PrawfsBlawg

Biblical References in Constitutional or Political Argument

Justice Jackson's Youngstown concurrence refers to Pharaoh's dreams that Joseph was asked to interpret. There was no citation. Abraham Lincoln's Second Inaugural quoted the King James Bible. John Bingham said that the Equal Protection Clause embodied the Golden Rule. Martin Luther King, Jr. often quoted Scripture, including in the "I Have a Dream Speech."

Today you wonder if such references (outside of a case that involves religious expression or conduct) would be acceptable. First, would people even understand those references? The speakers or writers that I just listed could safely assume that the audience would know a Biblical quote or idea. It's harder to make that assumption now. Second, would people think that such expressions have a place in legal reasoning on secular topics? Not everyone would agree on that, of course. But it's hard to imagine a President delivering a speech like Lincoln's Second Inaugural today. 

Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.

An Apt and Half-True Statement

In one of those rare instances in which the letters section of the New York Review of Books generates light and not just heat, this letters exchange concerning naming and unnaming at universities (which features an ingenious and suspiciously convenient mechanism for preserving Stanford University's name while renaming its constituent parts) offers a lovely quote about the purpose of the university: "The perennial chance to rethink things embodied by the next generation is, after all, the crucial feature of universities."

Nice. But surely and rather precisely incomplete. The perennial duty to understand and pass along things embodied by past generations is an equally crucial feature of universities, is it not? Especially, but far from exclusively, in their teaching role?

It strikes me as both common and deeply unfortunate that in discussing universities and their role, and scholarship and its role, half the politically engaged commentariat tends to overemphasize the first feature, and the other half tends to overemphasize the second. (Within the legal academy and most of the rest of the academy, surely the overemphasis on the first is even more lopsided.) 

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

The Peer Review Follies

Law professors all know about the problems with law reviews, but peer reviews in other fields have their own problems, one of which is interminable delay and ridiculous amounts of make-work for reviewers.

Because I have published interdisciplinary work in history, sociology, and medical ethics, I am sometimes asked by social science, humanities, and medical journals to peer review submissions. I got one such request from a flagship humanities journal in early autumn 2021. I read the draft and recommended publication, with a few suggestions for making it better, in November 2021. Other than a thank-you note, I heard nothing more from the journal until about a week ago.

On August 21, 2023, I got an email asking me to review a revision of the article. Other reviewers had evidently been less enthusiastic about the article – apparently have recommended a “revise and resubmit,” or R&R – although it seemed to me that 21 months was an exceptionally long time between my report and the requested revision review.

Now, it is possible that the author was responsible for some of the lengthy delay, although it seems more likely that at least one of the other reviewers (there are usually three) was tardy in submitting their report, followed by more delay from the journal editor. But that was the smallest part of the problem.

I was willing to read the revision, but having recommended publication of the original – which of course I hadn’t read for nearly two years – I asked to see the R&R recommendations. Otherwise, it would be impossible for me to assess whether the changes resolved the other reviewers’ reservations.

As I explained in my reply,

I already recommended publication of this article. I cannot review the revisions unless I understand why they were required. Was this an R&R? If so, was there another review besides mine? If so, I will need to see it in order to evaluate the new version. If there was no other review, what am I supposed to be evaluating?

I received this message in response:

We appreciated very much your report on the first submission of this manuscript. At that time, we received a number of reports and, as you surmised, asked the author to revise and resubmit their manuscript. We understand that you already thought it deserved publication from the strength of the first version but would be interested in knowing whether you thought this version remained as strong.

However, we do not distribute the reports of other readers when we ask people to consider whether a revised piece deserves publication. We completely understand if you feel this prevents you from being able to evaluate the revised piece. 

The revised article is 42 pages long. The editors evidently wanted me to reaffirm my positive review – which would no doubt take two days or so – without knowing what perceived shortcomings were supposed to be remedied.

And to what end? My original recommendation was evidently insufficient to outweigh the R&R recommendations, so renewing it obviously would not matter if the other reviewers remain unsatisfied. If my evaluation wasn’t good enough then (and I am not saying it should have been), why would it be good enough now?

And that is why I declined the review. It was (1) impossible to do competently without seen the other recommendations, and (2) pointless under the circumstances.

Meanwhile, the author – who might well be an assistant professor who needs the publication for promotion – is stuck waiting over two years for an answer. And they cannot submit it anywhere else until then, because non-law journals do not permit multiple submissions.

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

The Power of SSRN

Imagine that twenty years ago I was writing a paper on an important and pressing public issue. What could I do with that paper to make a difference? The answer was basically nothing. I could have tried emailing it to journalists, elected officials, or other scholars, but the odds that anyone would read the draft and respond were very low. Even if someone did, that would not get the draft into circulation. At best, I could write only a summary or an abstract for, say, a magazine or newspaper. 

Today. of course, you can make the entire draft ready whenever you want. That's a huge change. Baude and Paulsen's paper on Section 3 of the Fourteenth Amendment could not have had anything like the same influence in 2003. Only a published article could have done that.

UPDATE: Orin Kerr points out that SSRN did exist in 2003. What’s funny is that I didn’t know that then and I didn’t know that now. Shows you why my career developed slowly. 

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2023-2024

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021, 2021-2022, 2022-2023. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Two Reasons Why Trump's January 6 Defense Is Unlikely to Work

My new essay on CNN.com explains why Trump’s defenses in the January 6 case are not going to work.

Here is the gist:

Opinion: Why Trump’s January 6 defense is even worse than it seems

August 28, 2023

Trump defense lawyer John Lauro, however, told NBC News, among others, that Trump, who has denied any wrongdoing, “believed in his heart of hearts that he had won that election.”

Trump’s lawyers may well advise him to stay off the witness stand and avoid the risks of cross examination — but demure silence is hardly in his nature.

Testifying, however, would carry many risks for him. To start with, upon voluntarily taking the stand, Trump would waive the Fifth Amendment’s protection from responding to questions whose answers could be self-incriminating, thus exposing himself to cross examination on every aspect of the charged crimes.

Moreover, having Trump on the stand would aid prosecutors in sketching out a clear narrative of events for jurors. Typically in trials, separate witnesses testify in piecemeal fashion about different events, resulting in a patchwork of evidence that the prosecutors can tie together only in their closing argument at the trial’s end. In Trump’s cross examination, however, the prosecutors would be able to confront him with his false statements one after another, seamlessly telling their entire story of Trump’s duplicity in his own words.

It gets worse. Trump evidently also plans to raise the “advice of counsel” defense, relying on assurances from his lawyers that his tactics were all lawful and thus negating criminal intent.

