PrawfsBlawg

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Samuel Alito Inadvertently Made the Best Case for Supreme Court Ethics Reform

My new essay on Slate explains how Justice Samuel Alito just advanced the case for requiring the Supreme Court to adopt a code of ethics. Here is the gist:

On Friday, the movement to require the United States Supreme Court to adopt a code of conduct got a boost from a surprising source: Justice Samuel Alito. Of course, at this point backers of ethics reform should be used to Alito putting his foot in his mouth to inadvertently offer support for their cause, which is just what he did again. Indeed, in an interview published on Friday in which he trashed the possibility of an enforceable Supreme Court ethics code established by Congress, the conservative icon made the strongest possible case for such a code: It is needed to force Alitoand any other like-minded justicesto keep mum about cases that could come before them, as all other judges in this country are obligated to do.

Questioned about the SCERT Act, the justice replied on the record, I know this is a controversial view, but Im willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Courtperiod. This statementin and of itselfis a perfect illustration of why the SCERT Act is needed. And, further, it should force Alito off the case should the act ever become law and the constitutionality ever be questioned in court. Hes clearly made up his mind, and the SCERT Act itself would demand his recusal in cases where hes already expressed such a strong opinion.

You can read the entire essay on Slate.

Social Q's, Retired Judge Edition

A recent "Social Q's" column in the New York Times addresses the following law-related etiquette question:

A Hard-Earned Title Worth Demanding

I am a retired judge. Like many judicial retirees, I work as a private arbitrator, occasionally on panels of three. I am working on a panel now with a retired judge from another state. On conference calls, he refers to himself as Judge Smith and to me as Miss Jones — even after he’s heard the lawyers call me Judge Jones. Should I let this go, or take it up with him and the agency that books our cases?

Signed,

JUDGE

To me, it seems just as premature to let this go as it does to report the man to the agency that hires you both. You are peers and have nothing to fear from him. Speak up! Tell him you want to be called Judge Jones — the same honorific you use for him. If he doesn’t, then report him. There is probably some degree of sexism baked into his current behavior, but you won’t know how much until you point out his error directly.

The answer, from novelist Philip Galanes, who has been writing the column since 2008, makes pragmatic sense, but it misses a key point. Neither of the arbitrators should be calling themselves "judge." Judicial titles apply to the office, not the person, and should not be used for private purposes.

ABA Formal Ethics Opinion 95-391 makes this clear:

A former judge who returns to the practice of law may not continue to use the titles "Judge" or "The Honorable."

Nor should he encourage others to refer to him as "Judge X" or "Your Honor" in the courtroom or otherwise in connection with legal proceedings. [Gendered language in 1995 original.]

This is especially so in arbitrations, where it is important to preserve the distinction between private dispute resolution and actual legal proceedings.

Yes, I know it is common, but it is still wrong.

Comments are open and will be monitored for relevance and civility.

Saturday Music Post - Freight Train

"Freight Train" was written by Elizabeth Cotten (1893-1987) in the early 20th century when she was performing in and around her hometown of Chapel Hill, North Carolina.  Cotten stopped performing for many years while raising a family and was "rediscovered" by the Seeger family, for whom she was working as a domestic and nanny -- for Mike and Peggy, but not their older half-brother Pete -- in the early 1950s. Because she was left-handed, Cotten played a standard guitar upside down, with the bass strings at the bottom. Her alternating bass style, played with her forefinger, became known as Cotten picking, though right-handed guitarists naturally play the bass line with their thumb.

Peggy Seeger moved to the UK in the mid-50s with her husband Ewan MacC0ll, also a folksinger, bringing "Freight Train" with her.  It was recorded in 1956 by Nancy Whiskey and Chaz McDevitt, who scored a skiffle hit, said to have influenced the Quarrymen who went on to other genres under another name. A couple of British songwriters misappropriated the copyright, which Cotten was finally able to reclaim with the help of the Seeger family (yes, that's somewhat ironic, given Pete's habit of misappropriating copyrights for himself).

The clips are at The Faculty Lounge.

The Ethics of the Justices--and Their Honor

The New York Times story on the books of the Justices serves as a nice occasion to voice something that has frustrated me about the recent discussions of the Court and the conduct of individual justices. There are good reasons to subject lawyers and judges to ethical codes, of course. Not least among them is that they provide (relative) clarity for insiders and outsiders alike. But a less good reason, at least as I see it as a Canadian let loose in the U.S., is the endless American habit of turning moral and political questions into legal ones, and vice versa. The result, all too often, is that a value or course of conduct that's not codified isn't taken seriously, and if it is codified it ends up being treated as a full and adequate account of one's obligations. (This general point generated a lot of legal scholarship about constitutional and political "norms" starting around 2016, although scholarly interest in the subject seems inexplicably to have waned in the last three or four years.)

I'm not opposed as such to codifying and/or strengthening the ethical rules that apply to Supreme Court justices. But inevitably, not everything that constitutes honorable conduct by a Supreme Court justice can or will be codified as an ethical rule. Indeed, not everything that constitutes honorable or dishonorable conduct by a judge or other office-holder should be codified as an ethical rule. And there are a lot of things that we might generally agree fall within the proper scope of official ethical conduct but are dishonorable. Of course we will disagree about what constitutes honorable conduct by an official, just as, even with an ethical code in place, we disagree about what conduct falls within or outside that code. Under our current system, for instance, absent specific circumstances it is ethical for a justice to serve for a very long time. But it is arguably not always honorable, even absent scandalous motives or actions.

Our usual focus on the official ethics of office-holders, rather than on what constitutes the honorable or virtuous path for such officials, leads us either to end the discussion once we've argued the official ethical question to death, or to seek some legal hook or official "scandal" to say what we could say more easily and directly in honor language: that some way of acting, permissible or not, is wrong, a discredit to the office, and should be criticized. The legalization of the discussion tends to lead to a false binary debate, conducted by the usual online debating societies and so-so journalistic commentators, in which something is, as it were, either a legal violation or a "nothing-burger."

Judges do inhabit an honor culture and form part of an honor group, consisting at the least of both their judicial colleagues and other participants in the professional legal community. It would be nice if more of our discussion explicitly discussed not what is ethical for judges, but what is honorable or virtuous. The dubious support of Richard Painter notwithstanding, I doubt it is either unethical or dishonorable to host a pay-your-own-way Christmas party with your former clerks. I don't think it's unethical per se for a justice to write a book--even a clearly mediocre or unnecessary one, which is generally the kind of book Supreme Court justices write. (To his credit, I think the kinds of books Justice Scalia wrote while on the bench don't fall into this category. Opinions will differ as to their quality, and I have no idea whether he was paid an unreasonable amount for them, but they struck me as serious books for people interested in law. One might say the same thing about Justice Breyer's books, although, again, I don't know whether he was paid an appropriate amount for them. I am frankly and perhaps--albeit unapologetically--snobbishly disinclined to view justices' memoirs, or collections of generally vapid speeches, in the same light.) But I doubt it is honorable to engage an agent to negotiate a large advance for such a book, which almost inevitably will be watered-down pablum (even justices, after all, are expected by major publishers to justify the size of the advance), and which the prospective author knows will be pablum, and then to hawk it up and down the country. It's ethical for justices to talk about wanting to beat the record for the length of a Supreme Court tenure, or wanting to serve a long tenure to show the people who opposed their nomination that they're staying put, and to serve accordingly long tenures. But to actually engage in that conduct is dishonorable. (I say again, in a reversal of the usual phrase, "More Souters." Nineteen years is an honorable span of time to sit on the Court--and the shortest complete tenure in recent memory.) 

I don't mind the ethics debate as such, although its quality is, to say the least, variable. But there's a lot more room for honor or virtue talk when considering these questions. I would like to see more of it, especially from the justices' honor group, which includes lawyers and legal academics. It would be nice if (where this fit one's views) we saw more public discussion in which one says, about a justice whose votes one favors, that their conduct is ethical but dishonorable, and that their compliance with official ethical requirements doesn't render it any less so. We should expect much more from holders of high office than just following the rules. 

Oppenheimer

My wife and I saw Oppenheimer yesterday. It was our first time in a theater since before the pandemic. As we expected, for an early afternoon showing on a Thursday, the audience was sparse and well distributed in the auditorium. 

The film was every bit as good as the glowing reviews, sticking impressively closely to the historical record. My only concern was that the story might initially be hard to follow for those who were previously unaware of the factual background, although it all becomes clear as the film developed.

I won't recap the story here, on the assumption that is unnecessary for most Prawfs readers, but I will point out a couple of interesting facts that the film skipped over. 

Oppenheimer was represented at the AEC hearing by Lloyd K. Garrison, played by Macon Blair, who was identified only as "one of the best" lawyers in New York. Garrison was indeed an outstanding lawyer, and, understandably omitted from the film, a name partner in the firm now known as Paul, Weiss, Rifkind, Wharton, and Garrison. More interestingly still, he was the great-grandson and partial namesake of the abolitionist William Lloyd Garrison, and the great-nephew of Oswald Garrison Villard, historian and co-founder (with W.E.B. DuBois) of the NAACP.

Garrison was not Oppenheimer's only attorney. Absent entirely from the film was co-counsel John. W. Davis, founding partner of Davis Polk & Wardwell and former solicitor general of the United States. Davis had been the Democratic presidential candidate in 1924. Two years earlier before the Oppenheimer hearing, he had represented South Carolina on the "separate but equal" side in a U.S. Supreme Court companion case to Brown v. Board of Education. He also testified as a character witness for Alger Hiss, so it is pretty obvious why the film emphasized Garrison and left Davis out of it.

Comments are open and will be monitored for relevance.

Supreme Court Roundup Podcast

In case it is of interest, I appeared with several insightful Fordham colleagues (Julie Suk, Abner Greene, and Tracy Higgins) on The Constitutional Crisis Hotline to discuss a set of cases from last term.  The link to the episode is here.

Bryce Newell's 2023 Meta Rankings of Law Journals

Just in time for the new season (barely).

Review of Judge Thapar's "The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him"

My new book review is up on Slate, critiquing federal Judge Amul Thapar’s paean to Justice Clarence Thomas.

Here is the gist:

Titled The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, Thapar’s book is nominally a defense of Thomas’ jurisprudence, but the unmistakable subtext is his own claim to be Thomas’ logical successor.

According to Thapar, “cherry-picking” critics have unfairly characterized Thomas as “the cruelest justice,” who favors “the rich over the poor” and the “strong over the weak.” In rebuttal, Thapar just cherry-picks his own 12 cases, showing that “Thomas’s originalism more often favors the ordinary people who come before the Court.”

The manuscript for The People’s Justice was no doubt completed well before the recent revelations about Thomas’ decades of lavish junketing as the guest of billionaire Republican donor Harlan Crow. This inconvenient timing accounts for Thapar’s repetition of the story that Thomas vacations incognito in a motor home and would “rather spend his time in Walmart parking lots than at cocktail parties.”

In his conclusion, Thapar tells us that Thomas knows, “like all originalists, that you cannot fully respect a people unless you respect their choices, too.” This is an odd claim, given Thomas’ frequent votes to invalidate democratically enacted statutes—the Voting Rights Act, New York’s gun control law, California’s agricultural labor law, and many others—in favor of his own divination of the Constitution’s original meaning. Thomas, says Thapar, tries his best “to figure out what the American people understood the Constitution to mean when they ratified it,” without mentioning that the long-deceased ratifiers were all white, male, and property owners, and that more than half of all Americans had no say at all. Originalism may have its virtues, but respect for living people’s choices is not among them.

