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Wednesday, May 31, 2023

Steve Shiffrin and Our Luck

Mike Dorf reports that Steve Shiffrin, an emeritus professor at Cornell Law and a leading scholar on the First Amendment, has died. I am particularly grateful for his books The First Amendment, Democracy, and Romance and Dissent, Injustice, and the Meanings of America and the excellent First Amendment casebook of which he was a co-editor, and for his articles Religion and DemocracyThe Pluralistic Foundations of the Religion Clauses, and The Dark Side of the First Amendment. One could add many more major contributions to the list. On a personal and a scholarly level, he will be missed.

One thing I didn't know about Steve, and discovered upon looking at his faculty page just now, is that he was a night student in law school, at Loyola Los Angeles, where he was editor of the law review and first in his class. He also did graduate work in "Speech Communication" at UCLA, but remained ABD. These are real accomplishments, and anyone who has taught night students will tell you they can be some of the finest and certainly some of the most serious and dedicated students one has the privilege of teaching. Nevertheless, they depart from the conventional paths to law teaching, then and now. His students, colleagues, and readers have cause to be grateful that this didn't stop him and that various people along the way must have seen his promise and offered him the opportunities of which he made full use. Sarah Lawsky's annual entry-level hiring report indicates that a decent number of people still emerge from elsewhere than the usual schools and fellowships but that the usual suspects remain the norm. What we get from looking under the lamppost, as we do so often when hiring, is not so much brilliance as it is safety and efficiency (as well as conventionality, although I'm not sure this is something law schools are actively seeking by putting students through the standardization process of fellowships; it may be more of a side-effect). What we lose is the potential reward of simple chance and raw promise. It's a loss to be lamented, and a reason both to look more widely when hiring and to reconsider the deadening effects of the high tenure rates that prevail in American law schools. 

Posted by Paul Horwitz on May 31, 2023 at 05:00 PM in Paul Horwitz | Permalink | Comments (0)

More graduation free speech nonsense

Popehat calls out BU President Robert A. Brown for a lack of commitment to free speech dressed in cancel-culture/free-speech-warrior bullshit. I wish I could say it any better than he did.

Posted by Howard Wasserman on May 31, 2023 at 02:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

CUNY Law graduation: Everyone screws up a free speech problem (Updated)

I missed this story from two weeks ago, although the latest fallout continued yesterday. The student-chosen student speaker at CUNY Law's May 12 graduation, Fatima Mousa Mohammed, took aim at Israel and many other targets. People have responded in expected ways. Also as expected, no one covers themselves in free-speech glory.

• The three minutes drawing the most attention can be found here--Mohammed refers to "Israeli settler colonialism;" accuses Israel of, essentially, war crimes; accuses CUNY of supporting various evil causes; and praises CUNY Law (students and faculty) for supporting BDS. She later urges fights "against capitalism, racism, imperialism and Zionism around the world." Nothing in this speech falls outside of First Amendment protection and I presume school administrators either read and approved the speech or imposed no limits on its content.

• Which parts of the speech cross into antisemitism? For me, the obvious point is when she singles Zionism out as a unique evil to fight, distinct from racism and imperialism; if Zionism means the existence of a Jewish state (irrespective of Israel's current government and policies), that statement singles out Jews as a unique group not entitled to a homeland. Many people consider BDS antisemitic for similar reasons--it singles out Israel, and thus Jewish citizens and businesses, from all other wrongdoer governments. As for the rest, "Israeli settler colonialism" reflects her characterization of Israeli actions and policies; I disagree with the characterization and doubt the truth of much of what she describes. But does that (and can that) reflect protest of the Israeli government without crossing into Jew hatred? I leave comments open, because I confess that I remain unable to tell the difference in the gray areas.

• It appears students, including Jewish, support her and her words. CUNY's Jewish Law Students Association issued a statement (co-signed by Students for Justice in Palestine and other student groups) condemning Zionism as inherently racist and imperialist and condemning outside critics lobbing "absurd and false claims of antisemitism" against the "wishes of the majority of CUNY Law’s Jewish students." To be sure, CUNY Law's student body does not reflect a typical audience, including of American Jews. And query whether either group speaks, as the letter claims, for the majority of Jewish law students.

• What should objecting audience members--particularly graduates--have done in response to the speech? Should it be permissible to boo, jeer, heckle, etc. and up to what point? (Mohammed pauses at points because of audience cheers, so audience reaction obviously is fair game). Should they have walked out, thus missing a singular event in their lives? Recall that the anti-cancel-culture folks insist that either  is inconsistent with a commitment to free speech, which requires that people hear speakers, even without the opportunity to respond, so conversations can happen another day.

• Critics' reactions demonstrate, again, why few people truly believe in free speech as a principle, regardless of their rhetoric. CUNY's Chancellor and Board issued a statement yesterday that begins with this gem:

Free speech is precious, but often messy, and is vital to the foundation of higher education. Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.

Ah, yes, "we believe in free speech, except when we don't like that speech." Since hate speech does not fall outside free speech protection, this is an inane statement. Worse, it is too generic. The problem with the speech, if any, is its antisemitism. So to call it hate speech--without identifying the particular racial/religious group attacked and without criticizing Mohammed for that specific form of hatred--shows the Board's unwillingness to specify and call out antisemitism (if that is what they believe this was) by name when it sees it.

Similarly, Republican legislators give lie to their supposed free-speech commitments by calling for CUNY to lose federal funding because students engage in constitutionally protected speech and the public university does not prevent them from doing so. I await Rep. Lawler's support as anti-LGBTQ+ forces emerge on campuses.

• What is the point of a graduation speech? Free speech aside, did Mohammed overstep by making the event about herself and her causes rather than those of her classmates? Students seemed to support her and must have suspected what she might do when they selected her. Mohammed framed a students v. administration narrative (all the things students achieved in the area of social justice, in the face of administration opposition); she thus likely viewed herself as speaking for, and reflecting the causes of, her classmates. But should this type of speech avoid controversy in its nature, in deference to the least-supportive member of the graduating class for whom this represents an important day and milestone?

Update: FIRE sent a letter to the chancellor pointing out the stupidity of "hate speech is not free speech." The letter then explains why CUNY, as a state institution, cannot punish Mohammed for her speech. This seems an odd tack, however, because I did not read the Board statement as threatening any sanctions against Mohammed.* I read the statement as a poorly written attempt to criticize Mohammed and to get on the right side of public officials (Rep. Lawler, NYC Mayor Eric Adams) criticizing Mohammed. In other words, CUNY engaged in government counterspeech., which I hope we agree is consistent with the First Amendment.

[*] Query what sanctions it could impose if it wanted to. I doubt CUNY could withhold her degree at this point, although I guess there is a nice question of when the property interest in the degree vests--when diploma is in hand, when the President completes the ceremony and allows the graduates to move their tassels? It could try to interfere with her Bar admission, although that is not CUNY's decision.

Posted by Howard Wasserman on May 31, 2023 at 12:56 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Should the House of Representatives Be Bigger?

Harvard’s Danielle Allen has proposed adding members to the House of Representatives, which has not been expanded since 1929. My new column at The Hill explains why that is a bad idea.

Here is the gist:

Would growing the House make it more efficient? Probably not


In a series of columns for The Washington Post, Allen contends that “growing the House of Representatives is the key to unlocking our present paralysis.” 

Unfortunately, she is wrong. Adding members to the House will only increase partisanship and feed extremism, as the behavior of state legislatures has amply demonstrated. 

Allen argues that continuously enlarging the House will “get our politics working again,” but she fails to reckon with the virtual certainty of partisan gerrymandering.

The same pattern can be seen in state after state. Legislative districts far smaller than those in the U.S. House of Representatives have enabled radical gerrymandering, in some cases, ensconcing supermajorities far out of proportion to the actual electorates.  

Allen’s proposal would increase the House by 150 members, providing several more representatives to all but the smallest states (which would still have one apiece). The U.S. Supreme Court, in Rucho v. Common Cause, gave the go-ahead to extreme partisan gerrymandering. Can there be any doubt that the majorities in most state legislatures would design the new congressional districts to further entrench their own parties?  

Congressional gridlock has become a dangerous problem, but adding legislators is not going to fix it.

You can read the entire essay at The Hill.

Comments are open and will be monitored.

Posted by Steve Lubet on May 31, 2023 at 07:26 AM | Permalink | Comments (0)

Tuesday, May 30, 2023

Life without the Infield Fly Rule

(H/T: Michael Risch, I think from last season).

Video here; a YouTuber's analysis of why the ump erred in failing to invoke.

The play illustrates why we have the IFR. The ump almost certainly did not invoke because the ball was not high enough. The commentator argues that height alone should not matter. It was not a line drive and landed directly in front of the shortstop who barely had to move, thus implicating the rule's purposes (or evils).

One other thing as you watch the play: The best move for the runner on second, recognizing non-invocation, is to retreat to second base and hope that the second baseman catches the flip and steps on the bag before tagging him. Stepping on the bag puts out the runner on first, but removes the force, allowing the runner on second to remain. But the runner must have the wherewithal to process that in an instant. And the second baseman must have the wherewithal to stay off the bag while catching the flip, tag the runner, then step on the bag--and to process that in an instant. So there are "counters" to the intentional non-catch, but none that players can reasonably pull off.

Posted by Howard Wasserman on May 30, 2023 at 02:35 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Alabama Law Review Symposium: The End of Animus: The Lifespan of Impermissible Purposes--In Print

The Alabama Law Review recently published its symposium issue from last year's Law Review Symposium on "The End of Animus." I heartily recommend it. The word "end" here has two meanings. The primary meaning is temporal, asking how long a judicial finding of impermissible purpose or animus does or should remain in place and how (or whether) it can be ended. It's a question raised by several recent cases, such as Ramos v. Louisiana and Trump v. Hawaii. My general sense of the scholarly (and judicial) literature is that much more attention is devoted to the front-end question of how to get a finding of impermissible purpose than to the question of how or when it ends, and it seems to me that the latter question deserves more attention for anyone interested in questions of sound political and legal governance. The second sense of the word has to do with whether "animus" as a legal tool itself ought to be questioned and perhaps done away with. The contributors to the symposium--William Araiza, Dale Carpenter, Michael Coenen, Andrew Hayashi, Joy Milligan, and Robert Tsai--have a great deal of value to say on both questions. Read it now! (In the category of encouraging student efforts to grapple with jurisprudential questions, may I also call your attention to a recent student note, available on the same page, by Matthew T. Still, titled "St. Thomas Confounds Vermeule: A Thomistic Critique of Professor Vermeule's Conservative Anti-Originalism.")

A parting word on "print," which is never dead but often in the process of being wounded: As valuable as I find the ready accessibility of law reviews and law review articles on their own sites and at SSRN, I confess to missing the feeling of law review issues as "books" taking a physical form. Services providing law review tables of contents have faded, partly in response to technological changes and partly as a result of library budget cuts and changes. At least in my case, which I don't think is totally idiosyncratic, COVID cut back on my visit to the library to peruse the actual new print issues in their natural habitat. Another easy budget cut is for law schools to stop subsidizing the production of extra copies and for law reviews to stop sending their new print issues to each member of the faculty. All of this, I think, is a loss whose possible effects--a disconnection between a faculty and its own journal(s), a slackening of interest in individual issues planned for impact as issues, a further reduction in the number of book reviews (since they fall between the stools for both authors and editors and may have less metrical "impact," and a general contribution to our collective disembodiment--are not worried about enough. I wonder whether the sense that the notion of a "publication date" is itself something of an artifact contributes to the increasing lateness of many journals' issues, although doubtless that has a much longer history. In any event, I lament the change and encourage law schools and law libraries not to budget the physical form out of existence, and for law reviews to continue thinking of each issue as a "book" whose contents should be planned and structured accordingly, with different sorts of features within a given issue, with the physical thing itself treated as being of continuing importance, and with copies continuing to fill up mailboxes. (And I await with some eagerness the April Book Review issue of the Michigan Law Review.)    

Posted by Paul Horwitz on May 30, 2023 at 11:25 AM in Paul Horwitz | Permalink | Comments (0)

Sackett v. EPA – AKA See Rapanos (plurality opinion)

The following is by my FIU colleague Alex Erwin.

By the time you get to “We start as always with the text” on page 15, it should be abundantly clear what Justice Alito believes the “text” says.  Those 15 pages ostensibly cover the structure and history of the Clean Water Act (CWA), but that background information is neatly interwoven with a narrative of the “crushing consequences even for inadvertent violations” that property owners are subjected to under the Act.  According to Justice Alito, the ultimate effect is that many landowners  “simply choose to build nothing” rather than attempt to comply with the Act.

The Sacketts were not landowners that simply chose to build nothing.  They instead chose to fill in the wetlands on their property with gravel, in spite of repeated warnings, kicking off a 16-year war with EPA.  After two trips to the Supreme Court, the Sacketts have finally won a determination that their property is not a jurisdictional water under the Clean Water Act, and as such they did not need a dredge and fill permit under Section 404.

The key issue in this case was whether or not the wetlands on the Sacketts’ land fell under the category of “waters of the United States” or WOTUS.  The CWA involves a nested set of definitions.  The Act prohibits the “discharge of any pollutant by any person” without a permit, and it defines the term “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 

Congress then unhelpfully defined “navigable waters” to mean “the waters of the United States.”  Everyone agrees that WOTUS refers to water and that it has something to do with navigability.  Frankly, what exactly Congress originally intended the phrase “waters of the United States” to mean is as clear as mud.  The EPA and the Army Corp of Engineers have jointly promulgated new regulations attempting to define WOTUS under each of the last three presidents, and each time federal courts have blocked them.  This is now the fourth time the Supreme Court has chosen to weigh in on the WOTUS issue, and I’m skeptical that this will be the end.  One thing that has remained consistent, however, is that, since 1975, wetlands adjacent to navigable waters have been regulated as a WOTUS.

Issues arise when the agencies regulate “waters” other than those that are traditionally navigable – such as wetlands.  In Rapanos v. U.S., a divided court agreed that the property in question was not subject to the CWA, but the court produced no majority opinion.  Justice Scalia wrote the plurality opinion for himself and three others; in his view wetlands needed to have a “continuous surface connection” with another “water of the United States.”  Justice Kennedy concurred in the judgment, but wrote separately.  Justice Kennedy believed that wetlands could be jurisdictional if they had a “significant nexus” with a traditionally navigable water.  He believed wetlands possessed “the requisite nexus … if the wetlands … significantly affect the chemical, physical, and biological integrity of other covered waters.”  Though the significant nexus test has been criticized as being overly broad and technical, in the years that followed, this test became the de facto law of the land; every court of appeals faced with applying Rapanos held that waters that at least satisfied Justice Kennedy’s significant nexus test were jurisdictional.

In Sackett, Justice Alito wrangled up a majority (C.J. Roberts, J. Thomas, J. Gorsuch, and J. Barrett) to finish what Justice Scalia started in Rapanos.  Frankly, Justice Alito could have saved himself quite a bit of time by just writing “See Rapanos (plurality opinion)” in place of his own opinion.  The majority places its focus squarely on the definition of “waters” which it defines (as Justice Scalia did) to include “only those relatively permanent, standing, or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”  Though this narrow definition of “waters” makes no mention of wetlands, Justice Alito begrudgingly acknowledges that some wetlands are covered.  After some rather tortured algebra-cum-statutory interpretation (“A minus B, which includes C”), the majority revives the Rapanos plurality holding that the CWA “extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable from those waters.’”  While ultimately landing at the same conclusion as Justice Scalia back in 2006, the majority here, according to Justices Kavanaugh and Kagan, relies on “unorthodox” “non-textualism” animated by concerns about federalism, private property interests, and vagueness.

