaker from the ADF. OutLaw held a bake sale outside. The speaker bought something. That is not discourse. But it is effective protest.

Posted by Howard Wasserman on March 15, 2023 at 12:03 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 14, 2023

Is Joe Biden a Confabulist?

Writing on the Lawyers Guns Money Blog, Paul Campos says that Joe Biden must have been confabulating during his recent interview with Kal Penn. The passage in question is in the clip below at :45 to 1:30.

According to Paul, the chances are basically zero that Biden's father told him, in around 1959 or 1960, that gay men would kiss each other because they were in love. Paul therefore thinks the story is a confabulation. "Biden is remembering an imaginary incident that's more congruent with his current beliefs and identity."

I don't see why Paul comes to that conclusion. I had virtually the same experience in pretty much the same era; probably when I was in sixth grade, which would have been 1960 or 1961.

My very progressive parents always had gay friends. My first baby-sitters, in the late 1940s, were a gay couple with whom my parents sometimes double-dated. And that wasn't unusual in their circle. I remember girl -- the daughter of another couple -- who admonished a kid for using an anti-gay slur.

Maybe Biden exaggerated his father’s comment about love. Maybe he confused the year or embellished the precise details. That would not be confabulation. It is not surprising that someone would long ago have accepted gay love as quite normal. My family certainly did (I take no credit for it; I was a child).

Posted by Steve Lubet on March 14, 2023 at 06:21 PM | Permalink | Comments (0)


Jim Brudney and I have uploaded our latest, Any:

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested meaning of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any,” and any effort to offer a unified approach – knowing precisely when its meaning is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained meaning of “some,” related to properties provided by contextual cues) – is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, and conducts in-depth pairwise comparisons of “any” cases to show the word’s flexible meaning in its multiple statutory guises. After evaluating evidence of the variability of “any,” we recommend a new approach, a form of an “any” canon. We encourage adjudicators to appreciate the complexity of “any” more systematically and to consult a full range of sources – as even full-throated textualists have authorized from time to time – offering the relevant larger context judges will need to ascertain the meaning of “any” in any given statutory scheme.

Download it here.

Posted by Ethan Leib on March 14, 2023 at 03:06 PM | Permalink | Comments (9)

Ouch. And What?

I am reading the oral argument transcript in Youngstown. Here is an actual exchange with the Solicitor General:

JUSTICE FRANKFURTER: In the Myers case there was a good deal of 'tall talk,' and in the Humphreys case the unanimous Court said that these principles were disproven.

MR. PERLMAN: The Court there--Mr. Justice Jackson pointed out in his book, "Struggle for Judicial Supremacy"

JUSTICE FRANKFURTER: I point out what the Court said.

JUSTICE JACKSON: Justice Frankfurter did not read the book.

MR. PERLMAN: I suppose I should take advantage of this opportunity to recommend it to him.

JUSTICE FRANKFURTER: Doctor Johnson said, you know, you can give a person knowledge, but not understanding.

MR. PERLMAN: If that is meant for me, it is a dirty dig.

JUSTICE FRANKFURTER: It is meant for me.

Posted by Gerard Magliocca on March 14, 2023 at 02:28 PM | Permalink | Comments (0)

A Useful Opportunity for Golden-Rule Law Review Reform

There are two likely standard responses to a story in which law students demand pay for working on law review. The first is more or less reflexive support. ("At a time when lots of law schools are talking about diversity in legal academia, this is a concrete step that could go pretty far in making a material difference for those who don’t come from a privileged background.") The second is more or less reflexive ridicule. ("But rather than quit the law review, they want money because these are the days that law schools, law deans, acquiesce to the demands of students because they either can’t or won’t say no.") Let's bypass both of those and go for a somewhat sunny-sided Door Number Three.

It should be noted first that the NYU students who have launched the petition reported on above are actually demanding that "all contributors to the journals be able to choose whether to receive compensation in hourly wages or credit hours." One might reject the full demand but find it reasonable that students receive credit hours for law review work. I do. My law school offers one credit for law review work and two credits for work by a few top editors. Other law schools offer variations on this credit-granting approach. When last I wrote here about law reviews, I wrote in the assumption that this was common but discovered in correspondence that it might not be as prevalent as I had assumed. The person who wrote me indicated his school was looking to add credit hours for law review work, so perhaps it is becoming more common--or perhaps the demand is becoming more common, or both. In any event, it hardly seems crazy to me. 

