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Friday, May 12, 2023

Justice Jackson on the Vesting Clause

One criticism of Justice Jackson's concurrence in Youngstown is that he misread the Vesting Clause of Article II. The opinion says that the Vesting Clause is "an allocation to the presidential office of the generic powers thereafter stated." This is wrong. The President exercises many executive powers that are not stated in Article II and do not come from a congressional delegation. Where do those powers come from? They must come from the Vesting Clause unless you accept a broad theory of "inherent" or "unwritten" executive powers.

Justice Jackson's drafts grasped this idea better than the final version. Here is how he explained the Vesting Clause there: “The obvious meaning, it seems to me, is that the Executive power appropriate to the form of Government created by the entire Constitution is what is vested in the President and that on any given issue a study of its interrelated powers and responsibilities must determine the question.”This is a much better explanation. Why, then, did he change this?

I don't know, though one possible answer is that revisions sometimes introduce--rather than correct--errors.

Posted by Gerard Magliocca on May 12, 2023 at 09:31 AM | Permalink | Comments (0)

Thursday, May 11, 2023

National Pork Producers Council v. Ross

The Court issued its opinion today and upheld the California proposition regulating pork sales. I agree with the result, although it's unfortunate that the Court could not produce a single majority opinion. This will, though, be a fun teaching case because of the many opinions that were written.

I'll add that I find it odd that Justice Kavanaugh feels the need (and he's done this before) to write a "for those of you keeping score at home" concurring opinion that attempts to spell out what the other opinions hold or say. I guess he's just trying to be helpful, but one person's view of what the others say isn't terribly persuasive.

Posted by Gerard Magliocca on May 11, 2023 at 01:10 PM | Permalink | Comments (0)


I was reading something yesterday and came across the unfamiliar word fol-de-rol (also spelled folderol). It means nonsense and was an older English version of saying "la, la, la" in songs. Since the refrain was just a filler, people used to use it to mean irrelevant or foolish. 

This is your word for the day. You're welcome.

Posted by Gerard Magliocca on May 11, 2023 at 09:28 AM | Permalink | Comments (0)

Wednesday, May 10, 2023

Alexander Hamilton on the National Debt

From a letter to the Senate from 1795. This letter was quoted by the Supreme Court in Perry v. United States:

"[W]hen a government enters into a contract with an individual, it deposes, as to the matter of the contract, its constitutional authority, and exchanges the character of legislator for that of a moral agent, with the same rights and obligations as an individual. Its promises may be justly considered as excepted out of its power to legislate, unless in aid of them. It is in theory impossible to reconcile the idea of a promise which obliges, with a power to make a law which can vary the effect of it.'

The Perry Court made the clear that the principle enunciated by Section Four of the Fourteenth Amendment predated that clause.

Posted by Gerard Magliocca on May 10, 2023 at 07:01 PM | Permalink | Comments (0)

One Possible Resolution of the Debt Ceiling Dispute

Let's assume that President Biden does invoke Section Four of the Fourteenth Amendment to ignore the debt ceiling. Litigation then ensues. In the meantime, Congress and the President can continue to negotiation. As part of that negotiation, Congress can retroactively authorize any debt issued by the Treasury in excess of the debt ceiling. This action would not concede the President's power to issue debt unilaterally. Congress adopted a similar approach to President Lincoln's unilateral suspension of habeas corpus during the Civil War. The Habeas Corpus Suspension Act of 1863 did not concede Lincoln's authority on that point but also did not reject what he had done.

A settlement along these lines (perhaps after the Supreme Court hears oral argument) would be in the interests of both sides. After all, neither Congress not the President can be confident of victory and neither side wants to lose and set a definitive precedent. 

Posted by Gerard Magliocca on May 10, 2023 at 09:27 AM | Permalink | Comments (0)

Clarence Thomas's Flimsy Excuses

My new column on Clarence Thomas’s flimsy excuses is up at CNN.com.

