PrawfsBlawg

Saturday Music Post - Honey Don't/Blue Suede Shoes

"Honey Don't" was written and recorded by Carl Perkins in 1956. Released as the B-side of "Blue Suede Shoes" (also written by Perkins, perhaps at the suggestion of Johhny Cash when they were headliners on Louisiana Hayride; accounts vary). It became one of the most successful two-sided hits in popular music history (when there were 45s with two sides), perhaps second only to Elvis Presley's "Don't Be Cruel" and "Hound Dog." Both songs have been covered many times, 'Honey Don't" most famously by the Beatles with Ringo's vocal, and "Blue Suede Shoes," of course, was made even more famous by Elvis.

The clips are at The Faculty Lounge.

A Painfully Timely Paper on Aging and, in This Case, the Judiciary

Public discussions of aging high officials seem especially prone to be subject to an enormous amount of bullshitting--including, sometimes, on the part of experts on whom the public ought to be able to rely. Sometimes, and perhaps particularly when it comes from gerontologists and other relevant medical experts, one reason for this appears to be the same thing that drove some questionable, or questionably overconfident, statements from public health officials in recent years: a concern about messaging, even if that concern means massaging the truth. Sometimes, it appears to be a worry about encouraging (or being accused of) ageism. The former is an understandable concern, of course, and the latter is predictively reasonable, as that cudgel has been and will be employed frequently and sometimes utterly insincerely for purposes of batting away concerns. It is accurate to say that every individual's lifespan and the effect of aging on them is better evaluated individually than statistically. It is absurd to deny that aging frequently affects cognitive function and that the older one gets, the closer one's clock runs to zero. It is pure bullshitting to assert that age is "no more relevant than eye color," to share the paraphrased assessment of one academic. (I am unsurprised that this expert is described as specializing in public health as well as aging. It's understandable that public health officials should care about messaging and that a subset of public health experts should care about how to study and design effective messaging. But the public-facing aspects of that discipline strike me as both necessary and clearly its least reliable element.) 

It is thus useful, on the principle that we are more likely to speak plainly and honestly about the subjects that strike us as less urgent, immediate, or important, to see a new paper titled "The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary," by political scientists Ryan Black, Ryan Owens, and Patrick Wohlfarth. Here's the abstract:

Many federal judges in the United States are older and serving longer than ever before. Lifetime tenure combined with advances in human life expectancy have contributed to an increasingly aged judiciary. Yet, this aging comes with likely costs—the effects of cognitive aging on the behavior of federal judges. We apply prevailing neuroscience theories of human cognitive aging to the work of federal judges and examine the potential costs of aging to judicial behavior. We show empirically that aging influences how judges behave across a variety of judicial tasks. Aged judges require more time than their younger colleagues to draft their opinions. Moreover, despite taking more time to complete tasks, older judges increasingly turn to simplistic cognitive shortcuts when bargaining with their colleagues over opinion content, interpreting law, and casting their votes. These findings raise important normative questions about lifetime tenure and the resources the federal government currently allocates to the judiciary.

And here is some relevant material from the article:

Generally speaking, executive functioning relates to the cognitive skills necessary to reason and moderate behavior. As Harada, Love and Triebel (2013, 741) put it, executive functioning involves “the ability to self-monitor, plan, organize, reason, be mentally flexible, and solve problems.”...Studies show that executive functioning declines with age. Indeed, “[t]here is a sharp decline in executive functioning abilities after the age of 60” (Drag and Bieliauskas 2010, 80). In particular, working memory declines with age....Cognitive aging also leads to a decline in reasoning abilities. Reasoning ability touches on logical thinking and the ability to solve problems and draw appropriate conclusions. Powell (1994) finds that reasoning is an “early casualt[y] of the aging process” (86). Salthouse (1991) finds significant age-related declines in inductive reasoning (among other aspects of cognition)....Aged judges may also rely on cognitive heuristics more than younger judges.

Note that the last sentence is based on an assessment of likelihood--that judges who, for age-related reasons, are slower to process information, but retain the same caseload and expectations, may turn to cognitive short-cuts. It is also relevant to the study because it is testable. What is related but less testable and, to my mind, more important is the question of self-monitoring and mental flexibility. Ideally, a judge or other official will be adaptable and respond differently to different situations and changing facts. But if that individual is increasingly inflexible and non-adaptive, that fact will not be readily apparent to outside observers, who may see it as consistency and determination rather than as a symptom of impaired functioning. 

It's an interesting paper. It caught my eye earlier this week. But is no accident that I post it on the morning that Senator Dianne Feinstein's death has been announced. Of course her health and mortality were a question to be evaluated on an individual basis. But also of course, past a certain age the possibility that decline might occur or had already begun, and that death would arrive sooner rather than later, was real and could be predicted with greater certainty based on the simple fact of her age than her eye color.

Happily, judges and senators are easily replaceable. Things get a little trickier with officials occupying offices headed by a single person. In both cases decline is harder to spot, especially to the degree that these officials are surrounded and managed by staff, and far from guaranteed. But neither ought it to be a surprise, and it is certainly not the role of any expert to treat its possibility as being utterly random and no more predictable on the basis of age than on the basis of eye color. Nor is it the duty of any respectable flack or member of the public to engage in the pretense that any mention of such concerns is either baseless or bigoted. Senator Feinstein's death is appropriately big news; but it is hardly surprising news, and neither, given her age, was her cognitive decline. Neither Feinstein's death nor her decline leading up to it were or should have been any more surprising than the possibility that any or all of, say, President Biden, Donald Trump, Justice Thomas, or Judge Newman might already suffer from cognitive decline, or die and/or undergo significant cognitive decline some time in the next few years. Pretending otherwise, for purposes of voting or news commentary, is deceptive--or self-deceptive, and self-deception is one of the major risks of bullshitting--and terrible planning.

To anticipate and discuss this is neither morbid nor disrespectful. To the contrary, bullshitting on the question seems more disrespectful and in some ways more ageist to me than blunt discussion. Very little of the commentary concerning Justice Ginsburg, prior to her death, said simply and squarely that while her death at any particular moment could not be predicted, it was becoming ever more likely that she would die fairly soon, even though the fact was apparent. Is it really more respectful of an older individual's humanity and agency to treat his or her advanced age, and likely decline or death, as being as random as chance, so that one could proceed to argue and pen op-eds and tweets about what ought to be done as if she were not in the room, so to speak, and had become a mere object rather than a subject? Clarence Thomas and Samuel Alito's ethics have become a lively public concern. But is there no room to note the fact that they are 75 and 73, respectively, and quite mortal, rather than (for those who defend and celebrate them) treating them as presumptively undying, uncrumbling edifices? I think it would have been far more respectful to Feinstein to say that her guaranteed vote was more important to the commenter than her humanity or well-being or capacity to reason freely, rather than to engage in the pretense that she was fine, a pretense that was kept up for an unknown period of time before people began going public with their concerns. (One might add that finally deciding to share those concerns publicly may have been as much a dehumanizing matter of worrying about securing her replacement than a respectful acknowledgment that she was failing. We will know more when, as seems nearly inevitable, more comes out about how long and how serious her decline had been, now that her status is clear and her political power at an end. Nil nisi bonum notwithstanding, people are far more willing to share tales of dead politicians and judges than live ones.) It would be more respectful to Biden, and more morally transparent, to say that given the degree to which the staff can run things, the increasing possibility of his decline or death in the relatively near future are less important than which party holds the presidency, and thus that one doesn't really care how he's doing. One can agree or disagree with the position, but that is the position, and nonsense about eye color and the unknowability of the future should be treated as such.      

Trump Loses again, This Time on Recusal

My new essay on CNN.com explains why Trump lost his last-ditch effort to disqualify Judge Tanya Chutkan from his conspiracy prosecution in Washington, D.C.

Here is the gist:

Why Trump’s bid to get rid of Judge Chutkan was a lost cause

Federal Judge Tanya Chutkan got it exactly right when she declined on Wednesday to recuse herself from special prosecutor Jack Smith’s case against former President Donald Trump for illegally plotting to overturn the 2020 presidential election and for conspiring to “corruptly obstruct and impede the January 6 congressional proceeding” for counting electoral votes.

The premise of Trump’s claim, as set out by his attorneys, is that Chutkan made “Disqualifying Statements” (a term they capitalized for emphasis) in two earlier cases involving other defendants. But as Chutkan explained, “a reasonable person” would understand that her statements at the time she made them had nothing to do with Trump’s — or anyone else’s — “potential guilt in a hypothetical future case.”

According to Trump, these comments, plucked out of context from the dozens of similar cases over which Chutkan presided, were evidence that she had prejudged “the core questions of [his] guilt or innocence.” In fact, her comments were made in response to the two defendants’ pleas for leniency, in which they claimed to have been misled and provoked by others, including Trump himself.