But for schools who don't offer credits, or who contemplate seriously the possibility of offering pay, perhaps we should think of this as an opportunity. Seeking official compensation of either sort is also a recognition of official authority. And it's an excellent opportunity for law schools to provide the kinds of conditions that a) might naturally accompany both authority and compensation and b) make sense regardless. For instance:

1: It seems appropriate, if law students are going to be offered credits or financial compensation for this work, that all students be eligible for it. This would be an excellent opportunity to insist that if such a plan is to move forward, any student who wishes to serve on law review--on any law review, including the flagship journal--be allowed to do so. This makes sense because it makes little or no sense to restrict admission to law review in the first place. What Above the Law (and just about everyone else) refers to as "grunt work" does not require an unusual amount of talent. Top editorship might, and it certainly requires an unusual level of commitment of time and effort. But I am unaware of any empirical work showing that top first-year grades correlate with excellent work as an editor. In any event, the skills required for that editorial work are not involved in the general work that occurs at the wide end of the funnel.

The only cost to the journals or the students of general admission would be the possible, and perhaps over time inevitable, loss in prestige. But the prestige that attaches to working on a law review is both silly and artifactual. It is prestigious not because of the thing in itself, but because admission to law review is restricted, and admission thus serves potential employers as a proxy for academic achievement. That proxy is unnecessary, since employers can look directly at grades. In countries with sensible law review practices, working on a student-run law review, where they exist alongside faculty-run journals, carries no unusual level of prestige--certainly not higher than clinical work, mooting, or other extracurricular activities--because it is not a proxy for grades. The people who work on either sort of journal do so because they want to work on a law journal.  

In the absence of prestige, fewer students might opt to serve on a law journal at all, instead of doing some other activity. But that's a feature, not a bug. Not all students are interested in or have a vocation for scholarly editing (or editing of any kind); more of them might do something else for which they're more suited or which would provide better and more relevant professional training; some of those alternative activities might be more socially beneficial, such that both they and everyone else would be better off if more students did those activities instead; and a reduction in staff might lead to a winnowing of functions and a focus on core editing rather than citation busywork. Finally, if the concern is with diversity, allowing anyone who wishes to do so to work on law review--albeit with a relative loss in prestige--would achieve that aim far more fully than tinkering around the edges with law review admissions, in ways that seem almost calculated to change the composition of the editorial staff on the margins while maintaining a cashable system of prestige and elitism.

2: It would also be appropriate for law schools to insist, in exchange for the pay and/or credit, that part of the redesign involve faculty editorship of law reviews and a properly instituted system of genuine peer review. Under this modest reform, law students working on a law journal would become what they are elsewhere in the world and are supposed to be: editorial assistants, serving the professional faculty who exercise the ethically indefeasible disciplinary function of running and editing their field's academic journals. Such a reform would marry nicely with the demand for financial compensation. I was not paid for my work as an editor of the student-run law journal at the University of Toronto's law school, but I was most certainly paid for my work as an editorial assistant on the faculty-edited Canadian Business Law Journal, just as I was paid when I worked as a research assistant to an individual professor. 

3: I think number two should be non-negotiable. But at a minimum, if law schools are to hand out credit, with grades (likely pass/fail, but grades nonetheless) and/or pay for work on a school's law journal, I think it is entirely appropriate that those schools exercise their authority to insist that those journals meet high professional standards. After all, law schools already insist that credit come only for meaningful achievement in academically sound law school courses. And when law schools outsource that teaching function, with things like externships, the schools and the ABA insist that those activities be scrutinized to make sure they are meeting high standards.

Among other things, this would entail that those journals not pursue idiosyncratic or political editorial projects or policies that the faculty consider to be inconsistent with the general professional standards and duties of an academic journal; that they welcome excellent articles (and only excellent articles) on all subjects within the discipline and representing all viewpoints; that symposium issues represent a full range of scholarly views on the subject; that they reject funding from special interests of any kind for symposia or other projects; that they institute at least some form of peer review, including review by academics in other disciplines when an article draws on that other discipline; that their articles acquisitions be subject to some level of transparency and faculty approval or ratification; that any substantive edits insisted on for articles meet scholarly standards and serve only scholarly purposes, that mere gamesmanship in articles acquisition be eliminated; and so on.