Here are the opening paragraphs (all that CNN will allow me to post). There is much more detail in the essay:

Clarence Thomas Is Running out of Excuses

May 10, 2023

Supreme Court Justice Clarence Thomas has had to explain decades of omissions on his annual financial reports. The most recent revelation, as reported by ProPublica, is that Thomas did not mention Republican donor Harlan Crow’s private school tuition payments for the justice’s grandnephew, whom the justice and his wife, Virginia Thomas, were raising “as a son.” That was a direct financial benefit to the Thomases, but it appeared nowhere on the justice’s disclosure statements mandated by the Ethics in Government Act.

The discovery is just the latest to cast a pall on Thomas for providing flimsy excuses for failing to make disclosures on these reports. As a Supreme Court justice, Thomas routinely interprets complex statutes that affect millions of Americans, priding himself on close adherence to the text. It beggars belief that he could repeatedly misinterpret plain statutory requirements and simple instructions on his annual disclosure reports.

You can read the full column at CNN.com.

Comments are open (subject to review).

Posted by Steve Lubet on May 10, 2023 at 08:03 AM | Permalink | Comments (1)

Tuesday, May 09, 2023

The (Tort)oise System

Through my scholarship focuses on constitutional law, I love teaching tort law and have done so for over twenty years. A fact worth pondering is that the slow and steady tort system seems to be doing far more to hold prominent firms and individuals accountable for their wrongdoing than the more glamorous alternatives of criminal and constitutional law. The Fox News/Dominion settlement is one example. The civil verdict today against Donald Trump is another. 

The relative effectiveness of tort law is just one more reason to doubt that the Supreme Court's qualified immunity cases are correct. 

Posted by Gerard Magliocca on May 9, 2023 at 05:25 PM | Permalink | Comments (0)

Monday, May 08, 2023

Law and Psychology Review Expedited Consideration: Deadline May 10

I apologize for the late posting of this notice, but for scholars who may have articles in draft dealing with the intersection of law and behavioral or psychological studies, please note the availability of direct submission and expedited review at the Law & Psychology Review, for papers submitted by the end of the day on Wednesday, May 10. The notice is below:



The Law &Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies. We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select. As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window. Submissions (in Word or pdf format)should be emailed to [email protected]. Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.


Posted by Paul Horwitz on May 8, 2023 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Property Law Teacher Sought for Spring '24 at U of Alabama

I'm happy to pass along the following notice. I will add two points: 1) Our students are excellent and it is a genuine pleasure to teach them. 2) I am reliably informed that in other parts of these United States, one may experience heavy quantities of snow in the months of January through April. We mostly avoid such unpleasantness in this state. 

* * * 

The University of Alabama School of Law is seeking a visiting faculty member from an ABA-accredited law school for a podium visit in the Spring 2024 semester to teach Property (4 credit hours) in the first-year required curriculum.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  Instruction for the Spring 2024 semester will be in-person at the School of Law in Tuscaloosa, Alabama.  This visit will include housing and visiting scholar stipend in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community. 

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at [email protected].

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at [email protected].

Review of materials and nominations will begin immediately and will continue until the position is filled.

Posted by Paul Horwitz on May 8, 2023 at 02:47 PM in Paul Horwitz | Permalink | Comments (0)

Backlash and the preferred first speaker

Fred Wellman's On Democracy podcast hosted Kevin Kruse (Princeton) to talk about his new book of essays, Myth America: Historians Take on the Biggest Legends and Lies About Our Past (2023). Later in the conversation, Kruse argues that we should not speak about "backlash" to social movements (race in the '60s or '70s or LGBTQ+ today). Backlash suggests a natural and inevitable force that blames the movement for the reaction--by pushing for its rights, Group A caused pushback. Rather, we must see the counter-movement as a similar, conscious, organized social movement that pursues a different, conflicting agenda. That is, the current wave of anti-LGBTQ+ legislation is not a "backlash" to those who pursued an agenda favorable to LGBTQ+ rights, something that just happened as a Newtonian reaction; it is a conscious choice by certain people to pursue an agenda unfavorable to LGBTQ+ rights. Perhaps the anti-LGBTQ+ movement only appeared because the pro movement appeared and enjoyed success; before that, they never thought or cared about LGTBTQ+ people. But that should not remove the intentionality and choice inherent in the anti-actions--they do not want LGBTQ+ people to have certain rights and they chose to pursue that agenda. Nor should it be framed as a "lesson" to the LGBTQ+ movement, showing why they should not have pushed for their rights in the first instance.