You can read the entire review on Slate.

"The Supreme Court’s excuses for ethics violations insult our intelligence"

My new essay is up at The Hill, explaining how the Senate Judiciary Committee’s vote to advance the Supreme Court Ethics, Recusal and Transparency Act was prompted in part by investigations of Justices Thomas’s, Alito’s, and Sotomayor’s deficient financial disclosures, receipt of extravagant gifts, questionable transactions, or misuse of staff.

Here is the gist:

It is no secret that the Supreme Court Ethics, Recusal and Transparency Act was prompted in part by investigations into several justices’ deficient financial disclosures, receipt of extravagant gifts, questionable transactions and misuse of staff. The full court has consistently resisted adopting such an ethics code, but certain justices’ justifications for their questionable conduct only hurt their cause. 

Their excuses were all remarkably flimsy, almost beyond belief.

The three justices’ hollow rationalizations display a patronizing expectation that the public will ultimately buy whatever they say, no matter how implausible. 

But to paraphrase the late Justice Robert Jackson: Supreme Court justices do not get the last word because they are infallible; they only believe themselves infallible because they get the last word. When it comes to judicial ethics, that has to change.

You can read the entire piece at The Hill.

Bar Exam

It could be worse:

 

Missing From the American Coverage of the Israeli Judicial Reform Controversy

The headlines from the New York Times today put the matter succinctly: "Israeli Parliament Passes Contentious Law Limiting Judiciary." "Protest Movement Spurred by Legislation Vows to Fight On." The U.S. coverage of the controversy is entirely Israel-centered, understandably enough, with some discussion of how the controversy is affecting U.S.-Israeli relations. The overall bent of the coverage in the kinds of mainstream, politically liberal legacy press I read for my basic news is critical of the changes and of the Netanyahu government, and describes the battle as one in which "Israel's identity hangs in [the balance]."

What surprises me about all this coverage is how much the story has been treated as purely unique and internal to Israel, except in the sense of its impact on US-Israeli relations, and how little, if any, of the coverage has treated it as relevant for American debates over Supreme Court reform. One may remember that that issue was important enough to some constituencies in the 2020 election that it forced then-candidate and later President Biden to provide the official, time-honored sop of a blue-ribbon commission in order to quiet them down; that the issue certainly did not die down after Dobbs; and that it continues to fuel interesting proposals from important, albeit non-influential, corners of the party. Although the Supreme Court ethics movement and related coverage strikes me as more purely and immediately strategic, targeted, and partisan (which is not to say there's no "there" there; just that whether there is or not is not really the point for many newly enthusiastic groups and individuals), it is of course tied to the longer and larger debate. So you would think there would be a lot more connecting of the dots when an entire country is currently convulsed by actual legislative movement in the direction of judicial reform. (I use "reform" for convenience, setting aside debates over the best term to use.) 

I would think that such coverage and commentary would be interesting in part because it could fuel self-subversive thinking and realignment, pushing reporters and editors out of their customary schemas. One could imagine a story taking a positive angle on the Netanyahu government's success (on the assumption, obviously true, that most mainstream news reporting in the major papers has an angle), on the view that it shows that it is possible for government to succeed in altering the balance of power between the judicial and political departments. Or one could imagine a story taking a more wary or negative view of the Israeli protesters, either because they are interfering with what in the U.S. would be (for some) a cherished goal, or because they demonstrate how many levers those who resist such reforms might push, including some that might offer legitimate cause for concern or criticism. (Given longstanding discussions of the relative partisan skew of the membership of our armed forces, one might think that the threat of Israeli military reservists to stop serving if the Israeli judicial reforms passed would be of special concern here.)

But one doesn't have to imagine any particular angle or story to think the Israeli experience might simply provide interesting food for thought in the context of stories about American Supreme Court reform. Coverage of Supreme Court reform here, when it discusses public opinion, tends to do so at a crude level, asking whether a majority supports some reform or other but not talking much about the intensity of support or opposition or distinguishing much between bare and overwhelming majorities. In the case of Israel, President Biden has urged that for "significant changes" of the sort represented by the Israeli reforms, it is "essential" for the government to achieve "the broadest possible consensus" before moving forward. Surely that view is relevant to the ongoing American debate, and can be the subject of agreement, disagreement, and analysis in the context of American Supreme Court reform. (That view, I should add, seems consistent with the relatively hands-off, low-priority approach Biden has taken to the issue domestically.) If Congress had a majority favoring some arguably constitutionally permissible change to the structure of the Supreme Court and its relation to the political branches, and if, say, 56 percent of the public favored such a change, would it be proper, or precipitate, to go ahead with it? If American soldiers, reservists, or government employees threatened to resign en masse if the change were passed, would that sort of pressure be legitimate or illegitimate, praiseworthy or blameworthy?

I don't, of course, mean to suggest that the Israeli experience maps on to the United States experience with any exactitude. Nor do I mean to suggest there has been no such coverage. That can't possibly be the case. But if it had been even mildly present in the standard mainstream American coverage of developments in Israel, which has been voluminous, it would have been much easier to spot--and I cannot spot it, at least in the major papers and even in their opinion sections. It's a missed opportunity for interesting perspectives on and coverage of both the American and Israeli debates over the judiciary. It's also a rather bizarre absence, even if one takes into account the siloing of domestic and foreign coverage in American newspapers.     

"Powerful dissent:" the "coruscating guitar solo" of Supreme Court commentary

On the "powerful dissent" question, I would point to two sources to help better understand the phrase, other similar phrases, and their role, which I think of as lying somewhere between actual communicative effort and clearing one's throat, with a heavy added element of demonstrating the writer's status. The first is this glossary by Derek Muller, which helpfully explains "the jargon that usually accompanies Supreme Court analysis."

The second, a little further afield, is a wonderful book, The Rock Snob's Dictionary: An Essential Lexicon of Rockological Knowledge. Although a good deal of it is simply a helpful guide to things and people, often arcane, that rock snobs like to invoke (e.g. Van Dyke Parks, the Nuggets anthology, gated reverb), it also offers helpful information about the kinds of cliches that have been a staple of music critics' writing for years: "Seminal," "angular," "coruscating," and so on. (Co-author David Kamp provides a similar service for film snobs in another fine book.) As Michael Azerrad writes of rock cliches, such jargon "can make a writer feel authoritative—and it can also fool some readers into thinking the writer is authoritative." (The quote is from a book, but the link is to an article about Azerrad in Slate--appropriately enough, since Slate's house style is the confident assertion of dubious authority.) But it can also become mere habit.  

Is the guitar solo actually "coruscating" or "liquid?" Is the song truly "plangent?" Was that concert the writer attended really "incendiary?" Who knows? Sometimes even the writer doesn't. In many cases the writer thinks something like that is true, and is trying to get a sincere message across. Very often, they want to sound as if they have reached a firm judgment, and impress or cow the reader with that fact, even (or especially) when they clearly lack the wherewithal to assert such authority. But often enough this language is just a reflex, like coughing, or a sign of laziness.

"Powerful dissent," like the phrases listed in Derek's glossary, is basically that, but for "Supreme Court snobs"--those whose getting and spending of cultural or financial capital consists of the frequent delivery of evanescent popular or academic commentary about judicial opinions and other legal developments. Such phrases should not be assumed to be dishonest or esoteric. Those who use them may be banal but sincere. These cliches' role in asserting authority, both to overawe the reader and to get ahead in the writers' own status competition, should be noted, and both the authority and the opinion should be treated with skepticism. Beyond that, though, these phrases generally should simply be ignored, and writers should generally omit them.   

Belkin & Tushnet endorse judicial departmentalism

Aaron Belkin and Mark Tushnet authored an open letter urging Pres. Biden to pursue "popular constitutionalism" where "if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations." They explain:

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

The recent equivalent would be continuing to pursue affirmative action in higher education (outside Harvard and UNC) and elsewhere. Belkin and Tushnet push that point:

President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.

They lose me on that last point. I like the idea that the President should explain his intention and why, so the public sees and measures the competing constitutional approaches. But I do not agree that the President can (or should) do this only where the Court's interpretation is "egregiously wrong." That retains a whiff of judicial supremacy--the Court gets the last word except in some unique and extraordinary circumstances.

Better to say the President can pursue his competing interpretation in all cases where he believes appropriate. The limiting principle on the power (which Ilya Somin argues is absent) is not the egregiousness of the case. The limiting principle comes from the inevitable litigation challenging the President's actions and the likelihood that the Court will adhere to its view and reject the President's view in issuing a new judgment in a new case. And I do not read Belkin and Tushnet to argue that the President can ignore a judgment in a specific case.

Of course, while Democrats talk about whether to do this, Republicans do it. The Alabama legislature enacted  a new legislative map that, like the map declared invalid Allen v. Milligan, contains one (rather than two) majority-Black districts. This has liberals up in arms about a return to the 1960s and Alabama ignoring the Supreme Court. But isn't this what Belkin and Tushnet argued for?

Accepting that government can ignore an opinion but not a judgment, the answer depends on what we understand as the "judgment" in Allen. Was the judgment that Alabama must enact a map with two majority-Black districts because § 2 requires two such districts, given the population in Alabama? Or was the judgment that Alabama's prior map violated § 2 and that Alabama must enact a new map that conforms with § 2, even without a second majority-Black district (the enacted map has a second district that is about 40 % Black)? If the latter, Alabama is within its power (as Biden is under the Belkin/Tushnet argument) in enacting what it believes to be a proper map and triggering a new round of litigation. Alabama might (will?) lose that litigation, if the Court believes Allen's logic and reasoning requires a second district. But that does not mean Alabama crossed the line into defying the injunction.

Saturday Music Post - I Want to Hold Your Hand

"I Want to Hold Your Hand" was the Beatles' first hit in the U.S. As the archetypal rock song, it is interesting to see how often it has been covered as a ballad. Petula Clark's may have been the first, which is at the bottom of the post. 

The clips are at The Faculty Lounge.

Not-So Powerful Dissents

Powerful is common adjective for describing a judicial dissent. "Judge X wrote a powerful dissent," or "In her powerful dissent, Judge X said . . ." Unless powerful means "I agree with it," I must confess that I've not read a powerful dissent in many years.

There are problems with using powerful as the way of thinking about dissents. First, if it was so powerful, why was the majority of the Court unconvinced? Second, written dissents are not speeches. Power can be a good way of assessing a speech, but I'm not sure that's true for judicial opinions. Third, power may not be the author's goal. Maybe a dissenting judge wants to be thoughtful or coldly logical. Fourth, modern judicial dissents tend to be long. Length is the enemy of power. Whatever power there is gets dissipated or lost. I'm not sure why judicial culture has evolved to say that dissents must be long while concurrences can be short. But that seems to be the case.

Maybe powerful just means passionate or emotional. Some dissents are more emotional than others. Does that make them powerful? Not necessarily. But that's probably just a matter of taste.   

The Impact (or not) of a Criminal Insurrection Charge

The special counsel may soon bring a January 6th indictment against Donald Trump. One issue that will be discussed when that occurs is the inclusion or omission of a federal criminal insurrection charge. The January 6th Committee issued a referral on that charge, but that does not mean that one will be brought. 