As it turns out, I think law schools should insist on all of this anyway. I'm currently writing a jot on Tarunabh Khaitan's fine article on scholactivism in constitutional studies. In working through the issue, Khaitan posits an author who, because she is seeking to influence policy on a short-fuse issue, departs from what he considers basic scholarly standards by, inter alia, submitting an article on the topic "to a non-peer-reviewed student-run law review known for its quick publishing decisions." It is a mark either of Khaitan's parochialism or of our own insanity that his example of a departure from what he considers a baseline marker of academic soundness is, in this country, just standard practice. Law schools should insist on and impose all of these things because they assert that they are an academic enterprise and that their faculty are scholars--and they should act like it. The professional duty to do so is, again, indefeasible. It is revolting to maintain the current system, laughable in the eyes of any other discipline, for no better reason than that that's how they did things when Henry IV, or the faculty, or some donor/alumnus, were law students. Regardless, if law schools are going to award credit or offer financial compensation, this is a particularly good occasion to insist on these changes. (I note that schools that already allow credit for law review don't necessarily insist on any of these things. They should.) None of this, incidentally, entails a belief that peer review is perfect; only that it is the professional norm for academic disciplines (including law, anywhere else in the world) and that it makes far more sense than what we have at present.   

I don't see anything in any of my suggestions which is inconsistent with the student demands for pay or credit for working on a law journal. Indeed, insisting that any willing student be eligible to serve on the main law review is not only consistent with the students' demands but more in the spirit of their demands than the demand itself. I see only three counter-arguments. The first is that it would involve more work by the faculty, but this is work we're supposed to be doing in the first place and that harder-working faculty in lower-paid disciplines do already. The second is that it would involve a loss in prestige and independence for these journals. But neither of those things is justifiable from a disciplinary standpoint, the prestige is a pure artifact that is not worth preserving in itself, and, to put things in modern lingo, making it clear that there is a potential tradeoff between compensation and prestige would merely unmask the power and status relations that are already implicated by the United States' unique and bizarre law review system as it currently exists, with or without pay or credit. The third is that it would involve the assertion of authority by law schools over law students, insofar as the schools would be insisting that credit or compensation be accompanied by the kinds of reforms that would make our disciplinary journals look like those of every other academic discipline. But that authority is already there. It's present every time a law school does something like give or deny credit for coursework. And it's implicit in the students' own demands. Im short, instead of greeting this story with reflexive support or reflexive ridicule, we should see it as an opportunity to do the kinds of things we ought to be doing in the first place. 

Posted by Paul Horwitz on March 14, 2023 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Welcome, Steven Lubet

We are happy to announce that Steven Lubet has joined us as a perma-prawf. Steve is the Edna B. and Ednyfed H. Williams Memorial Professor of Law Emeritus at Northwestern-Pritzker School of Law, where he directed the Bartlit Center on Trial Advocacy, in addition to teaching PR and Trial Advocacy, and authoring books on, among other things, Harper's Ferry.

Posted by Howard Wasserman on March 14, 2023 at 11:29 AM in Blogging | Permalink | Comments (0)

Call for Papers - Northwestern University Law Review Online - Government Secrecy, Surveillance, Censorship

From the Northwestern University Law Review:

Northwestern University Law Review Online is seeking essays for its second annual Online Essay Series to be published in May 2024. The topic for NULRO’s essay series is "Government Secrecy, Surveillance, and Censorship in the New Age of Information." NULRO encourages scholarship on all aspects of the intersection of government secrecy, surveillance, and censorship. Possible subtopics include classification, national security, education, and privacy. Essays should be between 3,000 to 10,000 words and submitted to Scholastica or via email at [email protected]. The deadline to submit manuscripts is August 28, 2023. Authors can expect decisions on their submissions by September 29, 2023.

Posted by Sarah Lawsky on March 14, 2023 at 08:34 AM in Law Review Review | Permalink | Comments (0)

Whither Division III?

A current and a former basketball player at Brown filed a class action  suit, challenging the Ivy League's agreement/policy not to award athletic scholarships as an antitrust violation.

To our readers with antitrust knowledge: If successful, how does this not eliminate the NCAA's Division III, comprised of smaller, mostly private, heavily liberal-arts college and which prohibits athletic scholarships? If a conference-wide policy against scholarships violates the law, how can a nationwide policy not violate the law?

Comments open.

Posted by Howard Wasserman on March 14, 2023 at 07:02 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Monday, March 13, 2023

UCLA Seeks Legal Research and Writing Faculty

UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2023-24 academic year. The appointment will be effective July 1, 2023.

Each section of the Legal Research and Writing is a year-long five-credit course, designed to introduce students to the fundamentals of legal reasoning, the structure of objective and persuasive arguments, legal research methods, statutory interpretation, and additional skills, such as oral advocacy, fact investigation, and client counseling. Students complete a variety of written assignments, both graded and ungraded, designed to reinforce the overarching lessons of the course.

This is a full-time academic, non-tenure track appointment as a Lecturer in Law.

For a complete job announcement, see here.  The deadline for applying is April 21, 2023.  Please contact Dave Marcus, Vice Dean for Curricular and Academic Affairs, with any questions ([email protected]).