Recusal denials are not ordinarily appealable in the middle of a case. That probably won’t stop Trump from attempting to obtain an emergency review in the Court of Appeals or even the Supreme Court. His chances of succeeding in a higher court are negligible, however, and it is a safe bet that this case will proceed to trial with Judge Tanya Chutkan presiding.

You can read the entire essay on CNN.com

Is John Roberts Actually Right about the Need for a SCOTUS Ethics Code?

My new essay on Slate explains why I have regretfully begun to reconsider the value of a Supreme Court ethics code, although only because I fear that the justices who need it most would be the least likely to follow it. The headline (which I did not write) is ironic.

Here is the gist:

It Turns Out John Roberts Was Right About Supreme Court Ethics Rules

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts took it upon himself to explain that the Supreme Court, unlike every other court in the U.S., had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” I disagreed strongly at the time, as have many observers ever since, who have demanded that the court adopt a set of written ethics rules. But I am beginning to have my doubts. It may turn out that Roberts was right, although not for his stated reason that his colleagues are “jurists of exceptional integrity and [unquestioned] character and fitness.”

The real reason to stop hoping for a Supreme Court code of ethics is that it would probably have no meaningful effect on the justices who need it most. They would simply ignore or evade it, just as they have disregarded existing ethics legislation.

Justice Elena Kagan recently joined the call for a Supreme Court code of conduct, telling an audience at Notre Dame Law School that it would “go far in persuading other people that we were adhering to the highest standards of conduct.” I fear that comes too late. Justice Samuel Alito has already declared that he does not recognize the authority of federal ethics laws, never even acknowledging the federal courts’ Code of Conduct, while Thomas simply ignores them.

You can read the entire piece on Slate.

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Congress Isn't the Boss of Him

My new essay on The Daily Beast explains how Justice Samuel Alito made a point of breaking his written commitment to the Senate Judiciary Committee regarding the standard for recusals, going out of his way to show that Congress isn't the boss of him. Here is the gist:

On April 25, all nine justices of the U.S. Supreme Court signed a Statement on Ethics Principles and Practices, which they submitted to the Senate Judiciary Committee.

“In regard to recusal,” the justices unanimously declared that they “follow the same general principles and statutory standards as other federal judges.”

It took Justice Samuel Alito less than five months to renege on his written commitment to his colleagues and the public. In a four-page statement issued on Sept. 8, Alito declined to recuse himself from a major tax case, without a single citation, reference, or acknowledgement of either the federal recusal statute or the “general principles” that he had so recently agreed to follow.

Instead of applying statutory law or Supreme Court precedents, Alito invented an entirely new rule, never before invoked by any justice.

You can read the entire piece at The Daily Beast.

Legal Time Travel

When I advise students on papers involving current topics, I tell them to be aware that a new case could come out that would require them to revise their work. This will certainly be the case for the draft papers on the possible application of Section Three to Donald Trump. The Supreme Court will probably decide the issue before the papers are published.

This creates a curious situation. The Court's opinions may well cite the draft papers. But then the draft papers will be revised to cite the Court's opinion. There's nothing wrong with any of that, but there's a paradox in there somewhere.

Saturday Music Post - Like a Rolling Stone

"Like a Rolling Stone" is literally a song that needs no introduction, but here is a short one nonetheless. It is beyond question one of the greatest rock songs ever recorded. Rolling Stone (the magazine) ranked it number one in both 2004 and 2010, although it fell to number four in 2021. Other rankings -- by the Guardian, Pitchfork, Uncut, and others -- have had it between first and fourth. I doubt that any serious Rock music critic would list it out of the top five of all time. Of course, these rankings are all kind of silly, given the breadth of the music and varying tastes, so please just enjoy the music.

The clips are at The Faculty Lounge.

"Yes, Prime Minister" on Embezzlement

I haven't done one of these posts in a while.

DOROTHY WAINWRIGHT: What's a different way of looking at embezzlement?

SIR DESMOND GLAZEBROOK: "Usually, it's just a chap who's advanced himself a short-term, unauthorized, unsecured, temporary loan from the company's account and invested it unluckily. You know, horse falls at the first fence, that sort of thing."

Maybe I'm part of the problem

With Yom Kippur upon us, it is time to confess my sins in response to Paul's post, because I am part of the problem:

Prior to COVID, I wore slacks and a tie when teaching (often a tie linked thematically to the day's class), although I wore shorts, a polo, and a quarter-zip on non-teaching days (I live in Miami, where it is hot 49 weeks a year and very warm the other three weeks).*

[*] A former student sued me a few years ago. The complaint, alleging a due process violation, included allegations about how I dressed).

When I taught online during COVID, I adopted my non-teaching outfit for the video classroom space. The shorts were out of camera and the quarter-zip-and-polo looked nice enough. I lived in Philly and taught online during fall 2020; John Fetterman was running for Lt. Governor, and, needless to say, I became a fan.

I continued wearing that outfit when I returned to teaching in-person-but-masked in fall 2021. For precedent, I pointed to basketball coaches--who used to wear dress clothes on the sideline, from Pat Riley's Armani suits to the unfortunate 1970s:

That is until COVID, when coaches insisted on wearing comfortable clothing (warm-up pants, quarter-zips, sneakers) to go along with masks. And there is something weird about a mask with a suit or otherwise nice clothing. So, I told my students, I would continue with shorts and a polo and a mask in the classroom. With the lawsuit fresh in mind, I assured them this did not reflect on how seriously I took teaching or how the class would be conducted.

When I removed the mask in fall 2022, I said the hell with it. I had become comfortable (again, wearing pants and a nice shirt in Miami is miserable), it did not change the quality of my teaching (for whatever that is worth), and it did not change how students interacted with me in the classroom or their seriousness in preparing and engaging in class.

As Paul said, a classroom is not the U.S. Senate. And I dress "appropriately" in other contexts, such as commencement or when serving as moderator of a school-wide lecture with a visiting judge. I think about whether this is the wrong choice and whether to go back to wearing slacks (or at least jeans--which I probably would in a place that had seasons), if not all the way to wearing ties. The recent dust-up and the resulting discussion of "professionalism" puts this back on my radar. So far, my desire for comfort in hot weather prevails. 

S'lach li.

More in memory of JoAnne Epps (Guest Post)

The following post is by my FIU colleague Kerri Stone; Kerri served as a Freedman Teaching Fellow at Temple prior to joining FIU.

I met JoAnne Epps when she was not yet President JoAnne Epps, nor Provost JoAnne Epps, nor even Dean JoAnne Epps, but Associate Dean and Professor JoAnne Epps, and I was a teaching fellow at Temple University’s Beasley School of Law. Although fellows were not eligible to be hired onto the faculty from the teaching market, JoAnne, along with others on the faculty, spent time and energy mentoring us and making sure we could handle ourselves everywhere from a classroom to an academic conference, to a faculty meeting. Because she was a generous mentor, we were the beneficiaries of her vast wisdom, advice, and stories.  We learned from her example that a law professor could be simultaneously warm and funny, but also rigorous and formidable. We all turned to her for advice countless times, and as busy as she was, she made the time for us. Having spoken to others over the years, I now know that she made everyone—her students, her most junior colleagues, and her friends, even those she hadn’t seen in years—feel like she had all the time in the world for them. That is a real gift.  I was reminded of this gift of hers again just a few years ago, when JoAnne came to Miami and made the time to visit my law school to address our faculty. I was lucky enough to be invited to lunch with her and a mutual dear friend of ours on our faculty, Professor Joelle Moreno. Sitting with the two of them, laughing and discussing our lives and careers, is something I still remember vividly. JoAnne Epps was a true mentor and friend whose graciousness and generosity one-on-one will always be her legacy alongside her tremendous accomplishments in the legal academy.

Some Thoughts on the Remarkable JoAnne Epps (Guest Post)

JoAnne Epps--former faculty member, law dean, provost, and acting president at Temple--died Tuesday. The following remembrance is by my FIU colleague Joelle Moreno. If you have and would like to share remembrances or experiences with Prof. Epps, feel free to email them to me; I am happy to post a collection.

JoAnne Epps is the reason I am a law professor.

We met 30 years ago this summer. I was a new(ish) DOJ prosecutor sent to Boulder, Colorado to hone my trial skills. I’m not sure what I expected from NITA Nationals, but teaching was not a priority at my law school, and it showed. After three years of boring, self-important, pedantic performances from my own faculty, I was wholly unprepared for JoAnne.

JoAnne was, and I choose this word carefully, unique. 

When she walked into the room, JoAnne scared the shit out of you. It wasn’t just her poise, charm, and easy sense of humor. JoAnne immediately sized us up, this room of blowhard junior litigators and proto trial lawyers seeking to prove ourselves at big firms or government offices. She saw our strengths and weaknesses and, as we rose in turn to make our opening statements and summations, each of us pretending that our egos were not on the line, JoAnne cut through the nonsense with inarguable truths and incisive criticism. I’d never seen anything like her, as sharp and useful as a knife but indelibly herself. Hard to imagine today in our academic reality of eggshells and Stepford faculty.