This post is here to say that the special counsel's decision on that point is irrelevant to any subsequent Section Three litigation against the former President. Here's why. Let's say that Trump is indicted for insurrection. Well, he can rightfully say that an indictment is not proof of anything. And there is no chance that a trial on an insurrection charge will occur before his ballot eligibility for the primaries is decided. Now suppose Trump is not indicted for insurrection. That also doesn't matter because no criminal conviction is required for a Section Three disqualification. Plus, the Section Three cases will be civil, not criminal, which is another reason why you cannot compare them to the criminal statute.

Of course, the next indictment might have additional allegations that are of interest. And the indictment might (along with the possible Georgia indictment) persuade some state election officials to bar Trump from the ballot in the first instance.

 

Michigan Fake Electors Case

Today the Michigan Attorney General brought felony charges against Donald Trump's 16 fake electors from 2020. I would note that two of these individuals hold local office in Michigan and thus might be subject to Section Three disqualification. 

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

Et tu, Justice Sotomayor

My new essay at The American Prospect explains why Justice Sonia Sotomayor would have violated the Code of Judicial Conduct – if SCOTUS had a code – by using her court staff to bolster book sales.

Here is the gist:

The latest revelations involve Justice Sonia Sotomayor. According to a report by the Associated Press, Sotomayor’s staff “often prodded public institutions that have hosted the justice to buy her memoir or children’s books, works that have earned her at least $3.7 million since she joined the court in 2009.”

The Code of Conduct for United States Judges, applicable only to the lower federal courts, plainly bars conduct such as Sotomayor’s. Although the Code does authorize speaking and writing on “both law-related and nonlegal subjects,” it prohibits any substantial use of “chambers, resources, or staff” to engage in otherwise permitted financial activities. Moreover, the Code’s official commentary adds that the “publication of a judge’s writings [must] avoid exploitation of the judge’s office.”

The late Justice Antonin Scalia was the author of many books, but he did not require assistance from his Court staff. A source close to Scalia has informed me that the justice “never used law clerks on [his] books, even just to verify quotations and citations.” Sotomayor’s failure to follow Scalia’s example is more proof, if any were needed, that the Supreme Court needs its own Code of Conduct.

You can read the complete essay at The American Prospect.

The Grateful Dead and Me

Although Jerry Garcia died in 1995, various versions of the Grateful Dead, featuring former members and other musicians, have continued touring ever since. Next weekend in San Francsico, the latest iteration, Dead & Company, will play the final three shows of what has been billed as their final tour. This seemed like a good opportunity to repost my old Slate article on my interface with the Dead in the summer of 1971.

I Sued the Grateful Dead

I was wrongfully barred from the 8/14/71 show, a legendary scorcher. I demanded to be made whole.

BY STEVEN LUBET

Slate

JUNE 04, 2015

The Grateful Dead, clockwise from upper left: Bob Weir, Phil Lesh, Bill Kreutzmann, Ron “Pigpen” McKernan, Mickey Hart, and Jerry Garcia, circa 1970, United Kingdom. Photo by Chris Walter/Music File Photos

Over the Fourth of July weekend, the surviving members of the Grateful Dead will perform three shows at Chicago’s Soldier Field, the site of Jerry Garcia’s last performance with the band before his death in 1995. Tickets sold out in minutes for what was billed as the “last-ever” appearance by the core four of Phil Lesh, Bill Kreutzmann, Bob Weir, and Mickey Hart, though since the shows were announced there has been some confusion about just how valedictory they are. Still, the fevered anticipation is easy to understand, especially in a certain demographic. Many boomers of my generation, and even people decades younger, are eager to relive their Deadhead days, recalling the many firsts they experienced thanks to the Grateful Dead: first love, first psychedelic revelation, first rhapsodic exhaustion after dancing uncontrollably to a 20-minute guitar jam, first public nudity. And, perhaps uniquely in my case, first lawsuit.

I attended law school in Berkeley in the early 1970s, when Grateful Dead concerts were pretty common at venues around the Bay Area, including several at the Berkeley Community Theatre that later became legendary. I wasn’t thinking about history in August 1971, when I bought four tickets to a show at the Community Theatre at four bucks apiece. I just wanted to treat my girlfriend and my two younger brothers to “a good time show for good time people,” as the event had been billed by the legendary promoter Bill Graham. (Almost everybody, and everything, from those days turned out to be legendary.)

The four of us arrived early to grab good seats because my youngest brother was only 13, and he wanted to sit near the front. Hippies were not known for punctuality, and the Dead never started on time, so we had our choice of locations, even though that meant sitting around as the place filled up with people and smoke—yes, those kinds of people and that kind of smoke.

Finally, the opening act took the stage. It was the New Riders of the Purple Sage, featuring Jerry Garcia himself on the pedal steel guitar and Spencer Dryden (late of Jefferson Airplane) on drums. They played for well over an hour, as the smoke density in the auditorium thickened from haze to fog, until it felt as though you were wearing it like pajamas (as if anyone in those days bothered with pajamas).

By the time the New Riders finished their set, the audience was gasping for breath, although in a mellow kind of way. My girlfriend and my middle brother seemed to be enjoying the atmosphere (or perhaps were unable to move), but I decided to take my youngest brother outside for some fresh air. I cautioned him to bring his ticket stub—we had been given them at entry—and we stepped into the cool Berkeley evening, not exactly surprised to discover that virtually everyone else had opted to remain recumbent indoors.

After a while we heard the Dead warming up. We started to head back inside, only to be stopped by a uniformed security guard. I held out our ticket stubs to prove we had paid for the show, and he told us it didn’t matter. “Nobody gets back in,” he said. Now, I had only finished one year of law school, but I thought I knew something about contracts. I’d paid for the tickets, and there were no signs prohibiting re-entry. Nobody warned us when we were stepping outside, including the guard who was now giving us trouble. And why give us ticket stubs at all if they weren’t meant to allow us back inside after intermission?

I explained all of this to the guard. “Hey, man,” I said, trying to be cool.  “Everyone knows what stubs are for. That’s why they hand them out.” He was moved neither by my attempt at hipness (which probably annoyed him) nor by my undeniable logic (which mattered not at all). “Nope,” he said, “my orders are that nobody gets back in.” Well, “I’m only following orders” was pretty much the single most unhip thing anyone could say in Berkeley, but no matter. He wasn’t letting us through that door.

Just then Bill Graham himself walked by, immediately recognizable by his shock of graying hair and the fact that he was a good decade older than anyone else in the vicinity. Graham was a somewhat polarizing figure in the Bay Area. He’d made underground rock music accessible to millions, but he did it for the money instead of the pure joy of reveling in the counterculture. But as a law student—even a longhaired one—I really had no standing to complain about Graham’s business instincts, and anyhow I needed his help.

“Hey, Mr. Graham,” I said, astutely figuring that he would not want me to address him as “Bill,” “brother,” or “comrade.” “We have ticket stubs, and this guy won’t let us back in.” Then I invoked precedent. “I’m from Chicago, and they always let us use stubs at the Kinetic Playground.” Perhaps out of solidarity with his fellow promoter, the legendary Aaron Russo, and perhaps out of good-heartedness, Graham relented and told the guard to readmit us.

“Thanks, man,” I said as I handed over the ticket stubs. 

“Thanks, pig,” said my little brother, who had been 11 during the Chicago Democratic convention in 1968, and had picked up some bad habits from my radical pals.

That got Graham’s immediate attention. “Keep ’em out,” he snapped to the guard. I tried to explain that my brother was only a kid, but Graham had his limits and there was no getting around them. He did let me go back to the auditorium to retrieve my girlfriend and my middle brother, but he held my baby brother hostage (well, sort of) to make sure I didn’t disappear inside.

We missed the Dead’s two-hour set, which included renditions of Garcia’s melancholy “Brokedown Palace,” Ron “Pigpen” McKernan’s bluesy “Mr. Charlie,” and, as an encore, a spritely “Uncle John’s Band.” (You can listen to a very good recording of the show at Archive.org.) My girlfriend didn’t much care—she wasn’t a Dead fan, which might explain why we broke up a few days later—but my brothers were disappointed to return to Chicago without having gotten the full California experience.

That left me alone to lament the lost $16, which at the time was almost double my weekly food budget. And so I did what aspiring lawyers have ever done. I filed my first lawsuit—a case in small-claims court, but a lawsuit nonetheless.

This required hitchhiking to the San Francisco courthouse, which was the proper venue for a case against Graham’s production company. I filled out the simple forms, squeezing a brief description of my claim into the small space provided. I probably invoked some needless legalese such as “detrimental reliance,” “executory contract,” and “good and valuable consideration,” and I vaguely recall some pretentious Latin, thrown in for what I thought would be good effect. Maybe it was inclusio unius est exclusio alterius, which had some remote bearing on my claim, or de minimis non curat lex, which did not. The impassive clerk took my papers and assigned a hearing date, and I wondered if I would have to wear a tie for the occasion (in which case I would need to borrow one).

To my wonderment, a check for $16 arrived in the mail about a week later. No explanation; no apology; and obviously no need for Bill Graham’s lawyers to waste their time arguing with a disappointed hippie law student. That was not good enough for me, however, as there was still the matter of my $2.25 filing fee, which I was entitled by law to recover. I wrote a letter to Graham insisting on full reimbursement, and threatening not to dismiss the case. Sure enough, the remaining payment arrived the following week. I now wish that I’d saved and framed at least one of the checks, but I cashed them instead and then blew the money on brown rice and vegetables.

That is the true story of the time I sued the Grateful Dead, except that I really sued their promoter, who turned out not to give a damn. In the language of the law, I had been made whole by the refund, even though I feel bummed to this day about missing the concert. It was one of the last times the five original members of the Dead ever performed together, as Pigpen would soon be disabled by cirrhosis of the liver, which claimed his life in 1973.

I am not planning to attend the Soldier Field concert. Tickets are going for $1,000 a pop on the secondary market, and I fear that being there would just leave me longing for a legendary night in Berkeley. I’ve filed a lot of lawsuits in the last 40 years, and acquired a closet full of ties, but I have seldom had a victory as swift and complete as my case against Bill Graham. Maybe it was my strategic use of Latin—post hoc ergo propter hoc—or maybe he had second thoughts about turning away my kid brother. Either way, I’m not sure whether the experience taught me anything meaningful about the rule of law—although, come to think of it, save your ticket stub is still pretty good advice.

Comments are regrettably closed, but those with similar stories are welcome to send me emails.

 

Dr. Glaucomflecken on Private Equity

With a few exceptions in some jurisdictions, non-lawyer ownership of law firms is prohibited by the Rules of Professional Conduct.

 

What Does it Mean to Be "Totally Misrepresented?"; With a Note on "Beyond the Scope"

Journalist Allison Stewart writes to complain about being cited in Justice Thomas's concurrence in SFFA. She writes that Thomas, who cited her book about Dunbar High School, engaged in a "misreading of Dunbar's legacy." She shares the words of an acquaintance who sent a text saying that Thomas had "totally misrepresent[ed] your work."And she writes, "I, too, was appalled that a book I’d written about the impact of education was used to uphold the Supreme Court justice’s anti-affirmative action argument. We are in a sad moment when cherry-picked information now passes as fact."

Two points about this. First, Stewart's heartfelt article does not, in fact, show that Thomas "totally misrepresented" her work. The passing citation comes in a footnote supporting the general argument--one that represents one of many points of common ground between Thomas and Critical Race Theory scholars and Black nationalists--that Black schools and other Black institutions can be places and sources of independent achievement and success. Thomas takes Dunbar High School as an example, primarily citing Thomas Sowell's work. He writes, citing Stewart's book, "Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member."