Posted by Howard Wasserman on March 13, 2023 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Friday, March 10, 2023

Baretta Theme

Robert Blake died. I do not have anything to say about Blake. But it offers an excuse to post about the show's awesome theme song, which somehow did not make Rolling Stone's top-100.


Posted by Howard Wasserman on March 10, 2023 at 02:45 PM in Culture | Permalink | Comments (0)

Judicial immunity and other civil rights hurdles (Update)

Steve Lubet (Northwestern) writes in Slate about Judge Robert Benitez (S.D. Cal.), who ordered the marshall to handcuff the 13-year-old daughter of a defendant in a parole-revocation hearing and have her sit in the jury box; his intent, he explained, was to send a message: “So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”

Lubet expresses concern that Benitez will incur no sanction for his actions. Life tenure means he cannot be removed from the bench other than by impeachment. The case was transferred to another, who reduced the 10-month sentence Benitez imposed. A judicial-misconduct complaint has been filed, but the sanctions are minimal--censure and perhaps an interruption of newly assigned cases.

As for civil remedies, Lubet says "He cannot be sued for damages, because he has judicial immunity for conduct on the bench."

But is the immunity issue that obvious? Immunity attaches to "judicial functions," performed not in the "complete absence of jurisdiction." That captures most conduct on the bench. But the conduct must relate to the conduct of judicial proceedings and control of the courtroom. But this may exceed even the broadest understanding of those concepts. Benitez was not maintaining order in the courtroom or ensure the proper conduct of judicial proceedings. He admits to "hoping" to get to the girl--not a party, witness, or other participant and only tangentially related to the proceeding--a "message" about how she should live her life. Above the Law called it a "bush league Scared Straight, which, despite the source, is a pretty good descriptor. Warning random teens about the danger of crime is not a judicial function; that it happens in court should not matter. The motive behind a function does not affect immunity--a judicial function performed for a racist purpose remains a judicial function. But the purpose of an action can affect whether it qualifies as a judicial function--an action that does not reasonably affect judicial proceedings cannot be judicial, even if a judge performs it.

Of course, judicial immunity is not the only hurdle the girl faces. Benitez is a federal judge, so any damages action falls under Bivens--and we know what that means. This presents a new context and thus an extension of Bivens since SCOTUS never allowed a claim against a federal judge. And the usual special factors will counsel hesitation before allowing the action--Congress never created a cause of action, the judicial-complaint system allows for alternate remedies, and a Bivens court will not want to chill other judges in managing their courtrooms in the future. And after Bivens comes qualified immunity and the absence of any precedent clearly establishing that judges should not order the handcuffing of courtroom observers without probable cause and for no legitimate judicial reason. Is the violative nature of this as obvious as leaving a detainee in a cold, feces-strewn cell or placing a prisoner on a hitching post for 7 hours? Who knows.

So Lubet is right that civil damages remedy are unlikely. But judicial immunity is the tip of that iceberg.

Update: Steve responds:

The leading SCOTUS case is Mireles v. Waco, 502 U.S. 9 (1991), which I considered when writing the essay (space limitations did not allow me to get into it). Mireles holds there is no immunity for actions taken in the complete absence of all jurisdiction. But the trial judge in Mireles had ordered the abusive seizure of a public defender who had missed a court call, and SCOTUS found that was not beyond all jurisdiction. I could be wrong, but my conclusion was that Benitez likewise had some jurisdiction over spectators in his courtroom, and especially over someone who had been invoked by the defendant as a reason for leniency – and thus as sort of a witness. She was in the courtroom to influence the outcome. Puente told the court that his daughter was in danger of drug use, so the judge had some jurisdiction to question or interview her about it, if only to determine whether to believe Puente’s assertion. Of course, his questioning was abusive, but that alone does not defeat judicial immunity.

Well, I would prefer being wrong about that, but as the abstract of the Mireles opinion put it, “That he may have made a mistake or acted in excess of his authority does not make the act nonjudicial.”

My reply (hey, my blog, my final word): We might distinguish Mireles because the order to the bailiff had a closer connection to courtroom management--the judge needed the attorney to get to court for things to proceed. I agree that Benitez could have questioned the girl, even in an abusive or threatening fashion; that would be judicial. Handcuffing her--for the purpose of teaching her a lesson rather than for determining whether to believe the defendant as part of the proceeding--is a difference in kind.

Finally, the cases distinguish actions "in excess of authority" from actions "in the clear absence of authority;" the former maintains immunity (as in Mireles), but the latter does not. Steve makes the best argument for why this is the former--she was there to influence the outcome of a proceeding and the judge can question that attempt. But the judge's statements of his purpose, to me, push this into the latter.

