PrawfsBlawg

Trump and Cross Examination

My new essay in The Hill explains the limited value of cross examination in Donald Trump’s various trials. Here is the gist:

Can the cross-examination of Trump’s accusers do him any good? 

Michael Cohen was the first of Donald Trump’s former attorneys to testify against his old boss, but he won’t be the last. 

Three other Trump lawyers have already pleaded guilty in Fulton County District Attorney Fani Willis’s conspiracy prosecution for attempting to subvert Georgia’s 2020 presidential election. Sidney Powell, Kenneth Chesebro and Jenna Ellis all accepted deals requiring them to “testify truthfully” against their codefendants, including Trump, in exchange for sentences that included no jail time.

No matter how truthfully he testified, Cohen had set himself up as a punching bag. Even Trump’s contemptuous gesticulations — not to mention his recess insults, calling Cohen “totally discredited” and a “disgraced felon” — did not appear entirely undeserved.

The three Atlanta witnesses, in contrast, will need to be treated far more gently, more like errant friends, who wilted under pressure, than vile betrayers.

Trump’s lawyers will face a difficult task on cross-examination. A story of redemption is far more difficult to confront than a story of revenge.

You can read the entire essay in The Hill.

Private defensive litigation and the state role

The Third Circuit declared valid a New Jersey law requiring noncustodial parents, at the request of the custodial parents, to continue paying child support past the child's nineteenth birthday where the child is a full-time college student; the law does not impose such an obligation on custodial parents. Merits aside, I do not understand how this case reached federal court; that it did again illustrates how often courts and litigants--including the government--misunderstand or ignore the boundaries between offensive and defensive (and federal and state) constitutional litigation.

Pittman is the noncustodial parent. Pittman's ex-wife requested in state court continuation of the support obligation because their daughter was a full-time college student. The state court agreed and ordered three more years of support. Pittman sought relief from that obligation.

Pittman filed a § 1983 action in federal court. According to the district court, Pittman sued the governor and attorney general; the court granted a motion to dismiss, in part, because the governor and attorney general, as executive officials, have "no power to codify, amend, or abolish the laws Plaintiffs challenge, because that power is vested solely in the state legislature." Pittman filed an amended complaint naming the attorney general and the head and assistant head of the state Office of Child Support Services. All defendants moved to dismiss on Younger and Rooker-Feldman grounds; the district court denied the motions (rightly), then reached the merits and declared the law valid. No defendant raised "you sued the wrong person" as to the amended complaint. The court of appeals affirmed on the merits.

It seems to me the state defendants (and the district court) all misunderstood  why they are the wrong defendants and why the court should have dismissed the federal action . As far as I can tell from looking at New Jersey law, none of the executive officers is responsible for enforcing these laws. These laws govern family-court proceedings between private parties. Although the commissioner has rulemaking authority, the lawsuit did not challenge those regulations. The government, including these officials, plays no role in enforcing this law. The correct argument should have been that neither the governor nor AG is responsible for enforcing the challenged law, therefore the court could not enjoin them from doing so. Whether framed as standing, Eleventh Amendment, or merits, a federal court cannot enjoin an official from doing something he lacks the state-law power to do.

In other words, offensive litigation in federal court should not have been an option; this case required defensive litigation in state court. In resisting the continuation of the support obligation in the action against his ex, Pittman should have argued that the law allowing his child-support obligations to continue was constitutionally invalid, appealed that determination through the New Jersey courts and then to SCOTUS (if he lost--if he won, his ex-wife could have appealed). The challenge to the law should have proceeded like a challenge to a suspect state tort-reform provision--apply the provision in an actual tort case and adjudicate challenges to its validity.

Yet everyone missed this.

The governor and AG's argument as to the original complaint--"we cannot create or change the challenged law, that is the legislature's job"--is stupid. Taken seriously, the executive would never be a proper defendant in a constitutional challenge to a law because the legislature always controls the challenged laws. But the executive normally is the right defendant because constitutional litigation challenges the enforcement of the law, not the law itself--and the executive is  responsible for that. That is not true in this case because of the nature of the particular challenged law at issue. But not for the reasons the officials argued.  For the same reason, the three defendants in the amended complaint erred in not raising the same "wrong defendant" argument--we do not enforce this law.

So why did everyone mess up? At some level, I wonder if state officials prefer to litigate federal issues in federal court rather than state court. Why? The path to SCOTUS is one step shorter in federal court, but that does not seem a big deal. More importantly, I wonder if state officials buy the common idea that federal courts "do" federal law better than state court--they get federal law right--and that works as much for state governments seeking to argue their laws are valid as for rights-holders seeking to challenge their validity. State officials would rather defend an EpY action in federal court than litigate as interested parties in private state-court litigation, despite the purported "home-court advantage" in their courts.