Unsurprisingly, I think the Kavanaugh and Kagan concurrences make the better argument.  Justice Kavanaugh, joined by the three liberals, narrows in on the actual question at issue, “whether the wetlands on the Sackett’s residential property are adjacent to covered waters and therefore covered under the Act.”  His version of textualism correctly posits that adjacent (aka nearby or neighboring) and adjoining (aka physically touching) are separate words with separate meanings.  Congress clearly endorsed the protection of adjacent wetlands when it modified the CWA in 1977 to include specific reference to “wetlands adjacent” to navigable waters.  He also seemed convinced that an interpretation that has remained consistent for “45 years and across all eight Presidential administrations” is likely a correct one.  He seems confused as to why the majority therefore insists that they are performing pure textualism when they require wetlands to be adjoining (aka a continuous surface connection) rather than adjacent.

Justice Kagan is less confused about the majority’s intentions.  She accuses the majority of “rescu[ing] property owners from Congress’s too-ambitious program of pollution control.”  She scathingly ends her “concurrence” repeating what she wrote last term in West Virginia v. EPA – “The Court substitutes its own ideas about policymaking for Congress’s.  The Court will not allow the Clean [Water] Act to work as Congress instructed.  The Court, rather than Congress, will decide how much regulation is too much.”

So, has the majority cleared up this legal quagmire?  Likely not.  Justice Kavanaugh asks a number of difficult questions highlighting the gaps the majority has now created.  Focusing on the “indistinguishable” language, he asks: “how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered?”  According to the amicus brief submitted by 12 scientific societies, wetlands science has already evolved to point that the boundaries of wetlands can “almost always be delineated.”  If the only wetlands that can be protected are those that are “indistinguishably part of a body of water that itself constitutes “waters” under the CWA,” then Sackett has effectively ended federal regulation of wetlands.  Prof. Royal Gardner (one of the authors of the brief) made the point on Twitter that much of the Everglades are no longer considered a WOTUS based on this language.

Even if the “indistinguishable” language gets read out or softened by subsequent courts, the “continuous surface connection” test alone causes problems.  If berms, levees, roads, and other structures break this continuous surface connection, then there is no jurisdiction for the portions of the wetlands that are no longer attached to the navigable body of water.  This means that previous permits that were given out to build these structures have now caused the loss of far more wetland acreage than originally believed.  It does not matter that these wetlands on both sides of the structure are still ecologically and hydrologically connected.

It is also unclear what this case means for streams.  This case could have narrowly dealt with adjacent wetlands, but Justice Alito liberally cribbed language from the Rapanos plurality that addressed bodies of water like arroyos, washes, ephemeral streams, and intermittent streams.  If the continuous surface connection test is also required for these bodies of water, then nearly 100% of the previously jurisdictional waters in states like Arizona and New Mexico will be no longer be covered – a disastrous result in my opinion.

The full extent of the damage will only be known after we see how the lower courts and agencies grapple with the holding, but the real-world consequences of this ruling are potentially massive.  To put it in perspective, the approach adopted by the majority is significantly narrower than the definition proposed in 2020 by the Trump administration (and that rule would have conservatively removed coverage for 51% of covered wetlands). 

This will also be a massive loss for wildlife conservation.  Half of all federally listed species in the United States are wetland dependent.  Permitting under the CWA has traditionally been a major hook for other federal environmental regulations – for example if you need a CWA permit to fill your wetland, the permitting agency must comply with NEPA and consult with Fish and Wildlife Service under the Endangered Species Act.  Without this permitting authority, proactive conservation measures are less likely to be taken.  Enforcement of the ESA on private property, especially related to harm caused by habitat destruction, is notoriously difficult.

Stray Thoughts:

  • It is a shame (and frankly a surprise) that the liberal justices and Justice Kavanaugh all chose to concur rather than dissent. The concurrences certainly read like dissents – they’re rather barbed with very little concurring going on.  It is still unclear to me why the justices even believe the Sacketts’ land was not jurisdictional under their understanding of “adjacent wetlands”.  Certain politicians and media outlets have already been touting this as a 9-0 decision – it creates confusing messaging.
  • After both Sackett and West Virginia, I heard colleagues chastise the EPA for not doing more to kill these cases before it gave the courts a chance to create bad precedent. I fear that one of the lasting results of these cases will be an agency that is more gun-shy when bringing enforcement actions (especially on borderline cases) or trying to innovate with policy.  If the specter of the Supreme Court is going to hang over everything EPA tries do to, they might just decide that more environmental harm will result from enforcing/implementing the law to its full extent.
  • The only silver lining I can find is that the majority’s opinion is the second worst-case outcome. If Justice Thomas had gotten his way reigning in the Commerce Clause, he would have drug environmental regulation back to the Lochner  The agency might have lost jurisdiction over all purely intrastate waters, and I would be worried that the court would next go after other environmental regulations that are precariously propped up by the Commerce Clause (especially the Endangered Species Act).
  • This case is also a fantastic illustration of how far the Supreme Court has run from Chevron The first WOTUS case, US v. Riverside Bayview Homes, Inc., was decided a year after Chevron.  The Court recognized that the agency was entitled to deference because its interpretation of WOTUS was reasonable and not in conflict with the Congress’s intent.  Even in Rapanos, the 4 liberal dissenters would have deferred to the agency’s interpretation under Chevron.  In Sackett, none of the opinions mention Chevron or suggest deferring to the agency.  Justice Alito claims that EPA’s interpretation (the same interpretation they’ve had for 45 years) is “inconsistent with the text and structure of the CWA.”  Each Justice claimed to “stick to the text,” while obviously coming to completely different conclusions about what that text said.  It does not take an administrative law scholar to see how Loper Bright Enterprises v. Raimondo is likely to go next term.
  • Justice Alito is incredibly dismissive of science (“the CWA does not define the EPA’s jurisdiction based on ecological importance”). He pushes a test that ignores ecological and hydrological reality.  The significant nexus test might have been difficult to implement, but at least it was based on science and designed to meet the purpose of the CWA.

Here’s the tl;dr: Sackett is likely disastrous for wetlands and severely limits the scope of the CWA in a way Congress certainly never intended.

Posted by Howard Wasserman on May 30, 2023 at 10:01 AM in Law and Politics | Permalink | Comments (0)

What is the trouble with SCOTUS reporting (and with SCOTUS)?

Slate's Amicus Podcast hosted a live conversation with Dahlia Lithwick, Mark Joseph Stern, Jay Willis, and Elie Mystal. The conversation centered on the failures of the SCOTUS press corps. Press failures include: too much focus on the law of the opinions (they liken it to how science reporters cover NASA); failing to identify the "reality" beneath those opinions, whether by exposing the Court's misleading presentation of facts (Kennedy) or by positioning one case within a larger political, ideological, and jurisprudential trend; failing to write about the real-world consequences of the decisions; failing to report on and follow individual justices (compared with the extensive coverage of members of Congress and even small legislative actions); and failing to write about the behind-the-scenes influences on the Justices (Harlan Crow, Leonard Leo, ADF, et al.).

I enjoyed the program, although I did not agree with a lot of it. Some reactions after the jump.

• There is an electoral/public accountability component to how the press covers Congress (and members of Congress) absent in covering the Court. The press provides information to the public which, we hope, the public uses in deciding whether to keep that person in office. By contrast, there is (I think) continued acceptance that no one (not Congress, not the public) should remove or sanction judges for their decisions. Those (including me) who would like some form of term limits do not want those limits to turn on agreement or disagreement with substance of decisions. Broader (i.e., beyond the opinion) coverage of the Court allows for public awareness and criticism of the Court, with whatever effects public opinion might have on the Court. It perhaps pressures Congress to do something about an out-of-control Court. But that something is not removal of individual members, unless progressives have abandoned the conclusion that the Senate properly acquitted Samuel Chase and that "Impeach Earl Warren" campaigns wrong.

• One SCOTUS decision resolves one case involving one dispute between discrete parties (e.g., whether Mississippi's law can be constitutionally enforced against Jackson Women's Health patients or whether this school could sanction this football coach for these activities). The decision includes an opinion that affects other real-world actors. But the opinion's effects on other actors and its consequences as to them are diffuse, prospective, unknown, and contingent at the time. It thus is impossible for reporters to write about them in covering argument or decisions. At best, reporters in the moment can speculate (and report speculative cases) about what could/might happen (subject to accusations of engaging in unreasonable parades of horribles). Reporting on consequences beyond the parties before the Court requires subsequent follow-up reporting. That reporting should happen, although we might question whether Totenberg, Liptak, Biskupic, et al., should do it and when. In other words, no one knows the specific effects of a SCOTUS case in the moment--it depends on what governments and lower courts do in response. Of course, we could raise the same argument as to congressional reporting--no one knows the specific consequences of a piece of legislation and someone should report on the on-the-ground effects of the enacted law, although the question is who and how and when.

Take Dobbs. States' race to impose the strictest laws was predictable and that prediction should have been part of the coverage (and might have been--I avoid most popular coverage of the Court). But the press could not have written specific stories about specific instances by specific states affecting specific people, as the panelists seem to demand. No one knew which states would enact or enforce which laws as to which people and in which circumstances. When Dobbs leaked in May or issued in June, no one could have written about Mifepristone or about Indiana sanctioning a doctor for performing an abortion on a 10-year-old rape victim from Ohio or about Idaho outlawing travel to other states.

Relatedly, lower courts--thousands of judges on hundreds of courts spread across the U.S.--determine the broad on-the-ground effects. By focusing on how media coverage of SCOTUS fails as opposed to how media coverage of of the judiciary fails, they perhaps commit the error people accuse legal educators of committing. In any event, the handful of SCOTUS reporters cannot cover the entire judicial system, although that is the locus of the large practical effects the panelists want covered.

• They spend a lot of time on the media's failure to report on the supposed outside influences on the Court and the Justices. Put Crow to one side--if that reporting bears out, it may reflect the sort of not-good behaviour warranting impeachment or resignation. The speakers criticize failure to report on the ADF and other conservative advocacy groups spending money (from specific wealthy people with an ideological goal) and operating campaigns to find plaintiffs and bring cases with the goal of overruling affirmative action, creating religious exceptions to LGBTQ+ protections, weaken environmental protections, etc. Criticizing that failure to report implicitly criticizes these groups' litigation efforts--they engage in nefarious conduct and the press commits journalistic malpractice by not writing about and exposing them and their nefarious conduct.

But much of the constitutional law that progressives cheered was created through similar litigation campaigns--advocacy organizations sought out plaintiffs to bring lawsuits challenging various laws with the goal of obtaining SCOTUS review and decisions establishing their favored constitutional provision. And the right resisted those efforts by attacking the groups bringing the cases and trying to bring them to heel. Virginia applied its laws against soliciting legal business to the NAACP's efforts to recruit parents to bring anti-discrimination suits. States investigated and prosecuted advocacy groups under anti-Communist laws, amid questions about who funded these organizations and their advocacy efforts. Lithwick and company would not argue (I presume) that the press failed 60 years ago in not exposing whether "communists" funded the NAACP and its efforts to overrule Plessy and invalidate Jim Crow.

Once again, progressives criticizing conservative impact litigation must distinguish these efforts from prior movements. "I disagree with current efforts but like past efforts" is not a principled distinction.

• Stern offers an interesting take on press coverage of 303 Creative as the latest step in an advocacy organization's campaign to carve religious exceptions into public-accommodations laws. Past cases pitted competing "rights-holders" receiving media coverage--e.g., Jack Phillips on one side and the same-sex couple who ordered the wedding cake on the other. But the posture of 303--Lorie Smith has never created a wedding web site and never been asked by a same-sex couple to create a wedding web site (Stern said it's because she sucks as a web designer). So the designer is the only person the media can cover and they have done so, in the usual soft-focus way; no specific person sits on the other side. I doubt that affects the Justices or the outcome; it affects how the public perceives the case and its consequences.

Stern suggests the one-sidedness shifting media coverage in Smith's favor illustrates why the case is bullshit. Smith lacks standing* because she faces no meaningful, imminent, or non-speculative threat of having state law enforced against her. No one--least of all two gay men, according to Stern--has or is likely to ask her to design their wedding web site or to complain to the state civil rights commission about her failure to do so, both of which are necessary to trigger any enforcement of the law against her. This is a good line, although LGBTQ+ people keep ordering from Jack Phillips.

[*] Or suffers no constitutional violation, in my preferred framing.

Posted by Howard Wasserman on May 30, 2023 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Reason, Rhetoric, and Ethic at the Friendly Medal Ceremony

Justice Kagan and Chief Justice Roberts recently gave a pair of remarkable speeches that took up topics like judicial writing, the rule of law, and political polarization. The occasion was the Chief Justice’s receipt of the ALI’s Henry J. Friendly Medal, which Kagan presented. (Video here.)

This “Friendly” award ceremony was aptly named. As Kagan pointed out, she and the Chief had that very week seemed like “two kindred souls” in Andy Warhol Foundation v. Goldsmith, and they carried that amicable attitude with them to the award ceremony. Yet these two figures have of course been sharply at odds in many cases, and they will be again before the summer is done. So, why is Kagan heaping so much praise on the Chief?

Kagan tackles this issue head-on in the following passage (borrowed from a transcript helpfully produced by Ryan Subel):

[The Chief Justice] is a consummate legal craftsman. …

Now, why is this important? Because let’s be frank here, there’s a lot that the Chief and I don’t agree on. … [T]here are some times that I really could tear my hair out about the things he thinks, and I’m sure he would say the exact same thing of me. And those things that we disagree about, they have consequence, they matter, they matter in our society, they matter in people's lives, and that shouldn't ever be forgotten.

Having insisted that their disagreements “should never be forgotten,” Kagan promptly ushered them from center stage. What followed was a remarkable discussion—really, a whole theory—of judicial writing:

But still, the kind of judicial craftsmanship that John Roberts exemplifies, and shares with Henry Friendly—his clarity, the intelligibility of his writing and his thought, his analytic precision, his ability to see and organize and make lucid whole areas of law, his ability to explain, not only to lawyers but to a wider public what his decisions are based on, those qualities, they’re more than craft, they are the foundation stones of the rule of law. 

One might say there are aspects of law’s internal morality. They are an important part of what separates law from dictate. They enable law to provide a guide for future conduct. They make law something that can actually be followed by other judges and citizens. They offer transparency and accountability. They show how rules of decision are arrived at and they show how to criticize them. And finally, those qualities of the master legal craftsmen, they encourage, even if they don’t guarantee, law that in its substance is careful and restrained and principled.

Kagan’s compact discussion is rich. It envisions good judicial prose as clear – that is, writing that is “lucid” with “intelligibility,” “precision,” and “clarity.” It then links that apparently singular trait with a host of quite distinct values, including democratic legitimacy, predictability, uniformity, transparency, accountability, deliberation, and wisdom. These connections, Kagan suggests, represent “aspects of law’s internal morality.” But only “aspects,” not the whole, since they merely “encourage” substantive justice, without guaranteeing it.