Mounting an advice of counsel defense, for its part, means waiving attorney-client privilege. In other words, John Eastman, Rudy Giuliani and the entire “gaggle of crackpot lawyers,” as Mike Pence called those who advised Trump, could not claim confidentiality if subpoenaed by the prosecution to testify against their erstwhile client.

For once in his life, Trump cannot count on talking his way out of it.

You can read the entire essay on CNN.com.

Saturday Music Post - One Offs, Part Two

I considered using today's songs-- featuring Paul McCartney, Freddy Fender, Gene Chandler, Joe Cocker, and others -- for Saturday posts, but I couldn't find enough interesting covers, so this is the second compilation of random one-offs (not necessarily the originals). I'm not saying there are no other versions, just not enough for an entire post.

The clips are at The Faculty Lounge.

What makes a career?

Congratulations to Jenny Martinez on her appointment as provost at Stanford. According to the Chronicle of Higher Education (paywalled), Martinez's main accomplishment as dean and main qualification for the job was "defending free speech" in the Judge Duncan debacle. In fact, "[b]y elevating Martinez to its top academic post, Stanford is making a statement in the continuing free-speech debate. Leaders across the country will look to Martinez to uphold that stance, particularly as she assumes jurisdiction over not only the law school but also Stanford’s entire student body."

I praised Martinez's letter at the time, particularly for recognizing the expressive nature of heckling and in-the-room protest. But the idea that this one event was central to her appointment or that education leaders nationwide will read this as some endorsement of an approach to campus speech is laughable.

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

Minnie Minoso, Chicago Public Schools, and Northwestern Law

It is pretty cool that the Chicago Public School system has finally named a school after Minnie Minoso, though I wonder if any current elementary school students have even a vague idea of who he was.

We old-time Chicagoans (and baseball fans everywhere) remember him fondly. He was the first Afro-Latin player in the major leagues, and a nine-time all-star with Cleveland and the White Sox.

Minoso was also once an ex officio member of the Northwestern law school faculty, and my teammate for several years in the student-faculty softball game (more on that after the jump).

Just plain bizarre, however, is that the elementary school was previously named after Civil War General George B. McClellan, who (1) was connected to Chicago for only a few years as president of the Illinois Central Railroad; (2) was famously disrespectful of Lincoln, calling him a “baboon” and “gorilla,” (3) was fired by Lincoln for insufficient aggressiveness, to be replaced by U.S. Grant; (4) ran as a Democrat against Lincoln in 1864 on a platform that opposed abolition and called for a negotiated peace with the Confederacy; although (5) he repudiated his own platform, destroying his chances in the election, which Lincoln won in a landslide. McClellan was an overt racist who accepted the validity of enslavement under the Constitution. He died in 1885. Why did Chicago still have a school named for him 135 later? Or ever?

More on Minoso's connection to Northwestern after the jump.

Posted on The Faculty Lounge, December 6, 2021:

Former Law School Faculty Member Elected to the Baseball Hall of Fame as a Player [UPDATED]

I am pleased to report that Minnie Minoso has finally been elected to the Baseball Hall of Fame, making him the only former member of a law school faculty in Cooperstown (and making Northwestern the only law school faculty represented by a player in the Hall). Minnie was represented by Dennis Ferrazzano, who was the William H. Trumbull lecturer and adjunct professor at Northwestern University Pritzker School of Law from 1979 to 1999 (and was awarded the Robert Childres Memorial Teaching Award in 1985).  Dennie brought Minnie to several of the student-faculty softball games in the 1980s, and we voted him an honorary member of the faculty instanter. As it was with the White Sox and other MLB teams, his performance was legendary. The adjoining photo is from 1987.

Orestes “Minnie” Minoso (1925-2015) was one of the great players in major league baseball. He was the first Black player on the White Sox in 1951 (two years before Ernie Banks broke the color line on the Cubs) and the first Black Latino player in the major leagues in 1949. You can read more about him here, here, and here. He had a lifetime batting average of .299 and played in nine All-Star Games (in seven seasons). He had over 2000 hits and over 1000 RBI. He was hit by pitches 16 times in his first season (a shameful statistic that shows what he had to endure, in addition to name calling by opposing players). 

Minoso began his professional career in Cuba, and then played for the New York Cubans in the Negro League for two years. He was signed by Cleveland in 1948, and played in MLB in five separate decades, mostly for the White Sox, making his last plate appearance with the White Sox in 1980 (before retiring and playing for the NULS Faculty All-Stars).

There may be HOF managers and executives who have taught law school classes, but I believe Minoso is the only player ever voted onto a law school faculty.

UPDATE: It turns out that Hank Greenberg was briefly appointed our honorary dean for the 1960 softball game -- recruited by then-3L Jerry Reinsdorf (not yet the owner of the Bulls and White Sox). So it turns out that we have two former faculty members in the Hall of Fame.

Teaching Tips for New Law Professors, August 23 (Moved to Top

Moving to top:

Join West for Teaching Tips for New Law Professors: How to Incorporate Professional Identity Formation in Your Teaching webinar, 3 p.m. CDT., tomorrow, Wednesday August 23.

The panel of award-winning law faculty members and casebook authors will provide guidance on developing and teaching a law school course with an emphasis on integrating Professional Identity Formation into your instruction. There will be time at the end for participants to ask questions.

Register here

Job Listing at Fordham

Fordham Law School invites applications for full-time tenured and tenure-track faculty positions, from both entry-level and experienced candidates, with an expected start date for the fall 2024 semester. We welcome applications from candidates across all areas of law.

We are seeking individuals who are or have the potential to become scholars and teachers of the highest caliber, encompassing a range of perspectives and methodologies, and who are committed to institution-building and service. We value diversity and strongly encourage individuals from groups historically underrepresented in legal academia to apply.

Applicants must possess a J.D. degree or an advanced degree in a relevant field and have relevant experience such as teaching, legal practice, or judicial clerkships. Applicants must also show scholarly promise, evidenced by publications in scholarly journals or scholarly works in progress. The salary range for this job is $175,000-$290,000, dependent on experience in academia. Any summer research funding is in addition.

Fordham Law School is a national leader in the field, with approximately 1600 students in our JD, LL.M. and M.S.L. programs. Fordham is the Jesuit University of New York and serves students of all faiths, including those with no faith.

Entry-level candidates are encouraged to submit their materials through the AALS Faculty Appointments Register (FAR). We also invite all candidates who are not participating in the FAR to submit applications to Professor John Brooks, Chair of the Faculty Appointments Committee, at [email protected]. Applications should consistent at minimum of a CV, research agenda, and potential job market paper.

For questions, please contact Professor John Brooks, Chair of the Faculty Appointments Committee, at [email protected].

Why Liberals Must Still Critique Justice Sotomayor

My new essay in The Hill explains why judicial ethics critiques must always remain apolitical.