I am trying to figure out how this reframing fits within the preferred first speaker concept. I think they share a conceptualization--both "sides" in any situation share equal footing. One does not enjoy a superior right, each pursues a conscious and intentional agenda, and we should not understand one as causing the other.

Working through that.

Posted by Howard Wasserman on May 8, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 07, 2023

Laurence Tribe is (sort-of) Wrong

Professor Tribe has an op-ed in today's New York Times stating that he's changed his mind about the propriety of a president invoking Section Four  of the Fourteenth Amendment. He now says: "For a president to pick the lesser of two evils when no other option exists is the essence of constitutional leadership, not the action of a tyrant."

But this point is wrong as applied to debt ceiling. President Biden does have other lawful options besides the evils of default and Section Four. The Treasury can issue premium bonds or mint the trillion dollar coin (though I prefer the premium bonds). To be sure, smashing the debt ceiling is the simplest solution in the absence of congressional action. But that does not make that the correct legal solution. 

One can understand why the Administration is not discussing these legal alternatives. If they do, then Congress has no incentive to act. And congressional action is obviously better than the novel alternatives. At some point, though, the Treasury must explain why these are not plausible alternatives to justify an unprecedented Section Four action.

There are some interesting comparisons between this situation and Youngstown. President Truman had different statutory options to address the steel strike. But he didn't like them for various reasons, so he decided to take unilateral action instead. The Court said that the availability of these statutory options meant that his unilateral action was unlawful (though the opinions addressed this point in different ways). You can say the same here. The fact that the Treasury does not like the statutory options does not make unilateral action lawful. 

In one important respect, though, this situation is different from Youngstown. There it was certain that a proper lawsuit would challenge the seizure because the steel firms had standing to sue. Here it is unclear that anyone would have standing. To summon a theme from Justice Jackson's concurrence, maybe the advice of a presidential advisor should focus on that point. In other words, my conclusion that President Biden lacks the power to invoke Section Four is coming the point of view of a neutral observer. If I were a presidential advisor,  though, maybe I would be telling him that his chances of prevailing are pretty good and so he should go ahead to avert a financial crisis and create a precedent that defangs the debt ceiling. 

Posted by Gerard Magliocca on May 7, 2023 at 02:02 PM | Permalink | Comments (0)

Saturday, May 06, 2023

Charles Evans Hughes

About five years ago, I thought about writing a book about Charles Evans Hughes. Hughes lived an incredible professional life and was the subject of a Pulitzer Prize winning biography in the early 1950s. He is overdue for a new treatment. I passed on the idea because I did not think that I could tackle such a huge project. But I am now warming up to the idea for a couple of reasons.

First, I don't think that the 1916 presidential election gets enough attention. It's a major turning point in world history, perhaps even more than in American history. What would World War I and its aftermath have looked like with President Hughes instead of President Wilson? People don't ask this question, which is surprising given the closeness of the 1916 election.  I know little about the 1916 campaign or about Hughes's views on foreign policy before and while he Secretary of State, but that is fruitful terrain for sure.

Second, his initial stint on the Supreme Court (before he ran for President) gets far less attention than his time as Chief Justice. He is the Grover Cleveland of the Supreme Court. As an Associate Justice, Hughes was a progressive who typically sided with Holmes in significant cases. Did his outlook change over time or remain consistent? How did his experience between 1916 and 1930 shape his attitudes?