Interestingly, this part of Kagan’s discussion left out the zestier features of celebrated judicial writing, such as jokes, insults, and literary references. By contrast, her recent Warhol dissent (like the majority) exhibited all three of those techniques—sometimes in the same sentence. And Kagan was happy to talk about examples of entertaining writing in other parts of her speech. Could the rhetoric that Kagan enjoys be in tension with the reasoning that she applauds? While scholars have addressed that question (see especially Nina Varsava here), Kagan’s speech skirts the issue. 

The Chief Justice, too, was interested in reason and rhetoric. Agreeing with Kagan that Judge Friendly was an avatar for excellence, the Chief heaped praise on his former boss for having “applied reason, not ideology. Analysis, not slogans.” The Chief then drew a pointed contrast:

Now, as a general matter, those principles are good for judges, but they’re also not bad for other officers as well. Yet, much of the public discourse seems today very different. Instead of openness, most views being discussed seem to come prepackaged. Instead of reasoning, you get slogans and shouting. …

But inside the court, there’s cause for optimism. I am happy that I can continue to say that there has never been a voice raised in anger in our conference room. Our court consists of nine appointees by four presidents [sic]. We deal with some of the most controversial issues before the country, yet we maintain collegial relations with each other.

When I wander down the halls and see a colleague, I am always happy to have the chance to chat. Now to be fair, there are many days where I don’t feel like walking down the halls, so you may have to discount that a little bit.

The Chief bought some credibility by cracking a smile at the end. Still, the main picture is of a “collegial” Court within a divided polity. And this passage calls back to Judge Friendly. Whereas public discourse indulges in “slogans,” the justices hew to “reasoning”—just like Friendly did.

It would be easy to dismiss this episode. Maybe it’s just a couple of elites scratching each other’s backs. Maybe it’s beleaguered jurists desperate to burnish a court that affords them so much prestige. Or maybe it’s canny strategy, as each speaker tries to lobby for the other’s future votes.

Perhaps, but I think there is something deeper and more complex going on.  The justices maintain a kind of double consciousness about one another. They can know in their bones that their colleagues are wrong, wrong, wrong, and they pointedly say so in written opinions. But they may also know that their adversaries are worthy, competent people who are mostly trying to do their best. The Warhol opinions, in which two ideological allies faced off, provides another example.

That ability to both rebuke and respect—to “disagree agreeably,” as Justice O’Connor frequently put it—isn’t ultimately grounded in either reason or rhetoric. It’s more of an ethic or, perhaps, a sense of perspective. And it seems as critical to our legal culture as it is in short supply. 

*          *          *

If you’ve read this far and are interested in writing on these topics, please consider the preceding post's call for papers for a 2024 conference. 

Cross-posted from Re's Judicata.

Posted by Richard M. Re on May 30, 2023 at 09:00 AM | Permalink | Comments (0)

CFP: Judicial Rhetoric

Readers may be interested in the Call for Papers below:


CFP: Judicial Rhetoric: A Symposium

April 5, 2024

University of Virginia School of Law

In collaboration with Case Western Reserve University

Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators might be forgiven for missing an older approach to judicial writing, one marked by a more technical, even tedious style.

We believe that literary and legal inquiries intersect in the judicial opinion and its rhetoric. Different methodologies are relevant to this joint inquiry, ranging from qualitative historical research to statistical modeling to literary scholarship.

We invite paper proposals for a one-day conference on the topic of law and rhetoric, broadly understood. Consider an illustrative set of questions:

  • How do legal decisions incorporate or interact with poetic and narrative genres?
  • How do literary genres represent legal argumentation and reasoning?
  • What are the effects of new media and technology on legal practice?
  • What is the role of the text, the author, and the audience in legal discourse?
  • How can judges use rhetoric responsibly, or ethically?
  • How does contemporary work on race, gender, sexuality, and ability bring together law and literature?
  • How is rhetoric developed, situated, and used in specific institutional contexts (the academy, the court)?

A keynote address will be delivered by Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Carey Law School.

Papers may represent work at any stage of development but should be no more than 5,000 words or 10-12 minutes in length. (A paper may be a digest or portion of a longer work.) A second symposium, with its own call for papers, will be held at Case Western Reserve University in 2025.

By September 15, 2023, please send a short bio of 50-100 words and abstract of 250 words to Richard Re ([email protected]), Walt Hunter ([email protected]), and Martha Schaffer ([email protected]). Accepted papers will be due and circulated among participants in mid-March. Questions are also welcome.



Posted by Richard M. Re on May 30, 2023 at 08:55 AM | Permalink | Comments (0)

Monday, May 29, 2023

Dr. Glaucomflecken on Non-Competes

Note: Non-compete clauses are generally unethical for lawyers, but they are common in health care. It is a mystery that physicians have put up with them for so long, but the advent of for-profit and private equity acquisition of hospitals and medical practices makes it hard to get rid of them other than by government action. This should serve as a caution to those who favor allowing non-lawyer ownership of law practices. 


Posted by Steve Lubet on May 29, 2023 at 11:04 AM | Permalink | Comments (0)

Sunday, May 28, 2023

The Debt Limit in Baseline Hell

As both of my regular readers know (hi mom!), I am a connoisseur of what I call “baseline hell.” “Baseline hell” is that infernal mode of debating about whether some state of affairs is “neutral” or “normal” rather than “good” or “bad.” It flares up everywhere — in takings doctrine, First Amendment doctrine, Free Exercise doctrine, etc. People land in baseline hell because they harbor the forlorn hope that they can sidestep contentious normative questions in favor of some elusive consensus about what constitutes the “normal” state of affairs — the “neutral” baseline from which departures are presumptively disfavored. Alas, disagreements about what constitutes a Neutral Baselines are just as intense as disagreements about what constitutes a Good World. The former debates unfortunately also have the disadvantage of being disputes about completely arbitrary lines.  The result is diabolically tortuous and eternal squabbling about “neutrality” — aka something that does not really exist.

@Pwnallthings (aka Matt Tait) has a substack nicely illustrating how the current crisis over raising the Debt Limit can land us in fiscal Baseline Hell. Tait argues that the debt limit is a bad thing, because it “provides an artificial negotiating advantage to those who want to extract concessions from the governing party.” What’s so “artificial” about this advantage? Tait asserts that it is artificial to require “passing new legislation” to “maintain[] the status-quo,” because such a requirement “is an inversion of the traditional ‘schoolbook’ model of US governance” under which “major changes to the status-quo would normally require legislation passed by the Congress and signed by the President to take effect.” According to Tait, “[t]hese timebomb-style games-of-chicken have always been structurally bad,” because “[p]assing legislation in the United States is constitutionally hard on purpose” given that “it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches.”

Tait’s use of the adjective “artificial” is a sure sign that he is venturing into the first circle of Baseline Hell. The idea that some proposals are “artificial” departures from some “natural” state of affairs is the classic method of shifting burdens of proof without really defending the merits of a position. Like all such Baseline arguments, the definition of what’s “natural” and “artificial” is buried in murky adjectives — here, “new,” “major,” and “big.” As I shall argue after the jump, these terms beg all of the important normative questions. That argument, however, requires a bit of a deep dive into the non-delegation problem lying at the heart of the debt limit. After the jump, I’ll describe (1) how Wilson’s and other Southerners’ ambivalence about executive power likely limited the switch to full executive management of debt and (2) why this semi-executive system of marketing federal securities invites people like Tait to get lost in baseline hell rather than debate the merits of executive power versus legislative control of the bond market.

The Incomplete Managerial Revolution of 1917 in Debt Management

As Conor Clarke notes in a recent paper that people should now be frantically downloading, the debt “limit” is really part of a necessary debt authorization, because the executive has no inherent Article II power to pledge the credit of the the United States without a delegation from Congress. According to Kenneth Garbade, Birth of a Market: The U.S. Treasury Securities Market from the Great War to the Great Depression, Congress tended prior to World War I to micro-manage the executive’s management of federal bonds, specifying quantities, interest, maturity, and convertibility in some debt-authorizing statute. The massive spending required to fight the Great War, however, required bond sales so large that the terms under which the bonds would be marketed could not be so meticulously spelled out without running the risk that a bond auction might fail. The Liberty Bond statutes, therefore, conferred much greater discretion on the Secretary of the Treasury to set the terms under which federal securities would be marketed.

In particular, The Second Liberty Bond Act of 1917 conferred on the Secretary of the Treasury the power generally to issue debt within an overall ceiling on the entire aggregated debt of the United States. That ceiling, now codified at 31 U.S.C. 3101 and adjusted upwards periodically by Congress, is what is causing all of the trouble today. The Liberty Bond Revolution was part of a more general early twentieth century managerial revolution that shifted power from Congress to the executive. This revolution was driven in part by wartime necessity but also, as described by Jesse Tarbert’s outstanding new book, When Good Government Meant Big Government, by ideology. A group of mostly Republican politicians and writers including William Howard Taft, Henry Stimson, and Herbert Hoover, pushed for presidential rather than congressional oversight and control of the federal government in the name of national efficiency. Calling for the government to be run like a business, these reformers noted that corporations were managed by a chief executive, not the board of directors. The centerpiece of these reformers’ program was a presidentially controlled budget to replace each federal agency’s independent budget requests to particular congressional committees. The Liberty Bonds, however, were in the same vein of enlarging presidential capacity to manage the executive branch free from rigid statutory standards.

This managerial revolution in debt management was incomplete because of the ceiling on aggregate debt. Clarke notes that Congress in 1941 greatly enlarged Treasury’s managerial discretion by combining all debt, regardless of date of maturity, into a single aggregate ceiling, thereby giving Treasury power to choose the mix of instruments that would minimize borrowing costs and maximize price. But the ceiling still required the executive to go to Congress periodically to increase the total amount of permitted debt whenever the indebtedness necessary to cover appropriations exceeded the last statutory ceiling. Total managerial discretion, by contrast, would allow Treasury to treat congressional appropriations as the only limit on the quantity of bonds that the federal government can sell.

Why did not Congress go all the way, either in 1917 or 1941, by making appropriations the only limit on outstanding debt? I have only an educated guess: Southerners in both the Wilson and Roosevelt Administrations, backed by Southerners in Congress, were reluctant to remove that congressional restraint on the executive. Treasury was run by Southerners (William Gibbs McAdoo and Carter Glass) who, in other contexts, were resistant to centralization of power, resistance that was completely in line with the “New Freedom” ideology of Woodrow Wilson, their fellow Southerner. The double security of both appropriations and the debt ceiling must have been appealing to such skeptics of presidential power. As Ira Katznelson and Joanna Grisinger both explain, Southerners in Congress in the 1930s and 1940s were deep skeptics of the enlargement of presidential power, especially after Robert Wagner (NY) and Edward Costigan (CO) introduced an anti-lynching bill in 1934. (Tarbert notes that the Dyer anti-lynching bill also doomed the managerial revolution in the 1920s). Whatever the reasons, the choice to limit Treasury’s authority to issue debt was a deliberate choice. Prior to World War I, the norm throughout American history, after all, was that the executive had to go to Congress for permission to pledge the United States’ credit even after appropriations were made. The two World Wars enlarged congressional authorization for Treasury to sell bonds — but Congress never handed over the entire business of deciding how much bonded indebtedness the government would incur to the Secretary of the Treasury. For whatever reason, that was simply too broad a delegation of power for Congress to tolerate.

Welcome to Bond-Marketing Baseline Hell

With that long windup, here’s the pitch. It seems to me that Tait is using the ideal of a total managerial revolution in debt management to serve as the “neutral” baseline for assessing the “artificiality” of the debt ceiling. Without explicitly saying so, he treats the Secretary of the Treasury’s decisions to sell bonds as white noise — background conditions that define the normal baseline and do not change the status quo.

Here’s how Tait bakes bond-selling into his baselines. He argues that the debt ceiling “artificially” departs from “the traditional ‘schoolbook’ model of US governance” because the ceiling forces the federal government to default on some set of creditors to whom promises of payment were made without a vote of Congress. Such a default is a “major” (or “big” or “new”) change in policy that ought to occur only by a statute, not by mere federal inaction, because “it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches.”

This “no-stiffing-creditors-without-a-congressional-vote” argument, however, assumes that Treasury’s decision to sell bonds exceeding the debt ceiling somehow does not constitute a “big change[].” After all, getting rid of the debt ceiling empowers the Treasury to issue more debt without any further vote of Congress. Why is not this decision to increase the federal government’s bonded indebtedness also a “big change[] in the governance status-quo … requir[ing] debate and agreement in the political branches”?

Tait does not ask, let alone answer, this question. He assumes without any argument that Treasury’s marketing new tranches of federal bonds without any statutory authorization is not a change in the status quo but instead just part of the natural order of things. The assumption is natural enough, given specific changes in how Treasury marketed securities dating from 1982: As Kenneth Garbade explained in a 2007 article, Treasury instituted a set of reforms between 1975 and 1982 to make bond sales more “regular and predictable” after some ad hoc bond offerings in the 1970s disrupted the bond market. Nowadays the federal bond-selling machine hums along without people like Tait noticing that very complex market operations are taking place that affect future generations with “major” fiscal burdens. Whenever Treasury sells a tranches of bonds, however, it is changing the status quo in ways that many people, including some ornery Republican members of Congress, think is a pretty “major.”

Tait might reply that the fiscal burden on future generations was already incurred when Congress made an appropriation without sufficient revenue to pay for the expenditure. This response, however, proves too much: By that logic, the IRS ought to have the unilateral power to increase taxes to cover expenditures without any further legislation. After all, tax revenue avoids default on current obligations just as effectively as bond sales. Changes in taxation, however, seem “major” because they happen rarely, while Treasury’s bond-selling operations have been humming along for decades without anyone much noticing. Moreover, the existence of an appropriation does not dictate that revenue must be produced either through bond sales or taxation.

The third alternative is simply to bilk, or at least delay paying, some of the federal government’s creditors. The significance of such defaults would vary with the creditor being deprived of prompt payment: As Clarke has pointed out in a sharp blog post, “defaulting” on “debt” covers a range of outcomes, from delaying payment of a federal employee’s salary for a few days to failing to make timely payments on the United States’ public debt securities. None of these outcomes is great, but it is not obvious that every single one of them is a catastrophe. Tait assumes that being a deadbeat is a “big change” while selling more bonds is not. Maybe he is right — but he never bothers even noticing that this is the sort of distinction that he is implicitly drawing. That is indeed how baseline arguments generally run: Proponents of baselines treat some aspects of the status quo as “natural” and some as “artificial,” leveraging the former (e.g., selling billions in bonds annually) to condemn the latter (e.g., defaulting on debts). Opponents of those baselines argue that the “natural” parts of the status quo are not really natural after all. All the while, some abstruse exercise in characterization about what is “artificial” and what is not gets in the way of a debate about the actual normative merits of the status quo. That impediment to the important normative issue is the essence of Baseline Hell.

 “Eliminate the Ceiling” versus “Mint the Coin”: Alternative Ways of Side-Stepping Congress?