Here is the gist:

The Hill 

All Supreme Court ethics lapses deserve scrutiny, including Sotomayor’s

BY STEVEN LUBET, OPINION CONTRIBUTOR - 08/22/23

Because disregard for the code has not been limited to Republican or Democratic appointees, it is important for commentators to be even-handed in their assessments of the justices’ conduct.

Justice Sonia Sotomayor is much beloved by liberals, including me, but that does not mean she is never wrong. 

As an Associated Press investigation recently discovered, Sotomayor has frequently used her court staff to promote sales of her memoir and children’s books at speaking engagements and signing events, which violated basic principles of judicial ethics.

To some admirers, however, Sotomayor’s staff use is a non-issue.

There is a tendency on all sides to forgive or discount the ethical lapses of those we admire. Justice Thomas’s extravagant vacationing, and flouting of disclosure rules, thus draw yawns from Republicans. 

While violations differ in severity — dozens of undisclosed luxury junkets are far more serious than asking staff to boost book sales — judicial ethics principles must still be politically neutral, applied equally to the modest Justice Sotomayor, the affable Justice Thomas and the dour Justice Alito. We cannot fairly criticize our nemeses for conduct we accept among our own. 

You can read the full essay at The Hill.

Number of FAR Forms in First Distribution Over Time - 2023

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328; 2022: 272; 2023: 348.

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

The Silent Majority

Since January 2021, I've received many messages from people asking something like the following: "Section Three says that officials who engage in insurrection against the Constitution are barred from office. You're on expert on Section Three. How can Trump run again?" There are many answers to this question. Reading the Constitution is not the same as enforcing the Constitution, for instance.  But the question is a good one and still stands.

Much of the recent commentary on Section Three focuses on how Trump voters might view his exclusion. That's an important concern. But not enough attention is being given to how the silent majority that twice voted against Trump will view his third campaign in light of constitutional language that seems to bar that campaign. We're not talking about some clever argument that the Constitution means something that is not in the text. There is an express textual provision being invoked here.

At a minimum, I think that the majority is owed an explanation by the Supreme Court about whether these words apply to Trump and, if not, why not. Those opinions (and the inevitable dissents) are not going to solve all of our problems. But our problems will be much worse if we get no such explanation. 

Buckley and Mikva

James Buckley passed away a couple of days ago at age 100. He is probably most remembered as the only U.S. senator ever to have won election solely on the Conservative Party ballot line. Lawyers and law professors probably remember him better as the lead plaintiff in Buckley v. Valeo, the first in a series of U.S. Supreme Court decisions that undid most federal limits on political campaign spending.

The Conservative Party of New York announced that Buckley was unique as "the only American to hold senior roles in all three branches of government," noting his service as senator, Second Circuit judge, and in "senior roles in the Reagan Administration." That was indeed a life of public service, but he was not alone in that distinction.

James Buckley and Abner Mikva may have had almost nothing else in common, but both of them did hit the federal trifecta. Mikva was a U.S. congressman from Illinois (first from Hyde Park, then from Evanston), a judge on the District of Columbia Circuit, and White House counsel to President Clinton.

Others with the same distinction included John Marshall (Chief Justice, secretary of state, Virginia congressman) and Salmon P. Chase (Chief Justice, Ohio senator, secretary of the treasury). L.Q.C. Lamar hit a grand slam as Mississippi Congressman, secretary of the interior, supreme court justice, and the Confederacy's ambassador to the Russian Empire. Embarrassingly, Lamar's cabinet and Supreme Court appointments came years after he committed treason in defense of slavery as a general in the Confederate Army.

Perhaps the Conservative Party meant that Buckley had been the only living American who served in all three branches, though the statement was published after his death.

Fifth Circuit takes injury where Fletcher and Newsom would not

The Fifth Circuit found the 2016 and 2021 FDA expansions of Mifepristone use unlawful under the APA; the majority upheld the original approval, over a dissent from Judge Ho. The case was brought by an organization of anti-choice emergency-room doctors; the court found associational standing based on probabilities that some member doctor might treat someone suffering from complications of Mifepristone, requiring the member to violate his conscience, deal with that patient rather than other patients, or suffer the mental and emotional stress of treating them. Ho goes a step further, finding doctors suffer aesthetic injuries from being deprived of the happiness of delivering babies--just as environmental activists are deprived of the happiness of seeing the Nile crocodile. In essence, the Fifth Circuit recognized--at least for anti-choice doctors--standing based on opposition to government policy where the policy's downstream effects cause them some anguish. Adam Unikowsky takes down the absurd--and unlimited--standing analysis.

I want to add a slightly different path on this point.

In arguing that "injury" cannot be detached from law (and that standing is about the merits of a claim, William Fletcher in his foundational article and Judge Newsom of the 11th Circuit in a 2021 concurring opinion offer versions of a case everyone recognizes as an insufficient legal injury. Fletcher offers A, who loses sleep over homelessness and donates money (which he would otherwise not do) to aid the homeless; Newsom offers B, who loses sleep over the federal deficit and purchases sleeping pills to help her sleep. Each then offers the identical comparator of C, a homeowner who loses sleep because of a barking dog and spends money on something (ear plugs, sleeping pills, thicker windows) to help.Everyone agrees that C has standing because she suffered a physical and monetary injury. And everyone agrees that neither A nor B has suffered an injury courts would recognize as establishing standing. But, Newsom and Fletcher argue, A, B, and C suffer identical injuries--loss of sleep and expenditure of money to alleviate the cause of the sleeplessness. We thus cannot attribute the different outcomes to the presence or absence of an injury; the difference arises from what what the substantive law recognizes as a violation of that law and of the rights created by that law-as Newsom puts it, "whether his legal rights have been infringed and whether the positive law authorizes him to sue for that infringement."

The Fifth Circuit decision recognizes the injury that Newsom and Fletcher agreed courts never would recognize--the government adopted a policy (allowing the sale and prescription of Mifepristone by willing doctors to willing patients) that worries other doctors and that causes these doctors to engage in some conduct (treating patients they would rather not treat for conditions they would rather not treat).

When I teach standing, I hit the theme of the ideological drift of standing--from a doctrine that conservative judges wielded strictly to stop liberal cause litigation to a doctrine hat interfered with conservative cause litigation to a doctrine many conservative judges want to discard in the name of conservative cause litigation. Between this case and Biden v. Nebraska, as well as Alito's insistence that there was standing in California v. Texas, we have many examples to choose from.

Saturday Music Post - Mama Knows Best

Today's post features songs by the Shirelles, Smokey Robinson & the Miracles, Pokey LaFarge, Diana Ross, Phil Collins, Jimmy Rodgers, Cab Calloway, and Tom Jones (singing "My Yiddishe Momme"), among others.