Stewart does not contest the accuracy of the citation; for that matter, she agrees with Thomas that "Black students can achieve." Hence the necessary line about "cherry-picked information" passing "as fact." Even that is inapt. The information may be cherry-picked, but it is fact. Stewart's line would be more a propos if, say, one took statistical data about the effect of a virus on various populations and used it to propound a false factual claim about that virus being "targeted." In this case, however, citing Stewart for the purpose of noting a historical fact about Dunbar's alumni is no more "cherry-picking" as such than it would be to cite a book about the Black Plague for its statement about the number of people estimated to have died of it in 14th century Europe, even though that book is primarily concerned with the social and literary sequelae of the epidemic.

Stewart's actual complaint, it seems, is not that Thomas misrepresented or distorted her work, but that he cited it in the context of an opinion criticizing affirmative action, which Stewart supports. She is entitled to disagree with him, as anyone is, and one can understand her being discomfited or dismayed by the appearance of her book in his concurrence. But I see no misrepresentation.

That point would be barely worth making, were it not for two things: 1) the generally poor level of scrutiny of arguments that support one's own views, such that one can guarantee that Stewart's line about misrepresentation will be both widely shared and quickly inflated into a confident claim that Thomas engaged in falsehood or misstatement; and 2) the degree to which "you misunderstood my work" has itself become a kind of strategic accusation, like arguments about illegitimacy. I do not accuse Stewart of doing this. Nevertheless, I assert that strategic moves of this sort are both relatively frequent and more worrisome for contemporary trust in "fact" than anything involved in Thomas's passing citation of Stewart's book. (Building on other parts of her essay, Stewart might have developed a stronger argument that Thomas's denial that many people contribute to success, and that children deserve support and investment, is a more direct misrepresentation of her work. There are two problems with this, however. One is that it is false; Thomas denies neither proposition. The second is that the point is orthogonal to the question whether that support and investment should come through affirmative action in higher education, or through other means.)  

The other point is that while journalists and scholars are free to dislike it when someone whose policy views they disagree with accurately cites their work, just as artists are free to dislike it when someone they loathe likes their art, and all of us have experienced this in cases that don't involve actual misrepresentation, this kind of thing is a necessary element of good scholarship, just as it is of good art. At least outside of the harder sciences (and possibly there too), and apart from highly narrow factual claims, good scholarship can never guarantee a single set of implications or conclusions, policies or policy consequences. It always leaves open spaces and gives hostages to the future. My own view is that the best scholarship and journalism not only doesn't seek to avoid this: it steers into it, willingly acknowledging and exploring the ways in which the author's findings and recommendations might have perverse or undesired (from the author's perspective) or unexpected consequences, or raise questions about the larger implications of and tensions created by that work. 

One interesting and occasionally dispiriting way to figure out whether legal scholarship meets that standard is to examine the "beyond the scope of this article" footnotes that inevitably crop up in modern articles. One can ask of these notes: Is the question beyond the scope because it exceeds the author's expertise, or because it is not germane, or for some other clearly valid reason? Conversely, is the excluded question clearly germane to the article and clearly within the scope of the author's expertise--but likely to raise unwanted or uncomfortable questions, or make the author's normative claims less attractive? If so, does the author at least give the reader enough detail about what is being excluded, and why it might matter, that the author's refusal to address those questions neither misleads the reader nor prevents the reader from judging the author's refusal? If not, we may be seeing an instance of an author strategically attempting to direct and manipulate the shape and reception of his or her scholarship in a way that, on some core level, renders it a failure as scholarship. Like the novelty claim, the "beyond this scope" note is an essential clue in the critical, rather forensic reading of legal scholarship, a rug under which all manner of dirt may be swept. 

Another Blow Against "Preferred First Speakers"

From Paul Caron, this news of a successful effort to speak loudly and visibly at the same time as an event that was also and, technically, I guess, solely scheduled to take place at Harvard Law School. The alternate speakers preferred to talk about HLS professor Jody Freeman not talking and, still more specifically, how she must be fired immediately. The specific speech goal of the non-preferred-first-speakers, based on their communications, was not so much to continue speaking indefinitely-but-simultaneously with Freeman, but to "storm" the event and prevent it from taking place. This blow to the bullshit of civility came courtesy of a group called Climate Defiance, a group whose imagination appears to run the contemporary gamut from A to C--speech disruption (or simultaneous-opposite-speech, if you prefer) in the service of laudable and relatively non-specific goals, being really really active on social media, and asking for money. Also supporting the no-platforming counter-speech, if I read the reports correctly, was Extinction Rebellion Boston, which plays essentially the same trifecta and is connected to the inestimable English group Extinction Rebellion, whose founder holds that most valuable of degrees for such activities: a Ph.D in "digitally enhanced political resistance and empowerment strategies." I suppose Climate Defiance could have used the Q-and-A to raise the question why Freeman has not been fired yet, but one imagines that it is not keen on phony procedural niceties of this sort.

I take no position on whether Freeman's conduct is outrageous or on whether the issue of climate change is urgent enough to demand spectacular extra-procedural action. That seems quite beside the point. If the protesters had closed down the event and demanded that Freeman be fired out of anti-Canadian animus or pure sexism, or because it thought her article on agency coordination in shared regulatory space had been unfairly allowed to exceed the usual word limits, or because it thought she was actually this American Ninja Warrior, I don't see how they would be in a different position or have had a weaker justification, equally-preferred-second-speaker-wise. 

 

Saturday Music Post - One Offs, Part One

Today's post is a collection of one-offs. I considered using the songs for their own Saturday posts, but I couldn't find enough interesting covers, so I put together a mostly random compilation. I'm not saying there are no other versions, just not enough for an entire post. Part Two will be posted next week.

You can see the clips at The Faculty Lounge.

Second Michael Olivas Summer Writing Institutte

Announcement and Zoom info on Faculty Lounge.

Today Is . . .

Bastille Day (1789):

and Woody Guthrie's birthday (1912):

 

303 is the new Citizens United

That is, critics will misconstrue what it said, misconstrue its context in an effort to make it more evil (that already is happening), blame it for every bad thing that happens going forward, and treat it as different from every other Supreme Court decision in its potential for lower-court mischief. On that last point: Every incorrect Supreme Court decision (i.e., decision with which I disagree) can spawn new incorrect decisions (i.e., decisions with which I disagree); that is the nature of precedent. 303 critics have seized that possibility to suggest 303 was somehow uniquely wrong--wrong in a way beyond most wrong decisions--such that the Court never should have decided the case at all (because of the above misconstruction of its procedural context).

The story of the Michigan hair stylist prompted Chris Geidner to label 303 as uniquely bad because 2023 is full of horrible people doing or threatening horrible things to the LGBTQ+ community--it is certain that bad people will try, and courts may allow,  to use the decision to further bad ends. Again, it seems, beyond what we expect from any decision we do not like. I agree with much of what he argues, including that public accommodations laws should survive strict scrutiny even as to expressive products and services, something 303 never analyzed. But several points reflect an elevation of 303 to demonic status (call it 303 Derangement Syndrome).

    1) Life is bad in the 2o jurisdictions that do not protect LGBTQ+ people in their public accommodations laws. But it was bad before 303 and 303 did not worsen that. As a descriptive default, all discrimination in places of public accommodation is lawful unless government enacts a law changing that default. In a state without statutory protections for LGBTQ+ people, it has always been legal for a private business to refuse them service because of that status. 303 does not change that. Perhaps it "empowers" bad people to try new bad things. But they could do that all along. And the air of anti-LGBTQ+ bigotry might have provided sufficient incentive without SCOTUS input.

    2) Bigots will push the boundaries and it might work. Courts may interpret and apply 303 more broadly than Dale Carpenter suggests it should be. Or people may not sue. Or the state civil rights commission may not pursue the claim. (The fact of two-prong enforcement makes some enforcement likely). Or the salon owner may appeal. But what makes 303 different? That is how this works--a court issues a decision, the public and other actors conform their conduct to that decision, new conduct spawns new litigation, and that litigation takes time (and money and effort) to resolve itself. We cannot wring our hands over this because the Court reaches a conclusion we do not like, not matter how deep our distaste for the decision. The subsequent process does not render the precipitating decision illegitimate.

Geider closes with this:

To argue that a narrow reading of 303 Creative v. Elenis is the path forward is certainly a good argument, but it’s not a fact.

Those concerned about the implications of the ruling and the rippling consequences that could become a post-decision aftershock are speaking from a point of persuasion based on our recent experience. And advocates and others seeking to protect robust enforcement of nondiscrimination laws should respond accordingly.

Of course advocates should respond--whether by driving that salon into the ground through public criticism or by pursuing litigation and enforcement. And I do not read Carpenter or anyone else as suggesting otherwise. Again, however, why is this decision different from all other decisions?

Law Students and Ethics [UPDATED]

UPDATE: I have learned that Stanford Dean Jenny Martinez has instituted an investigation into the student who bragged about submitting a false attestation to having completed the mandatory freedom of speech training, and that the investigation will seek to determine whether other students also submitted attestations without watching the video presentation. Dean Martinez did not respond to my email inquiries.

 

In an earlier post, I criticized the Wharton School's Professor Maurice Schweitzer for this comment about business graduate students, an article in the Chronicle of Higher Education:

“I don’t tell my Ph.D. students, ‘Never plagiarize work, never make up data,’” he said. “I assume that’s obvious.” But in hindsight, he acknowledged that it would have been better to supervise the data collection more closely. “Clearly we need to be more vigilant and less trusting than we’ve been,” he said.

I noted that Northwestern's first-year law students must attend a mandatory program on plagiarism and academic honesty, and, like law students everywhere, they take a required course on legal ethics. But perhaps the instruction is futile.

A recent article in the Washington Free Beacon describes Stanford Law School's "mandatory half-day training session on 'freedom of speech and the norms of the legal profession'" as a "campus joke." According to the Free Beacon,

[T]he promised training wasn't much of a crash course in free speech. Instead, it was an online program that required barely a minute's effort, according to five people who completed the training as well as screenshots and recordings reviewed by the Washington Free Beacon. Students were given six weeks to watch five prerecorded videos, most about an hour long, then asked to sign a form attesting that they had done so.

The videos could be played on mute, and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely.

More worrisome was the shameless response of at least one Stanford law student:

"I watched none of the videos," one student said. "I never even opened the links. On the day the training was due, I went to the attestation link provided by the university, checked a box confirming I watched the videos, and that was the end of the matter. Whole process took 10 seconds."

Signing a false attestation is among the most serious ethical offenses a lawyer can commit.  Bragging makes it worse. If such conduct is widespread at Stanford, the law school is facing a profound problem. The response to a vapid requirement cannot be lying about completing it. Students who are concerned about mandated law school programs must still complete them; the remedy is complaining or reporting (including anonymously), not falsifying.

The Free Beacon did not comment on the student's admission of cheating, and of course I do not expect a journalist to out his informant. On the other hand, the Stanford administration should immediately take steps to determine, if possible, how many students submitted the attestation without viewing the training.

If nothing else, the entire Stanford student body should be cautioned that false attestation is an honor code violation. Far from a joking matter, similar conduct among lawyers would lead to professional discipline.