If you knew JoAnne or even if you just heard her speak, her passion was unforgettable. Whether she was in class, explaining exactly why your theme and theory of the cases would never fly, or lingering over a glass of wine to describe a San Diego NITA faculty all-nighter to Tijuana, where they arrived back in the U.S. just in time to start teaching the next day, she was exuberant. At a youthful 72, JoAnne’s enthusiasm, dedication, and brilliance never diminished. She was irrepressible a few years ago when we co-hosted a boot camp at FIU on teaching and presentation skills. JoAnne taught by example that truly excellent teaching requires perception, self-acceptance, and candor.

JoAnne was recently enticed out of a planned retirement by her deep commitment to Temple University which she served with such dexterity for so long. Her passing is a blow to her family, friends, school and to everyone lucky enough to have known her. I am grateful for her friendship and saddened by her loss.

Dress Codes and Dress "Code"

I was surprised that the New York Times coverage of the change in Senate dress codes did not draw a closer connection to one of its own stories, which appeared in the paper on Sunday, a couple days after Majority Leader Schumer--quietly and late on Friday, with the inevitable purpose of that timing: to bury the news--told the Senate of the change. That story appeared in the always target-rich Style section. It focused on the clothing choices of "Gen Z politicians," which it described as chock-full of Doc Martens, berets, and mismatches. As is fairly common, the sub-headline to the story drew on a passage from the story, but altered and subtly it, in a way that called attention to the story's actual meaning. The sub-headline reads, "Many of the country’s youngest elected officials hope to express authenticity through their clothing choices." The actual line in the piece is that "some [of the lawmakers interviewed] said their clothing choices reflect a priority to appear authentic."

I have added the emphasis but one hardly needs to. One doesn't need a keen eye to spot the difference between being authentic, whatever that means, and having "a priority to appear authentic." Perhaps the subhed could be rescued if one read "express authenticity" as "convey authenticity" or "perform authenticity." But I don't think that's what it was trying to convey. And what it does seem to convey is certainly not expressed in the interviews themselves, which features many clothing labels and bold assertions, little originality, and occasionally, a clearer glimpse at intentions. Thus, one lawmaker says, a little sadly and a little strategically, "I feel like there’s a direct connection between Doc Martens, and a certain style, and progressive young people." Another says, "I wear what I want to wear" and "I'm my own gal"; that turns out to mean Ann Taylor, Ralph Lauren, and Calvin Klein, but not in matching sets. And a third--again with the Doc Martens!--"has also been known to wear a black beret, a style of hat adopted by the Black Panthers, at public appearances," and says "it felt me." But it is also necessarily a costume--more specifically, an "I am invoking the Black Panthers" costume--and he acknowledges that it has become a politically useful recognition tool. Someone from an organization that supports candidates from historically marginalized groups tells the paper, "They can only be who they are....They are just unwilling to pretend in a way that is really appreciated." The story of course makes it clear that a quote like this is itself a politically useful performance of independence and authenticity. It's uniforms all the way down.

It's hard not to read this piece alongside the Senate dress code change, which has occasioned two Times stories: one is a reasonably straightforward recounting and the other is a reasonably straightforward bit of partisan propaganda and apologetics under the guise of a "Congressional Memo." The gist of that rather Internet-meme-heavy piece is that this is a bunch of "hand-wringing" by mostly Republican hypocrites--that the change raises the genuine (and to my mind interesting) question "what it means to show respect for the body in which one serves," but that the complainers live and act too awfully, in ways the column lists at length and with relish, to have any standing to object. For good measure, it raises the "how dare you worry about issue X when you could be worrying about issues A-W" objection, a favorite of social media and almost never a sound one. In fairness, if the piece is itself a bit of a performance, the people complaining in the piece are themselves performing, making a loud show of outrage for the cameras, which is why they are predominantly Republican. For their own electoral and political reasons, the Democrats would naturally complain or express concern mostly in private, and I don't doubt that some or even many have.

My own view, as an institutionalist and as one more in an endless number of people who believe in the importance of shoring up our institutions and respect for them (even if often undeserved) in a time of increasing assault on them, and perhaps increasing indifference to the idea of institutions as such, is that the change is bad and a bad idea, and that it's understandable that Schumer, who is not much of an institutionalist, did his best to do it all on the QT. For possibly the first and last time in my life, I think Rep. Marjorie Taylor Greene, despite her own manifest and multivarious failings in the fields of institutionalism and basic dignity and respect, gets it right when she says, "Dress code is one of society’s standards that set etiquette and respect for our institutions." That is correct, the messenger notwithstanding. And, of course, the leading indication that the change is neither progressive nor evolutionary is that it applies to the senators alone and not to the many officers who work hard on the Senate floor daily, or the many staffers who regularly visit the floor. (The second Times piece, once it has almost exhausted its partisan purposes, gets around to this in the last two paragraphs of the story, although even then it does its best to paint it as a typically Democratic concern, despite the fact that only one Democrat voiced it and the story otherwise paints most Democrats as being right about not objecting.) The proper description of a rule change that applies only to the members of the Senate and not to its staff is decadent and aristocratic.

I should offer two caveats, one institutionalist in nature and one personal. The first is that I am of course not opposed to changes in a dress code over time. They are inevitable, just like all institutional change, and frequently positive. Some of those interstitial changes strike me as perfectly in keeping with the idea of a respectful dress code even as they mark real changes and efforts at inclusion. Religious headgear, for instance--the newsier Times piece notes that Rep. Ilhan Omar wears a hijab in the House--is perfectly respectful, both to oneself and to the institution; it's neither sloppy nor casual as such. Other changes are no doubt subject to debate; as someone with two fused ankles who relies on comfortable footwear to avoid shuffling around like Frankenstein's monster, I am sympathetic to the appearance of "dress sneakers," but happy to let the point be argued. At any given time, probably most will converge on the view that other items, such as Sen. Cruz's sweaty gym clothes or Sen. Fetterman's hoodies and shorts, are outside the realm of current acceptability. (I would hesitate more over the latter, given his recent illnesses, but he has in fairness been performing political "authenticity" through his clothing choices for a long time.) One may be especially respectful of the fact of change given, to put it in the usual academic terms, the potentially gendered, racialized, and sexualized nature of dress codes. But one can be respectful of that fact, and welcoming of relevant changes, without either thinking erroneously and disrespectfully that any category of person rejects the idea of respectful and dignified dress, or concluding that the best response is simply to have nothing at all--let alone thinking that the best response is to have nothing at all unless you're staff.

The second note is that people sometimes talk about professorial dress codes, and if there were one I would not meet it and would probably ignore or defy it. I am still flabbergasted when I visit some law schools, especially fancy-pants (so to speak) schools, and find suits or their equivalent to be the professorial order of the day. As I've said here before, only in such a lockstep environment could Duncan Kennedy's famed leather jackets be taken as a meaningful act. I generally don't care what my colleagues wear, and especially not what my junior colleagues wear. But I wouldn't build a rule around my choices, and in any event wouldn't call what I wear "authentic"--even when I wear my own (orthotic-modified) Doc Martens. It's closer, perhaps, to a tribute to the sadly disappearing tradition of academic eccentricity, and thus also a kind of performance. Of course students, and the classroom, demand respect, and I hope I give it, in however left-handed a fashion. But the classroom is still not the United States Senate.    

      

Section Three Symposium (Maybe Later)

A month ago I suggested that we have an online symposium here on Section Three. At that point, I was still concerned that the issue was not getting enough attention.

That's not true anymore. Thus, I don't know that there is a need for such a symposium right now. When we get closer to a Supreme Court case, though, I'll reconsider.

Constitutional Friction

Richard Posner wrote a short book about Bill Clinton's impeachment that contained a fascinating insight. High-profile constitutional disputes share some of the attributes of war described in Carl Von Clausewitz's classic "On War." "On War" is probably the greatest unfinished work ever written (Clausewitz died in an epidemic before the work was complete) and is more philosophic than military.

One of Clausewitz's observations was that war never goes according to plan. (Mike Tyson updated this idea by saying that "Everyone has a plan until they get punched in the mouth."). Complex constitutional litigation (or interpretation) can be similar, in that the issues take on a life of their own and there are often obstacles that don't become clear until the dispute begins. (Clausewitz called this friction in war.)

Another of his points was that there are many surprising twists and turns in war. Things never move in a straight line. This is also true for complex or novel constitutional litigation or disputes. Ordinary litigation is more predictable.

Finally, Clausewitz emphasized the role that chance played in war. You can say the same for some constitutional cases, as I've discussed in some of my historical work. (Senator Robinson's death in the midst of the Court-packing fight might be one example, though people still argue about how important that random event was in defeating FDR's plan).  

Mea Culpa, Admission, Advertisement, or Fashion Statement?