Third, Hughes had a talent for writing confusing opinions. I mean that as a compliment. Lawyers and scholars should always be clear, Judges, diplomats, and politicians, though, sometimes need to cloud the issue. (Winston Churchill liked to say that "[T]he English never draw a line without blurring it.")

There's more of course. A look at the Hughes papers is probably in my future.

Posted by Gerard Magliocca on May 6, 2023 at 03:39 PM | Permalink | Comments (0)

Shabbat Shalom

We celebrated the beginning of Shabbat last night with a pitching match-up of Dean Kremer of the Orioles (member of Team Israel) and Max Fried of the Braves (best Jewish pitcher since Ken Holtzman, if not yet Koufax). A six-inning pitchers' duel ended when Fried fell apart in in the 7th and the Orioles scored 7 runs (5 off Fried, including two homers). Kremer gave up 6 hits and struck out 3 in six innings, for his third win of the season. Fried had been untouchable in three starts since coming off the DL and continued that run for about six innings; his E.R.A. jumped from below 1.00 to 2.08.

Posted by Howard Wasserman on May 6, 2023 at 08:51 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday Music Post - San Francisco Bay Blues

Jesse Fuller, the great one man band of the Bay Area, wrote and recorded San Francisco Bay Blues in the 1950s, playing 12-string guitar, harmonica, bass drum, high-hat cymbal, "fotdella," and kazoo. Peter, Paul, and Mary famously covered it in 1965, keeping only the kazoo in their live appearances (but not on the record). Fuller's "fotdella" was a six-string bass of his own devising, played with foot pedals.

The clips are posted on The Faculty Lounge.

Posted by Steve Lubet on May 6, 2023 at 05:47 AM | Permalink | Comments (0)

Thursday, May 04, 2023

The Robert Moses Theory of Law

In Robert Caro's masterpiece The Power Broker, he quotes Robert Moses as telling associates: "Once you sink that first stake, they'll never make you pull it up." This is an fine aphorism for sunk-cost thinking on any project, but also describes how courts respond to some cases.

Consider the following scenario. Assume that President Biden decides to ignore the debt ceiling. A lawsuit is filed challenging that action. Assume further that someone has standing to bring that case. What would happen on the merits?

A significant limitation on judicial power would be that a ruling against the Administration could cause a financial panic. Bonds issued after the debt ceiling was broken would be illegal and worthless. These losses would spill over into banks, pension funds, and so on. Put another way, once the first "Biden bond" is issued, they'll never make you pull it back.

This is part of what happened in 1935. The Supreme Court faced the real prospect that there would be a financial meltdown if they ruled against the Roosevelt Administration's position in the Gold Clause Cases. Devaluation was a fait accompli.

This will be my last Section Four/debt ceiling post unless something actually happens.  

Posted by Gerard Magliocca on May 4, 2023 at 06:17 PM | Permalink | Comments (0)

Debt Validity vs. Devaluation

To build on my post from yesterday, why don't people think that the debt devaluation in the 1930s was a default? Here are a couple of possible answers that aren't necessarily based on a legal fiction or a lack of remedy:

  1. The Constitution is violated only when there is a total or a substantial default. A haircut for the bondholders does not count. This was part of what the United States argued in its brief in Perry.
  2. Paying people back at face value is not a default even if the real value of the dollar has declined. This makes sense in that you cannot say that any downward movement in the dollar over the term of the bond is a partial default. There has been inflation over the term of longer (and even shorter) bonds.
  3. Justice Stone's concurring opinion argued that Congress's power to regulate the currency would be unduly impaired if Section Four or the Constitution more generally was read to prohibit or restrict devaluations.


Posted by Gerard Magliocca on May 4, 2023 at 01:28 PM | Permalink | Comments (0)

Supreme Court Justices Offer Unconvincing Dodge on Ethics

My new essay at The American Prospect, explains why former federal appeals judge Michael Luttig is right, and the SCOTUS justices’ Statement of Ethics Principles is wrong, when it comes to Congress’s power to set conduct rules for the Supreme Court.