ERWIN CHEMERINSKY: Nothing has prepared me for the antisemitism I see on college campuses now

Erwin Chemerinsky dean of the UC Berkeley School of Law in an essay - https://www.latimes.com/opinion/story/2023-10-29/antisemitism-college-campus-israel-hamas-palestine 

I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks. I have heard antisemitic things from time to time through my life. I remember as a child being called a “dirty Jew,” and my friends and I being called “Christ killers” as we walked to Hebrew school. I recall a college girlfriend’s parents telling her that she should not go out with me because “Jews are different.” I had an incident in a class I was teaching about the ethics of negotiations, where a student matter of factly said, “the other side will try to Jew you down,” without the slightest sense of how that was a slur.

But none of this prepared me for the last few weeks. On Friday, someone in my school posted on Instagram a picture of me with the caption, “Erwin Chemerinsky has taken an indefinite sabbatical from Berkeley Law to join the I.D.F.” Two weeks ago, at a town hall, a student told me that what would make her feel safe in the law school would be “to get rid of the Zionists.” I have heard several times that I have been called “part of a Zionist conspiracy,” which echoes of antisemitic tropes that have been expressed for centuries.

I was stunned when students across the country, including mine, immediately celebrated the Hamas terrorist attack in Israel on Oct. 7. Students for Justice in Palestine called the terror attack a “historic win” for the “Palestinian resistance.” A Columbia professor called the Hamas massacre “awesome” and a “stunning victory.” A Yale professor tweeted, “It’s been such an extraordinary day!” while calling Israel a “murderous, genocidal settler state.” A Chicago art professor posted a note reading, “Israelis are pigs. Savages. Very very bad people. Irredeemable excrement…. May they all rot in hell.” A UC Davis professor tweeted, “Zionist journalists … have houses w addresses, kids in school,” adding “they can fear their bosses, but they should fear us more.” There are, sadly, countless other examples.

How can anyone celebrate the killing of 260 people attending a music festival, or the brutal massacre of more than 100 people in a kibbutz, or the pulling of people from their houses to take as hostages? If this happened to people who were not Jews would there be such celebrations?

I have heard few campus administrators speak out publicly about the antisemitism that has become prevalent this month. They want to seem neutral or not be perceived as Islamophobic. I understand. I, too, refrained from speaking out against those who defended Hamas’ terrorist attack.

But when do we stop being silent and when do we say the antisemitism must be condemned and it is not acceptable on our campuses? I believe this must be that time.

To be clear, I — and I hope all of us — mourn the loss of life in Israel and in Gaza. There is surely room in our hearts to feel compassion for all who are in danger and all who have lost loved ones. But it is simply wrong to confuse condemning antisemitism with ignoring the plight of the Palestinians.

Of course, criticism of the Israeli government is not antisemitism, any more than criticizing the policies of the United States government is anti-American. I strongly oppose the policies of the Netanyahu government, favor full rights for Palestinians, and believe that there must be a two-state solution. But if you listen to what is being said on college campuses now, some of the loudest voices are not advocating for a change in Israeli policies, but are calling for an end to Israel. Students regularly chant, “from the river to the sea, Palestine will be free” and “We don’t want no two states, we want all of 48,” referring to going back to 1948 before Israel existed.

An oft-repeated mantra among some is that Israel is a settler colonialist country and should be forced to give the land back to the Palestinians. I have no idea how it would be determined who is rightly entitled to what land, but I do know that calling for the total elimination of Israel is antisemitic.

There has been enough silence and enough tolerance of antisemitism on college campuses. I call on my fellow university administrators to speak out and denounce the celebrations of Hamas and the blatant antisemitism that is being voiced.

Students have the right to say very offensive and even hateful things, but school administrators — deans, presidents and chancellors — have free speech rights too. They must exercise them and take a stand even if it will offend some and subject them to criticism.

It is a very difficult time on campuses across the country. Many of our students and faculty members have family and friends in Israel or in Gaza. Many care deeply about the suffering we are seeing, and yet there is no bridge between those who seek the elimination of Israel and those who believe it is essential to have a Jewish state. I hope there will be a time when campus officials can find ways to bring their communities together. But it is not realistic now. This makes it all the more important that they show moral leadership and speak out against the antisemitism that is rampant now, as they would condemn all other forms of racism and hate on campus.