To be clear, I am not saying Lubet is wrong about judicial immunity. Only that it is more complex than the typical case of a judge misbehaving while conducting proceedings from the bench.

Posted by Howard Wasserman on March 10, 2023 at 02:23 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Smith on Sohoni and procedural originalism

The new Courts Law essay comes from Fred Smith (Emory) reviewing Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023), which explores how originalism has not (yet) come for constitutional doctrines in civ pro, such as personal and subject matter jurisdiction.

Posted by Howard Wasserman on March 10, 2023 at 12:31 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Hiring Announcement

I am posting this on behalf of Deven Desai (my former co-blogger and co-author).

Dear Law School Friends and Colleagues, 

The Law and Ethics Area in the Scheller College of Business at the Georgia Institute of Technology (Georgia Tech) in Atlanta, Georgia is seeking to fill one tenure-track faculty position at the rank of Assistant Professor or Associate Professor (junior or advanced level) with effective employment starting in fall 2023. 

GA Tech offers the opportunity to collaborate with world-class business, technology, and economics scholars. We welcome applicants from anyone with research and teaching interests in the ways law and business intersect. For example, the Law and Ethics faculty publish on a range of topics including international business, human rights and business/labor law, cyber security, intellectual property, trade, religious freedom, taxation, artificial intelligence and machine learning, Foreign Corrupt Practices Act, corporate governance, sustainability, and more.  

The full ad is below. Please feel free to contact Deven Desai at [email protected] with any questions you may have. 


Posted by Gerard Magliocca on March 10, 2023 at 10:58 AM | Permalink | Comments (0)

Thursday, March 09, 2023

Israel Needs Another Election

There is an intense debate in Israel about the Government's proposal to reform the judiciary. Without getting into the merits of that law, I do have an observation that might be worthwhile.

One way of thinking about significant constitutional change is that you need broad public support. This could be expressed in two forms. First, a party could win an overwhelming victory at the polls. Second, the party could win successive victories that are big enough to justify claiming a mandate. The first kind finds support in requirements for a supermajority to change a constitution. The second finds support in constitutional requirements (such as in Indiana) that two successive legislatures must propose the same amendment for the issue to go to the people in a referendum.

How can a parliamentary country handle this problem? In Britain, the answer was that ending bicameralism (in other words, demoting the House of Lords) went through only after the Government won successive elections on that issue by a significant margin. Oddly enough, the King was the person who made this demand and could make it stick, because only he could pack the House of Lords if they refused to pass what became the Parliament Act of 1911.

The problem in Israel is that the Government is trying to put through its judicial reform after just one election (and without a big majority in parliament). If they are confident that the people back this proposal, then they should call another election and prove that there is a mandate for reform. But there are two problems. One is that Israel has had many elections in recent years due to its internal political split, thus the appetite for another one this year is probably very low. Second, the Israel President cannot compel the Government to do this in the way that King could in Britain more than a century ago. (Today, of course, the King would have no such power.)

Posted by Gerard Magliocca on March 9, 2023 at 09:34 AM | Permalink | Comments (0)

Tuesday, March 07, 2023

Offended observer standing and the substance of the Establishment Clause

SCOTUS on Monday denied cert in an Establishment Clause case arising from a public vigil in Ocala, Florida. Justice Gorsuch agreed with the denial of cert while Justice Thomas dissented; both criticized "offended observer standing" in Establishment cases, repeating the themes in Gorsuch's concurring opinion (joined by Thomas) in American Legion.

I therefore re-up my 2019 post on why the Gorsuch/Thomas position eliminates pure Establishment Clause challenges to government religious expression and activities by eliminating any plaintiff with standing. Absent some compelled participation or exclusion (which would violate other constitutional provisions), no one suffers an injury from the display or program.

Posted by Howard Wasserman on March 7, 2023 at 11:28 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, March 06, 2023

Yale Journal of Regulation Book Symposium - The Equality Machine

Yale Journal of Regulation online symposium on The Equality Machine starts today. Here is the first introductory post by Rachel Arnow-Richman. 

Honored and eager to read comments over the next few weeks by the brilliant Rachel Arnow-Richman, Mark Lemley, Chris Slobogin, Elena Chachko, Ryan Calo, Talia Gillis, Jessica Roberts, Nicholson Price, Oren Tamir, Steph Borstein, Matthew Bodie, and Colleen Chien. And looking forward to reacting and continuing the conversation! (*easy: nothing much of course happening these days on the AI, digital, tech policy fronts :)) 

Posted by Orly Lobel on March 6, 2023 at 08:01 PM | Permalink | Comments (9)