You can see them at The Faculty Lounge.

3d Annual "Law v. Antisemitism" Conference (February 25-26 2024) (Moved to Top)

Posting this one final time, with the deadline two weeks away. Please submit if interested and spread the word to people who might be.

FIU College of Law will host the 3d Annual "Law v. Antisemitism" Conference, Sunday-Monday, February 25-26, 2024. I am co-organizer with Rob Katz (Indiana-Inianapolis) and Diane Kemker (visiting at DePaul). The CFP and details after the jump.

Reposting with the deadline on September 1.

CALL FOR PAPERS/PRESENTATIONS

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law, Miami, Florida

You are invited to submit a paper or presentation for the 3rd Annual Law vs. Antisemitism Conference. The Conference aims to provide a platform for researchers and practitioners to present research and developments on the intersection of law and antisemitism -- how law has manifested and perpetuated antisemitism, and how law has been and can be used to combat it.

Areas of interest for the conference include, but are not limited to, the following themes and topics.

• The Working Definition of Antisemitism developed by the International Holocaust Remembrance Alliance (IHRA), its legal implications, critics and competing definitions (e.g., Nexus, JDA)
• Legal efforts in the U.S. and abroad to curtail expressions of antisemitism, e.g., by regulating hate speech, hate speech online, Holocaust denialism, and hate crimes
• Laws that authorize religious expression in public spaces, laws that target Jews and other religious minorities, and generally applicable laws that burden Jewish observance, including abortion bans (in the context of Dobbs)
• Legal responses to the Boycott-Divest-Sanctions (BDS) movement and other efforts to counter boycotts of Israel
• Comparisons between antisemitism and bias and discrimination based on race (including African Americans and Asian Americans) gender, sexual orientation and gender identity, or other categories
• Jews and whiteness, including white privilege, white nationalism, and white supremacy
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• Official discrimination against Jews, both historic and contemporary, including bars to holding office, immigration restrictions, housing and zoning restrictions
• Jews and antisemitism in the legal profession
• Jews as a protected class under federal and state civil rights statutes
• Jews and employment law, including employment discrimination, religious accommodations, and the ministerial exception
• Jews and antisemitism in higher education, including anti-Jewish quotas, Jewish perspectives on affirmative action, Title VI and hostile environments, faculty and student expression and actions concerning Israel and Zionism
• Law and the Holocaust, punishing the perpetrators, restitution for the victims
• The legal construction of Jewish identity (e.g., defining who is a Jew for purposes of the Law of Return, the Nuremberg laws)
• Case studies in antisemitism, e.g., the Dreyfus Affair, the Leo Frank trial
• Translating research on law and antisemitism into practical strategies for countering antisemitism through law
• Pedagogical approaches to teaching about the relationship between law and antisemitism

We invite scholars to reflect on the relationship between antisemitism, Jews, and the law, historically and in the contemporary environment, especially but not exclusively in the United States. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects. Please submit an Abstract of 300-500 words to [email protected]. Selected papers from the Conference will have an opportunity to be published in an upcoming issue of the FIU Law Review dedicated to the Symposium. (Questions may also be directed to [email protected].)

Proposals due September 1, 2023             

Presenters will be notified by October 1, 2023

Online Symposium on Section Three of the 14th and My New Essay

I want to organize an online symposium on this issue in the Fall. If you are interested in participating, then please contact me.

UPDATE: Here is my latest essay on Section Three, in which I explain why an appropriate state Secretary of State would be acting in a non-partisan way by declaring Trump ineligible now.

Another Reason the Academic Boycott of Israel Is Reckless and Counter-Productive

Despite the boycott resolutions of the American Anthropological Association and other scholarly societies, Israeli universities remain in the forefront of resistance to the right-wing government's assault on the Arab population. The latest instance of discrimination has been the finance ministry's freezing of funds for a preparatory program for East Jerusalem Arabs to attend Hebrew University.

Here is how Hebrew University -- currently a target of the AAA boycott -- responded, as reported in the Times of Israel:

“In the past decade, thousands of students from East Jerusalem were enrolled in preparatory programs in the city: at Hebrew University, Bezalel Academy of Arts and Design, Azrieli College, and Hadassah College. Most such students are today thriving in the job market and are integrating into Israeli life. The finance minister’s puzzling decision would doom the young people of East Jerusalem to a fate of indolence, without promise of employment and without the ability to live in a shared society,” the letter read.

“The meaning of this decision is no less than damage to Israel’s society and its economy, and we will all pay for this damage for decades to come,” the university wrote.

It also emphasized the role of integration in “shattering barriers of prejudice and stereotypes,” and “enabling Jews and Arabs to build relationships based on trust,” and warned the repeal of the program will “increase hostility, enmity and violence between the two communities.”

Hebrew University is now facing academic boycotts from both the left and the right, as organizations such as the AAA pass resolutions and the Netanyahu administration eliminates funding for programs contrary to its own hard-line political agenda.

Any rational academic organization would want to strengthen ties with Hebrew University. Separating American academics from Israeli universities will only strengthen Netanyahu and his cronies, while accomplishing exactly nothing for the great majority of Palestinians and Israelis.

 

9th Annual Civil Procedure Workshop

Ninth Annual Civil Procedure Workshop

More pedantry

Defendants do not move to remove cases to federal court and do not file motions for removal. They remove them to federal court through a notice of removal--telling the federal and state courts that this case is in federal court. In other words, Mark Meadows is not "attempting" or "wanting" to move his Georgia prosecution to federal court; that prosecution is now pending in the Northern District of Georgia. It then is on the State to challenge removal through a motion for remand and for the courts to agree with and grant that motion, ordering the case returned to state court.

The American Anthropological Association's BDS Resolution Will Violate Academic Freedom

The American Anthropological Association's membership recently passed a resolution boycotting Israeli universities. In addition to all of the other reasons to oppose the BDS movement, it is plainly irrational, at a time when Israeli democracy is in grave danger and the most anti-Palestinian elements have been empowered, to boycott the most progressive and pro-peace institutions in Israeli society. Netanyahu doesn't give a damn about the American Anthropological Association, and his henchmen Ben G'vir and Smotrich care even less, weakening the international links to Israeli universities plays right into their hands.

To put it briefly, boycotting Israeli universities is like boycotting Texas libraries.