Suppose we decide to climb out of the infernal pit of Baseline Arguments and instead focus on the normative merits without focusing on what is natural, artificial, normal, or abnormal. One might compare such baseline-free discussion of these merits to Purgatory rather than Hell: The discussion might be difficult or unpleasant, but least there is hope of progress to some sort of meaningful agreement. What exactly are the normative questions at stake with federal debt?

I suggest that at the heart of the matter is congressional oversight of fiscal burdens. The idea behind the debt ceiling is that the Congress should periodically assess the total quantity of indebtedness incurred by the federal government’s spending. Anita Krishnakumar laid out the basic argument in favor of such periodic congressional oversight back in 2005: The ceiling, in her words, “act[s] as a catalyst for budget-reform and budget-balance measures aimed at reducing national borrowing.” The weakness of this argument, of course, is its implicit assumption that Congress is not paralyzed by partisan grandstanding. To focus on the question of congressional capacity, however, is to ask the right question: Can Congress Govern?

If we focus on this question rather than baseline distractions, then we can also see why Tait’s “Mint the Coin” solution evades the problem that a debt ceiling tries to solve. The problem is that Congress is inclined to shirk its constitutional responsibility to define how revenue should be raised. Since George “Read My Lips” Bush’s defeat in 1992, it has been conventional wisdom in both parties to steer clear of proposing revenue measures, because raising revenue is unpopular. By confronting Congress with the threat of the federal government’s defaulting on its debts, the debt ceiling ideally forces Congress to take responsibility for raising the revenue required by its appropriations. “Minting the Coin” plainly does not serve this congress-forcing function.

I will not rehearse Tait’s admirably clear exposition of what it means for the Secretary of the Treasury to mint a trillion dollar coin and deposit that coin in the Federal Reserve to be used as an asset on which the Treasury can draw to pay the debts of the United States. The important point is that, because it relies on an existing statutory provision, Tait’s argument fails to address the purpose of the debt ceiling: Force Congress to confront publicly the fiscal or monetary consequences of its spending decisions. What’s worse, Tait’s argument violates his own principle that “it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches.” Conferring unlimited power on Treasury to mint money on which the federal government alone can draw to pay the federal debts might be a great idea, but it is plainly not the idea behind the statutory provision invoked by Tait. That provision, 31 U.S.C. 5112(k), simply provides that

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

Buried in a longer statutory provision dedicated to specifying in excruciating detail the characteristics of commemorative or collectible coins, the provision was obviously enacted without any thought that it would allow the Secretary of the Treasury to mint money to pay federal debts. Assuming that anyone would ever have standing to challenge such a use of this statutory provision, it is almost inevitable that SCOTUS would strike down the “Mint the Coin” strategy faster than you can say “elephants don’t fit in mouseholes.”

Indeed, Tait’s argument, which he admits is “gimmicky and undignified,” actually makes the Major Questions Doctrine look good. After all, as Tait says, “it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches.” Conferring massive power on Treasury to deal with revenue questions that Congress is too divided to confront looks like a Big Change. Unless you believe that someone in Congress had the idea that the Platinum Coin provision could be used in the way suggested by Tait, that institutional change never received any such debate and agreement in the political branches.

Tait, in short, contradicted his own “normatively good” principle in defending an interpretation of a statute that lets Congress off the hook. I myself am not so sure that this principle is a decisive objection to the “Mint the Coin” plan. If Congress has become completely dysfunctional through affective polarization, then maybe we need to re-delegate revenue decisions to the executive, giving to Congress the option of vetoing such decisions ex post. I am more certain, however, that, by starting with baseline distractions about what is artificial and natural, Tait made it more likely that he would miss the critical nondelegation question at stake: In Baseline Hell, the smoke gets in your eyes.

Posted by Rick Hills on May 28, 2023 at 06:38 PM | Permalink | Comments (0)

What Were Their Billables?!?

At the VC, Eugene had two interesting posts yesterday on intersections between Chat GPT and the practice of law. The story about the lawyer who filed a brief with an assist from Chat GPT that resulted in citations to fictional cases has had some legs in legal circles. But it's the other story that interests me. It relates a message from Prof. Dennis Crouch: "I just talked to a partner at a big firm who has received memos with fake case cites from at least two different associates." The assumption, in this context, is that those fictional cases also came courtesy of Chat GPT.

My practitioner wife, who is a model to me both for her professionalism and for her kindness and compassion, takes the view that if she were the partner she would "fire their asses" immediately. That is an entirely reasonable position. She would also report them to the bar, although this, it seems to me, actually raises interesting questions about which rules they would have broken. More specifically, did they break any rules (such as the rule requiring competence in lawyering) in a way that would lead to anything on the part of the bar other than a decision not to pursue the matter further? Did their conduct rise to the level of raising substantial questions about their honesty, trustworthiness, or fitness as a lawyer, such that reporting would be mandatory? Did they actually violate the equivalent of Rule 8.4

But I think the first and potentially most consequential question a supervising lawyer, or a client informed that something of this sort has happened (if they are so informed), or a court or opposing counsel who encounters this sort of thing in the context of a case in which hours are recorded because attorneys' fees might be awarded, is: What were those associates' billable hours on the file? If an associate turned in to me a memo or brief that turned out to have fictional cases or other flaws or errors related to the use of Chat GPT, the first question I would have is how long they said it took them to research and write that memo or brief. I might or might not fire or report to the bar an associate who used Chat GPT as an assist with a resultant error, although I think doing so, and especially firing them, is an entirely reasonable response, especially for those who value and demand professionalism. But I sure as hell would take both actions if a lawyer used AI to "research and write" something in three hours and recorded billable time of thirteen hours. Supervising lawyers, clients, in-house counsel, opposing counsel, and judges should definitely be vigilant about the billing implications of Chat GPT along with other risks.    

Posted by Paul Horwitz on May 28, 2023 at 12:35 PM in Paul Horwitz | Permalink | Comments (0)

Law meets entertainment news

A fun confluence. In April, a divided Ninth Circuit panel held that a state law limiting honking of car horns to warnings did not violate the First Amendment as applied to a person honking in support of a political protest. The court declined rehearing last week.

The issue, and thus the decision, has merged with the day's leading pop-culture story--the WGA strike. Burbank police have placed signs near Disney and Warner Bros. studies announcing that "excessive horn use" violates the vehicle code, in response to neighbor complaints about passing drivers honking in support of picketing writers. Applying the law in this context illustrates why Judge Berzon's dissent had it right. In this context, the government interest is less traffic safety than noise--and there is no difference in the noise from car horns as from the other noisemaking associated with the pickets.

Posted by Howard Wasserman on May 28, 2023 at 12:14 PM in Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, May 27, 2023

Saturday Music Post - Rollin' and Tumblin'

"Rollin' and Tumblin'" is mostly remembered as a Robert Johnson song -- brought to Chicago by Muddy Waters in the 1950s, and reinterpreted by Cream in the 1960s -- but it was actually written and first recorded by Willie Nebern, who released only a handful of cuts in 1929 (not to be missed at the bottom of The Faculty Lounge post).

According to Wikipedia, it is derivative of Gus Cannon's 1928 "Minglewood Blues" (which is on my Jug Band Music post), but I don't really hear much more than a general blues similarity.

Most covers have been rock versions like Cream's, but there have also been blues cuts now and then.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on May 27, 2023 at 05:44 AM | Permalink | Comments (0)

Friday, May 26, 2023

Sherlock Holmes on Anglo-American Relations

From "The Adventure of the Noble Bachelor"

"It is always a joy for me to meet an American, Mr. Moulton, for I am one of those who believe that the folly of a monarch and the blundering of a Minister in fargone years will not prevent our children from being one day citizens of the same world-wide country under a flag which shall be a quartering of the Union Jack with the Stars and Stripes."

Posted by Gerard Magliocca on May 26, 2023 at 08:22 AM | Permalink | Comments (0)

Three Years Ago Today . . .

OTD in 2020, the President of the University of Notre Dame, Fr. John Jenkins, had an op-ed in The New York Times called "We're Reopening Notre Dame. It's Worth the Risk."  He wrote, among other things, that "[f]or questions about moral value — how we ought to decide and act — science can inform our deliberations, but it cannot provide the answer." This decision, at the time, came in for a lot of unfair, uncharitable, and even ghoulish criticism. (One critic, I recall, lamented the workings of the university's alleged "Marian Death Cult.") Jenkins was right, though, and one hopes that, especially in the context of schooling -- including legal education -- future policymakers' cost-benefit analyses and applications of the precautionary principle will be similarly prudent.

Posted by Rick Garnett on May 26, 2023 at 07:28 AM in Rick Garnett | Permalink | Comments (0)

Thursday, May 25, 2023

The Sisters and Dave Chappelle

My take on Judge-Duncan-at-Stanford differs from Rick's. But accepting that that case is not analogous to the Dodgers and the Sisters, the case of the Minneapolis comedy club and Dave Chappelle is analogous--private club withdrawing an invitation at the urging of those who would label (however debatable the tag) Chappelle's routine as anti-trans hate speech.  FIRE defined as unacceptable cancel culture a for-profit club deciding that it is a bad idea to host and promote a comedian whose shtick is mocking (by punching down at) a disadvantaged and governmental targeted minority.

Merits matter if you believe--as I do--that private deplatforming is protected speech. Merits do not matter if your fundamental principle is that one private actor should not yield to pressure to disinvite a private actor from fear of outside pressure--or we are fighting over whether Chappelle or the Sisters engage in hate speech (about which there is no agreement). If the club canceling Chappelle's appearance is bad as a matter of free-speech principle--as FIRE made clear--then the Dodgers canceling the Sisters' appearance is bad as a matter of the same free-speech principle.

Posted by Howard Wasserman on May 25, 2023 at 05:07 PM | Permalink | Comments (0)

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!

Posted by Rick Garnett on May 25, 2023 at 04:20 PM in Rick Garnett | Permalink | Comments (0)

(Still) more on the "Sisters of Perpetual Indulgence" and FIRE.

Howard has suggested, in some recent posts (here and here) that there is some inconsistency between FIRE's opposition to, say, disinviting and/or shouting down campus speakers, such as Judge Kyle Duncan, and its (I gather) failure to criticize the (now abandoned) decision of the Los Angeles Dodgers to disinvite the "Sisters of Perpetual Indulgence" from an event at Dodger Stadium. 

I disagree; the merits matter. The "Sisters of Perpetual Indulgence" are not merely (though they are) "offensive-to-some"; they are a hate group, and they traffic in a kind of nasty bigotry and obscenity that, I am confident, Howard would not shrug off were it directed at another religious group, regardless of his disagreement with that group's teachings or beliefs. A group like FIRE is, it seems to me, on solid ground when it distinguishes between (a) students at an elite university harassing a Article III judge who has been invited, in accord with established procedures, to deliver a university-appropriate talk and (b) a for-profit sports franchise deciding that, all things considered, it's a bad idea to invite and promote a hate group, the schtick of which is to mock professed religious women who share the faith of the largest religious community in that sports franchise's city.

Posted by Rick Garnett on May 25, 2023 at 03:53 PM in Rick Garnett | Permalink | Comments (0)

More on Thin-Skinned Judges

Here is an essay I wrote for American Lawyer Publications about 20 years ago. It is about an absurd disciplinary ruling by the Indiana Supreme Court, suspending a lawyer for including a mildly impolite footnote in an appellate brief. In an ironic judicial instance of the "Streisand Effect," the ruling drew far more attention to the footnote -- and the court's hyper-sensitivity -- than it would have gotten otherwise.

A Footnote Most Foul

When Michael Wilkins, an experienced Indiana appellate lawyer, agreed to serve as local counsel for a Michigan insurance company, he had no idea that the case would land him in deep trouble with his state supreme court. And when he submitted his client's brief - written by their Michigan lawyers, but reviewed and signed by Wilkins - he never expected that a mildly aggressive footnote would be declared so "scurrilous and intemperate" that it would get him clocked with a 30-day suspension.

Every lawyer knows stories about thin-skinned judges, easily angered by trivial or imaginary affronts. But the Indiana Supreme Court opinion in In re Wilkins takes judicial hubris to a new extreme.

Because Wilkins allowed one sentence in a brief that challenged the intellectual consistency of an appellate court opinion, the state supreme court, by a 3-2 majority, ordered Wilkins suspended from practice for a month. Such harsh discipline would be an extraordinary penalty for even the most boorish advocacy, so you might assume that the errant lawyer resorted to personal insults or foul language. But in fact he just tried to present his case forcefully.

Seeking discretionary review of an adverse appellate decision in an insurance case, Wilkins filed a petition for transfer (the local equivalent of a writ of certiorari) with the Indiana Supreme Court. He argued in his supporting brief that the appeals court erred badly in ruling against his client, materially misstating the record and ignoring relevant precedents. These claims will sound familiar to anyone who has ever lost a case, and, in fact, the applicable Indiana appellate rule requires comparable allegations as a basis for appeal.

But the brief included a fatal footnote that drew the Supreme Court's ire. Here, in toto, is what it said:

"Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for the [Appellee], and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."

That was poor advocacy, to be sure, more likely to annoy than persuade, but it is hardly shocking language among consenting adults. You cannot appeal from a ruling without criticizing it, and Wilkins' brief basically said that the appellate court opinion was so bad as to cause consternation. He was obviously hoping that the overstatement would grab the Supreme Court's attention, which is not an unheard-of tactic when petitioning for discretionary review.

He got the court's attention all right, but not the way he hoped. The Supreme Court not only denied the petition; it struck the supporting brief as a "scurrilous and intemperate attack on the integrity" of the lower court. A disciplinary proceeding followed that eventually resulted in Wilkins' suspension (the lead Michigan lawyer has also been barred from the Indiana courts).

The majority decided that Wilkins' words violated Indiana Professional Conduct Rule 8.2(a), which prohibits false statements "concerning the qualifications or integrity of a judge" or judicial panel. To justify this determination, the majority concluded that the offending footnote "suggested unethical motivations" and "deliberately unethical conduct" on the part of the lower court judges by alleging that they "may have been motivated in their decision making by something other than the proper administration of justice."

So subversive was the footnote, according to the majority, that it threatened to "weaken and erode the public's confidence in an impartial" judiciary.

That is an astonishing stretch, reading sinister implications into a statement that one dissenting justice characterized as nothing more than "rhetorical hyperbole incapable of being proved true or false." The footnote is open to many possible innocent constructions, falling far short of the malign innuendo perceived by the Supreme Court's majority. The appeals court might have been "determined to find" for the appellee for reasons having nothing to do with unethical conduct.

Perhaps the footnote implies that the court acted on an intuitive sense of justice, out of inadvertence or inattention, or based on considerations of efficiency. None of these suggestions would impugn the court's integrity, although they might provide grounds for reversal. Indeed, there are entire schools of thought – Legal Realism, Critical Legal Studies - based on the premise that all judging is inevitably outcome-oriented, and another school of thought - Law and Economics - posits that it should be.

Nonetheless, the Indiana Supreme Court fastened on the specter of "unethical conduct" - words that, by the way, never appear in the brief - in order to conclude that the "scurrilous" statement violated a disciplinary rule.