In the Atlantic, former American Constitution Society executive director Caroline Frederickson writes to express her regret that "[i]n my decade running the American Constitution Society, I never gave much thought to political-economic issues such as antitrust and competition policy—they were just not on our agenda," focusing instead on, inter alia, abortion, voting rights, and "demographic diversity" for judges, but not questions such as "where [they] stood on the question of corporate power." This despite the mantle of progressivism claimed by the ACS and its genealogical ties to the "progressive advances of mid-20th-century America” on questions of "political-economic arrangement[s]."

I am happy to take this as sincere (with an asterisk, if only because magazines like the Atlantic are not designed for and mostly don't rate high on deep candor). I went back and looked at the ACS's list of occasional policy briefs and other publications, including leafing through the two early ACS books that have long gathered dust on my shelves. To give it its due, it has had a couple of publications that fall more on that side of things, but in general she is right. I can't say it bothered me; I understood its focus to lie elsewhere and I don't expect every group to do every thing. But one might speculate about some of the reasons why it took that focus and, on her account, neglected economic issues. Four possible and possibly related factors occur to me, which perhaps illuminate both Frederickson's piece and the political economy, as it were, of the advocacy sector in which she has spent so many years:

1: Those issues weren't fashionable. Lina Khan was not yet out of grade school when the ACS became a national enterprise. It became a going concern when the present leaders of the Democratic Party were still relatively youthful—merely in late middle age. The issues she now wishes it had focused on more were just not au courant. It is perhaps indicative of this that the piece refers, in a very past-tense, "imagine that" way, to the fact that, way back when, "[e]ven Democrats had gotten on board with parts of the deregulatory agenda." She should know! She was Special Assistant to the President for Legislative Affairs during the Clinton Administration. There was more liberal love in her heyday, and the early days of the ACS, for cost-benefit analysis and tradeable emissions permits than there was for aggressive antitrust law. 

2: The ACS has never been a creature of the left. The issues Frederickson is now concerned to highlight are far more associated with the left than with generic liberalism as it existed roughly between 1990 and 2016. And the ACS, notwithstanding whatever casual linguistic elisions its detractors might use in referring to it, was never a left institution. It was a conventional liberal institution. To be sure, following the usages of the time, it always referred to itself as progressive; but that usage has more to do with the Dukakis-hangover-based decision to use the term "progressive" instead of "liberal" than with any sort of vigorous, old-school, Joe Hill, "Solidarity Forever" progressivism. The genealogical history she invokes in her Atlantic piece was, at least at the time, just that: history. More ACS luminaries in the first decade of the millennium would have had Fleetwood Mac or Joni Mitchell on their CD players than Billy Bragg or Fugazi. I'm not sure much more evidence of its fundamentally liberal-not-left nature is needed than the fact that even this piece lamenting its failure to be more old-school left appears in the Atlantic, which is echt-liberal and follows liberal fashions as routinely as a clock tells the time. It is natural that the group's causes embraced what was fashionable or conventional for liberals and not leftists. 

I wonder, along these lines, what legal scholars on the genuine left make of a piece like Frederickson's. What would someone who, when the ACS was getting off the ground, thought at the time that liberals neglected fundamental questions of economic power, and was busy forcefully saying so to unreceptive elite audiences (when they could secure them), make of a confession like this? What would someone who persisted in then-highly-unfashionable Critical Legal Studies views, in which liberals and soi-disant progressives were not so much allies or cousins as part of the problem itself, make of it? (Pace Samuel Moyn, incidentally, I think many of the folks who are putting "and political economy" or "political economy of" in their law review article titles these days are far closer in relation and inclination to standard-issue liberalism, or its modern and more fashionable variants, than they really are to Critical Legal Studies in any genuine sense. Certainly, to adapt a phrase from Richard Posner, many of them write left—sometimes only as long as the abstract and introduction—and live liberal. Take the very fact of the confession’s placement in the Atlantic as an exhibit, if you like.) Do they feel frustration? Exasperation? Better-late-than-never relief? Or perhaps amusement? 

3: Last-war syndrome. The introduction to the 2009 collection The Constitution in 2020, which was more or less a kind of ACS action agenda, says that "[t]he key to the future is not a return to the battles of the past." Perhaps. But most of us, being attached to our habits and not blessed with prescience, tend to fight the last war anyway, or at best the next election cycle. (Despite the Supreme Court’s shift in focus, more originalism-is-wrong papers are uploaded on SSRN in a given week than traditionalism-focused papers are published in a year.) The ACS spent most of its loudest decade fighting Bush v. Gore (including well after the case was over) and 9/11 issues and burnishing resumes for the hoped-for return of a Democratic administration. Like most groups, it talked about being forward-looking, but most of its activities and publications were firmly rooted in the issue of the day. Or even of the past: it issued more “retrospectives” on various past questions than papers aimed at the future. (In the Constitution in 2020 book itself, two chapters out of 27 focuses specifically on the kinds of issues Frederickson now foregrounds; one, by William Forbath, was more forward-looking; the other, by Frank Michelman, was arguably more of a reprise.) 

4: Follow the money. I don't mean this to refer to Frederickson, the author of the piece; I mean it more generally. Not incidentally, the author bio in Frederickson's piece identifies her as "a visiting professor at Georgetown Law and a strategic councilor on democracy and power at the Open Markets Institute." The latter, for which her piece in effect serves as a bit of PR at the mild expense of her former employer, is a 501(c)(3) that describes itself in its filing as "a team of journalists, researchers, lawyers, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country." Such noble struggles take money, or some combination of money and prestige, the latter of which both lures more money and serves as a salary substitute. As such groups go, the Open Markets Institute seems neither highly funded nor profligate. Its Form 990 from 2021 shows gross receipts of around $2,746,000, and it does not spend outrageously on fundraising or on executive salaries; the salaries of the top three executives merely place them in the top 16 percent or so in terms of American household incomes, not including other sources of income or possible spousal income. (By contrast, the American Constitution Society gives Russ Feingold the honor of serving as its president at a cost in salary that, without counting any additional income, places him in roughly the fabled two percent. Surely that identifies it as American liberalism.) 

In the high-minded-causes sector, the necessary money comes from wealthy and ultra-wealthy donors and foundation directors who have convictions and/or the desire to show others that they have them. Even a fairly lean and economical group needs some cash. The Open Markets Institute's major donors thus include a raft of familiar names: the Knight Foundation, the Hewlett Foundation, the Lumpkin Family Foundation, the Omidyar Network Fund, and so on. (A note at the end of Frederickson's confession of regret further specifies that "[s]upport for this 'project' was provided by the William and Flora Hewlett Foundation." I added the internal set of quotes around 'project,' since I have never heard a short penitential piece in the Atlantic described by that label. The folkways of this country are still strange to me.)

I admittedly don't personally see much that is right or good about this general American ecosystem, but in more immediate and specific terms I don't see anything wrong with it; the Open Markets Institute's rather forcefully stated cause is not outlandish and, after all, officially speaking it opposes monopolies, not billionaires, gross amassed or inherited wealth, trust funds and trust fund kids, capitalism, or the outsized influence of the donor class on democratic politics. But the donor class has to be persuaded to fork over the dough for such missions. And that class follows the fashions, among other reasons for making funding decisions. The portion of that class that funds causes that are left rather than right of center is now keener to fund, and/or to be seen funding, economically oriented causes like that of the Open Market Institute than it may have been twenty years ago, when it was happier to fund socially oriented causes. The reasons, interests, self-interest, and incentives of wealthy individual and institutional donors are opaque to me. But it is not surprising, given all these reasons, that the ACS would have focused its energies on the issues it chose and not elsewhere, that its major figures would have done the same, and that the action has now, to some degree, shifted elsewhere on the gameboard. 

 

Just to Correct the Record

I was quoted in a recent ABC News story that may give readers the impression that I am skeptical that Section Three applies to Donald Trump. This is, of course, not the case. I was merely describing some of the arguments that Trump might make in the upcoming cases. The most complete presentation of my own view is in the NPR interview that I did with Meghna Chakrabarti last Monday.  

Biden v. Nebraska and Strategic Ambiguity in Judicial Rhetoric

Clarity is often thought to be the cardinal virtue of judicial writing, but judges—like all authors—sometimes make use of strategic ambiguity, too. A fascinating example appeared near the end of the Supreme Court’s most recent term. Appropriately enough, the occasion was an exchange on the propriety of disparaging rhetoric.  

Start with this passage, which appears near the end of the Chief Justice’s opinion for the Court in Biden v. Nebraska:

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.

The Chief was expressly concerned with “some recent opinions,” but he chose to make this point specifically in Nebraska. Why? The answer may partly have to do with the fact that Justice Kagan authored the dissent in that case. Like the Chief himself, Kagan is an institutionalist. And she had recently heaped collegial praise on the Chief at the Friendly Medal ceremony (see here). The Chief might therefore have expected Kagan to be especially open to a call for mutual respect.