 

 

Transference, the Classroom, and the University

I wrote a while back that it would be nice--for us and for readers, and in service of the avoidance of the tedious topic and downward spiral of politics--if, despite our aging status, we posted more at Prawfs about the life of the teacher (and scholar, and renderer of institutional service), which was one of the raisons d'etre and main themes of Prawfs in its first years. On the one hand, we were particularly suited for that topic at the time because we were experiencing it from the ground up; as more senior professors, we are more secure, more complacent, and perhaps more forgetful. On the other hand, as senior professors, we are in a position to write about what we got wrong or misunderstood as junior professors (and what junior folks often may misunderstand or exaggerate as they go through the early career process)--and we are also in a position to write frankly and without regard to consequences, which is how professors should write anyway, at every stage of their careers. So here's a post on that topic. Via The New Yorker, which occasionally manages to surprise, here is a nice piece on "transference and the contemporary classroom."

The author, Merve Emre, notes the long history of connecting the psychoanalytic concepts of transference and counter-transference to the teaching relationship, the relatively brief period in which the "erotics" of that relationship (without necessarily having a specifically sexual connotation) were a frequent and fashionable subject of discussion, and the "uncomfortable climax" that this approach to the subject reached with the Jane Gallop affair, as well as the movements and necessary discussions of the past decade, which combined to put the kibosh on discussing teaching in those terms. (Here is a 2020 piece by a French [naturellement!] philosopher on the general subject.)

Emre's particular interest is in transference: how it continues to function even after we have criticized and dispensed with or sublimated the "erotic" element in favor of other models of teacher-student relationship in higher education. She writes:

Transference, then, is the baby that got thrown out with the bathwater of “the erotics of the classroom,” once that water became thoroughly sexualized and thus taboo. To reinstate it as a useful way of understanding what occurs on campuses requires recognizing what the arguments above do not: that, for the vast majority of teachers, the affective feelings of the classroom are not experienced as romantic, let alone sexual, desire. Those who teach know the variety of roles we can be conscripted into—mother, father, sibling, best friend, therapist, priest, idol, nemesis—just as we know, or at least sense, which of these roles we are willing to play at different moments in our lives, which fantasies of love we will honor and which we will deflate, ignore, or reject. I remember when my former dissertation adviser predicted that, once I had children of my own, I would no longer feel energized by acting as a foster mother to my students. She was correct; now I feel a shudder of unease when a teacher reveals, almost always on social media, that she has baked something for her class, or that she has accommodated an abnormal number of absences or late assignments, in a magnanimous gesture of “care.”

In casual conversation, especially during the pandemic, the emergent discourse of “care,” as a friend suggested to me, has emerged as the positive transferential counterpart of the negative language of “harm” and “trauma.” The teacher’s declarations of care are, at once, a way of soliciting transference-love from her students and a way of permitting herself to respond in kind. Unawareness of transference as a concept means that the teacher can remain not just ignorant of what she is doing but proud of it—of wanting to love her students and to be loved by them in return. Here, countertransference works to mask and to compensate for the disproportionate care work performed by so-called Professor Moms, whose performance of support and service disadvantaged them in assessments of their productivity.

But Emre's goal is not to rest with the basic point that "Professor Moms" are under-compensated for their care--a perfectly valid point that one sees played out in law schools and elsewhere--while leaving in place the assumption that a "care"-based vision of the student-teacher relationship is a good one. She questions that model, and suggests that "the psychological dynamics at play between teachers and students" are at work in many recent campus controversies that we see primarily as free speech or culture-war issues. In the case of Erika López Prater, for example, the adjunct professor who was fired for showing a picture of Mohammed in a global art history class, she suggests that too little attention was given to the complaining student's suggestion that a professor "is supposed to be my role model," a claim she sees as moving but not necessarily correct or without peril. She concludes:

To adjust our language to account for transference could be the first step toward a collective act of growing up. Adjustment does not involve rejection or scorn. It is easy to mock the language of harm and violence, or to dismiss it as “woke.” What is more difficult is to craft an alternative language—a language that refuses to negate the real feelings of dismay that arise when authority figures fail to live up to the fantasies or expectations projected onto them, but that also refuses to describe this failure as an act of violence, or to treat it as a punishable offense.

I don't end up in precisely the same place as Emre, but that's hardly reason not to recommend the piece. It is frank in discussing the ways in which transference and counter-transference, their complexities, and their emotional weight and consequences continue to play out in the classroom, even if we dispense with the language of erotics in favor of one of "care" or "trauma" or similar terms. My own view--consistent with hers, I think, if pitched in a different direction--is that a recognition of the needs of students does not preclude questioning seriously and critiquing any vision of the adult classroom that envisions it as a caregiving or familial space rather than a professional one. Treating it as a professional space cannot mean pretending that questions of care, or of erotics for that matter, disappear from it. They don't. Treating it as a place of care and family, on the other hand, should not preclude recognizing and confronting how dangerous, potentially explosive, and possibly misplaced that language or sensibility is in the classroom--for teacher and student alike. 

The same dynamic is at play in the larger institutional context of universities. I remember arguing with some professorial friends a couple of summers ago about whether it is sound for universities and their presidents, in the statements they so love to offer at fraught moments, to call the university a "family." The air was full of statements about the university "family" that summer. Of course one can argue that the choice of words, as in most official statements, is more or less meaningless, as all statements and press releases arguably are. I don't think it is, if it reflects an actual mistaken vision on the part of administrations. But in any event, we were not arguing on these grounds, but rather about whether the university can be said to be a family. They thought it was correct and utterly natural; I thought it was mistaken and dangerous. A postscript: They were wrong; I was right. Only a family is a family. A university is certainly an institution. And a university can be a "community," whose members' roles and mutual obligations are very close but not familial. But it is not a family, and--as Emre suggests--many campus controversies can be said to involve the perilous and counter-institutional dynamics that arise when it is treated as one. Families deal with controversies in one way; institutions in another. And adopting and trying to follow the dynamic of university as "family" is particularly dangerous--again, for students and teachers alike, as well as for universities as institutions--if, as is too often the case, administrators, for market- and character-based reasons, are weak or cowardly, and thus unwilling or unable to play the backstop role of authority that is necessary in both families and institutions. 

In any event, there's much to be gained from Emre's piece. Enjoy.   

 

Stupid bigots, smart(er) bigots, and 303

The owner of a Michigan hair salon announced that she would not serve trans customers, advising them to go to a pet groomer. The public response caused her to take her social media private.* From the left, the theme is "what hath 303 wrought?" From the right, the theme is "stop overreacting or misconstruing 303--the plaintiff there and the Court disavowed refusal to serve based solely on identity."

[*] The public exercising their First Amendment rights to criticize someone's offensive speech and conduct? Or censorship and cancel culture? You decide.

As framed, this falls outside any possible good-faith application of 303, because she described it in terms of the customer's identity as trans--a categorical refusal to serve a person because of that person's identity that the Court disclaimed. Some respond with, essentially, "Lower Court Judges Gone Wild"--forget what 303 said, this is what crazy business owners will try to do and what courts in red states will allow them to get away with.

But I do not believe this case depends on a parade of horribles. Instead, it requires a smarter bigot with a better framing. Imagine: "Through my hair styling customized to each client, I use my unique expressive artistry and work closely with each client to help them express themselves and the image they wish to present to the world. And by giving a feminine hairstyle to a trans woman (whom I believe a man as a matter of biology and biblical teaching), I am compelled to send a message that this person is a woman, something I reject." That does not sound meaningfully different from Lorrie Smith making a web site telling the marriage story of a same-sex couple and thereby being compelled to send a message that two people of the same sex can marry.

Dale Carpenter offers a hopeful take on 303: It applies to products and services that are custom-made and expressive where the objection is to the message sent within the product or service. That seems to cover hair styling--it is creative and thus expressive and every hair cut is unique to that person. Perhaps it depends on whether the stylist insists that her styling match perceived gender--she will not give a "male" haircut to a cis person; this might separate the refusal of service from the client's trans identity. Or on the fact that once the client leaves the salon, the stylist's participation is not presented to the world, contra the web site that identifies 303 as the creator.

I appreciate Dale's attempt to read the decision narrowly and agree that the demand for line-drawing in hard cases is not unique to this case. I think this case shows that intelligently framed objections could cut a large swath.

A comment on Northwestern football and student journalism

I stopped watching football about a decade ago, finding the game too gladiatorial. For about five years I maintained a "Northwestern Football" exception, but that dissolved. Nevertheless, the reports of hazing and other misconduct within the program and Fitzgerald's firing sadden me. Fitzgerald was Northwestern football and a successful football team (even if somewhat sporadically) did great things for Northwestern as an institution. I do not know what happened in the lockerroom over the years--my best guess is the stories are substantially true, but how people looked at them ran the gamut, at least until the team stopped winning.

The Daily Northwestern story published on Saturday marked the turning point in this. Prior to that, it appeared the situation would resolve quietly--the university received an investigatory report that found the allegations "largely supported by evidence," suspended Fitzgerald for two weeks in July, and planned to keep the details internal. The Daily story* publicized the details, while opening the floodgates to more stories, more people, and more details.

[*] One of the four bylined authors is a friend's daughter.

Many people frame this as Northwestern's journalism program prevailing over Northwestern's football program or Northwestern's football program being no match for Northwestern's journalism program. This is pedantic, but I do not like the framing. The Daily Norhtwetsern, which reported and published the stories, is independent of Northwestern's Medill School of Journalism (of which I am a graduate). Medill does not run the paper; Daily reporters need not be journalism majors; and most journalism majors (including myself and many of my friends) never worked for it. I do not know much about the publication process or about any faculty input into the publication process, but I expect the students made the key decisions on their own. So I am glad for the praise on student journalists and on the students running the Daily, but separate it from the journalism school.

Justice Alito's Naïve Faith in State Courts

Justice Alito's dissent in Haaland v. Brackeen complains that the Indian Child Welfare Act “sacrifices” and “disserves” the best interests of “vulnerable children" because it subordinates what state “family-court judges . . . determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”  Even putting aside his insulting insinuation that tribal placements are inevitably inferior, any attorney who has spent time in state family courts, as I once did, would know that even the most conscientious judges lack the time and resources to accurately predict how to benefit children in the future.

I develop this point in my new column at The Hill. Here is the gist:

To put it bluntly, a best-interest determination is often a crapshoot, as judges make educated guesses based on their own experiences, preferences and biases. In the cases of Native American children, removal from their tribal homes had historically been little more than legalized kidnapping, which ICWA was enacted to remedy. 

In reality, there is no single best environment for every child, compared to which all others are inferior or victimizing, which a judge can determine with razor-sharp acuity. Despite Alito’s unwarranted confidence, it is nonsense to believe that tribal placements “sacrifice the best interests of vulnerable children.” On the contrary, there is no assurance that state family courts can unfailingly assess children’s best interests, much less weigh their own assumptions against the importance of maintaining a child’s cultural and tribal connections. 

You can read the entire article (not paywalled) at The Hill, including a discussion of the 1858 case of Edgardo Mortara, a Jewish child removed from his family by Pope Pius IX because it was in his "best interest" to be raised as a Catholic.

 

Law School Entry-Level Hiring Posting Schedule 2023-2024

The usual posts will occur this year regarding entry-level law school hiring.

The post collecting information about Hiring Committees is up.

On August 21, the first distribution of FAR forms will be released to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).

Around August 28, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2023-2024 (last year's Hiring Spreadsheet and Clearinghouse Post).

Around September 5, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).

Hiring Plans and Hiring Committees 2023-2024

Update 8/13/23: I have built a tool that allows you to filter the information in the below spreadsheet by subject area, location, and lateral/entry level. You can access that tool here:

https://www.lawskyprojects.org/hiring

 

I am collecting information about (1) whether a particular school plans to hire in 2023-2024, and (2) if so, information about the school's hiring committee and hiring interests.