The First Amendment protects not only freedom of speech, but also the right to "petition the government for a redress of grievances," which would surely seem to cover an appeal to a higher court. The right to complain about government officials was a bold idea in the 18th century, when European monarchs had no obligation to listen to the grievances of their subjects, but it should not be controversial, much less professionally perilous, today.

In response to Wilkins' First Amendment claims, the Supreme Court held that the "interest in preserving the public's confidence in the judicial system ... far outweighed any need for the respondent to air his unsubstantiated concerns." Of course, this completely begs the First Amendment question. His concerns can be called unsubstantiated only because the majority strained to construe them that way, reinterpreting the footnote as an allegation of unethical conduct rather than garden-variety ineptitude.

Thus it was a rigged balancing test in which the lawyer's interests were virtually defined out of existence. Exercising the sole power to decide whether a claim is substantiated - indeed, holding sole power to characterize the claim itself - the majority left little or no real breathing room for free expression.

Worst of all was the majority's approach to the penalty. Wilkins had made several attempts to apologize to both the Indiana Court of Appeals and the Indiana Supreme Court, acknowledging that his footnote was "overly aggressive and inappropriate and should never have made its way into our brief." He repeated his apologies during the disciplinary proceeding.

This was not good enough for the majority, however, because Wilkins continued to maintain that he "believes in the substance of the language contained in the footnote." In other words, it was not sufficient for him to retract the offending statement; he had to purge his mind of the offending thoughts as well. Because he evidently declined to stop thinking that he was right about his case, the majority determined that he had to be disciplined more harshly than his record - which was described as "outstanding and exemplary" - would otherwise warrant.

Now, judges may have the authority to control what a lawyer can say in court. But it is a sad day when they seek to constrain his very thoughts. The demand for abject recantation calls several historical parallels to mind, but they are best left unexpressed.

As of this writing, Wilkins has petitioned the Indiana Supreme Court for reconsideration and a stay of his suspension. He may eventually seek review by the U.S. Supreme Court if the state court does not relent.

t is ironic to see a lawyer disciplined for such relatively mild language when prominent judges frequently dish it  out in much stronger terms. As one dissenting Indiana justice pointed out, U.S. Justice Antonin Scalia is well known for lambasting his colleagues without reserve. He once commented, for example, that an opinion by Justice Sandra Day O'Connor was "irrational" and that her stated views "cannot be taken seriously." Needless to say, he was not suspended for his caustic words.

Under the widely respected leadership of its chief justice, the Indiana Supreme Court enjoys a national reputation. The court is generally known for thoughtful innovation, not defensiveness. So it is baffling that the majority, including the chief, found a mere footnote so threatening to judicial dignity.

The brief in question could not have been read by more than a dozen or so people. But the judges' disproportionate reaction has already been reported by both the local press and The New York Times, as well as on various Web sites, probably doing more harm to the court's reputation than any number of rude footnotes.

If anything "weakens and erodes public confidence in the judiciary," it is the perception that judges are imperious, taking umbrage at minor slights and unwilling to tolerate pointed criticism. Courts have the power to compel deference, but they should never mistake self-importance for dignity.

Perhaps Indiana is an exceptionally decorous place, where formal manners still prevail and deportment is rigidly enforced. Even so, the majority would probably not be thrilled to learn that their opinion echoes a famous quote from Chicago's late Mayor Richard J. Daley. In a typical overreaction to his adversaries, he once fumed, "They have vilified me, they have crucified me, and, yes, they have even criticized me." The mayor neglected to add, of course, that his critics were well within their constitutional rights.

Posted by Steve Lubet on May 25, 2023 at 11:57 AM | Permalink | Comments (0)

Wednesday, May 24, 2023

Thick-skinned judges

From Judge Joshua Wolson (E.D. Pa., with whom I clerked on that court), dismissing a lawsuit by a state judge against the Daily Beast for describing her as "QAnon-linked:"

Being a Judge is a great job. But it comes with downsides. What we do, we do in public, and we subject ourselves to public discussion and criticism of our decisions, both fair and unfair. Federalist No. 78 noted the importance of Judges being independent of the “effects of those ill humors, which are the arts of designing men, or the influence of particular conjunctures [that] sometimes disseminate among the people themselves.” The Federalist No. 78 (Alexander Hamilton). That remains just as true today as it was in the 18th Century. Being a judge requires a thick skin and a willingness to make decisions in the face of criticism, even unfair criticism, and to remember that sticks and stones may break my bones, but names can never hurt me.

That view of judges needing thick skin and the ability to handle even unfair criticism and continuing to do the job departs from the attitude expressed by Justice Alito, Judge Duncan, Judge Ho, and others, demanding sanction for or defense against their critics. Is it easy to say this when discussing another judge reacting to criticism (in rejecting that other judge's efforts to silence those criticism) than when handling unfair criticism directed at oneself? (Note that I am not attributing that position to Judge Wolson or suggesting he would react differently to criticism targeting him).

Posted by Howard Wasserman on May 24, 2023 at 06:48 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sherlock Holmes on the Ku Klux Klan

From "The Five Orange Pips," which involves the murder of an American ex-pat by the KKK.

"Have you never--" said Sherlock Holmes, bending forward and sinking his voice--"have you never heard of the Ku Klux Klan?"

"I never have." [This is Dr. Watson] . . .

"This terrible secret society was formed by some ex-Confederate soldiers in the Southern States after the Civil War, and it rapidly formed local branches in different parts of the country, notably in Tennessee, Louisiana, the Carolinas, Georgia, and Florida. Its power was used for political purposes, principally for the terrorizing of the negro voters, and the murdering or driving from the country of those who were opposed to its views. . . . For some years the organization flourished, in spite of the efforts of the United States Government, and of the better classes of then community in the South."

I find this interesting because the story was written in 1891, yet this is a pretty accurate description of the Klan. Conan Doyle did make up some details elsewhere to move the plot along. There are some more law and literature tidbits about Holmes that I will post on later.

Posted by Gerard Magliocca on May 24, 2023 at 09:56 AM | Permalink | Comments (0)

Appropiating Bagels

I was traveling this year and completely missed National Bagel Day, which is when I usually re-post my 1998 Chicago Tribune column on cultural appropriation and bagel variety. Propitiously, the New York Times recently posted a video featuring the last hand-rolled bagels in New York, and the legendary roller responsible for turning out as many as 3000 bagels every day.

Hand rolling is a venerable tradition -- it's how my mother made them in our kitchen, and how every bagel was made until the 1960s -- but those who watch the video may notice a couple of, shall we say, developments. First, despite the hand rolling, it appears that these bagels are not boiled. In other words, they aren't bagels at all; they are just round bread rolls. Second, enthusiastic customers of the bagel shops describe them as "fluffy," a quality not found in a true bagel, which should be crusty and chewy. It is notable that the NYTimes reporter evidently knew almost nothing about bagels, other than her own preferences.

This doesn't diminish the impressive energy and commitment of Celestino Garcia, the subject of the video, but it definitely says something about popularizing cuisines.

You can read my original column after the jump.  Remember, it was 1998.

As a child I understood very well that bagels set me apart from other kids in the neighborhood. Oh, we all played the same games and went to the same schools, but their grandparents spoke English, they went to church on Sunday, and they didn't eat bagels. We, on the other hand, ate the things all the time: as snacks, as sandwiches, as breakfast. My mother made them herself--rolling, boiling, brushing and then baking the little rings to precisely the right resilience. They came in exactly two varieties--plain and rye. The rye ones were my mother's innovation, which she considered avant garde. They were small, dense, unadorned, and ours.

These days you can find bagel stores almost everywhere. In fact, right down the block from my house you can find bagel shops three corners, selling bagels of every conceivable stripe and description. None of the places even faintly resembles a deli, but nonetheless, each has its own personality, in large part derived from the character of its workforce--though judging from appearances, most of them probably think that He-brew is an especially masculine cup of coffee. There are the prim, pleasant, middle-aged women who proudly serve Dutch apple bagels on one corner. Or you can visit the energetic teenagers who dole out chocolate chip bagels next door. If you're in the mood for some herb, you can score a few oregano-parmesan bagels from the hippies across the street.
I've long since made my peace with the inauthentic bagel outlets, and have even come to appreciate the modest virtues of shopping in a corporate-owned "bagel cafe." If nothing else, I've learned the importance of clear articulation, since terms I take for granted are too easily confused by novice bagel clerks. For example, one day I rushed into my favorite local joint and ordered "two pumpernickel." Easy enough, I thought as they shoved my bagels into a cute bakery bag. True, the bagels looked almost orange, lacking the rich, dark hue of true pumpernickel. But what did I expect from a bagel chain? And then there was that unexpected spicy smell. It was pleasant and strangely familiar, but not at all bagel-like. I dismissed it as having rubbed off, so to speak, from an adjacent bin.
It was only when I bit into the first one that I realized I was munching on, so help me, a pumpkin bagel. Pumpkin, pumpernickel--I guess it's a natural mistake.
I'm not really complaining. In America, no ethnic group can ever expect to maintain a monopoly on its cuisine. I'm sure that native Italians wince at some of the things that Americans dump on pizza, and I know Chinese restaurants here serve dishes that would be unrecognizable from Guangzhau to Beijing. Nobody even thinks to associate wieners with Vienna--and it's a good thing, too, since the Viennese would never tolerate ketchup and pickle relish.
But if the mainstreaming of bagels is not entirely an occasion for bitter lamentation, it still has to evoke at least a twinge of regret, as one more bit of ethnic flair is deracinated, homogenized and prepackaged for mass consumption.
Interestingly, it appears there is a crisis in the bagel industry. Stock prices have plunged by as much as 80 percent and one national chain has entered bankruptcy. Profits are falling and outlets are closing.
If you ask me, their problems all stem from hubris. I've got nothing against making big bucks on bagels, but there has to be a sense of proportion. They should never have started calling it the bagel "industry." Bagels should be sold in "a nice little business" where you can "make a comfortable living." And you shouldn't have national chains. Maybe a few "convenient locations" or even a "branch" or two, but that's it. Go any further and you're asking for trouble.
The bagel industry can probably recover from its spate of overexpansion, but somewhere along the line it is going to pay for fiddling with tradition. Bagel-meddlers can load almost anything into a bagel and still have it taste good, but they ought to give credit where credit is due. Bake what you must, but let's put an end to the precious preening. Stop touting "old-fashioned" blueberry and "classic" cranberry-orange!
It's not the flavors I object to, it's the adjectives. Bagels weren't invented by a bunch of MBAs, and there's never gong to be anything traditional about filling them with fruit. So if they have to overstuff somebody's heritage, all I can say is let `em eat crepes.

Posted by Steve Lubet on May 24, 2023 at 04:26 AM | Permalink | Comments (0)

Tuesday, May 23, 2023

(Guest Post) Judicial Politics and Legal Scholarship in Warhol Foundation v. Goldsmith

I meant it when i said I have no idea who had the better of Warhol. So the following is from my FIU colleague Hannibal Travis, who does.

The majority opinion in Warhol carries forward certain recent trends in decisionmaking at the Supreme Court.  As others have noted, there is a "David and Goliath" quality to the ruling that photographer Lynn Goldsmith, breaking barriers as a woman in the male-dominated rock-n-roll photography field and earning a modest living from selling photographs to magazines for around $400, was entitled to compensation for Andy Warhol making an unauthorized tracing and silkscreen of her photograph of the rock star Prince and licensing it to Vanity Fair for $10,000.  It is reminiscent of the celebrated ruling in NCAA v. Alston (2021) that college athletes had been unlawfully exploited when colleges conspired to limit their education-related benefits for playing, and that the NCAA had no right to define intercollegiate athletics as a market in which cost-of-attendance scholarships are the fundamental cap on scholarships to ensure amateur play.  The majority also attempts to return fair use doctrine to what it sees as first principles, contrary to certain lower court rulings that supposedly overemphasized one aspect of one fair use factor.  This continues a trend of swatting away overly formalistic or innovative circuit court tests, some of the more notorious being "design marketability," "likelihood of dilution," the "machine-or-transformation" test for concrete patentable ideas, and the "teaching-suggestion-motivation test" for obvious improvements to existing technologies for patentability purposes.

Henry Mistry suggests that judicial opinions -- including dissents -- are a kind of performative ritual that is intended to alter social perceptions and bolster the legitimacy of the ritual's practitioner.  From this point of view, decisions like Warhol that make up the trend of Supreme Court decisions against various "Goliaths" are not only norm-clarifying but legitimacy-building.  As a related form of performative judicial politics, a dissent calls aspects of the legal system into question while underlining the system's legitimacy as a responsive and "dynamic" one.  In this instance, the majority mobilizes a constituency for its view from the factual background of Goldsmith's craft to its attempt to reassure artists that not much will change in the last paragraph. 

One of the critical points of contention in Warhol is the relationship between the defense of fair use and the exclusive right of Goldsmith and other copyright holders to prepare "derivative works."  As Justice Sonia Sotomayor's opinion for the Court explains:

[T]he owner has a right to derivative transformations of her work. Such transformations may be substantial, like the adaptation of a book into a movie. To be sure, this right is “[s]ubject to” fair use. § 106; see also § 107. The two are not mutually exclusive. But an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner's exclusive right to create derivative works. To preserve that right, the degree of transformation required to make “transformative” use of an original must go beyond that required to qualify as a derivative.... See ... Authors Guild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015) (Leval, J.) (“The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright's goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”). A use that shares the purpose of a copyrighted work, by contrast, is more likely to provide “the public with a substantial substitute....” [Id.] at 207....

Similarly, Justices Neil Gorsuch and Ketanji Brown Jackson state in their concurring opinion:

[T]he copyright statute expressly protects a copyright holder's exclusive right to create “derivative works” that “transfor[m]” or “adap[t]” his original work. §§ 101, 106(2). So saying that a later user of a copyrighted work “transformed” its message and endowed it with a “new aesthetic” cannot automatically mean he has made fair use of it. Contra, post, at 1–2, 22–23, 34–36 (Kagan, J., dissenting). To hold otherwise would risk making a nonsense of the statutory scheme—suggesting that transformative uses of originals belong to the copyright holder (under § 106) but that others may simultaneously claim those transformative uses for themselves (under § 107). We aren't normally in the business of putting a statute “at war with itself ” in this way. United States v. American Tobacco Co., 221 U.S. 106, 180 (1911).

The opinion in American Tobacco was not about a contradiction between two provisions, however, but between a reasonable reading of a single provision and another proposed reading that would seemingly undermine the legislative objective (freedom of interstate commerce).  In Warhol, the justices were at loggerheads over whether presumptively vesting the ability to adapt, recast, or transform a work in its original author would thwart the very creativity that copyright is deemed to promote.  For dissenting Justice Elena Kagan and Chief Justice John Roberts, there is no tension between finding a work to be an infringing derivative yet favored under fair use as having a "purpose or character" that is akin to comment, criticism, research, or scholarship.  The derivative work right is not eliminated despite this approach because the amount and importance of material taken and any economic harm to the original author can outweigh the purpose factor.  Even more importantly, the derivative work right is "[s]ubject to" section 107 (the fair use statute) and other defenses/limitations.  In 2013, for example, the Court found that even though copyright infringement includes unauthorized distribution of copies, the first-sale (or resale of a lawful copy) defense applied.  The strength of the argument that an unlawful distribution occurred could not eliminate the first-sale doctrine's role (because distribution exclusivity is subject to it).  Thus, ruling against Goldsmith on the question presented (that the unauthorized Prince art based on a Goldsmith photo was "transformative" under the fair use doctrine) would conflict with neither the fundamental goal of copyright nor with the derivative work language.