Here is the gist:

Supreme Court Justices Offer Unconvincing Dodge on Ethics

by Steven Lubet

May 4, 2023

“There should never come a day,” Luttig added, when Congress “is obligated to enact laws prescribing the ethical standards” applicable to the Court. But Congress “indisputably has the power under the Constitution to do so,” he concluded.

In contrast, Roberts and his colleagues were all but dismissive of increasing public concerns, allowing only that they would “reaffirm and restate foundational ethics principles,” while seeking “to dispel some common misconceptions.”

Reassuringly, the justices seem to say that their recusal decisions nonetheless follow the Judicial Conference’s Code of Conduct:

A justice may provide a summary explanation of a recusal decision, e.g., ‘Justice X took no part in the consideration or decision of this position. See Code of Conduct 3C(1)(c) (financial interest)’ or ‘Justice Y took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(e ) (prior government employment).'

In fact, no such explanations have ever been given.

Moreover, just six days after issuing the Statement of Principles, and one day before the Senate hearing, the Court announced Justice Ketanji Brown Jackson’s recusal in a major case with no parenthetical explanation, much less a citation to the Code of Conduct.

Several Republican senators—including Thom Tillis (R-NC) and Charles Grassley (R-IA)—briefly suggested that they might eventually be open to some congressional oversight of the Court. If so, it will be because they have accepted Judge Luttig’s admonition that the subject of the Supreme Court’s “ethical standards of conduct … is emphatically not a partisan political issue.” As he put it, the Court has a “continuing obligation to assess itself,” and every justice has a responsibility to ensure that questions about their ethical conduct need not even be raised.

You can read the entire piece at The American Prospect.

Posted by Steve Lubet on May 4, 2023 at 06:15 AM | Permalink | Comments (0)

Wednesday, May 03, 2023

What's Going on at the Rock & Roll Hall of Fame?

The Rock & Roll Hall of Fame has announced its 2023 inductees. It is an "all-star class," as the Hollywood Reporter put it, including Kate Bush, Missy Elliott, George Michael, Sheryl Crow, Rage Against the Machine, The Spinners, and Willie Nelson.

Wait a minute. Willie Nelson? How can it be that Willie Nelson, who just turned 90, isn't already in the Hall of Fame?  Artists become eligible for induction 25 years after releasing their first record. Willie's first release was in 1956, meaning that he has been eligible ever since the Hall was founded in 1983. 

The rapper Missy Elliott will be inducted in her first year of eligibility. Meanwhile, Willie Nelson has been passed over for 40 years. I am completely unfamiliar with Elliott's work, but it is hard to imagine it could be that much better or influential than Willie Nelson's.

Now, you might say that Willie doesn't actually play rock music, although he has certainly released some rock-a-billy tunes. And in any case, previous inductees include such non-rock acts as Chet Atkins, Joan Baez, Hank Ballard, Harry Belafonte, and Bob Wills -- and that's just the first two letters of the alphabet.

Comments are open for those who wish to express their outrage or, less likely, offer a rationalization.

Posted by Steve Lubet on May 3, 2023 at 01:19 PM | Permalink | Comments (9)

American Default

This is the title of an excellent book about the devaluation of the dollar in the 1930s. The logic of the title goes something like this: When the United States went off the gold standard (at least domestically) in 1933, the value of our currency fell by one-quarter or one-third. This was a partial default on Treasury bonds, in the the sense that the bondholders were getting significantly less than promised. Nobody used the word "default" to describe what occurred, but that was the reality.

When the bondholders challenged the devaluation as unconstitutional, the Supreme Court (in a plurality opinion) said that Section Four of the Fourteenth Amendment applied. But the plurality in Perry v. United States also concluded that the bondholders were not entitled to a remedy. The result was a legal fiction. A default was unconstitutional but could go ahead anyway. In a law review article that I wrote on Perry, I drew an analogy to Marbury.