Please share in the comments the following information related to the 2023-2024 law school faculty hiring season. (A spreadsheet is below. You cannot edit the spreadsheet directly.)

First:

 

(a) your school;

 

(b) whether your school is pursuing entry-level hiring in 2023-2024 (this could be yes, no, maybe, or something else);

 

(c) whether your school is pursuing lateral hiring in 2023-2024 (this could be yes, no, maybe, or something else).

 

If your school does plan on pursuing hiring in 2023-2024:

 

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--I hope that this information will be useful for both entry level and lateral candidates);

 

(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

 

(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) whether you are open to direct applications/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 

 

(h) your committee's preferred way to be contacted (email, snail-mail, or phone); 

 

(i) the website, if any, that candidates should use to obtain information about the position or to apply; and

 

(j) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

On Stirring Once and Letting Sit

The New Republic has been uncontroversially awful since 2014, at the very latest. But I found this article worth a look. It's a book review on a fairly standard topic: arguments over the nature of recipes and their interpretation.

Without judging the book that serves as the review's platform, I cannot say that the review itself says anything original. (I refer to the review below rather than the book for this reason, although some of the points noted come from the book. There are precedents.) Because it's in the contemporary TNR, one has to endure the usual ritual invocation of phrases that play no actual role in the discussion, ie. "the larger inequities that underpin the systems of production," a phrase whose ritual nature is revealed in the very fact that it is intoned in passing. (We are, at least, mercifully spared the "contradictions of late capitalism" portion of the liturgy.) But it nicely lays out some of the basics of this sort of debate: whether one should or even can strictly follow a recipe, how recipes themselves change, how following a recipe itself changes, and the now-familiar, if in this case poorly phrased, point that the recipe is "a text every bit as worthy of serious attention as other forms of academic study."

What I found useful about the piece is that it almost avoids taking sides in the debate, and at least acknowledges the value of the recipe and (relative) obedience to it, and of "the repetition of familiar tasks," as such, alongside the conventional arguments against recipes. It praises the book's author for her "clever critique of psychoanalyst D.W. Winnicott’s dismissive treatment of those who follow recipes" in an essay that "derided the use of recipes as 'slavish,' the antithesis of living creatively." In doing so, it notes that the recipe that formed the basis of Winnicott's critical essay, "in its brevity[,] leaves much open to interpretation." But it doesn't, I think, see that as the core flaw of Winnicott's essay; instead, it focuses on the degree to which Winnicott's "theorizing about what it is to live 'creatively'" ignores the value of following a recipe as "part of a larger dialogue between past and present." Although the review, at least, doesn't fully develop the point, it hints at other lines of argument. Following a recipe, even "slavishly," can be preferable, for both cook and diner, to turning every act of cooking into a search for an allegedly "authentic" or "creative" act (as in the author's enjoyment of the "ethereal quality" of Krispy Kreme doughnuts, which is achieved through obedience, not deviation). Attempting to obey the recipe, and thus to live within constraint, can itself be a challenging, disciplining, and rewarding activity. More than that, the repeated effort to obey a recipe, the repeated performance of "familiar tasks," can itself be enriching, can itself be an ongoing form of "dialogue between past and present," including the past and present of the person engaged in the repeated activity of recipe-following. It can, in short, form and embody a tradition.

The review is also usefully revealing for what it does poorly and rather automatically. The headline is useful here. The oft-given advice to ignore headlines is not quite right. They can mislead as to the content of the actual writing atop which they sit. But they can reveal a lot about the thinking of the headline writer, which may indicate the views of that individual, but can also reveal what the headline writer, and the editor or publisher of that journal, thinks readers will or ought to find interesting about the piece. Even when they are wildly misleading, the ways in which they mislead can thus be worth examining. In this case, the headline is, "The Food Writer Who Wants to Free the Recipe"--a revealingly half-accurate thought, since the review and book are also about the ways in which the recipe can be freeing. In the review itself, there is a reference to cooking as an activity "through which pleasure, desire, and resistance can be expressed," and to the kitchen as "a space where freedom...and desire meet." There are standard words and phrases like "liberating," "subversive," and "blow up." That they appear alongside appreciations of the value of repetition and familiarity and criticisms of the reflexive praise of "creativity" is not a sign of intellectual richness. Rather, it's an indication of how powerful, and almost mandatory in our culture, the myths of "creativity" and "subversiveness" can be. The extent to which the review simply, unconsciously takes it for granted that things like "pleasure, desire, and resistance," freedom, subversion, and so on are positive goods, rather than qualities that can be good or bad, appropriate or inapt, is striking--not just because of what it suggests about the writer, but, again, because of what it suggests about the writer's assumptions about the audience's assumptions. It suggests, perhaps accurately as a view of the magazine's market but certainly revealingly, a level of anxiety about departing from a cultural script that praises creativity, freedom, and "resistance"--even in the context of an essay that argues that these are not the only values worth praising, that recipes are valuable, and that repeatedly following them can be an enriching activity.

It's a short review, and the topic is not new. But it's usefully thought-provoking, both in its acknowledgment of the value of both freedom and obedience, of "creativity" and tradition--and in the discomfort of both the writer and the magazine about the fact that both are valuable. 

University of Alabama Law Hiring Notice

I'm happy to pass along this message from my colleagues and betters:

The University of Alabama School of Law seeks to fill up to five tenure-track positions for the 2024-25 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. Qualified applicants in any of the following areas will be considered: civil procedure, criminal law, torts, property, environmental, business (all sub-fields), antitrust, healthcare, intellectual property, legal ethics, evidence, election law, employment/labor, state & local law, and law & economics. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law. These positions will remain open until filled. Questions should be directed to Benjamin McMichael, Chair of the Faculty Appointments Committee ([email protected]). Interested candidates can apply online at https://careers.ua.edu/jobs/search/law.

Visit UA’s employment website at https://careers.ua.edu/home for more information. The University of Alabama is an equal-opportunity employer (EOE), including an EOE of protected vets and individuals with disabilities.

I will add that 1) I believe the next few years will be an exciting time at my school and 2) the students are really, really incredible. 

Mel Blanc

Mel Blanc was a voice artist in the Golden Age of Radio, providing characters and sound effects for Jack Benny, Burns and Allen, Abbott and Costello, and the Great Gildersleeve, among others.

He later voiced many famous characters for Warner Bros.' Looney Tunes and Merrie Melodies in the Golden Age of Animation, including Bugs Bunny, Porky Pig, Daffy Duck, Tweety, Sylvester, and Yosemite Sam. He also voiced characters for Hanna-Barbera televisions shows, including Barney Rubble on the Flintstones and Mr. Spacely on The Jetsons.

He died 34 years ago today. Here is his tombstone, with one of the best epitaphs of all time:

Fighting universality

Jeffrey Sutton of the Sixth Circuit has been a leading critic of universal injunctions. He returned to that in an order staying the injunction barring enforcement of Tennessee's prohibition on gender-affirming medical care. The majority held that the plaintiffs were unlikely to succeed on appeal on their equal protection or due process claims. The "fraught task of justifying" universal relief reenforced the need for the stay:

District courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A “rising chorus” suggests not. Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); see also Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017). Article III confines the “judicial power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Federal courts may not issue advisory opinions or address statutes “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). They instead must operate in a party-specific and injury-focused manner. Id.; Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.

The scope issue has arisen in other district court decisions declaring invalid these care bans. District courts have issued broad injunctions despite obvious opportunity for narrower relief. The order universally prohibiting enforcement of Kentucky's ban is in obvious trouble for this and for substantive reasons.

Privileging Acts of the 40th Congress

The Court (notwithstanding Marbury) says that acts of the First Congress carry a strong presumption of constitutionality. Why is that? One argument boils down to "Because they were first." Another is that many leading members of that Congress (such as Madison and Ellsworth) were delegates at the Constitutional Convention.  There is also the thought that the First Congress proposed the first set of amendments in response to criticisms made during the Constitution's recent ratification debate. Finally, you could add that two of the 13 original states ratified the Constitution while the First Congress was in session.

The same privilege should be given to the acts of the 40th Congress that implemented the Fourteenth Amendment. After all, the 40th Congress was in session while the Fourteenth Amendment was ratified and played a vital role in the ratification process through military reconstruction. Most members of the 40th Congress were in the 39th Congress that sent the proposal to the states. And the 40th Congress was (for about nine months) the first Congress to sit after ratification, just as the First Congress was after the 1787 Constitution. 

This special presumption, though, would be narrower than the one given to the First Congress. All acts of the First Congress are privileged. But only the acts of the 40th Congress that implemented the 14th Amendment would get that treatment. For example, the Tenure of Office Act would not count because that was a statute interpreting the structure of the original Constitution. Indeed, I'm not sure how many laws would count or whether a strong presumption of their validity would mean anything in a subsequent case. I'll look into that further.

Saturday Music Post - The Night Time Is the Right Time

Although it is most closely associated with Ray Charles, "The Night Time Is the Right Time" was written and first released by Napoleon "Nappy" Brown in 1957, a year before Charles made a hit at the Newport Jazz Festival. The covers are nearly limitless. Don't miss Buddy Guy's commentary at the bottom of the post.

The clips are at The Faculty Lounge.

A Correction, and a Slightly Different Take, on Roberts's Quote

I have one correction to make about the quote Steve focuses on below, and a slightly different take, spurred less by his post than by a similar conversation I saw earlier this week. My take on Roberts's (full) quote is still ultimately critical, but starts from an effort to offer a more charitable interpretation and see where it leads. 

The correction is simple and, I think, a fair one. Steve writes that Roberts "is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska," citing as evidence the quote he excerpts in his post. Maybe he is! But the longer version of Roberts's passage is at some pains to say otherwise: "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary....Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country." 

I think a fair reading of the entire paragraph makes clear that: 1) Roberts does think some recent opinions have gone too far; 2) he expressly disclaims the view that Kagan's dissent does so; 3) he believes there is a difference between heartfelt disagreement and disparagement; and 4) he wants to make clear to "the public" that there is such a difference, in order to avoid "misperception." If there is a beef, it is expressly, at least officially speaking, not between "Kagan and the Chief," but between "the Chief and 'some recent opinions' other than this particular dissent by Justice Kagan." (For the same reason, I think that whatever meritorious points it may make along the way, albeit sometimes by way of diversion, this recent piece by Richard Hasen, which omits the "reasonable minds" language and obscures the language about the difference between disagreement and disparagement, is also in error.) 

My own take on Roberts's statement, as I said, is both critical and more charitable; I come neither to praise nor to bury him. My reading proceeds on the belief that when one can manage it, an effort at charitable interpretation can yield more interesting observations--including more interesting critical observations--than one that either makes casual assumptions about the writer's motives or plucks at low-hanging fruit. With due respect to Steve, I think accusations of hypocrisy are almost always the low-hanging fruit in what passes for public debate. Hypocrisy is a virtually universal human vice and, what is worse, an uninteresting one. (On the other hand, integrity is a very interesting and perhaps rare human virtue. Discussions of failures of integrity are similar to accusations of hypocrisy, but there are differences between the two, and the former subject is in my view a more interesting and valuable avenue to explore.)