 

Gaza Hostages: A personal Invitation to a video conference with their families, Oct. 31, at 3pm EST

Dear Colleague,

We appreciate your signature on our appeal regarding the civilian hostages held in Gaza.

You are cordially invited to a special webinar intended solely for academics and legal scholars to hear, first-hand, the families’ stories.

Please take the time and strength to join us in this event. Your personal attention matters.

The event will take place this Tuesday (Oct. 31) at 3pm EST, on Zoom.

If you can, please share this invitation with other relevant colleagues.

More on deactivating SJP

The ADL and the Brandeis Center for Human Rights sent a letter to 200 university presidents, urging them to investigate, and presumably defund and deactivate, student chapters of Students for Justice in Palestine. I mentioned Florida's efforts and FIRE's letter to Florida university presidents. Eugene Volokh argues this turns on a factual question that the public does not know and that the university might know--the degree of coordination between individual SJP chapters, national SJP, and Hamas. Under Holder v. Humanitarian Law Project, federal material support statute does not (and probably cannot) reach independent, non-coordinated speech, even in support of a terrorist organization or its cause and efforts. The question is whether SJP's claim to be "part of" Hamas is real or rhetorical hyperbole and the degree of independence among Hamas, national SJP, and individual SJP chapters.

Needless to say, the ADL letter (like the initial memo from the Chancellor of the Florida State University System) is not as nuanced as Eugene's analysis. It lists a lot of stuff--"'SJP chapters are not advocating for Palestinian rights; they are celebrating terrorism'" and promoted anti-Israel channels--that is pure, constitutionally protected speech. The vaunted SJP "toolkit" encourages fliers, protests, teach-ins, and other events on U.S. campuses. This seems far from the activities in Holder--training designated groups in using international law and international organizations to get things and engaging in advocacy for these groups.

The ADL letter ends with the usual:

We fully recognize and support students’ First Amendment rights to freedom of speech, even odious speech. We remain committed, however, to calling out and speaking out against antisemitism and anti-Israel bias. And we certainly cannot sit idly by as a student organization provides vocal and potentially material support to Hamas, a designated Foreign Terrorist Organization.

Note the key move: It believes SJP is doing two things wrong--providing vocal support to Hamas and (potentially) providing material support. That is, it acknowledges that vocal support is not material support, at least without more. But vocal support for terrorism--just saying out loud terrorism is a good thing or that some act is not terrorism but resistance--should (must?) remain constitutionally protected, even under the broadest reading of Holder.

Saturday Music Post - The Wellerman

"The Wellerman" is an Antipodean sea shanty, referring to the supply ships of Australia's Wellerman Brothers, who provisioned the remote whaling station at Otago on New Zealand's South Island in the early Nineteenth Century. The song became a viral hit when the British vocalist Nathan Evans posted it on Tik Tok in early 2021 -- which only shows how out of touch I am, as I first came across it last April (which is when I queued up today's post).

The clips are at The Faculty Lounge.

Ginsburg on institutional neutrality

Tom Ginsburg (Chicago) urges universities to adopt the Kalven principles of university neutrality towards the events of the day. Ginsburg highlights a couple interesting points. First, "[a]fter many years of speaking out so regularly, schools look defensive when adopting a stance of silence only when a large massacre of Jews occurs." (I made a similar point). Second, departmental statements present larger problems than university statements--junior faculty and grad students feel a greater "need to toe a party line announced by those who control tenure and resources" than by a distant university president, especially in those departments that "seem to treat public-facing statements as being as central to their mission as is research."

Wrapping Up Loughridge/Butler

I wanted to do one more brief post on the remarkable dissent of Representatives Loughridge and Butler on the issue of women's suffrage in 1871. As I said in a prior post, I may write a paper about this House report down the line. Near the close, they say this:

We are told that the acquiescence by the people, since the adoption of the Constitution, in the denial of political rights to women citizens, and the general understanding that such denial was in conformity with the Constitution, should be taken to settle the construction of that instrument . . . But, as a general principle, this theory is fallacious. It would stop all political progress; it would put an end to all original thought, and put the people under that tyranny with which the friends of liberty have always had to contend--the tyranny of precedent.

From the beginning, our Government has been right in theory, but wrong in practice. 