The legislative history of the Copyright Act further illustrates why allowing fair uses of some derivative works would not make nonsense of the statute.  Both the definition of a derivative work, and that of fair use, refer to a "portion of [the] ... work" being used.  Unlike the majority opinion in Warhol, which defines fair use as necessarily excluding "plausible derivatives," the legislative history states that "no real definition" of fair use even exists.  Several of the examples of fair uses in the legislative history amount to a "recast[ing]" of the original work, and are therefore "plausible derivatives," including: "illustration or clarification of the author’s observations" and "summary of an address or article, with brief quotations, in a news report."  Both of these examples are captured in the preamble to the fair use statute under "comment," "research," or "scholarship," so that criticism or parody does not exhaust the world of fair uses.  Nevertheless, the majority opinion starkly contrasts comment and criticism, and greatly disadvantages commentary and research in comparison to "target[ing] an original work."

By excluding illustrative or summative commentary and other plausible derivatives from the scope of the first factor of the fair use doctrine, the majority opinion will confine fair use to a very minor domain because it did not want to "narrow" the derivative or adaptation right.  As the dissent points out, the first factor ensures a "'breathing space' for artists to use existing materials to make fundamentally new works, for the public's enjoyment and benefit."  Courts formerly utilized the first factor to outweigh aspects of the new work that might otherwise negate a fair use, such as use of the entire work or use of the "heart" of the work such as a song's refrain.  The dissent goes on to criticize the majority's move here:

[T]he preamble ... gives examples of uses often thought fair: “criticism, comment, news reporting, teaching[,] ... scholarship, or research.” § 107. As we have explained, an emphasis on commercialism would “swallow” those uses—that is, would mostly deprive them of fair-use protection.... [¶]  [Yet o]n the majority's view, an artist had best not attempt to market even a transformative follow-on work—one that adds significant new expression, meaning, or message. That added value (unless it comes from critiquing the original) will no longer receive credit under factor 1. And so it can never hope to outweigh factor 4's assessment of the copyright holder's [economic] interests.

The dissent in Warhol recalls on earlier dissent on an even weightier issue.  In 1984, the Court ruled 6-3 that paraphrasing and selectively quoting choice passages from the memoirs of a former president and potential presidential primary candidate Gerald Ford were consumptive and exploitive uses of his manuscript, rather than fair news reporting with a more beneficial purpose of conveying uncopyrightable facts without scooping a new book.  Building on this approach, courts  ruled that even liberally quoting unpublished letters could result in a copyright ban on a biography.  Justices William Brennan, Byron White, and Thurgood Marshall issued one of the great First Amendment dissents in the Ford case, warning that news reporting, which was a "prime example" of fair use according to the statutory text, had been disfavored by the majority, threatening open discussion and debate on public figures and official measures.  Scholars  have often confirmed that this danger has indeed materialized.

The Warhol dissent takes a minimalistic approach.  The First Amendment right to make art of a postmodern or even simply a "pop art" variety is not discussed, despite effective briefs on the topic by art law professors and copyright law professors.  Even the legislative history, which contains important discussions of the scope of fair use and of the derivative right, makes no appearance.  Cass Sunstein conceived of judicial minimalism as different from judicial restraint in that it promotes core principles on which supposedly everyone can agree, while striking down laws when necessary to shield traditional rights.  It is not "skeptical" of the judicial role so much as committed to a broad scope of political branch discretion, and confident that judges committed to various ideologies and legal theories can agree in reasonable and circumscribed decisions.  In this way, the Warhol majority explains its ruling as an interative development of existing precedents and a straightforward application of statutory text.  The dissent invites readers to review the precedents and read the text differently.  Neither opinion returns to first principles and opens a destabilizing inquiry into their contemporary implications.

Sunstein noted that a minimalistic opinion may fail to provide "justification or guidance for the future" in "wider judgments."  The majority does not even draw much of an explicit distinction between submitting art to a magazine for a fee -- where the art is based on a photograph to illustrate a magazine article or cover about the photograph's subject -- and either displaying similar art in a nonprofit museum or art history textbook.  Thus, Justices Gorsuch and Jackson wrote a concurrence to point out that the first fair use factor might favor such a use in an appropriate case.  The majority is unwilling even to state that a critical book review necessarily benefits from the first factor, because certain quoted passages might satisfy consumer demand for part of the book and therefore lose the benefit of the first factor. 

The majority does offer guidance on a number of important topics.  It concedes that when a creator uses only a tiny portion of what came before or hides whatever is created in the classroom or private quarters, the "plausible derivatives" test may support a fair use under the first factor.  It approvingly cites cases stating that reproducing a photograph that is "the story" unaltered alongside a news article could be a fair purpose, as could altering a photograph for parodic effect.  It reaffirms a decision from 2021 that it could be a fair purpose to make use of "primarily functional" computer software elements to create a new programming "environment" with "shared interfaces" and the ability to attract programmers from earlier coding environments.  It even analyzes Andy Warhol's Campbell Soup Cans from 1962 (part of a series continuing through at least 1969) as having a purpose and character consistent with a fair use because advertisements have a different purpose and the series "target[ed]" the ads, presumably for being "ordinary."  Finally, the majority declares -- with no precedential or theoretical support -- that film adaptations are unfair uses. (The Court ruled in 1911 that a film could be an infringing dramatization of a book under the copyright act of 1891, but fair use did not come up.)

There can be no presumption that a particular type of work is a fair use or even has a fair "purpose and character," for the majority.  As noted above, even book reviews are now at risk even though they were one of the first types of fair uses recognized, alongside abridgements.

The dissent argues that despite the guidance provided, the majority's minimalism and solicitude towards authors' commercial aims will leave subsequent authors and musicians in a very uncertain position as to quoting others' original work.  Were Warhol's Marilyn Monroe series of paintings and screenprints all infringements?  The dissent is unsure, althugh the majority notes that Warhol paid to license the photographic source material of some of his works, so the scope of said licenses might be important.  How could future artists or musicians possibly rely on fair use if even an "avatar" of a bracing and revolutionary form of recontextualizing art worthy of museum exhibition and inclusion in art history's pantheon, had an insufficient legal justification for the "purpose and character" of (at least some of) his works?  No matter, say the majority and the concurrence: a narrow question was asked, and answered.

The majority opinion, like the Campbell case it applies, adopts an analysis from a Harvard Law Review article by Judge Pierre Leval.  Leval argued that the further removed the purposes of the user are from those of the original author, the more excusing an unauthorized use will advance the aims of copyright law .  On the other hand, subsequent authors who share purposes or characteristics of their work with the original author's work threaten to divert income from him or her and harm the mechanism with which copyright adds to knowledge via incentives. 

The central question under this approach is whether an interference with a "plausible derivative" is made by the subsequent author.  As Leval's article put it, any "reasonably substantial" loss of revenue due to the substitutionary effect of a use may negate its fairness. In the Google Books decision, Leval expanded on the proposal:

Even if the purpose of the copying is for a valuably transformative purpose, such copying might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute....

There must be a meaningful or significant effect "upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4).

However, Leval's discussion of derivative substitution in his article and in the Google Books opinion dealt with the fourth fair use factor.  The Warhol majority's use of significant-impact-on-plausible-derivatives to inform the first factor will lead to confusion between the purpose and character factor and the effect on value of markets factor, the dissent argues.  The majority denies this, leading to various skirmishes in the footnotes.  The most clarifying statement by the majority is that a significant effect on derivative markets may be correlated with but is not a cause of a purpose and character that is unfair (for being too close to that of the original work).

This analysis by Leval, mediated by its reception in Campbell, is about the sum total of the influence of legal scholarship on the majority opinion.  As with the First Amendment issue and the postmodern art briefs, this was a minimalist move, as legal scholarship is rife with theories about the history and optimal development of fair use. 

In the Warhol concurrence, however, legal scholarship makes a tantalizing appearance.  It is suggested that while fair use may not be viable for the Warhol foundation due to losing the first factor, a defense of outright noninfringement may have had more success.  The Nimmer on Copyright treatise appears for the proposition that "even when two works are substantially similar, if both the plaintiff’s and the defendant's works copy from a third source (reworking, say, a traditional artistic or literary theme), a claim for infringement generally will not succeed."  This, for me, evoked an opinion by then-judge Gorsuch on copyright infringement, in Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. (10th Cir. 2009).  There, the plaintiff digitally sculpted lines and frames initially derived from Toyota vehicle measuresments, for purposes of painstakingly generating all the fine nuances of a vehicle's appearance in a computer-based model.  Its infringement claim against Toyota for subsequent unauthorized uses ran up against a "bedrock" principle of copyright law that aspects of the plaintiff's model attributable to copying the underlying object had to be ignored, and could not form the basis of a claim.  The shape of a vehicle was unprotected or owned by Toyota, not owned by the plaintiff who first traced it.  Analogously, the concurrence seems to suggest that the Warholized image of Prince (which the dissent describes as resulting in "isolated and exaggerated ... differently-colored, out-of-kilter lines around Prince's face and hair") might be noninfringing once Prince's features are ignored.  Scholars (who unfortunately the Court does not engage with to provide more guidance to those using images of people for various purposes) explore this as the "photograph as database" theory, with the photograph as a mirror, repository, or taking of data points preexisting in the world. 

It is, in a way, appropriate that Warhol's work should cause us to reevaluate the dynamic between the creator as generator of meaning and the creator as consumer of meaning.  The majority opinion paints Warhol and similarly situated artists (like Richard Prince or Jeff Koons) as grabbing value from others, as being engaged in "wholesale takings."  Warhol described what he was doing as driving the seemingly strong meaning of ordinary images to a vanishing point.  Repetition, iconography, discoloration, and the like produce a distancing or alienation effect (Verfremdungseffekt or priyom ostraneniya).  The comforting and community-binding aura around popular images takes on a different hue.  Richard Prince and Koons achieve something similar in cases they lost in pertinent part, in the rulings on Graduation and the String of Puppies.  This kind of art will continue to be possible to release without a license, but perhaps only if the source images are obscured in such a way that the alienation effect is not really achieved.  Thus, Richard Prince and Koons prevailed (under pre-Warhol standards) as to works jumbled up or covered over in larger collages and the like.  Warhol, in this way, bans a type of Warholist art. 

Posted by Howard Wasserman on May 23, 2023 at 09:31 AM in Intellectual Property, Judicial Process | Permalink | Comments (0)

Dr. Glaucomflecken on Prior Authorizations


Posted by Steve Lubet on May 23, 2023 at 06:17 AM | Permalink | Comments (0)

Monday, May 22, 2023

Dodgers reinvite Sisters (Update)

The Dodgers have reversed course and reinvited the Sisters of Perpetual Indulgence to the team's June Pride Night, after other LGTBQ+ groups threatened to pull out of the event. As far as I can tell, FIRE never said a word.

Update: The LA Times' LS Granderson has thoughts (may be paywalled), as does the Catholic League.

Posted by Howard Wasserman on May 22, 2023 at 09:46 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

What Joan Biscupic Found in the John Paul Stevens Papers

A recent CNN article by Joan Biscupic includes a memo from Justice Stevens to Justice O’Connor citing an essay by my late colleague Nat Nathanson: 

But then, in his main order of business, Stevens urged her to look at a 1977 essay he attached to his personal note. “It strongly supports the durational requirement in the last part of your opinion. One of its authors, Nathaniel Nathanson, was a Brandeis clerk and taught me constitutional law at Northwestern. The entire article is consistent with your analysis, and some of his comments on page 292 might be worth including in a footnote.”

The next day, after O’Connor had sent out a new draft with some of the essay’s sentiments, Stevens wrote back to O’Connor: “Many thanks for the changes. I don’t mean to be a nuisance, but I want to point out that the sentence in the Nathanson article immediately following the one you quoted reads as follows: ‘But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.’ Including that positive statement would really add strength to the opinion. Again, this is just a suggestion, but the one sentence that you do quote by itself seems to convey a somewhat different message.”

Stevens O'Connor Nathanson jpg


O’Connor ended up quoting that fuller section from the article co-authored by Nathanson and Casimir Bartnik entitled “The Constitutionality of Preferential Treatment of Minority Applicants to Professional Schools”: “It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.”

Nat joined the Northwestern faculty in 1936, became emeritus in 1977 (we had mandatory retirement in those days), and continued teaching until he passed away in 1983. He was one of the kindest, most supportive people I've ever known. He was very enthusiastic about clinical and simulation teaching at a time when it was marginal at most law schools. I believe he was the last living Brandeis clerk.

It was especially moving to read the words of a Supreme Court justice invoking one of his professors, which should remind all of us about the incredible and lasting impact we may have on our students.

Posted by Steve Lubet on May 22, 2023 at 04:12 AM | Permalink | Comments (0)

Sunday, May 21, 2023

Constitutional Quorum Rules

Many state constitutions require a supermajority of a legislative chamber for a quorum. This allows the minority party to block legislation by simply not showing up (or by leaving the state entirely). In recent years, there have been high-profile examples of this sort of minority veto in states like Texas and Oregon. The Federal Constitution is largely free of these requirements. Article I states that only a majority is required for a quorum in the House and in the Senate. Imagine how much worse off we would be if the minority party could block any bill by just not appearing.

There is one curious exception though. The Twelfth Amendment says that two-thirds of the Senate is required for a quorum on a vote to choose the Vice President in the event that no candidate receives a majority in the Electoral College. So this means that in a presidential election that is decided by the House of Representatives, the minority party in the Senate can block the VP election by refusing to show up. (Query whether the newly-elected President, though, can bypass this blockade by nominating his erstwhile running mate as VP under the Twenty-Fifth Amendment, which has no special quorum requirement.)

In general, the Twelfth Amendment probably the most poorly designed amendment. The Framers in 1787 can be somewhat forgiven for not understanding how the Electoral College would evolve. By 1804, though, Congress should have done a lot better. 

Posted by Gerard Magliocca on May 21, 2023 at 11:16 AM | Permalink | Comments (0)

Saturday, May 20, 2023

The presence of Justice Kagan

Gerard suggests Justice Breyer's absence explains the nastiness of the exchanges in Warhol (and deteriorating relationships among the Justices generally)--he "was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills." Josh Blackman says the same.

But wasn't the ability and desire to broker compromises one of Kagan's selling points, based on her time and efforts as HLS dean? Is she too young? Too junior to play that role on the Court (she is the median justice in seniority)? Too caustic a writer? Or does this involve a different type of compromise--not across ideological lines but across temperament, between two people who generally align.

Posted by Howard Wasserman on May 20, 2023 at 12:27 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

The Absence of Justice Breyer

On Thursday, the Court issued its opinion in the Andy Warhol copyright case. FWIW, I think that the majority erred in its interpretation of the first fair use factor. I sometimes think that cases like this are viewed differently when the artist's estate (read "money-grasping distant relatives") are the party of interest rather than the actual artist. If Warhol was still alive, would he have lost? 