The Alliance for Academic Freedom, of which I am a member, has issued the following statement about the effects of the AAA boycott:

Because the American Anthropological Association announced a boycott of Israeli universities in July 2023, and its Executive Board issued a series of attendant prohibitions on Israeli academia, the Alliance for Academic Freedom considers it is imperative for all universities committed to academic freedom to immediately withdraw their departmental and institutional memberships from the AAA. Whereas other supporters of academic boycotts have sometimes chosen to be vague about the implications, the AAA was explicit about the actions it would take. Their transgression of basic principles of academic freedom is thus clear as a result. Having an institutional membership in a boycott-endorsing association is irreconcilable with an institutional commitment to academic freedom. The AAA lists seven prohibitions that it will impose, though other prohibitions may follow as consequences become clear and the boycott evolves. Two of the items on the list, “Participating in the AAA Graduate School Fair” and “Using AAA conference facilities for job interviews,” clearly target employment and educational opportunities for undergraduates and graduate students, who occupy the most vulnerable ranks of academia and are most likely to find their academic freedom constrained. Students who wish to study at Israeli universities and graduate students seeking Israeli academic employment no longer have the same opportunities as others. Travel to explore campuses or meet interviewing committees face-to-face is already prohibitively expensive. Scheduling all such activities in one place is a considerable advantage. But the students being targeted will not have the same opportunities as others. This discriminatory treatment is an obvious violation of academic freedom and a possible violation of federal antidiscrimination law. To suggest that it affects only institutions, not individuals, is dishonest on its face. Several of the AAA’s avowed prohibitions combine personal and institutional harms: “Being listed in AAA’s published materials, including AAA’s AnthroGuide to Departments,” “Participating in the AAA Departmental Services Program,” and “Participating in joint conferences or events with AAA and its sections.” It is as if Israeli universities, their students, and their faculty suddenly cease to exist, erased from disciplinary identity and recognition. As the AAA resolution declares, Israel now has only one identity, that of an outlaw Apartheid regime. That designation, first affixed by anti-Israel propagandists, and now used by the AAA to demonize Israel in its entirety, remains objectionable for many of us.  The AAA seeks to isolate all Israeli universities from the worldwide community of academics. Their isolation is cemented with the last two especially petty prohibitions, against “Advertising on AAA publications, websites, and other communications channels, including the AAA Career Center” and against “Republishing and reprinting articles from AAA publications in journals and publications owned by Israeli institutions,” though those will eventually accumulate a record of individual harm as well. This effort to cast a group of universities exemplary in their commitment to academic freedom out of the academic community is without precedent and without warrant. It is itself a definitive violation of academic freedom. Universities in Europe and the Americas are themselves in violation of academic freedom for every week that they allow their departmental and institutional AAA memberships to stand. Adding philosophical insult to personal injury, the AAA president declares that the actions above will “increase dialogue about how archeology is used in political arguments” . But perhaps instead there will be further debate about how anthropology should not be politically instrumentalized. In any case, Israelis and Zionists worldwide will not feel welcome in those discussions. The AAA  board generously assures us that Israeli libraries can still subscribe to AAA journals. And Israelis can still attend AAA conferences, though how many of them would wish to when their institutional homes are ostracized and disparaged remains to be seen. But the AAA will still accept payments from Israel and from Jews of all persuasions. Not everyone will be comforted. Opponents of academic boycotts have long recognized that they impede the free exchange of ideas and research results between academic disciplines and across international borders. The AAA has now provided clear evidence of how they will also block educational and research opportunities for individual students and faculty. Universities must not help this destructive agenda go forward.

The statement is also posted here. If you agree, please circulate to colleagues and administrators.

Recess Appointments of Military Officers

A story in the news is that Senate Tuberville (R-AL) is holding up hundreds of military officer promotions because his disagrees with the military's abortion policy. One thing that puzzles me is that the his hold could be overcome if the Senate permits the President to make recess appointments for those positions. Thus, the claim that one Senator can stop these nominations isn't correct. I assume that the Senate leadership has decided not to adjourn for a period long enough to permit recess appointments. Am I missing something?

UPDATE: A reader chimes in that the House of Representatives may be holding pro forma sessions in such a way that the Senate cannot recess. I'm not sure if that's true, but I'll look into it.

Book Announcement - Valiant Judges, Iniquitous Law: Thirteen Stories of Heroes of the Law

Valiant Judges, Iniquitous Law: Thirteen Stories of Heroes of the Law 

This book by the Norwegian law professor Hans Petter Graver collects thirteen stories about judges who have stood up against the power of the state or public opinion to protect the rule of law. The situation encompasses witch-trials of the seventeenth century, racial fury of the deep south in the 1930’s of the United States, Nazi Germany, Israel during the Palestinian Intifada, and several more. The purpose is to inspire and to show that heroic resistance against evil or oppressive laws is possible, even from the judicial bench. Graver is one of Europe’s most renown scholars on how rulers seek judicial compliance with authoritarian measures, how judges react to such measures, and the conditions under which an independent judiciary breaks down. He has previously published works like Judges Against Justice: On Judges When the Rule of Law is Under Attack and edited the special edition of German Law Journal on Judges Under Stress. As authoritarian regimes currently threaten judicial independence in fragile democracies, this vital work unleashes critical awareness, conscience, and courage.

Available here.

A John Bingham Postage Stamp

Let's turn to more important matters. I'm going to try to get John Bingham on a stamp. He's dead and he's important, so he's eligible.

I learned that to nominate someone for a stamp you need to write to the Citizens Stamp Advisory Committee explaining why you think your candidate is worthy. A couple of years later, you get a decision. So I'm going to draft such a request. If anyone would like to join me in this effort, let me know.

You've Got Questions? I've Got Answers

In light of the Baude/Paulsen paper, I want to address some common misconceptions about Section Three.

1.  Unless you want to indulge in a legal fiction, Section Three of the Fourteenth Amendment does not give local and state officials broad discretion to exclude candidates from the ballot. If any official, high or petty, says that Donald Trump is ineligible to run, that case is going straight to the Supreme Court. Thus, there will be a national decision creating a national standard next year.

2. A criminal insurrection conviction is unnecessary to apply Section Three. None of the reported cases on Section Three involved a person charged with or convicted of insurrection. To say that disqualification--a civil remedy--requires a criminal conviction would turn upside-down the relationship between civil and criminal law.

3. Section Three does not apply only to ex-Confederates. The language is general and the Senate specifically rejected an amendment that would have limited the provision to the "late insurrection." The House of Representatives also rejected this view during World War One by applying Section Three to Representative-elect Victor Berger.

More to come . . . 

Long Covid and ME/CFS

This weekend is the seventeenth anniversary of my ME/CFS onset. The skepticism and stigma were so great at the time that I waited nine years to out myself in a post at The Faculty Lounge. Things have improved in the intervening years, as the NIH, CDC, and most recently the British National Institute for Health and Care Excellence (NICE) have recognized ME/CFS (myalgic encephalomyelitis/chronic fatigue syndrome) as a systemic biomedical illness. Even so, there remains a corps of revanchist psychiatrists, mostly in the UK, who continue to insist that ME/CFS symptoms are caused by "dysfunctional illness beliefs" and deconditioning, thus disastrously advising graded exercise therapy, which leads to debilitating crashes that only make the condition worse (as documented in a study by the U.S. Institutes of Medicine).