So, how did Kagan react? Here is the key passage:

From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.

My main interest is in the portion of this passage that I have underlined. What is happening in those sentences?

My initial read was that Kagan was being somewhat conciliatory, consistent with her remarks at the Friendly Medal ceremony. While obviously continuing to press a serious disagreement, she nonetheless wanted to acknowledge the Chief’s perspective (“The majority is right …”) while exhibiting a degree of mutual respect. On this reading, Kagan wanted to signal “disagreement,” not “disparagement.” I know that I am not alone in having come away with that impression.

However, I have become aware of another, almost diametrically opposed reading. Instead of being conciliatory, Kagan could be read as ridiculing the Chief, sarcastically mocking his schoolmarmish attempt to police her rhetoric. The fact that the terms “disparage” and “reasonable minds” are placed in quotation marks arguably supports this reading. (To my own surprise, I couldn’t help but put these words in air quotes when reading this passage aloud.)

I’ve now asked more than a few people about this passage. These folks include law students, professors, and practitioners. My casual polling suggests a roughly even split across all these groups, with some views in between. 

What can we learn from this? One possibility is cautionary. Writing is hard and easily misunderstood. Tone is especially elusive when it comes to the printed word, and readers are apt to ascribe whatever intonation they expect. Here, Kagan may have intended to convey either the first reading or the second one (or something else). But, if so, that effort proved less than perfectly successful.

Another possibility, however, is more interesting. Could the genius of this passage lie precisely in the fact that it is subject to such divergent readings? 

Imagine a hypothetical justice in Kagan’s position here. The imagined dissenter would have a strong interest in placating the Chief, to say nothing of other members of the majority coalition. Further, the dissenter might want to preserve public respect for the Court, which is both an important institution and the main source of the dissenter’s own prestige. At the same time, the dissenter would not be eager to bow to a call for civility. The dissenter might to want to stoke outrage regarding the majority, avoid diluting her own opinion’s rhetoric, and promote her personal reputation among the Court’s critics. 

Ambiguity allows the dissenter to accomplish all these goals. People like me and, perhaps, the Chief read the passage as conciliatory because we expected conciliation. By contrast, others read it as sarcastic because they expected sarcasm. Readers may not even notice the ambiguity. And, when the ambiguity remains invisible, it operates with maximal effect. These reader-specific responses allow a strategic writer to have her cake and eat it, too.

Cross-posted from Re's Judicata.

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.

The 1792 Militia Act

In doing research on the Whiskey Rebellion, I learned that the 1792 Militia Act required the President to get a Supreme Court Associate Justice or a federal district judge from the circuit affected to "notify" him of an insurrection before the militia could be summoned. (Why the Chief Justice was excluded is not clear, but I don't recall how the Chief Justice's circuit duties worked under the Judiciary Act of 1789.)

This notification requirement is fascinating both from a separation-of-powers point of view and because the Act confirms the idea (expressed forcefully in the Youngstown concurrence) that the President's authority to use the military for domestic law enforcement was always seen as more circumscribed.

 

The Alito Veto

My new essay at The Hill addresses Justice Samuel Alito’s shocking statement that federal ethics law does not apply to him.

Here is the gist:

Alito wasn’t bluffing: He believes the Supreme Court is above the law

by Steven Lubet, opinion contributor - 09/18/23

Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.  

Alito laid down his marker in the second sentence of the statement, with a blunt declaration that “Recusal is a personal decision for each justice.” That assertion of personal choice goes well beyond the court’s “historic practice” of assigning recusal motions to the justice in question. As both the late Justice Antonin Scalia and the late Chief Justice William Rehnquist have explained, individual justices must still follow the “objective” standard found in the federal recusal statute, mandating the disqualification of any judge or justice “whose impartiality might reasonably be questioned.”  

Instead, Alito’s personal vision dominated his non-recusal statement, ignoring the statutory rule in favor of a previously unknown “sound reason” test of his own devising.

It is yet to be seen whether Alito will continue to consider stock ownership a “sound reason” for recusal, given his newly expressed disdain for the provisions of federal law. He has so far “voluntarily complied” with financial disclosure requirements, but perhaps he will eventually decide there is no “sound reason” for him to keep reporting on his stock holdings.

You can read the entire essay at The Hill.

Worthwhile Canadian Initiative

In 1986, The New Republic ran a contest to see if anyone could find a more boring headline than "Worthwhile Canadian Initiative," which appeared on a Flora Lewis column in the New York Times. According to Michael Kinsley, some of the nominees were "University of Rochester Decides to Keep Name," "Trade: A Two-Way Street," ""Prevent Burglary by Locking House, Detectives Urge," and "Debate Goes on Over the Nature of Reality."

I don't know if there was ever a winner, and I believe the contest just faded out rather than formally ending, but I do believe there was a worthy entrant in today's Chicago Tribune:

"Naperville Public Library Debuts New Catalog System."

That would be newsworthy in, oh, Naperville, but it was on page 6 of the Sunday Chicago Tribune, which underscores just how much even major metro papers have become localized. Nobody reads the Trib for national or international news.

That is not all bad, of course. Today's Sunday Trib has excellent front page stories on Chicago recycling, Illinois bail reform, the Bears’ first black quarterback, and Illinois’ role in the Underground Railroad. The editorial page has a cool Ron Grossman article on the history of limestone quarrying for Chicago buildings (he is worth reading every week), and David Greisman’s fifth essay (out of five ) on Illinois' looming pension disaster. And then they have to fill the inside pages with something.

(Also, Michael Kinsley is famous for the observation, "the scandal is what's legal," which is something we can apply today to the Supreme Court's ethics and disclosure obligations."

 

Dr. Glaucomflecken on Illegal Fees

 

 

Happy Constitution Day!

To celebrate, I would urge you all to read John Vlahoplus's paper on "Insurrection, Disqualification, and the Presidency," which methodically lays out the argument and the evidence that the President is an officer of the United States for purposes of Section Three. I have put forward some of that evidence in posts here and will go over that again soon, but Vlahoplus does so much more systematically. 

Saturday Music Post - L'Shana Tova

Today's post features Chicago's own Maxwell Street Klezmer Band. You can find the clips at The Faculty Lounge.

Judicial supremacy and proceduralism

I seem to be spending the day reacting to Gerard. He wrote this at Balkin, pointing out that many secretaries of state will not act in the absence of a SCOTUS ruling and will not take the steps necessary to obtain that ruling. Much commentary (especially from non-legal-scholars but also from lawyers who should know better) has taken the tone of "no secretary of state can keep Trump off the ballot, only SCOTUS can."

The problem strikes me as a combination of judicial supremacy, misunderstanding procedure and how cases come to the Court, and an assumption that everything is an EpY action in federal district court. Accepting the Court must have the last word, that is the end of the game; something must happen at the beginning, when someone does something to trigger judicial review. The pervasive lack of understanding (or bad faith) means no one will understand or accept when a Secretary of State excludes Trump from the ballot to create the opportunity for litigation. Nor will they accept the case going through state rather than federal court. Everyone seems to be waiting for a random person to file suit in federal court, ignoring the obvious lack of standing.

Is a hedgehog a momentary fox?

A quick thought on Gerard's post:

Is everyone a hedgehog in the moment of working on one large project or series of connected projects, before turning to the next (perhaps unrelated) project. Gerard is a hedgehog on § 3 for now. Come 2024, when this is resolved, he becomes a hedgehog on Youngstown. Big picture, of course, he is a fox across projects. And it seems as if many of us operate that way.

Blogging allows some foxiness to come through. While hedgehogging over a particular book or series of papers, I can write, however briefly, on outside subjects.

Humor = Truth + Pain

The brilliant musical satirist Tom Lehrer was only half-joking in 1965 when he wrote these lines in "National Brotherhood Week":

Oh, the Protestants hate the Catholics/

And the Catholics hate the Protestants/

And the Hindus hate the Muslims/

And everybody hates the Jews.

Jewish himself, Lehrer's humor often relied on the comic device of combining truth and pain, while adding sufficient distance (or time) to blunt the sting. "National Brotherhood Week" is funny because listeners recognized the reality of pervasive antisemitism (and other bigotry in other verses), but were simultaneously able to dismiss it as something from another time or place. The same goes for the other caustic lyrics in the song. The audience could wince and laugh at the same time.

It turns out that there is still more truth to the lyrics than Lehrer probably realized. Former Democratic Congresswoman Cynthia McKinny recently endorsed former KKK Grand Wizard David Duke's to livestreamed conference titled, "Can Black People and White People Work Together to Defeat Our Common Enemy?"  The "enemy" was represented by a large Star of David. (Image after the jump.)

The conference was held on September 11, no doubt because both McKinney and Duke have enthusiastically spread the conspiracy theory that Israel was behind the 9/11 attacks on the Twin Towers. Antisemitism may be the only thing the two of them agree on.