But what I want to highlight in this post is that Warhol was the first copyright case in 30 years decided without Justice Breyer. He was the most knowledgeable copyright person on the Court, due in part to his academic work. His absence is telling, I think, both in the Court's treatment of the issue and in the unnecessarily harsh tone of the opinions.

Though I have no way of knowing, I also wonder whether Justice Breyer's absence may explain the deteriorating relationships among the Justices. He was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills. Granted, things were not perfect while he was there, but I'm not sure who on the current Court can be the "glue" that holds that group together. My work on Bushrod Washington indicates that this is sort of Justice is quite important for the health of the Court as an institution.     

Posted by Gerard Magliocca on May 20, 2023 at 09:33 AM | Permalink | Comments (0)

Saturday Music Post - Bill Bailey

Has any song been more enjoyable than "Bill Bailey"? Originally titled "Bill Bailey, Won't You Please Come Home," it was written in 1902 by Hughie Cannon,  a tavern piano player in Jackson, Michigan. As the story goes, Cannon was inspired by the carousing of his friend and fellow musician Willard "Bill" Bailey, whose wife regularly called on him to end his late night habits. Whether true or not, Michigan's nocturnal Bill Bailey has been immortalized in a song that has been a Dixieland and jazz standard for over a century. The song is almost impossible to overdo, overact, over arrange, or over produce. Though parodies abound, I have included only one.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on May 20, 2023 at 05:49 AM | Permalink | Comments (0)

Friday, May 19, 2023

Validity and Repayment

One argument about Section Four of the Fourteenth Amendment that I want to knock down is the idea--advanced by Michael McConnell and Sai Prakash--that Section Four prohibits only the outright repudiation of the national debt. The claim goes something like this: Failing to repay debt is not the same as questioning the validity of that debt. An unpaid debt is still valid.

This reading is incorrect for two reasons. First, the original public meaning of Section Four was that debt must be repaid. This point was emphasized repeatedly by members of Congress, especially with respect to the portion of the debt owed to pensions for wounded soldiers and the survivors of the Union dead. The notion that paying lip service to those obligations without paying them would have satisfied the constitutional principle is unpersuasive. Second, the McConnell/Prakesh reading contradicts what the Supreme Court said about Section Four in Perry v. United States, which is the only Section Four case. I assume that they think Perry was erroneous (or at least contained erroneous dicta), though I'm not sure.

That said, I still agree that the President lacks the unilateral power to ignore the debt ceiling, as I've explained in prior posts. 

Posted by Gerard Magliocca on May 19, 2023 at 02:15 PM | Permalink | Comments (0)

Moreland on Liberalism and Christianity

Michael Moreland (Villanova) has posted on SSRN a new paper, "Contingency and Contestation in Liberalism and Christianity) which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Prawfs participating included Amy Sepinwell, Andy Koppelman, Brandon Paradise, Kathleen Brady, Steven Smith, and Nathan Chapman.  Also discussed are recent works by Adrian Vermeule and Patrick Deneen.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

Michael does, I think, a great job of capturing the richness of the conversation.  [I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."]

Posted by Rick Garnett on May 19, 2023 at 09:18 AM in Religion, Rick Garnett | Permalink | Comments (0)

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Lawprawf John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:


Posted by Rick Garnett on May 19, 2023 at 08:52 AM in Religion, Rick Garnett | Permalink | Comments (0)

Thursday, May 18, 2023

Kagan on Velazquez and Bacon (and Lain on Cortada)

 Justice Kagan devotes the final ten pages of her Andy Warhol Foundation v. Goldsmith dissent (begin at p. 25) to illustrating the "dramatic" effects of the majority's (narrow?) approach to the first fair use factor. Using examples in literature, music, and art, she discusses historic examples of work building on prior work; her premise is that that the majority's approach would not see the later work as transformative and thus as fair use, because both create something to be sold.

On pp. 32-34, she compares Velazquez's portrait of Pope Innocent X with Bacon's "Study After Velazque's Portrait of Pope Innocent X" (commonly known as "Screaming Pope").

Miami artist Xavier Cortada's May It Please the Court depicts ten SCOTUS cases originating in Florida; the paintings hang on the walls of FIU College of Law. Here is the piece for Proffitt v. Florida, which riffed on Bacon's painting:

CortadaproffittIn Painting Constitutional Law (edited with my colleague Matthew Mirow), Corinna Lain (Richmond) wrote a wonderful essay on Proffitt and how Bacon's painting and Cortada's painting explore "pain, imprisonment, isolation and obfuscation," which constitute "larger themes of the death penalty as well."

If Kagan is right that Bacon's painting cannot happen, then neither can this.



Posted by Howard Wasserman on May 18, 2023 at 01:57 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

More on FIRE

I hope I am premature in my anticipatory criticism of FIRE; time will tell. I follow FIRE's statements pretty closely and will update (and eat crow) if it says anything. But two further points:

1) FIRE recently changed its name from Foundation for Individual Rights in Education to "Foundation for Individual Rights and Expression." This does not strike me as mission creep; this represents an intentional branching and rebranding beyond the educational context. As I understand it, FIRE and its supporters believe the ACLU has wavered in its commitment to free expression in the face of contrary commitments to equality and The Trump Resistance; they see themselves filling the gap in protecting free speech throughout society. So this is, in fact, something on which they might weigh in.

2) FIRE's Twitter thread on the Chappelle story reveals not-happiness with the comedy club's choice--dropping everyone's favorite word and wondering whether the club would have "canceled Prince because Tipper Gore and the PMRC didn’t like ‘Darling Nikki’." That is, the thread takes the club to task for "canceling" a speaker in deference to lefty critics, where it would not have done the same to conservative critics of a lefty icon such as Prince. (The answer is probably not. But private actors get to make such choices and distinctions in the name of their expressive preferences).

But if it is wrong as a matter of a "culture of free speech" (their words) to reject Chappelle but include Prince--as FIRE clearly believes--it is wrong to criticize the club for rejecting Chappelle while ignoring the Dodgers rejecting Sisters of Perpetual Indulgence. FIRE might argue that a comedy club, as an "artistic and culture venue[]," carries a unique mission. That seems a thin reed, putting aside that sports teams and stadiums should qualify as "culture venues" that draw a lot more people than comedy clubs.

Posted by Howard Wasserman on May 18, 2023 at 01:32 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sotomayor and Kagan

I do not know enough copyright law to comment on Andy Warhol Foundation v. Goldsmith (I hope one of my colleagues will write something on it). But what is happening between Sotomayor (for a 7-person majority) and Kagan (dissenting with Roberts)? Their exchanges seem uniquely sharp and direct and personal (each accusing the other of being, essentially, clueless about the law), especially for a non-political case between two justices who tend to agree on things.

The majority refers to "the dissent" more than 40 times and responds to points in 11 footnotes.

Kagan ends the intro to her dissent with the following footnote:

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of come-back footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what  follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

I also wonder how much Roberts influenced the dissent's style. The opinion is loaded with references and allusions, a common feature of Roberts' writing (even more so than Kagan). The two together cannot help themselves. Unsurprisingly, the dissent is a fun read (again, I pass no judgment on the correctness of its analysis).

Posted by Howard Wasserman on May 18, 2023 at 01:03 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Trifle Premature

I may be missing something, but it seems to me that Howard has not only fired a load of buckshot in his post below rather than aiming or firing with any precision, he has also engaged in a sort of premature expostulation.

When I read the words “according to FIRE,” I tend to assume what follows will be supporting evidence, especially if I see hyperlinks looming just ahead. And when I see something referred to as a “test,” I tend to assume the test-taker is at least registered for the class. Of course FIRE has spoken and acted on the subjects of campus heckler’s vetoes and disinvitations of campus speakers. Both are university speech issues. I have no idea what the organization thinks about comedy club disinvitations, and the story Howard links to doesn’t tell me—perhaps because until very recently, FIRE’s mission was limited to questions of university speech, and so far as I know it hasn’t been vocal on the question of comedy clubs.

Perhaps unwisely—money and mission creep are both dangerous things for organizations that have acted usefully within a more limited scope— the organization recently announced that it would be expanding into free speech issues more generally. No doubt in the fullness of time FAIR will be confronted with various “tests” of consistency. Perhaps it would be fairer to wait until then before trying to figure out the nature of that test. Like all debates, culture-war debates are of dubious value generally, but certainly become more dubious the more untethered they are from specifics. 

(As a side issue, there is no inconsistency between the Religious Test Clause, or the First Amendment as such, and the belief that faith in God is at the heart of American values. Those who drafted and ratified the Constitution and the First Amendment would no doubt be surprised by many things, but certainly not by that. I’m not sure how much we should care what they thought, or what they would think about a United States senator pronouncing on local issues of this sort, but they certainly would not have found the assertion that religious faith is a central part of American values to be “news” or to be inconsistent with prevalent notions of constitutionalism. They would have been more surprised by a contrary assertion. Even setting the anachronism aside, I think they would have been much more surprised and bemused by Senator Rubio’s assertion that something as trivial as baseball is “tied to our nation’s values.”)

Posted by Paul Horwitz on May 18, 2023 at 10:59 AM in Paul Horwitz | Permalink | Comments (0)

Some kind of culture

So: A large organization plans to host and honor a particular group. People, including political leaders, object to the honoree's expression and call for the large organization to disinvite the honoree because they object to, and find offensive, that expression. The large organization disinvites the honoree.

According to FIRE and others, this is bad--cancel culture and hecklers' vetoes and woke-mob-hive-mind silencing, oh my. They deem it bad when a Minneapolis comedy club canceled Dave Chappelle shows. They deem it bad when students shout down campus speakers. They deem it bad when colleges disinvite commencement speakers.

The Dodgers announced they had removed the Sisters of Perpetual Indulgence from its Pride Night event, scheduled for June. The group describes itself as a "'performance, charity, and protest group that features drag as well as queer and trans nuns that “promote human rights, respect for diversity, and spiritual enlightenment.'” Marco Rubio,* Fox News, and the Catholic News Agency describe it as "an anti-Catholic hate group which exists to desecrate and degrade the Catholic faith" furthers "modern, secular, and indeed anti-religious 'values.'" (Note the scare quotes).

[*] Who insists faith in God is at the "heart" of our Nation's values, which might be news to those who drafted the constitutional provision excluding religion as a qualification for public office, to say nothing of the First Amendment.

Of course, the protesters in those other, censorious "cancellations" directed similar criticisms towards the targeted speakers--Dave Chappelle or Ann Coulter degrade the humanity of LGBTQ+ people. Yet Rubio, Fox, and their fellow travelers scream about wokeism gone wild destroying free expression when anyone seeks to exclude them from any space.

I do not expect consistency from Fox News or Marco Rubio; their reactions provide further evidence that their support for free speech ends where their agreement with the speaker ends. FIRE, on the other hand, purports to support free speech as a principle and touts its willingness to protect speech (and criticize supposed censors) from both sides. It often gets lumped in with conservative free-speech opportunists, which is mostly unfair.  While I believe FIRE sees too much equivalency left-wing law students' obnoxious and disruptive noise and right-wing government's legal speech restrictions, it genuinely treats similar speech restrictions by both sides in a similar way.

This becomes something of a test. If a comedy club disinviting Dave Chappelle because of his (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents, then the Dodgers disinviting the Sisters because of their (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents.

Posted by Howard Wasserman on May 18, 2023 at 09:56 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 16, 2023

Preclusion in the news (Update)

In his CNN-sponsored political rally, held the day after a jury found him liable to E. Jean Carroll for sexual abuse and defamation, Donald Trump  called Carroll a "whack job" and her allegations a "fake story." Carroll is contemplating bringing new claims for defamation.

Any lawsuit will continue Trump's trend of introducing the public to otherwise-obscure legal concepts--this time, issue preclusion. Trump in the new litigation will be bound by the jury's necessary conclusion that he did sexually abuse Carroll in that dressing room; the parties must litigate the remainder of the case (were his denials opinion, is "whack job" opinion, what are her new damages) in light of that established fact. But all the elements are satisfied--the jury found that he abused her, the finding was necessary to the verdict, Trump had a full-and-fair opportunity to litigate, and we actually have mutuality.

It plays an unusual role here. Kyle Rittenhouse has made noise about bringing defamation actions against those who continue to call him a murderer. Those claims fail for several reasons, including that these speakers are not bound by the jury's conclusion that Rittenhouse acted in self-defense and can speak contrary to that. Trump--as a party to the case--loses that luxury.

Update: Ken White on Serious Trouble discusses a different wrinkle (while calling the entire thing a law school exam)--whether Carroll can sue CNN for airing Trump's comments and whether she can establish actual malice based on the jury verdict. Again, issue preclusion does not apply to CNN--as a non-party to the original suit, it never had a full-and-fair opportunity to litigate and cannot be bound by the prior decision. But it presents an interesting fact question (White believes sufficient to survive 12(b)(6) and probably summary judgment) of how much pause a verdict holding a fact to be true must give a future speaker. And that question perhaps interacts with the standard of persuasion underlying that verdict--whether CNN is less reckless in disagreeing with a verdict finding it more likely than not Trump assaulted her as opposed to a verdict finding beyond a reasonable doubt that Trump assaulted her.

Posted by Howard Wasserman on May 16, 2023 at 03:44 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SCOTUS Needs Recusal Reforms (and more)

My new column at The Hill addresses the Supreme Court's inadequate recusal practice (among other ethics issues), including a set of cases in which Justice Sotomayor failed to recuse herself when she should have.

The essay also discusses other problems, but here is the gist of the recusal issue:

The Supreme Court's recusal process is its next ethical conundrum


As journalists continue to dig into the justices financial reports and other documents, questions continue to arise about their recusal and disclosure practices.

Some of the issues are more serious than others. It was recently reported, for example, that Justice Sonia Sotomayor failed to recuse herself in multiple cases involving her publisher, Penguin Random House, despite having received over $3 million from the company via an advance and subsequent royalties. 

Sotomayor's participation in the Penguin Random House cases -- in 2013, 2019 and 2020 --  is emblematic of the court's unacceptable approach to recusal. Although Sotomayor had no direct financial interest in the outcome of the cases, it should have been obvious that her continuing receipt of royalties from one party could create an appearance of favoritism. The federal recusal statute requires disqualification whenever a justice's impartiality might reasonably be questioned, which was surely applicable to a justice who anticipated substantial future income from a party to a case. 

Nonetheless, Sotomayor's decision to participate in the Penguin Random House cases was hers alone, in keeping with the courts historic practice, with no review by the other justices.

The inadequacy of the court's practice is highlighted by the recusal in the same cases by then-Justice Stephen Breyer, who also received royalties from Penguin Random House. The two recusal decisions are contradictory. Receipt of royalties either does or doesn't create a reasonable question of impartiality, which should not differ according to the inclinations of individual justices. Without review by the full court, there is no way to resolve such inconsistencies, much less provide guidance to lower court judges who are governed by the same statute. 

You can read the entire essay at The Hill.

Some readers may have seen Stephen Carter's recent column at Bloomberg in which he calls the Sotomayor recusal issue “farcical.” All I can say is that he must be reading a different statute than 28 U.S. Code § 455.

Comments are open (will be monitored).