Now, in a new phenomenon, long covid sufferers are often facing the same medical gaslighting, as described by this column by the novelist Madeline Miller in today's Washington Post:

I reached out to doctors. One told me I was “deconditioned” and needed to exercise more. But my usual jog left me doubled over, and when I tried to lift weights, I ended up in the ER with chest pains and tachycardia. My tests were normal, which alarmed me further. How could they be normal? Every morning, I woke breathless, leaden, utterly depleted.

For me, one of the worst was post-exertional malaise (PEM), a Victorian-sounding name for a very real and debilitating condition in which exertion causes your body to crash. In my new post-covid life, exertion could include washing dishes, carrying my children, even just talking with too much animation. Whenever I exceeded my invisible allowance, I would pay for it with hours, or days, of migraines and misery.

Doctors looked at me askance. They offered me antidepressants and pointed anecdotes about their friends who’d just had covid and were running marathons again.

I didn’t say I’d love to be able to run. I didn’t say what really made me depressed was dragging myself to appointments to be patronized. I didn’t say that post-viral illness was nothing new, nor was PEM — which for decades had been documented by people with myalgic encephalomyelitis/chronic fatigue syndrome — so if they didn’t know what I was talking about, they should stop sneering and get caught up. I was too sick for that, and too worried.

Here is a recent essay I coauthored in Health Affairs about ME/CFS and long covid. We will publish an update later this month.

Environmental Law Chair Search

As part of my law school's hiring this year, we are looking to fill a Chair in Environmental Law. Here is the announcement:

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from experienced scholars for appointment as our McKinney Family Chair in Environmental Law, a tenured position leading the law school’s environmental law program, to begin August 1, 2024. The incoming McKinney Family Chair will hold a J.D. or equivalent degree and have a substantial scholarly record in the environmental law field. The incoming chair should expect to teach four courses, one of which will be a first-year or other required course; advise students with interest in environmental law careers; produce nationally or internationally impactful scholarship; and make substantial service contributions to the institution, community, and/or profession.

IU-McKinney is committed to being a welcoming community that reflects and enacts the values of diversity, equity, and inclusion that inform academic excellence. We seek candidates who will not only enhance our representational diversity but whose research, teaching, and community-engagement efforts contribute to diverse, equitable, and inclusive learning and working environments for our students, staff, and faculty. For details on our commitment to inclusion, see: https://mckinneylaw.iu.edu/about/diversity-inclusion/committment.html.For more information about the school, please visit http://mckinneylaw.iu.edu/. We encourage applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment based on individual qualifications. Indiana University prohibits discrimination based on age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status, or protected veteran status.

IU-McKinney is located in Indianapolis, the state capital and the nation’s 16^th largest city by population, with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams. The McKinney School of Law is on Indiana University’s main urban campus, located downtown between the state capital complex and the White River.

Review of applications will take place during the fall 2023 with initial interviews to begin in November. To apply, please forward a CV, a letter of application discussing your ability to contribute to student success at IU-McKinney and the strengths you will bring to the position, and a list of references. Appointment as a chair will require six letters of recommendation from nationally recognized scholars and a tenure review. Interested candidates may locate other application requirements and submit their application at https://indiana.peopleadmin.com/postings/19576. For more information, please contact the Recruitment Committee Chair, Professor Michael Pitts, at [email protected] or 317-278-9155.

Saturday Music Post - The Entertainer

"The Entertainer" was written by Scott Joplin in 1902. The sheet music sold well, and by 1910 it was distributed on piano rolls played by Joplin himself. Some of Joplin's rolls still exist, but none of "The Entertainer." Most surviving Joplin rolls were "edited" by others, and the only pure example of Joplin's playing is a roll of "Maple Leaf Rag" (maybe for another post some day). The first recording of "The Entertainer" was by The Blue Boys in 1928 (see bottom of the post), on guitar and mandolin, which may explain why it has become such a popular guitar piece. Ragtime had a resurgence in the 1970s with Eubie Blake's Broadway revue and the anachronistic score of The Sting, and arrangements of "The Entertainer" remain popular to this day on piano, strings, woodwinds, horns, and vocal arrangements.

The clips are at The Faculty Lounge.

Understanding Civil Rights Litigation (3d edition)

I am happy to announce that the third edition of Understanding Civil Rights Litigation has been published with Carolina Academic Press and is available for use in Civil Rights and Fed Courts classes the world over. I think (hope) the third time is the charm--I got it where I want it in terms of writing style, structure and organization, and balance among doctrine, case discussion, commentary, and problem sets. I am looking forward to using it in class in the spring.

The book was delayed by about a month because I had to make a series of changes as courts did new things that either changed or supplemented what I wrote. The Court taking seven months to decide Talevski did not help. Naturally, judicial decisions continue to outstrip the book. The Ninth Circuit overruled circuit precedent and joined every other court that § 1981(c) does not create a private right of action and plaintiffs must pursue § 1981 claims against municipalities through § 1983. A divided en banc Fourth Circuit overruled circuit precedent to join every other circuit that preliminary injunctive relief can make a prevailing party entitled to § 1988 attorney's fees.  Two Fifth Circuit judges got into it over whether circuit precedent can clearly establish a right for qualified immunity. All cases would have been helpful to how I wrote pieces of the new edition. I suppose it is inevitable.

Appropriations and Youngstown

The standard story of Youngstown goes something like this. President Truman ordered the seizure of the steel mills. The steel firms sued. They won in the Supreme Court. Congress did nothing.

But this is wrong. Congress did (sort of) do something while the litigation was pending. The Senate rejected a special appropriation that was proposed to fund the government's operation of the mills. This occurred on April 21, 1952. Curiously, this action was not mentioned by any of the opinions in the case (I'm going to double-check, but I'm pretty sure.) Obviously, this expression of disapproval strengthens the case made by the Court that Truman was not executing congressional policy in seizing the mills. I will dig into this further.

Hiring Announcment: Florida State

Florida State University College of Law invites entry-level and lateral candidates to apply for tenure-track and tenured positions to begin August 2024. Candidates in all academic areas are encouraged to apply, although criminal law/procedure, environmental law, international law, and business law are priority hiring areas.

FSU Law also invites applications and nominations for the Tobias Simon Chair in Public Law. The Chair was established in honor of Tobias Simon, a well-known civil rights lawyer and late professor at the College of Law. Candidates must hold a J.D., Ph.D., or equivalent degree, have significant experience (5 years minimum) in teaching and/or practice, and be qualified for appointment as a tenured, full professor. Candidates must have a distinguished publication record in a public law field, including, but not limited to, civil rights and civil liberties, international law, and public policy.