If Lehrer were still writing songs (at age 95) he might be tempted to add another verse to describe the unexpected alliance between the African American former congresswoman and the notorious white supremacist.  But it wouldn't be funny. There would be truth and pain, but tragically, no distance.

The antisemitic image promoting the conference is after the jump.

Life as a Hedgehog

For most of my career, I was a fox. I wrote about intellectual property and constitutional law. Within constitutional law, my projects were varied. They were usually historical, but there was no particular relationship among them. Move on to the next thing and don't look back--that was my unofficial motto. In recent years, you could say that I wrote more on the Fourteenth Amendment. And I have a special place in my heart for John Bingham. But I would joke with people that I wasn't an expert on anything.

Now I am a hedgehog. At least until the Trump litigation ends. Section Three of the Fourteenth Amendment all-day, all-night (as the posts here prove). What's that like? Well, in one sense it feels great being an expert on something. With every other project, there was always a nagging feeling that I didn't understand the source material or was missing something important. With Section Three, that's not the case . There are important arguments about what the materials mean or how we should interpret them, but I have no doubt that I know what the materials are and have read them all. In another sense, though, I'd rather be working on my Youngstown book, which probably will need to hibernate until the Spring. Not because that book is more interesting than a constitutional issue pivotal to the next presidential election, but just because it's different and takes me to an entirely different era and constitutional space.

I can't imagine that I will be a hedgehog again. But I would never have imagined that I would be one now.

A New Form of Originalism

Steve Calabresi has a Letter to the Editor in the WSJ arguing that Section Three cannot apply to Donald Trump because Trump was not "an officer of the United States" under that provision. Why does he believe that? Because he thinks that the term "officer of the United States" did not apply to the President in the original Constitution. What about the evidence that the original public meaning of the term was different in 1868? My understanding is that Professor Calabresi considers that evidence irrelevant.

I'll leave this debate to the originalists, but I must admit that I've never heard of this form of originalism before. I thought that we were supposed to ascertain the original public meaning of the words when ratified. A prior legal understanding (what Jason Mazzone and Cam Tecimer call "interconstitutionalism") informs the original public meaning, but that cannot be the end-all and be-all.

UPDATE: Professor Calabresi now has a post on Volokh laying out his view in greater detail. He does not think that the evidence from 1866-1868 is irrelevant, but he does think that it is inadequate. I'm not sure, though, whether he is aware of how much evidence there is. 

 

A Vibrant, Well-Resourced Press is Vital, and Often Total Crap

Anyone who writes on speech and press issues cares deeply about the disappearance of the local press and the often precarious status of even larger city papers. Journalists and former journalists also care about this issue. So do people who actually live in regions that have seen that disappearance. I fall into all three categories. My own employer/university is a multi-billion dollar institution and major power in Tuscaloosa, Alabama. No multi-billion dollar, core civic and educational institution should be without at least one or two beat reporters, one for the beat news and one to do little but investigate it. (And that's not to speak of Tuscaloosa local government, which is no paragon and badly needs an outside minder.) But the Tuscaloosa News, which won a Pulitzer for its coverage of the 2011 tornado before being passed around by various corporate owners, is now essentially a decently staffed sports section that also runs wire service stories. The things the university, and the city, can do on its watch are without number, because it is not in fact watching. So I am indeed on board with all the whistle-sounding on this issue and the efforts to address it.

But there is, I find, a tendency for the writers on these issues to adopt--or be born with--a fairly typically NPR-Cambridge-Ford Foundation establishment earnestness of tone, as conventional as a Brooks Brothers suit, that follows the standard musical score from somber recitation of problems to cheery meliorist proposal. Well and good; these folks have the time, money, and talent, and I'm glad they're spending them on this problem. But it tends to miss the messiness, and its picture of what the press looks like, or would if it only had more support, is always a ProPublica investigation of state sewer spending and never the fair quantity of junk that even well-resourced institutions are glad to push. (Today in the Times, not buried but at the top of the home page: "Why Are So Many Millennials Going to Mongolia?") It seems to me that to address the very real problem of the disappearing press, we must see that press as it is, without pretense or a distorting high gloss. 

With that in mind, I am pleased to forward this announcement that "USA TODAY and The Tennessean/tennessean.com, part of the USA TODAY NETWORK, [are] seeking an experienced, video-forward journalist to capture the music and cultural impact of Taylor Swift." If you are "an energetic writer, photographer and social media pro who can quench an undeniable thirst for all things Taylor Swift with a steady stream of content across multiple platforms," this is the job for you, provided that you have a bachelor's or master's, at least five years' experience, and a willingness to forgo the Oxford comma--in addition to, I am surmising from the job description and the requirement for a "video cover letter," the urge to splash oneself across various platforms, the better to "quickly cultivate a national audience through smart content designed to meet readers on their terms." 

Good luck to the competitors! With jobs scarce, there will be many. But take heart: having announced the Swift opening yesterday, USA Today and the Tennesseean swiftly announced this morning that they are also "seeking a reporter to chronicle the music, fashion, cultural and economic influence of Beyoncé."

   

Follow-up on Justice Thomas's Misclassification of His Crow-Financed Vacation

My new essay on Slate explains why Justice Thomas’s misclassification of his Harlan Crow-financed vacation, which enabled him to withhold its value on his disclosure report, is unlike earlier travel misclassifications by Justices Ginsburg and Breyer.

Here is the gist:

Clarence Thomas’ Defenders Say He’s Just Like Ruth Bader Ginsburg: They’re wrong.

By Steven Lubet

Sept 12, 2023

The classifications make a serious difference. Gift disclosures must provide values; reimbursements need not. Thus, Thomas’ choice of categories, which defies the plain meaning of the two words, effectively concealed the value of his vacation at Crow’s private resort.

Everyone can make mistakes on forms, of course, evidently including Ginsburg and Breyer. In contrast, however, Thomas’ misclassification was admittedly intentional. He announced on April 7, 2023, one day after the first revelations by Propublica, that he was planning to begin disclosing his Crow-financed trips, and he had from then until Aug. 9, when he actually submitted his report, to decide how to do it. (The report was released to the public on Aug. 31.)

As Thomas’ explanatory note conceded, he considered listing his Adirondack vacation as a gift, but purposely chose to call it a reimbursement, which consequently enabled him to withhold its value.

That wasn’t a misinterpretation of the instructions, and it wasn’t an inadvertent slip-up, as Thomas has claimed for other nondisclosures. It was the deliberate omission of information that the public has a right to know.

You can read the entire piece at Slate.

Blackman and Tillman's Reply to Baude and Paulsen

Here is the link. The Abstract is below. I have some significant disagreements with some of the conclusions here, but everybody should read this paper. As the saying goes, you can't have a market with a buyer and a seller. Moreover, Professors Blackman and Tillman have given the most substantive reply to Baude and Paulsen that we will see before the Trump case is decided by the Supreme Court. 

Does the full “sweep and force” of Section 3 of the Fourteenth Amendment disqualify Donald Trump from the presidency? In a new article, William Baude and Michael Stokes Paulsen argue that the answer is yes because “essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . .” This sweeping conclusion is not accurate. Establishing the original public meaning of Section 3 is difficult because there is originalist and textualist evidence pointing in different directions. Our research is built on more than a decade of scholarship in areas that are, regrettably, neglected in modern courts and scholarship, but would have been well understood in the 1860s.

Our Article proceeds in five parts. Part I begins with a threshold question: Is Section 3 of the Fourteenth Amendment self-executing? Baude and Paulsen say the answer is yes, pointing to other provisions of the Constitution as models. Yet, the answer is not so clear. Constitutional provisions are not automatically self-executing, nor is there any presumption of self-execution for such provisions. We will illustrate our position with discussions of the Supreme Court’s appellate jurisdiction, Article I qualifications, and more. Section 1 of the Fourteenth Amendment, which includes the Due Process and Equal Protection Clauses, can only be wielded as a sword supporting affirmative relief with federal enforcement legislation, such as Section 1983. But, even absent enforcement legislation, Section 1 of the Fourteenth Amendment can be wielded as a shield as a set of defenses. Section 1 is self-executing in the latter regard, but not the former. If Section 1 is a guide, then Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation. If Section 3 requires federal enforcement legislation, then States cannot unilaterally remove Trump from the ballot.

Part II provides a careful study of Griffin’s Case, a federal circuit court case decided by Chief Justice Salmon P. Chase in 1869. Chase stated expressly that Section 3 can only be enforced by Congress through federal legislation. Yet, Baude and Paulsen tar-and-feather Griffin’s Case, and their article reads like an effort to discredit Chase. But their criticisms miss the mark. They fault Chase for not adhering to doctrines developed decades later, and they condemn Chase for breaching invented ethical standards. All things considered, Griffin’s Case lies in the heartland of judicial thinking and scholarship. Baude and Paulsen misread Griffin’s Case, misunderstood Chase, and misconstrued the holding. Chase’s opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing.