Posted by Steve Lubet on May 16, 2023 at 12:18 PM | Permalink | Comments (0)

Hiring Announcement - Wisconsin - Fall 2023 Start

The University of Wisconsin is looking for a full-time faculty member, to start Fall 2023, to teach criminal law and criminal procedure. More information, including how to apply, here:


(As a side comment, I generally do not post permanent faculty hiring announcements; I ask that people put them in the comments of the hiring committees post. However, the hiring committees post for last year is sufficiently old that I assume nobody is looking at it for information; the new hiring committees post won't be up for a little while; and it is May 2023, and this listing is for Fall 2023, which perhaps represents something interesting about decentralization in the hiring market.)

Posted by Sarah Lawsky on May 16, 2023 at 08:42 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Dr. Glaucomflecken on Private Equity


Posted by Steve Lubet on May 16, 2023 at 04:24 AM | Permalink | Comments (0)

Monday, May 15, 2023

Lawsky Entry Level Hiring Report 2023

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2023. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 International license, cited as Sarah Lawsky, Reported Entry-Level Law School Hiring Spring 2023, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2023/05/lawsky-entry-level-hiring-report-2023.html.

Here is the full spreadsheet:

There were 129 tenure-track hires at U.S. law schools reported, at 86 different law schools.

Q: How does 129 reported hires compare to past years?

A: This is most reported hires since the “new normal” began. The average number of hires since 2014 is 85. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year to include it in the report.)


It would useful to know the percentage of those on the market who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy--if most people who were on the market used the FAR. This year had fewer FAR forms in the first distribution than any previous year. This might mean fewer people want to be law professors--or it might mean that more people who went on the market decided not to go through the FAR process. The x-axis here is Hiring Year; thus, for example, if the Hiring Year is 2023, the FAR forms were released in 2022.


As that graph suggests, the hires per FAR form were higher than any previous year since I started collecting this information.


Again, though, as is true every year, some people who received entry-level jobs and are represented in this data did not participate in the AALS/FAR process. This graph might represent a higher success rate for those who registered with the AALS and went through the FAR process. However, it may also, or instead, represent an increase in people who got jobs who did not participate in the FAR process.

Q: You say the hires were at 86 law schools. How does that compare to previous years?

A: Higher than previous relatively recent years, and also the highest number of schools hiring since and including 2013. (That is, the most recent year with more schools hiring than this year was 2012.)


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


Yale: 27; Harvard: 13; Stanford: 6; NYU: 6; Vanderbilt: 3; Indiana-Bloomington: 3; Georgetown: 3; Chicago: 3; Berkeley: 3; Virginia: 3; Michigan: 3; UC Law SF (Hastings): 3; Fewer than Three: 53

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Boston University; Colorado; Columbia; Cornell; Duke; Fordham; St. Louis; Tennessee

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: American; Arizona State; British Columbia; CUNY; Chicago Kent; Davis; Emory; Florida State; George Mason; Hawaii; Hebrew University; Illinois; Inter-American; Lewis & Clark; Louisville; Minnesota; New South Wales; Nigeria Law School; Northwestern; Notre Dame; Penn; Penn State; Pontificia Universidad Católica de Chile; Queen's University; Reichman; San Diego; Sapienza; Savannah; Shandong; South Carolina; Texas; UCL; UCLA; Washington & Lee; Washington (St. Louis); Wayne State; Zimbabwe

A high percentage of hires every year get their degree from Yale, Harvard, Stanford, or NYU.


However, over time, many schools are represented as the source of entry-level hiring.

And each year, there are relatively many unique schools represented--with more unique schools this year than any year since this version of the report started.


The number of unique schools may be in part a function of the number of hires. Unique schools as a percentage of total hires is on the higher side but comparable to recent years. (This graph represents the number of unique schools from which hires got their JD in a given year divided by total number of hires for that year. If in a particular year there were five total hires, and each came from a different law school, the graph would show 5/5 = 100% for that year. If in a given year there were five total hires, and three of those hires came from School X and two came from school Y, then the graph would show 2/5 = 40% for that year.)


This information comes with two related caveats.

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

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

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

91 (about 71%) had a fellowship; 59 (about 46%) had a clerkship; 71 (about 55%) had a higher degree. 5 people had none of these credentials. The percentage of each of these credentials was consistent with but slightly lower than percentages in recent years.



09A_percent_Higher Degree_per_year

Venn diagram:


Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--there was what seemed to be a shift in 2017, but this year drops down even below 2011 levels for the percentage of hires that have all three.


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

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


Harvard: 15; NYU: 11; Yale: 8; Georgetown: 6; Chicago: 5; Stanford: 4; Berkeley: 4; Gonzaga: 3; Duquesne: 3; George Washington: 3; Fewer than Three: 49

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

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

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

Q: Tell me more about these advanced degrees.

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

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 71 “highest” advanced degrees broke down like this:


Doctorate: 43; Masters: 21; LLM: 6; MD: 1

Topics ranged all over the maps. For the 43 Doctorates, a number of topics had multiple hires, including Law: 16; Philosophy: 6; Political Science: 5; History: 4; Economics: 3; Sociology: 2; Literature: 2. The other doctorate topics, each of which had one hire, were Criminology; Accounting; Geography; Education; Psychology.

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

83% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. For the first year since and including 2017, the percentage of reported hires with doctorates is below 40%. (That is, the most recent previous year with less than 40% of hires with doctorates was 2016.)


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


Zero to Four Years (Graduated 2019-2023): 27; Five to Nine Years (Graduated 2014-2018): 50; Ten to 19 Years (Graduated 2004-2013): 48; Twenty or More Years (Graduated before 2004): 4

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

Consistent with prior years.


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

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group. [NOTE: Currently I am unable to open the comments; this is a Typepad problem. I will continue to try to open the comments, but in the meantime, if you have questions/comments, feel free to email me.]

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

Yes, this report is certainly missing some information. It is without question incomplete. If you are aware of an entry-level hire who is not reported, please let me know and I will add that person.

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

Updated 5/16/2023, 5/17/2023, 5/18/2023, 5/21/2023, 6/10/2023, 8/8/2023 to add hires. Updated 8/9/2023 to update number of schools hiring. Updated 5/18/2023 to change the language regarding the higher ratio of hires to FAR forms to emphasize the point that this may result from people getting jobs outside the FAR process.

Posted by Sarah Lawsky on May 15, 2023 at 11:44 AM in Entry Level Hiring Report | Permalink | Comments (0)

Does PrawfsBlawg do ok on this?

I am a couple weeks late on this, but grading.

Eric Segall offers thoughts on how law schools can push back against political polarization, generating further comments from Ilya Somin.

I want to focus on the fifth of Segall's proposals:

5) The leading legal blogs, including this one (speaking to you Mike) should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.

Is it pollyanna-ish of me to think that we have achieved something like that, albeit unintentionally and without trying. I think our group is genuinely--at least within the parameters of the legal academy but perhaps more broadly--runs the political spectrum. That includes those avoid political topics, those who match different "sides" on different issues, and those who think both "sides" are wrong on some things.

To that end, we as a group are exploring ways to continue and expand the breadth of the conversation on this blog and the featured non-heterogeneous voices.

Posted by Howard Wasserman on May 15, 2023 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, May 14, 2023

A Reply to Steve: Lost and Found in Translation

I admit that when I read the title of Steve's post below, I assumed it would be about other aspects of the rhetoric in Michael McConnell's op-ed about the constitutional aspects of the debt limit debate. In an environment in which our rhetoric is permanently at risk of inflation, such that I believe there is value in putting even (what one thinks are) true statements and strong judgments in deliberately calm and moderated tones, I would have preferred that McConnell avoid a phrase like "dangerous nonsense"--even if he thinks the argument is dangerous nonsense. I say so with some reservation, since I admire the bluntness with which writers like Noel Annan delivered their judgments, with confidence and without any pretense that they were doing something other than delivering their judgments. And I too enjoy the occasional sharply delivered judgment. On the other hand, I don't think the language served a useful persuasive purpose in this particular forum, in which heated rhetoric is likely to succeed only when its purpose is to preach to the already-faithful; I think our rhetorical environment is already so polluted with sharp language that there is an overall net value in moderating it; and I frankly do not trust Americans (Annan was English) with dangerous weapons, including sharp language. That includes educated Americans. (Possible case in point: the headline writer who repeated that language. I am assuming only for these purposes that that person would count as an educated American.)  

One thing I feel fairly confident about, though, is that what Steve is actually interested in--the use of the phrase "That is not a bad thing. It is a good thing"--is not either an accidental or an ironic quotation of Chairman Mao. The general locution simply conveys a common-sense idea or argument: that, contrary to one's first impression, some purported bad thing is actually a good thing. The locution itself is English because we are dealing with a particular English translation of the original Mandarin text. I don't doubt that one could find similar phrasing in the literature and daily speech of any language. But it is never surprising to find that a translation uses phrasing familiar or sensible to the speakers of that language. (As a somewhat roundabout example, one of the quotations in chapter 5 of the Little Red Book says, with quotation marks, "War is the continuation of politics." One has to assume Mao was quoting von Clausewitz. I don't know whether, in the original Mandarin, Mao was quoting von Clausewitz in the original German or using the common English translation of that famous phrase. But whatever the case, it can't be surprising that a translator would have used what had become a common English-language version of the phrase--or that an English-language translator would use a fairly banal pairing like "bad thing" and "good thing.") It is not surprising that a phrase like this appears in either Mao or McConnell because it is not surprising that any English language speaker would use a matched pairing like this. 

If I am wrong, then the Maoist or Maoist-ironist conspiracy runs far deeper. Fifteen cases in the "all cases" database on Westlaw use similar language; in many of those cases, the language came not as part of a considered writing process but in oral statements offered in passing in court by judges, attorneys, and laypeople. (For instance, the defendant in one criminal case, who said in court about his offer to turn his children over to the state, "It's not a bad thing. It's a good thing." Or the physician who testified in an insurance dispute, "If you've got a limb that's partially paralyzed, exercise is not a bad thing for it. It's a good thing for it.") Using a conservative (if I may) estimate, close variants of the same phrase have appeared over 50 times in the law review database on Westlaw. While it is pleasant to entertain the suspicion that the legal academy really is filled with Maoists, Occam's Razor suggests that this is just a phrase that oft was thought and also oft expressed. (In fairness, Jack Balkin was one of the writers who used this locution. Still, that doesn't account for the other 49 or so times.) I am confident that the writer who, when speaking about expert evidence, said that "looking directly at the science seems a good thing, not a bad thing" was simply using readily available language, not sending a signal to the revolutionary cadre. As for irony: speaking as a Canadian, I must say that the good-money bet is always against any American speaking ironically, let alone that many Americans and still more that many American academics. It's a sadly uncultivated, sorely missing skill in these parts. That was true even back when a young Jed Purdy was, wrongly, arguing against it. 

Finally, I might note that a Google Ngram search suggests that the phrase or close variants of it have been used by English speakers long before 1939 and on any number of occasions since. I am reasonably confident that neither the writer in Youth's Companion magazine in 1900 ("The desire to excel is not a bad thing but a good thing"), nor Liberal Chancellor of the Exchequer and later Prime Minister William Ewart Gladstone speaking on the hustings in 1865 ("And that was not a bad thing, but a good thing for the constitution"), nor Matthew Arnold, nor the commenter in the Illustrated London News in 1918, were Maoist belle-letrists avant la Maoist belle-lettre. 

In this instance, I believe, the cigar is just a cigar. 

Like Steve, I take no position on the merits. Although, having pronounced on McConnell's language, I cannot resist pointing out that it doesn't hold a candle to the vitriol of the commenters on his op-ed, and that McConnell's op-ed seems to contain far less irony, or whatever it should be called, than Laurence Tribe's op-ed of a week ago. 

Posted by Paul Horwitz on May 14, 2023 at 03:14 PM in Paul Horwitz | Permalink | Comments (0)

Michael McConnell on the Debt Ceiling: a Question about Rhetoric

Michael McConnell, former federal appeals judge and current Stanford law prof, has a column in the New York Times calling on Pres. Biden to abandon his demand for a clean bill to increase the debt ceiling, and rather to negotiate spending cuts with House Republicans. My own view is that Speaker McCarthy and his colleagues are recklessly endangering the U.S. and world economies -- they only care about the debt ceiling, or deficits for that matter, when there is a Democrat in the White House -- but McConnell sees it differently:

But the House Republicans’ insistence on negotiations and compromise is not “hostage taking.” It is the ordinary stuff of politics. The two sides can posture all they want, but in the end, Congress and the president have to reach an agreement. That is not a bad thing. It is a good thing. The Constitution does not permit a unilateral solution on either side.

I am not writing, however, to engage on the merits. What's more interesting to me is McConnell's use of certain language -- "That is not a bad thing. It is a good thing." -- which happens to be a very close paraphrase from Chairman Mao Zedong's Little Red Book:

To Be Attacked by the Enemy Is Not a Bad Thing but a Good Thing.

Mao first used the phrase at a Communist Party Congress in 1939 (I had to look it up), and he often returned to the locution in later speeches and writings. I recall its use in many contexts by various Maoists and others during my Berkeley years. Whatever was being advocated, it was invariably "not a bad thing, but a good thing."

Now I wonder how conservative Prof. McConnell came to use it. Did he just come up with the expression independently? Did he happen to pick it up from ubiquitous Stanford left-wingers, unaware of its origin? Or was he being subtly ironic, realizing that only a handful of old-timers were likely to recognize his allusion (and would smile at it, as I have)?

Comments are open (but will be monitored).

Posted by Steve Lubet on May 14, 2023 at 10:39 AM | Permalink | Comments (0)

Saturday, May 13, 2023

Saturday Music Post - Rainbows

Today's musical rainbows are on The Faculty Lounge as usual.

Posted by Steve Lubet on May 13, 2023 at 06:32 AM | Permalink | Comments (0)

Fact Checking Ethnographies (or Anything Else)

My essay on fact checking ethnographies has been posted on the American Sociological Association's Contexts Blog. It derives from some research I had left over from Interrogating Ethnography, which I came across when clearing out some post-retirement files. The piece is basically an example of how to use documentation and circumstantial evidence to evaluate questionable claims and assertions.

Here is the gist:

The author’s field site was a university cafeteria, where they obtained a job in order to observe staff and customers. After some weeks, it occurred to the author that many of the mostly African American employees could barely read. Some workers even had trouble with the timecards because their names were written in cursive, which, according to the author, a significant number of employees could not recognize.

Could there actually be such a significant number of people in the 21st century United States who could not recognize their own names?

I could not go back in time to the author’s research site, but there were other ways to evaluate the reading claim. I surveyed the cafeteria workforce at a similarly located university, to see if there was even one person who fit the author’s description. I also contacted literacy organizations and reviewed national studies to determine the prevalence, if any, of such profound reading deficits among employed adult Americans. 

The ethnography’s editors, at a leading university press, evidently made no effort to confirm the inability of the workers to read their own names. The author presented this observation as a meaningful discovery, which is not unusual in urban ethnographies that prize unexpected findings, with an incentive to interpret ordinary events in novel ways.

Upon examination, however, such claims often fall apart under scrutiny.

The essay is not paywalled. You can read it here.

Posted by Steve Lubet on May 13, 2023 at 05:35 AM | Permalink | Comments (0)