If interested in either/both opportunities, please send a letter of application and curriculum vitae to:

Professor Wayne Logan, Chair

Appointments Committee

Florida State University College of Law

Tallahassee, FL 32306-1601

[email protected]

 

FSU is an Equal Opportunity/Access/Affirmative Action/Pro Disabled & Veteran Employer.

FSU’s Equal Opportunity Statement can be viewed at: http://www.hr.fsu.edu/PDF/Publications/diversity/EEO_Statement.pdf

 

"Oppenheimer" and the Constitution

I have not seen "Oppenheimer" or "Barbie." But I am thinking about how the invention of nuclear weapons served as an important backdrop to Justice Jackson's concurrence in Youngstown as I work through that chapter of the book.

As Garry Wills points out in his book Bomb Power, nuclear weapons changed the constitutional zeitgeist in favor of the President. Why? Because once the President had the unilateral power to blow up the world, it was easier to argue that he had lesser unilateral powers. He has the power to blow up the world because we think that the decision to use a particular weapon is a tactical choice that falls well within the Commander-in-Chief Clause. (A few people asked questions about this at the end of the Trump presidency, but nothing came of that.) It's like an issue that I think I'll write about next year, which is how the draft served the same function for congressional authority (though not so much anymore).

Of course, the argument that the greater always includes the lesser is not correct. And Jackson offered a corrective of sorts in his opinion. I'm not sure if he ever talked about nuclear weapons as such (he didn't in the concurrence), but I'm looking into that.

UPDATE: Actually, there is a great "Yes, Prime Minister" episode that makes this point. The Prime Minister is told that he cannot hire a government cook for #10 Downing Street. He asks: "So I have the power to blow up the world, but not to hire a cook?" Eventually they find a workaround to get the cook, which is revealing in its own way.

Hiring Announcement

I am on the Hiring Committee at my school and we are hiring! See below.

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for two full-time, tenure-track faculty positions at the rank of Associate Professor of Law to begin August 1, 2024. As part of a four-course teaching package (three in the first year), new hires will teach one or more required 1L course(s) and/or one or more core upper-level course(s), including Civil Procedure, Constitutional Law, Contracts, Criminal Law, and Evidence.Applicants must hold a J.D. or equivalent degree. We seek candidates with potential for and/or a record of innovative scholarship, engaged teaching, and institutional service. We also value prior experience as a Visiting Assistant Professor or as a judicial clerk.

 

The Indiana University McKinney School of Law offers competitive salary and generous benefits, a three-course package in the first year for pre-tenure hires, a semester of pre-tenure research leave, a generous professional development account, funds to retain research assistants, and summer research compensation for active scholars.

 

IU-McKinney is committed to being a welcoming community that reflects and enacts the values of diversity, equity, and inclusion that inform academic excellence. We seek candidates who will not only enhance our representational diversity but whose research, teaching, and community-engagement efforts contribute to diverse, equitable, and inclusive learning and working environments for our students, staff, and faculty. For details on our commitment to inclusion, see:https://mckinneylaw.iu.edu/about/diversity-inclusion/committment.html. For more information about the school, please visit http://mckinneylaw.iu.edu/.We encourage applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties.

 

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment based on individual qualifications. Indiana University prohibits discrimination based on age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status, or protected veteran status.

 

IU-McKinney is located in Indianapolis, the state capital and the nation’s 16th largest city by population, with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams. The McKinney School of Law is on Indiana University’s main urban campus, located downtown between the state capital complex and the White River.

 

Review of applications to begin mid-August 2023 with initial interviews to begin in September. To apply, please forward a CV, a letter of application discussing your ability to contribute to student success at IU-McKinney and the strengths you will bring to the position, a writing sample, and a list of three references. Interested candidates may locate other application requirements and submit their application at https://indiana.peopleadmin.com/postings/19574. 

For more information, please contact the Recruitment Committee Chair, Professor Michael Pitts, at [email protected] or 317-278-9155.

 

No, Gov. DeSantis, Slavery Did Not Confer "Personal Benefits" on Blacksmiths or Anyone Else

My new essay in The Daily Beast is in response to Florida’s revised Black History curriculum. It is the remarkable story of Allen and Temperance Jones, and the enslaved blacksmith’s struggle to free his family in antebellum North Carolina. Here is the gist:

How an Enslaved Blacksmith Had to Enslave His Own Family to Win Their Freedom

Most historians were appalled when the Florida Board of Education adopted new standards for the state’s African American History curriculum, including instruction on “how slaves developed skills which, in some instances, could be applied for their personal benefit.”

Gov. Ron DeSantis, however, thought it was just fine. “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life,” the Republican presidential candidate explained.

Trained as a blacksmith, Allen had been able to work for wages on Sundays, the slaves’ only day of rest, eventually saving the $685 required to buy his freedom.

Now able to work full time and keep his earnings, Allen saved the $3,000—a small fortune in those days—necessary to free Temperance and their three children.

North Carolina law required manumitted slaves to leave the state unless they had been freed under narrow circumstances. Allen was compelled to purchase his own wife and children, enslaving them to himself.

So yes, Allen Jones was trained as a blacksmith by an enslaver, but the brutal system did everything possible to deprive him and his family of any personal benefit.

You can read the entire essay in The Daily Beast.

Barbie's Battles & the Darker Side of Mattel

Barbie the Movie has broken all the blockbuster records. I saw the movie - mixing business and pleasure. My book You Don’t Own Me: The Legal Battles That Revealed Barbie's Dark Side (Norton) tells the story of Mattel's decades long dominance in the doll industry. The Barbie Movie produced by Mattel allows limited self-poking fun at the brand while concealing this darker side of the brand and the questionable marketing and corporate ethics that continue to lead to its success. The story of Mattel using litigation - primarily IP and employment contract claims - as a sledgehammer is both specific and universal. The toy industry like m many other industries has become increasingly concentrated, with the dominant corporations demanding boilerplate contracts from their employees preventing post-employment mobility, and in turn new entry, innovation and new products.

More on all this in You Don't Own Me and in an article I will post next week. Meanwhile, as part of my research, I dressed up as Barbie for the movie outing with my girlfriends. Also spoke about the darker side on the Unladylike podcast here. and a Dahlia Lithwick Slate Amicus podcast about the book well before the movie here. #Lawprofessorsjustwanttohavedfun #ImaBarbieGirl

 

Conflicts of Interest at Mar a Lago

My new column at The Hill explains how the lawyer for Walt Nauta, Trump’s codefendant in the “retained documents” case, has conflicts of interest that may lead to his disqualification. If so, Nauta’s new attorney is likely to counsel him to reconsider cooperating with the prosecution. Here is the gist:

There is more than one conflict in Trump’s classified documents case 

A seemingly routine pretrial motion in the Florida “retained documents” case — involving only codefendant Waltine Nauta — potentially spells serious trouble for the former president. 