Part III turns to another case that Chief Justice Chase presided over. This case also implicated Section 3: the treason indictment against Jefferson Davis. A version of the case, reported nearly a decade after it was decided, includes a sentence which suggests that Chase viewed Section 3 as self-executing. If so, the Case of Jefferson Davis (1868) would seem to be in tension with Griffin’s Case (1869). However, this sentence was added to the report by a former confederate general who had apparently plotted to kidnap Abraham Lincoln. Plus, the general was subsequently the lawyer for the respondent, another former confederate, in Griffin’s Case. The reporter’s connection to the self-execution issue is some cause for concern. A contemporaneous report, published in 1869, does not include that sentence. Even taken on these terms, the two Chase opinions can be reconciled. Griffin was an applicant in a collateral challenge; he sought to use Section 3 as a sword, that is, offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield–as a defense in his criminal prosecution, and he could do so without enforcement legislation. Even under modern doctrine, Griffin’s Case is not in tension with the Case of Jefferson Davis.

Part IV focuses on the conduct that can trigger a disqualification. The offense element of Section 3 has two prongs: (i) engaging in insurrection or rebellion against the United States, and (ii) giving aid or comfort to the enemies thereof. These elements are textually distinct, and they reflect longstanding aspects of domestic and international law. Yet, Baude and Paulsen conflate “engaged” in insurrection, a direct and substantive criminal law offense, with giving “aid or comfort” to enemies, which permits liability based on indirect and inchoate wrongs. And in the process, they constructed a new offense that does not appear in the text of Section 3: giving aid or comfort to insurrection. The text of Section 3’s “engage” prong does not extend to wrongs and crimes that are inchoate or indirect. Nor does the “engage” prong extend to inaction—for example, failing to take action with regard to an insurrection or rebellion.

Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an “Officer[] of the United States.” In 2021 we published an article concluding “that the President is not a Section 3 ‘officer of the United States.’” In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase “Officers of the United States” in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase “Officer of the United States.” Without ever explaining what Section 3’s “officer of the United States”-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.

The theoretical defects and other errors in Baude and Paulsen’s article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article’s startling conclusion: “In the end, essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . .” We suggest that scholars, litigants, elections administrators, and judges allow Baude and Paulsen’s article to percolate in the literature before placing too great a reliance on its novel claims.

Section 3 on NPR

Michael McConnell and I discussed Section Three today on "On Point."

JOTWELL: Malveaux on Williams on sex-plus

The news Courts Law essay comes from Suzette Malveaux (Colorado) reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming) on how courts deal with intersectional discrimination claims.

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

California Passes an Act to Strengthen Talent Mobility & Labor Market Competition

I drafted a bill and Governor Newsom signed it on Friday!

SB 699 adds a new section to the Business and Professions Code – 16000.5

Here’s what it does:

1. Any contract that is void under B&P Section 16600 is unenforceable regardless of where and when the contract was signed.
2. An employer or former employer shall not attempt to enforce a contract that is void regardless of whether the contract was signed and the employment was maintained outside of California.
3. An employer shall not enter into a contract with an employee or prospective employee that includes a provision that is void under this chapter.
4. An employer that enters into a contract that is void or attempts to enforce a contract that is void commits a civil violation. An employee, former employee, or prospective employee may bring a private action to enforce this chapter for injunctive relief or the recovery of actual damages and is entitled to recover reasonable attorney’s fees and costs.

Our work in academia is so multifaceted – and also never-ending. We wear many overlapping hats: educator, scholar, researcher, teacher, author, expert, collaborator, mentor, institutional leader, community builder, public intellectual, policymaker. A lot of our work will have impact in slow long-hump ways, trickling in indirect paths from scholarly debates and publications to shaping the worlds of law and society. Sometimes though, there comes a moment to celebrate a direct change we helped make a reality. This Friday Governor Newsom signed a bill I drafted that strengthens California's labor market mobility policy. Here is a writeup about the new Act by Littler https://www.littler.com/publication-press/publication/california-reaches-across-state-lines-invalidate-employee-non-compete

California has long held unenforceable post-employment agreements that limit a person’s ability to work in their trade or industry.  This new section 16600.5 reinforces that policy by providing reimbursement of legal fees for employees who successfully defend their rights.  It allows California employers to hire trained individuals in a competitive labor market without fear of reprisal. And it protects employees who want to take jobs in California or with California companies.  It clarifies what the California courts have long recognized: that California’s public policy that voids noncompetes extends to all California-based employers and employees, even if an employee had previously signed a noncompete outside of California.

In my research since my first book, Talent Wants to be Free, I have argued that it is not only the law on the books but the enforcement structure that shape talent mobility. In 2016 I served on President Obama's policy team on noncompetes, resulting in a presidential call to action to the states to curtail the spread of noncompetes. In 2020, I keynoted the first FTC workshop on noncompetes, and in 2021 Mark Lemley and I wrote a Day One Report to the Biden Administration calling for a national solution to the harms of noncompetes. Unlike the majority of other states, California has long recognized the importance of protecting individuals' rights to pursue their lawful profession, trade, or business of their choice. Still, the empirical research shows that noncompete clauses, although illegal under Section 16600 of the Business and Professions Code, remain prevalent in California. Moreover, former employers outside of California attempt to prevent California employers from hiring talented workers by threatening their former employees with litigation.

Over the past two decades, research on the harms of noncompetes has been mounting, leading to the Federal Trade Commission (FTC)’s proposed ban on noncompetes this year. Studies show that noncompetes stifle economic development, limit firms’ ability to hire and depress innovation and growth. Noncompetes are associated not only with suppressed wages and exacerbated racial and gender pay gaps, but also reduced entrepreneurship, job growth, firm entry and innovation. The research further shows that the harms of noncompetes extend not only to employees but to also companies and regional innovation. Noncompetes make it harder to start new companies and cause industries to become more and more concentrated and less dynamic and competitive.

In California, innovation, entrepreneurship and industry growth have all flourished thanks to a highly mobile workforce. For example, variations in state noncompete law have likely contributed to the fact that alumni of Google (based in noncompete-banning California) have been far more prolific than alumni of Microsoft and Amazon (based in noncompete-enforcing Washington state) in starting their own companies and raising capital. In 2016, the U.S. Treasury Department issued a report on noncompetes, finding that increased mobility “raise[s] labor productivity by achieving a better matching of workers and firms, and may facilitate the development of industrial clusters like Silicon Valley.” California’s policy on talent mobility is more than a worker’s rights policy – it is good for business, market competition, innovation and regional development.

SB 699 clarifies that any contract by a California employer which contains a non-compete clause is void under California law is unenforceable. It also prohibits employers from entering into or attempting to enforce contracts that are void under California law and provides remedies for former employees or who are subject to such contracts. The bill provides an enforcement mechanism and strengthens California’s longstanding policy which has been an important contributor to the state’s prospering tech, entertainment, biomedicine, pharma, and other thriving industries.

At the federal level, the FTC is now in notice and comment period on a bill that would ban all employment non-competes as well as de facto non-competes. Here is a comment Mark Lemley and I submitted https://www.regulations.gov/comment/FTC-2023-0007-10461

Saturday Music Post - Hello Mary Lou

"Hello, Mary Lou" was written by Gene Pitney, who was much better known as a vocalist than a song writer, and originally released by Johnny Duncan in 1960. That cut went nowhere, but Rick Nelson had a big hit with it the following year. Nelson began his performing career as a child actor on his parents' eponymous sitcom "The Adventures of Ozzie and Harriet" (who themselves began as a band leader and vocalist). He did not like to be called Ricky, as he was on television, and insisted on being recorded as Rick.

Nelson's "Hello, Mary Lou" featured an influential guitar solo -- introducing rockabilly to the mainstream -- by James Burton, who later led Elvis's band in Las Vegas and recorded with many country stars, including Johnny Cash, Merle Haggard, Emmylou Harris and countless others.

The clips are at The Faculty Lounge. 

Maybe it is the Handmaid's Tale

Mary Ziegler (UC-Davis, having deliberately escaped Florida) writes in Slate about the impossibility of enforcing the new Texas ordinances against using local roads to leave the state for an abortion. She hits similar themes to what I wrote:

Among the problems with enforcement is the question of how the ordinance and others like it could ever be enforced. How would anyone know if a driver on a road in or out of Texas is driving an abortion-seeker? By setting up a roadblock? Investigating everyone of reproductive age? None of that would be politically palatable—or financially feasible—for a state with a big budget, much less a small town like Llano or a rural county with limited resources.

The possibility, she suggests, is circuitous: "[E]ven if you’re not going to be stopped and arrested while driving a friend to an abortion clinic across state lines, a vindictive partner could find your texts setting up the drive, sue you, and attempt to use geo-tracking data to collect in a civil suit."