What might the best version of Roberts's passage say? Not the best reading, as I make clear. Rather, if we were to try to develop the thought, what might it look like? I think it would make two or three kinds of distinctions. The first is between dissents that argue, however strongly, that the majority is dead wrong, and dissents that argue that the majority is, in effect, not even wrong, because it is not engaged in "law" at all, but simply operating lawlessly, by raw power. The second is between dissents that argue that some decision by the majority, however sincerely it was arrived at and in however lawyerly a fashion, in fact falls outside the Article III power of the federal courts, properly understood, and dissents that argue that the majority has deliberately ignored or abdicated its judicial role--that the judges themselves have deliberately cast off any sense of judicial duty in order to assert their power. The third distinction, which is perhaps just a general one that includes the first two within it, is between dissents that criticize a decision as wrong and those that criticize a decision, or the institution itself, as illegitimate.

Of course these distinctions, and the distinctions between the different types of distinction, are not firm in practice; they may not be solid conceptually (I reserve judgment on that question); and they certainly will give rise to differences of view, which no doubt will be heavily influenced by one's politics and jurisprudence, about whether a particular statement falls on one side of the line or the other. But I think they're meaningful despite those concerns.

On this view, it is absolutely fine to argue that a majority is dead wrong. A reading of the full passage makes clear that Roberts agrees. It is also, at least in my charitable reading (but see below), fine to argue that a majority is wrong in its view of the role and limits of the federal courts--that its view is either too broad or too narrow in its understanding of the judicial power. In both cases, there is a distinction between these criticisms and an argument or assertion that one's opponents are wrong not because their jurisprudence or its application is wrong in general or mistaken in application, but because they are simply indifferent to any such questions; that they have abandoned even a mistaken effort to act judicially, and are instead imposing pure will without any trace of judgment, to paraphrase Hamilton.

That is the illegitimacy criticism. This is the focus of Roberts's concern. As I noted, there will surely be differences of opinion about when a court has acted wrongly and when it has acted illegitimately. Among those with some (perhaps too much) immersion in the law and its ways of thinking, those differences will be more thoughtful, but still influenced by one's politics, one's jurisprudence, and, harder to pinpoint but I dare say just as important, one's temperament. Among those with little knowledge of or interest in the intricacies or norms of legal decision-making, the move from thinking a decision wrong to thinking that it, and the institution that issued it, is illegitimate will be reached more quickly, ignorantly, and perhaps carelessly. 

It does not seem unreasonable to me to take such distinctions seriously, even with their imperfections. Indeed, most of the critics I have seen of Roberts's sentence (I won't say "paragraph," because those criticisms rarely quote the whole thing) take those distinctions seriously themselves. They point to one statement or another by some justice--perhaps Roberts, perhaps Scalia, perhaps someone else--that they think falls on the wrong side of the line, and thus demonstrates hypocrisy or irony or some other failing on Roberts's part. (In our fallen, bumper-sticker lingo, I believe this is called "whataboutism" and is generally frowned upon. I find criticisms of "whataboutism," "both-sides-ism," and similar idiot phrases uninteresting. What I do find deficient in such accusations is that they treat what ought to be the beginning of a line of argument, one that needs to be developed and teased out and may land in unexpected places, as the end of the argument.) If those critics were actual critical types, they might end up somewhere more interesting. For instance, they might conclude that since law is the strategic exercise of rhetoric for purposes of power, it's all in the game. Accusations of illegitimacy from the judicial left or right, and counter-criticisms of accusations of illegitimacy from the judicial left or right, are all simply standard current moves to be deployed. not necessarily wisely but certainly not, so to speak, illegitimately. But they're not crits; they're legal liberals. So that move, or at least full candor on this point, is not available to them. They are obliged to have faith in the distinction, and are limited to trading accusations about whose shoe is on which foot. (In most cases, I presume, this self-limitation is sincere, even if it suggests a possible lack of self-awareness. Surely there are others for whom the accusation is indeed in bad faith; they do think it's all in the game, but are willing to accuse one side of exercising raw power even if they think that side was exercising judgment and not just will, or even if they think there is never more going on than pure will. For such critics, the failure is not one of coherence, but of honesty and integrity. If they are scholars, this would also be a professionally disqualifying failure.) 

I'm inclined to think, but without strong conviction on this point absent a serious second look, that some recent dissents have fallen on the wrong side of the line. I'm also inclined to think that some past dissents have fallen on the wrong side of that line. Again, there will be differences about when this is the case. In my view, this sometimes comes down to a matter of tone. It's easy for an argument that one's judicial colleagues have acted outside the proper scope of the judicial duty to slide into an accusation that they have acted arbitrarily or outrageously or for reasons of pure politics; it's a matter of a hot temper, a few too many angry words, and too little willingness to excise a pithy but unnecessary word or phrase. It would not be wrong, on this view, for Justice Scalia to argue in dissent that a majority was fundamentally mistaken in its view of the role of the courts. But it would also be easy for him to take a step too far, to be too enamored of his own writing, and so to turn the criticism into a personal or institutional attack. Sometimes he most definitely did so; but not every dissent that argues that the majority has misunderstood the role and duty of the courts, either by going too far or by shirking its responsibility, would qualify. 

I also think it's reasonable to worry about language in opinions being used strategically by "the public" to further some point of its own about the legitimacy of the Court, a point that the opinion writer him- or herself might disagree with. The world is full of fools, knaves, and social media accounts, with a substantial overlap among them. I doubt that a caution like the one Roberts offers here would do the slightest good; and because it doesn't, it may do some harm, by seeming (or being) fatuous or futile or defensive. But the concern it expresses is not unreasonable as such.

I find Roberts's passage weakest in three or four things. The first is debatable. He might have illustrated his point with specific examples. One can understand why he didn't, of course. Second, and here I think his passage is at its weakest and my reconstruction is at its most charitable and creative, he elides arguments that a decision is "going beyond the proper role of the judiciary" with arguments that engage in "disparagement" of the majority and the institution rather than "disagreement." The proper role of the judiciary is a legitimate subject for disagreement between judges, it can be raised without broader personal or institutional disparagement, and--as critics of Roberts's passage emphasize--it has been raised, by judges including Roberts. I think Roberts wants to say (or ought to want to say) that it should be possible to air even fundamental disagreements about the judicial role without suggesting that the ostensibly erring side simply doesn't give a damn about law or judging as such, and that a failure to make the difference clear is damaging to the institution qua institution. Maybe that's not what he wanted to say. But if it was, he could have said it more clearly. Third, I'm not sure his passage is aimed at the right target. Most of the worst stuff along these lines is not coming from dissenting judges, but from the "public" he is purporting to address.

Finally, I found his use of the phrase "the public" vacuous. I will stipulate that there is some "public" that consists of individuals who are interested enough in the Court to pay some attention, not so much to its opinions, but to commentators using and abusing language from those opinions. I'm not at all sure that this "public," which again largely has its mayfly existence on social media, is "the public" or an especially representative public. There is a much larger public that doesn't care at all about such matters, or that thinks ill of the Court as an institution in part because of current politics, in part because it has come to distrust institutions generally, and, in a broader sense, because many people seem to no longer comprehend or care about the idea of institutions as such. And then there is the "public" that consists of paid professionals, people who depend for their living or for the reputational goods they seek on either digging up real or imagined evidence that the Court is illegitimate and then broadcasting it in the most florid terms, or digging up any possible argument that the Court is not illegitimate and broadcasting it in equally florid language. Whether we should pay the slightest attention to such paid employees of the political ecosystem and its donor class, and in what sense they can be said to be "the public" at all, are separate questions. But on the whole, I doubt that "the public," as Roberts uses it here, has much descriptive value.   

(Guest post): Complex Textualism and the Foreign Litigant in U.S. Court After Abitron and WesternGeco

The following post is by my FIU colleague Hannibal Travis, to whom I turn for all things IP.

The United States has enacted a patchwork of trademark and patent laws that make it confusing to determine whether a particular transnational course of conduct can be litigated in federal courts. Suppose the publicity surrounding a foreign corporation’s widespread counterfeiting of U.S. products, completed entirely within a foreign country, damages the fame or goodwill of a U.S. brand. Or imagine that U.S. consumers purchase misbranded jewelry or handbags in foreign countries and see it fall apart upon their return from vacation, and then develop a poor reputation of the U.S. manufacturer when it refuses to repair or replace these copycat products. Finally, assume that a course of conduct amounting to patent infringement begins in the United States but is only completed with the final assembly and sale of the infringing devices overseas: may the U.S. patent holder recover damages on foreign sales?

The Supreme Court, according to Justice Sotomayor, joined by the Chief Justice Roberts and two other concurring justices, has recently developed new, short-sighted, and groundless rules for governing such disputes. Rather than the place of the conduct, the allegiances of the parties, or the extent of the injury inside the United States, the majority in Abitron Austria GmbH v. Hetronic International, Inc., 143 S. Ct. --- (2023), uses a disjunctive “clear statement” and “domestic conduct” test.  The first part of the test invokes a presumption going back at least a century, and articulated in the famous case of the United Fruit Company monopoly buying up land and controlling politicians in Central America. To paraphrase Justice Holmes in that case, if the United States “should happen to lay hold of the actor, to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.” The second part of the test deals with whether the conduct “relevant to the statute’s focus” took place in the United States. Even if the presumption of U.S. coverage only is not rebutted, domestic application of a statute may be allowed. What conduct a statute is aimed at can be a complex question, however, because statutes are not atomistic but must be analyzed together with the rest of the statutory scheme.

In applying the two-step framework in two recent cases, the Court came to different conclusions.  In the unanimous judgment in Abitron, a U.S. manufacturer of remote controls used around the world on construction equipment could not recover tens of millions of dollars on foreign sales simply by using a small percentage of infringing domestic sales as a jumping-off point. The problem was that Congress did not expressly refer to foreign conduct or effects in drafting statutes that regulated the use in interstate or foreign commerce of trademarks or false statements, and its general goal of extending U.S. trademark law to the international trade of the United States was not adequately clear as a statement of an intention to override the comity of nations. In WesternGeco LLC v. Ion Geophysical Corp., 138 S. Ct. 2129 (2018), by contrast, the Court (over a dissent by Justices Gorsuch and Breyer) permitted a U.S. developer of a system for generating better data about the ocean floor for oil and gas exploration and the like to recover lost profits on the infringer’s lucrative foreign sales. In that case, the Federal Circuit would basically have ruled for the defendant for reasons to those relied upon by the majority in Abitron: the presumption that the U.S. does not rule the world applies, whether in cases of fully foreign patent infringement or in those involving manufacture of noninfringing components in the United States for infringing assembly and sale abroad. The Supreme Court reversed, essentially because Congress had expressed a clear intention to override the default rule in patent cases that the assembly of components has to occur inside the United States to be an infringing manufacture or sale of a system or machine. The statute was specifically drawn to a form of exports involving foreign assembly, in other words, unlike the Lanham Act or trademark statutes which the Abitron majority deemed to be “domestic” in orientation.

Jurisprudentially, Abitron and WesternGeco sit at the crossroads of three important debates. First, the four-justice concurrence in Abitron emphasizes the vast case law on subject matter jurisdiction based on the domestic effects of foreign conduct. For example, the antitrust laws "reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused." Thus, in the United Fruit case, Justice Holmes remarked that many countries “punish any one, subject or not, who shall do certain things, if they can catch him, as in the case of pirates on the high seas. In cases immediately affecting national interests they may go further still and may make, and, if they get the chance, execute similar threats as to acts done within another recognized jurisdiction.” Justice Sotomayor’s concurrence (like the brief amicus curiae of the United States upon which it draws for support) would have rejected a bright-line rule that there must be “domestic conduct in order for there to be a domestic application of a statute.” A domestic effect tethered to statutory text, in other words, should suffice for domestic application of a U.S. law to foreign acts even when Congress is not altogether clear on extraterritoriality.