On the surface, special counsel Jack Smith’s motion for Garcia hearing asks only that the court inquire into possible conflicts of interest for Nauta’s lawyer, Stanley Woodward. The subtext, however, is that Woodward, who has been described as a go-to lawyer for Trump world “bigwigs,” may well be disqualified as defense counsel, and any replacement attorney might be far more inclined to encourage Nauta to take a deal and testify against Trump. 

Woodward is unquestionably an honorable lawyer. I do not doubt that he has obtained Nauta’s formal consent to his representation, following extensive disclosure, which Nauta will confirm in court. Conflicts of interest, however, often have their greatest impact below the surface, subtly distorting judgment, clouding insights and blunting acuity, in ways that the lawyers and clients themselves do not appreciate or perceive. 

Nauta will ultimately decide for himself whether to defect from the defense camp. But Woodward is not the right attorney to deliver the sternest of warnings about the dangers of sticking with Trump. That would be the job of an unconflicted lawyer, and we will soon find out whether Judge Cannon will require one. 

You can read the entire essay at The Hill.

Saturday Music Post - Hickory Wind

"Hickory Wind" was written by Gram Parsons during his International Submarine Band days in the early 1960s, with bandmate Bob Buchanan. Parsons later recorded it with the Byrds for Sweetheart of the Rodeo, one of the few cuts on which his lead vocal wasn't overdubbed by Roger McGuinn. He later released it with Emmyou Harris on Grievous Angel. Parsons caused a controversy during the Byrds' one and only Grand Ole Opry appearance in 1968 when MC Tompall Glazer introduced Life in Prison, but Parsons sang Hickory Wind instead. The audience was already heckling the hippies (who had actually gotten haircuts before the performance), and they booed the seeming disrespect for Glazer. Times have changed.

The clips are at The Faculty Lounge.

From Jotwell: "Constitutional Scholactivism, Foreign and Domestic"

At Jotwell, I have a new jot discussing an article and reply to critics by Tarunabh Khaitan on the subject of "constitutional scholactivism." Khaitan defines scholactivism in a motive-centered way, as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” He "emphasizes the difference between the scholactivist attempt to achieve 'direct, proximate, material [ ] impact through one’s scholarship,' and the scholarly motivation to seek 'merely discursive' impact." He carefully examines and critiques scholactivism and argues that even its supporters should be concerned about it for instrumental reasons.

In my jot, I commend Khaitan for being "willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does." And I argue, for familiar reasons that are usefully highlighted by being viewed through the lens of someone writing about legal scholarship norms outside the United States, that his concerns are especially relevant in this country:

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy....

More at Jotwell. I would add two things here. First, time has caught up with one statement. I wrote that "at least at this moment, one will find no uses of the word 'scholactivism' in the Secondary Sources database on Westlaw. That was true up to the finalization of the draft, but there is now at least one passing reference. Second and related, there is definitely room for more, including both critical and supportive discussion. If, as I argue in the jot, 1) a lot of American law review articles (in constitutional law, certainly, but not limited to that subject) are scholactivist and 2) contemporary law review editors seem eager to champion this sort of goal-motivated scholarship--and I think most would agree with both statements--then those editors should, at a minimum, be looking for work that subjects this approach to close examination and critique. As the excerpt above and a number of my Prawfs posts have made clear, I think American law schools and professors, who alone are responsible for the structure and condition of their discipline, ought to do a lot more than that. Simply treating our field's journals and their editorial structure and decisions, bizarre as they may be compared to other academic disciplines, as something over which we have no control is a form of ongoing disciplinary abdication. 

This is just one aspect of a larger discussion in an interesting pair of articles. Read Khaitan! And by all means read the interesting responses his initial piece received, at least outside the United States. 

Page Limits?

At SEALS last week, I watched an interesting panel on SCOTUS credentials. Panelists were Ben Barton (Tennessee, author of The Credentialed Court) and Renee Knake Jefferson (Houston) and Hannah Brenner Johnson (Cal Western), co-authors of Shortlisted). Ben mentioned the absurd lengths of recent SCOTUS opinions, which he attributed to the changing (and homogeneous-in-some-respects) identities of the justices and their workloads. Ben suggested the need for word-or-page limits on SCOTUS opinions, just as the Court imposes word-or-page limits on the parties.

I agree there might be some merit to this. Here is the question: Could Congress impose that requirement?

Obviously Justice Alito would say no. Now how about the rest of us who actually work with the Constitution's text and structure. Does the "judicial power" and Klein's principle that Congress cannot tell the Court how to decide a case include how the Court writes and structures its opinions resolving those cases? Is opinion length akin to the sources of law the Court can rely on (e.g., requiring originalism or prohibiting international law)?

Leaving comments open for thoughts.

The future of New York Times and SLAPP laws

A federal judge last week dismissed Donald Trump's $ 450 million lawsuit over CNN describing his post-election statements as "the Big Lie." Despite some gratuitous shots at New York Times and the media* (some judges can neither help themselves nor resist the temptation to audition for a higher court), the court recognizes that NYT has nothing to do with this case because every statement at issue is opinion rather than provably false fact and political motivations do not affect speech's constitutional protection. That is, this action fails not because of actual malice but because of the entire First Amendment edifice.

[*] And truly gratuitous praise for the affirmative-action decision, which has nothing to do with anything. Again, cannot help themselves.

The case also illustrates a separate point about anti-SLAPP laws and their importance in protection speech. In my view, the special dispositive motion, which does not apply in federal court in the Eleventh Circuit, is not necessary to deter frivolous defamation suits and protect speakers against the costs and burdens of litigation. Rule 12(b)(6) suffices in most cases to end litigation quickly and without discovery--thanks to Twiqbal (it is hard to plead falsity and actual malice) and to how much of the First Amendment regime creates questions of law for the court (such as whether a statement constitutes fact or opinion).

The real protection comes from awarding the prevailing defendant anti-SLAPP attorney's fees. That alleviates the costs (if not the distraction) of litigation, regardless of how long it goes. One judge in the Southern District has held that Florida's anti-SLAPP law disentangles fees from the dispositive motion--a defendant can recover fees when the court finds the suit without merit and filed for an improper purpose, regardless of the mechanism for that finding. This contrasts with other states in which defendants recover fees when they win on the special anti-SLAPP motion (which cannot be brought in most federal courts). Waiting to see if CNN seeks fees and whether this judge follows his district colleague as to the availability of fees.