This fiction was so effective that people still say that America has never defaulted on its debts. 

UPDATE: In another post, I'll try to explain how the 1930s precedent can be harmonized with the text of Section Four. 


Posted by Gerard Magliocca on May 3, 2023 at 09:58 AM | Permalink | Comments (0)

Snap removal swallows everything

An odd, but probably not unusual, phenomenon--one weird rule affects and infects application of other, related rules and processes. Snap removal seems to act as one such rule, with parties arguing that all sorts of removal is proper so long as it happens before service on a local defendant. I wrote last summer about a district court reading snap removal to override the time-of-filing rule for jurisdiction, allowing Tesla to remove a California case when it moved its headquarters post-filing but pre-service. (I tested on the case this semester). The defendant tried a similar move in this case, arguing that snap removal was proper when the diverse defendant removed before the non-diverse local defendant was served. Fortunately, Judge Stras was having none of it; even recognizing snap removal (the 8th Circuit has never weighed in), that cannot overcome the complete diversity requirement.

Posted by Howard Wasserman on May 3, 2023 at 08:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 02, 2023

Sherlock Holmes and the Law

I'm a big Holmes fan and recently discovered a terrific podcast about the Jeremy Brett series that remains my favorite adaptation of the stories. So I thought I'd do some fun posts about legal points that arise in the stories. For example, Holmes often gives his opinions about what juries might do in certain situations, along with other commentary.

Here's one that's not from Holmes. In "The Norwood Builder," Holmes is consulted by a client who is (falsely) accused of murder. Inspector Lestrade arrives to arrest the suspect. Holmes asks Lestrade if the client can tell his version of events before being taken away. Lestrade says fine, but then says: "I am bound to warn him that anything he may say will appear in evidence against him."

That sounds a lot like a Miranda warning, but the story was published in 1903. In what sense was Lestrade "bound" to give this warning? Does that mean "legally obliged" or "morally obliged?" Perhaps someone who studies English criminal law history would know.


Posted by Gerard Magliocca on May 2, 2023 at 11:17 AM | Permalink | Comments (0)

Dr. Glaucomflecken on Single-Payer Health Care


Posted by Steve Lubet on May 2, 2023 at 03:17 AM | Permalink | Comments (0)

Monday, May 01, 2023

Dear Justices: A Statement of Principles Is Not a Substitute for a Code of Conduct

My new column for The Hill explains why the Supreme Court's recent "Statement of Ethics Principles and Practices" is no substitute for an actual code of conduct. It leaves many important ethics issues unaddressed, including political activity, solicitation of contributions, avoiding outside influence, ex parte communications and leaking information, public comments on pending cases and reporting misconduct, among others. 

Regarding recusal, the Statement of Principles is simply baffling:

The Statement defends the court’s long-standing practice in which “individual Justices, rather than the Court, decide recusal issues.” The justification is that any other approach “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

That is wrong for at least two reasons. First, if the majority believes that a justice should be recused, then the justice should not participate no matter how it affects the case. The alternative is to have an otherwise disqualified justice cast the deciding vote, which is obviously far worse.

Moreover, the rationale bizarrely suggests that some future majority might conspire to disqualify another justice simply to control the outcome of a case. Not only does that betray an astonishing mistrust of their successors, but it would be nonsensical for a majority to deviously disqualify a colleague when, by definition, there are already enough votes to prevail in the case.

You can read the entire essay at The Hill.

Posted by Steve Lubet on May 1, 2023 at 11:42 AM | Permalink | Comments (0)

JOTWELL: Steinman on constitutional remedies

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Brandon L. Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739 (2022) and Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737 (2021); the articles explore and criticize different limitations on constitutional remedies.

Posted by Howard Wasserman on May 1, 2023 at 11:02 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)