Second, the majority adheres to past precedent sharply circumscribing broad statutes’ effect on conduct inside foreign jurisdictions, ranging from sales of securities to foreign purchasers, to the plunder of natural resources and killing of persons abroad with the complicity of U.S. multinational corporations, to conspiring with transnational organized crime and alleged international terrorist organizations. There is a normative if not a strictly doctrinal parallel here with decisions of some courts that applying the U.S. Constitution to the conduct abroad of U.S. officials who violate the rights of foreign persons would be abnormal in comparative perspective and unintended by the Constitution’s drafters and ratifiers. (Boumediene v. Bush departed from this line of decisions, based in significant part on the distinctive history of the writ of habeas corpus, but with a dissent joined by the justices who wrote for the Court in both Abitron and WesternGeco. Professor Jordan Paust and Professor Andrew Kent described the stakes of this debate well in 2001/2003 and 2012, respectively.) One might (with the ABA) imagine a more flexible approach balancing two or more factors to assess whether a statute or constitutional right or provision applies extraterritorially: the citizenship of the parties to the controversy, the effect on U.S. commerce or U.S. persons’ rights, and any conflict with foreign national or multi-national laws.

In economic terms, Congress confronts problem of drafting “incompletely realized” legislation. Should it cover every eventuality and controversial potential application in a costly drafting process, or agree efficiently on broad principles, leaving it to courts and agencies to fill gaps? With the pace of legislation in Congress slowing, the problem is becoming more serious. Abitron was one of three or four cases in 2023 in which the Court used some version of a clear statement rule to address a question of critical economic significance, the others including the wetlands case (EPA overly broadly construed “waters of the United States”), the student loan waiver case (Biden administration claimed authority it did not have to “modify” student loans), and the Navajo Nation’s water rights case (treaty said to be unclear about duties of the United States to guarantee adequate water to Navajo homes and buildings). The four cases involve clear statement rules allocating different types of authority: the authority of coordinate national sovereigns in Abitron, the authority of Congress and executive agencies and departments in Sackett v. EPA and the student loan case of Biden v. Nebraska, and the water rights of the Navajo Nation versus the discretion of the United States and Arizona to manage the waters of the Colorado River Basin in Navajo Nation v. Arizona.

The opinion for the Court explains persuasively that an effect in the United States involving the “likelihood of confusion” that the trademark laws aim at would be an insufficient basis, given the territorial nature of trademarks, to dispense with the need for registration or protection in multiple jurisdictions. The concurring justices agree that a U.S. trademark confers no rights in other countries, in contrast arguably to a patent with the benefit of WesternGeco. The International Trademark Association, ABA, and Second Circuit, on the other hand, would apparently allow a remedy in the United States for at least some foreign conduct not expressly permitted in a foreign country, which has a “substantial effect on U.S. commerce….” This argument enjoys some support in the trademark law’s reference to the constitutional scope of congressional power – which extends beyond conduct committed on U.S. soil – but threatened to undermine the territorial registration and protection regime under the Paris Convention for the Protection of Industrial Property and the Madrid Protocol on cross-border registration of marks. An effects-based balancing test seems better suited to antitrust, securities, and other areas where there are not difficult questions concerning overlapping rights, priority, and the like.

Third, the decision in Abitron arguably loses sight of the complex textualism called for by the Court’s earlier decisions. As the International Trademark Association pointed out, Congress specified the type of commerce it intended to regulate in the civil liability provisions relating to federal trademark infringement: all the commerce which may be constitutionally regulated by Congress, which of course includes the “foreign commerce” of the United States. Other statutes, relating to interstate communications, fur labeling, and milk products, for example, define their jurisdictional scope as including only commerce among the States, districts, territories, and possessions of the United States. Justice Sotomayor’s concurring opinion emphasizes that the two provisions at issue in Abitron should have been read together with the rest of the U.S. Code to construct a coherent whole, rather than in a “vacuum.” The majority opinion arguably fails to give effect to each contrasting definition of commerce enacted by Congress, contrary to a canon the Court applies that Congress knows how to use precise language in one statute and not in another, and probably does so on purpose. As Justice Gorsuch explained for four justices in another case, the Court does or should “not normally suppose that Congress blithely includes words in its laws that perform no work.” Yet this is what the Court’s reading of the jurisdictional provisions of the trademark, securities, and international-torts statutes may do

Webinar on Harvard/UNC decision

The University of Texas Law School is holding today what looks like an interesting "webinar" (their name, not mine!) on the recent affirmative action decision. Details are here. It is one of what should be several recent valuable events on the decision--none of which, to be clear, are likely to be hosted by the AALS, whose programming on this and other issues this year has been glaringly bad. 

Tree of Life Synagogue and the Death Penalty

My new essay at The Daily Beast explains the problems with a Washington Post oped by two ACLU lawyers opposing the death penalty for Robert Bowers, the murderer of eleven Jews at the Tree of Life Synagogue. Although I agree with them about capital punishment, I was troubled by the way they underplayed Bowers’s antisemitism. Here is the gist:

As a long-time ACLU member, and former criminal defense attorney, I needed no convincing. Others in the Jewish community, however, understandably feel differently about punishing the perpetrator of the greatest massacre of Jews in U.S. history. Cader and Robinson would have been more persuasive to that audience if they had given more attention to the community’s concerns, instead of skipping past them.

The problems begin in the essay’s first paragraph, when Cader and Robinson refer to the attack as “seemingly motivated by white supremacy and antisemitic hatred.” Whatever the authors’ intention, the use of “seemingly” signals uncertainty, as though Bowers might have had some objective other than killing Jews because they are Jews.

There is no world in which the invasion of a synagogue on Shabbat morning, and the murder of the minyan, is anything other than antisemitic. My family and friends (not all Jewish) gasped out loud when I read that passage to them.

The piece is not paywalled. You can read it at The Daily Beast.

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

The Constitutionality of Legacy Preferences

In the wake of the Court's affirmative action decision, a federal lawsuit was filed on Friday challenging Harvard's legacy admissions preferences. There's a good chance that Harvard (and other schools) will abandon legacy preferences after gnashing their teeth, but suppose they don't. What should happen to the legal challenges?

One relevant case is Kotch v. Board of River Pilots. It's a constitutional decision that I teach in Admiralty. Louisiana required that ships entering New Orleans port and the Mississippi have a local licensed pilot to avoid shallow water and underwater obstacles. (This is a longstanding rule for maritime commerce.) State law provided neutral criteria for getting a pilot license that included an apprenticeship, but in practice pilots would almost always take only their relatives as pilot apprentices. Some wannabe pilots who could not get a license challenged this practice on equal protection grounds.

The Supreme Court (in 1947) rejected this claim by a 5-4 vote. Justice Black wrote for the Court and leaned heavily on the idea that pilot regulation was a traditional state function and that pilotage was "a unique institution and must be judged as such." Basically, he said that a pilot needed local knowledge and that this need for personalized knowledge was (or could be) rationally related to picking mainly relatives of existing pilots. The Court went out of its way, though, to say that this deference might not apply to other professions or business that used family ties to make selections.

Justice Rutledge dissented and said: "The result of the decision therefore is to approve as constitutional state regulation which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden by the Fourteenth Amendment's guaranty against denial of the equal protection of the laws. The door is thereby closed to all not having blood relationship to presently licensed pilots." He added: "The discrimination here is not shown to be consciously racial in character. But I am unable to differentiate in effects one founded on blood relationship."

The last line strikes me relevant to legacy preferences. Plaintiffs challenging them will probably not be able to show that there is intentional racial discrimination in that aspect of admissions programs. But what using a familial tie? Universities can argue that there is a rational basis for legacy preferences--alumni donations. But is rational basis review the correct standard? In 1947, the idea of heightened scrutiny was in its infancy. Maybe Kotch would come out the same way now under heightened review--it depends on how the courts would view pilotage today--though I think that's doubtful. And I don't think legacy preferences would survive heightened scrutiny. Perhaps Kotch will get renewed attention in the upcoming litigation.

Fourth of July Music Post - Stars and Stripes Forever

Clips are at The Faculty Lounge.

303 and SB8 (Update)

I have not gotten around to reading 303 Creative or commenting on the First Amendment analysis. I want to address the standing issues not addressed in the case but which have entered the conversation.

Liberal critics have decried this as a "fake" case because no same-sex couple asked Lorie Smith to design a web site for their wedding. The record includes a declaration about one same-sex couple that did request a wedding page, but that story appears false--one of the men is married to a woman and played no role in the case. Thus, the argument goes, Smith and 303 lacked standing, but the Court (as its liberal conservative (interesting mistake) majority is wont to do) ignored that to reach out on an issue and hand a victory to a religious-conservative cause.

Apart from my usual views about standing, this should be a non-issue. Smith brought an offensive pre-enforcement challenge, so she need not show actual violations of the law or actual enforcement of the law against her--the whole point is to be able to challenge the law without violating it or risking legal sanction. She had opened a web design business and intended to do wedding sites; state law proscribed her desired conduct (decline business from same-sex couples and announce that intent); and the state was likely to enforce the law against her if she announced and followed that practice. That should be enough for a pre-enforcement action, especially in a free speech case (where courts apply standing in a more-forgiving way). Moreover, this looser approach benefits minors challenging state prohibitions on gender-affirming care--I do not want courts hanging those cases up on "this plaintiff alleges that she wants gender-affirming care, but has not yet seen a doctor or has not yet been prescribed puberty blockers."

Some link 303 and SB8 and find political motivations in the Court's differential treatment--303 dramatically expanded a species of free-speech right through an expansive approach to pre-enforcement litigation, while the Court's restrictive approach as to SB8 eliminated all pre-enforcement challenges to an abortion restriction. But the cases are not comparable. 303's supposed standing problem involves injury--because Smith had never been asked to make a wedding web site for a same-sex couple, she incurred no injury (no genuine risk the state would enforce the law against her). The standing problem in SB8 went to traceability and redressability--the lack of public enforcement meant no public official caused that injury and the court could not enjoin anyone to stop enforcement. 303 does not reflect a distinct approach to pre-enforcement litigation. Had Colorado adopted purely private enforcement for its public-accommodations laws,* there is no reason to believe the Court would not have rejected the case for the same reasons it rejected Whole Women's Health.

[*] Perhaps Blue states seeking to mimic SB8 for liberal causes and against disfavored constitutionally protected activity should consider this issue, rather than obsessing about guns. I wonder what Jonathan Mitchell, Texas officials, and conservative commentators would say.

Update: I do not intend to minimize the issue of the false evidence. If that turns out to be the case, Smith and her lawyer should be on the hook for sanctions. It does not change the appropriateness of the case, because the case was sufficiently real and live without that further evidence.

Kagan and the Chief

Chief Justice Roberts is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska. Here is what Kagan said:

From the first page to the last, today’s opinion departs from the demands of judicial restraint.

And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.

And that is a major problem not just for governance, but for democracy too.

Here is Roberts's unhappy comment:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.

Which disturbing opinions (other than Biden v. Nebraska) do you think he had in mind? Could one of them have been his own dissenting opinion Obergefell v. Hodges, in which he wrote:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.

The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law.

Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

If there is any difference in the rhetoric -- other than Roberts's evidently thin skin -- it eludes me.