That line reminded me of The Handmaid's Tale (the TV show). A flashback (I think from season one) depicts June and Luke trying to escape into Canada. They hire a man near the border, who takes and destroys their phones so Gilead officials cannot follow them. That, Ziegler suggests, is what a woman (and the friend or person who drives her) must do when driving through Llano, Texas on the way to New Mexico.

The Handmaid's Tale outfits at protests and rallies make for fun theater, but I have thought they were overstated. Maybe not, at least in some small details.

VAPs and Fellowships 2023-2024

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You can also add comments to the spreadsheet.

Improvised Constitutional Gatekeepers

Here is one way to think about the next presidential election. Donald Trump's misconduct that culminated in January 6th put him in a constitutional penalty box. To leave that box, Congress and the Supreme Court must say that he deserves another chance to be President. Trump passed the first test when the Senate acquitted him in February 2021. The Court will soon decide the Section Three challenges to his eligibility. If Trump passes that test, then and only then will he be able to make his case to the voters. (You could add that juries are a third constitutional gatekeeper. A conviction does not prevent Trump from running, but may in practice make his candidacy impossible.)

Of course, nobody designed a process in which the legislative and judicial branches serve as constitutional gatekeepers for the executive branch. But I'm not sure that a better test of legitimacy could have been devised.

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Straight Man becomes Lucky Hank

One of my favorite novels ever, Straight Man by Richard Russo (I love all of his novels!) - part of my favorite fiction subgenre - the academic novel -  is now a limited series called Lucky Hank. It is streaming on Amazon Prime/AMC.

The plot should feel familiar to all of us: William Henry "Hank" Devereaux, Jr., the disenchanted English department chairman at the public underfunded mediocre Railton College has a midlife crisis and existential questioning of the place of the professor in this world...

How competition forced Barbie to step into the 21st century

Sharing my opinion piece published this weekend in The Hill - based on my research and book You Don't Own Me.

and some news about the book rights acquired by CBS to become a mini-series.

The essay in The Hill compares the vanilla self-mockery of Mattel as a corporation run by incompetent white men and the reality of Mattel as a corporation run by ruthless white men, having used the sword of litigation to crush competitors, artists, musicians, and creative challenges to the Barbie brand.

Justice Thomas's Disclosure Form Conceals the Value of His Gift from Harlan Crow

My new essay on Slate explains that Justice Clarence Thomas's recently filed financial disclosure form continues to conceal the value of his gifts from Harland Crow.

Here is the gist:

Clarence Thomas’ Corrected Ethics Disclosure Form Is Not Actually Correct

The thing is, even after this latest amended filing, Thomas is still at it. Thomas’ latest report, for the first time, includes disclosure of a Crow-financed vacation, in this case a week at Crow’s private resort in the Adirondacks, where the Thomases had been enjoying annual vacations for many years. But that disclosure raises an entirely new question.

Having acknowledged that he and his wife had been “guests” of Harlan Crow, Thomas added an explanatory note stating that the “transportation, meals, and lodging” were listed “under ‘reimbursements’ not gifts,” according to “advice from the staff of the Judicial Conference Financial Disclosure Committee (July 10).”

The difference in categories is significant because gift reports must include their “value” while reimbursements need not. Although Thomas claims that this unusual categorization is “consistent with previous filings by other filers,” he gives no examples. The other justices’ reported reimbursements were all for teaching or speaking engagements at law schools—including Notre Dame, Harvard, and Northwestern—and foundations or conferences.

No other justice listed an expense-paid vacation as a reimbursement, with the attendant concealment of its value.

Thomas’ motivation for the categorization seems obvious. The Financial Disclosure Committee’s rationale for apparently allowing it is, to put it politely, opaque. The Judicial Conference’s Guide to Judiciary Policy defines “reimbursement” as the payment or repayment for travel-related expenses “other than gifts.”

You can read the entire piece on Slate.

 

Does ChatGPT Read Prawfs?

The following comment was posted to last week's The Peer Review Follies:

Sometime Peer said:

 

Fascinating story. Thank you for relaying it. Wow, that is an ordeal for the author. Two years to publish!! We need to reform how we do things... Replying to Anon Sept 1, 11:31 - Wow (again), that is worse than I thought the state of things. I heard there is lots of fraud in scientific publishing, but did not know the same was going on in empirical legal studies. And as you say, the problem is compounded when courts/policymakers rely on bad empirical scholarship. Some say that "evidence-based policy-making" has become "policy-based evidence-making."

 

Although it was not captured by the spam filter, it struck me as having been written by AI, so I unpublished it. Maybe I was wrong. Or maybe it was posted as an experiment. In either case, perhaps the person behind it will come forward.

 

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

Labor Day Music Post

Woody Guthrie at The Faculty Lounge.

Isn't a Swing Vote's "Legacy" Bound to Be Evanescent?

This Washington Post story argues that former Justice Anthony Kennedy’s "mark is fading fast — and is already erased in some areas." It draws heavily on his former clerks--and focuses on the fact that part of the reason for the decline of his "legacy" is two particular former clerks, who are now Justices Kavanaugh and Gorsuch.

Is this true? Much depends on which cases one focuses on, and the story focuses mostly on politically salient cases, with a tilt toward culture-war issues--specifically, those cases in which Kennedy's swing vote favored the "liberal" side of the argument. (Thus, the story makes no direct mention of Gonzales v. Carhart, Boy Scouts of America v. Dale, and United States v. Lopez, among other 5-4 decisions, and mentions Citizens United only in passing.) To the extent that it is, I think there are some big reasons and a few smaller ones.

One big one is generational change. The story notes that the current justices who clerked on the Supreme Court don't precisely match the politics of their former bosses: they remain "liberal" and "conservative" but necessarily the same stripe of liberalism or conservatism. That's natural, because the content of "liberal" and "conservative" politics shifts. It may be enhanced by an acceleration or accretion in the politics of liberal and conservative judicial nominations and service as well, according to this forthcoming book, which I look forward to reading, in which interest groups have helped create a Supreme Court appointments model that has "gradually transformed how the Court itself operates, turning it into an ideologically driven and polarized branch." The shift is further enhanced by enormous changes in a short period of time in what constitutes "conservative" thought, which is in flux following the collapse of the libertarian/values-conservative fusion that prevailed for a span of decades. It's not surprising that amidst this flux, the competitors to claim the conservative mantle don't look at all like Kennedy.

Another big reason, obviously, is the change to a 6-3 conservative Court. Had it been a 6-3 liberal Court, perhaps even one staffed by a couple of liberal former Kennedy clerks, I doubt his "legacy" would have held up any better, although the shift might have been in other cases--say, swing cases involving federalism. But even in culture-war issues like the ones discussed in the story, I doubt such a Court would have honored the compromises struck by Kennedy. Why would it need to bother? Remember Mark Tushnet's impolitic words about Justice Kennedy, which were prophetic about everything but which side would be in a position to relegate him to the past. The same thing would have happened had things gone differently; the only difference is that a different, non-"mainstream" paper would have run that story. And another, smaller reason is, with all due respect, his writing. Over and apart from the fact that the current conservative majority's methodology is arguably different from Kennedy's, many of his most famous opinions across a range of areas contain more middlebrow poetry than they do clarity. Holmes's aphorisms lasted, although that had as much to do with his friends and their effort to maintain his reputation as with their quality; Kennedy's doggerel is not quite the same. 

But the most important reason is the very hook on which the story hangs: Justice Kennedy was, in the cases the story cares about, a swing justice. It seems inevitable that a swing justice's legacy will dissipate quickly. (Justice O'Connor's star does not shine as brightly today either; indeed, it began dimming as soon as a new swing justice took her place.) To put it differently, the "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy." As Tushnet pointed out, occupying the role of a swing justice--in Kennedy's case, rather vocally and ostentatiously--meant that cases and arguments were bent in the direction of securing his vote. Once it was no longer a factor, it's natural that those arguments would migrate elsewhere. It may be that the fate of a swing justice is to command everyone's attention while he or she is on the Court and no one's for so much as a second after that. 

Incidentally, one thing the story does not mention is the role Kennedy's retirement has played in legal scholarship. A vast library of articles was written with the same short-term, instrumentalist goal of influencing Kennedy's vote before the fact and trying, as best as was possible, to explain and justify it afterwards. The Kennedy-massaging legal scholarship industry has now quite collapsed. It might experience a revival in a later generation, but for now most of it has fallen into desuetude. That may matter for larger reputational or "legacy" purposes as well.   

USD Law is hiring!

Hellos from the University of San Diego School of Law - We are looking for three to four new colleagues (both entry-level and lateral) to join our active and engaged faculty.  We welcome all fields ! We do have particular needs in Criminal Law, Criminal Procedure, Immigration, and Environmental/Energy, but are always looking for best athletes as well.

Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move.

and good luck to all this hiring season - try to enjoy it even amidst the uncertainty, stress, and often irrationalities of the process!

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.