 

Over 300 Professors including Chancellor Sign Open Letter on Recent Events in Israel and Gaza to the UC-Berkeley Community

We are Berkeley faculty who are deeply concerned about recent and ongoing events in the Middle East, and about their direct impact upon the safety of our community of students, staff and faculty on campus. https://docs.google.com/document/d/1L2RmaSrmKztuxK_Gfvca-qnGSDhf3G_C/edit 

On the morning of October 7, Hamas terrorists launched a brutal and vicious attack, entering Israel from Gaza. In villages and towns near the Israel/Gaza border, they murdered by gun, knife, and fire more than 1,000 unarmed civilians, including babies, children, women, the elderly, and entire families, in their homes and on the street.

They went door-to-door annihilating whole families. They killed children in front of their parents and siblings. They abused women, and paraded their mistreated naked bodies. They massacred hundreds of young people attending a nature party in the desert. And they took captive over 150 children, infants, elderly in wheelchairs, women and men, to be used as human shields, and worse.

The murdered and kidnapped include citizens of Israel, the United States, Brazil, Argentina, Nepal, Thailand, the Philippines, China and Germany. We hope no more countries will be added as lists of those who died and were kidnapped are continually updated.  

We fear for the lives of the hostages, and in particular for the women. We all know sexual assault and violence against women in civil society is out of proportion. We shudder to think of what is happening now to the women hostages. We call for their immediate release. 

While we individually have many different views about the Israeli-Palestinian conflict, we emphatically agree with President Biden's characterization of this murderous attack - the purposeful annihilation, rape, kidnapping, and execution of civilians - as a violation of every code of human morality.

Some in our campus community have described these massacres perpetrated by Hamas as "resistance" to be "celebrated" in a "freedom struggle." This is repugnant and indefensible. For many of us, as we went on social media on Sunday night and Monday morning, it was shocking to realize that literally while Hamas terrorists were going house-to-house seeking to murder as many Jews as they could, some pro-Palestinian organizations on our own campus were gathering petition signatures for statements that celebrated these Hamas terrorists as freedom fighters and rejected any critique of their actions. 

We condemn this violence for what it is, and we extend our deepest sympathies to Israelis and to Jews worldwide in this hour of terror and brutal devastation. It is possible to do this and simultaneously evince deep sympathy and concern for the people of Gaza as they face a major military onslaught whose impact will indeed be brutal. It is possible simultaneously to condemn unequivocally what occurred this weekend for the barbarism it was and to advocate for justice for Palestinians. We mourn all loss of life and security in the Israeli-Palestinian conflict and we pray for a swift resolution to the current violence and the return of the hostages.

We recognize of course that UC-Berkeley has students and community members from all regions, including from the Gaza Strip. We cherish our diversity and respect our Palestinian colleagues, students, and neighbors. We pray for the safety of all our community members and their families.

Nazis without antisemitism?

In the Star Trek episode Patterns of Force (included in most lists of top-1o Original Recipe episodes), Kirk and Spock encounter a planet with a government modeled on Nazi Germany. A human history professor (maybe supposed to be Kirk's mentor) established the system because Nazi Germany was the most efficient state in history and he believed that such a state, benignly run, could succeed. The episode makes the generic "absolute power corrupts absolutely" point, but not much more. Kirk and Spock stopped spinning the dreidel and dressed in Nazi uniforms, although the word "Jew" does not appear in the episode (Original Star Trek is a generally secular-and-irreligious world).

The premise of the show is ridiculous in all respects. Nazi Germany was a kleptocracy. More importantly, Nazism cannot be benign--its "race-and-space" idea demands an other to conquer. Still more importantly, for Nazism (as opposed, perhaps, to general fascism) the other must be Jewish. Judaism was the regime's central obsession. The Nazis killed or imprisoned other groups, but not in the same numbers and not with the same focus. For example, some LGBTQ people might escape death by agreeing to fight or to marry and bear children for the Fatherland--certainly human rights violations denying their personhood and humanity. Jews did not enjoy that option.

I thought of this as Ron DeSantis attempts to curry favor with Jews by ignoring the First Amendment to stop pro-Hamas speech and groups. The same Ron DeSantis refused to condemn the neo-Nazis marching in full Nazi regalia (so, again, not general fascists--Nazis) in front of Disney World and other places in and around Orlando. How do we square that? Many of these Nazis (particularly the groups outside Disney; other groups did target area synagogues) do not hate Jews--or at least do not make Judenhass their central tenant. Their central obsession is LGBTQ+ people and the "groomers" at Disney; since DeSantis hates the same group of people, he was not inclined to condemn them. And since he does not associate this group with antisemitism or antisemitic speech, he does not lose credit with the Jewish community for failing to do so when he targets different antisemitic speech from a different group.

First Amendment Projection (no, not that kind) (Updated)

GW students projected antisemitic/anti-Israel messages onto a campus building. The messages ("Palestine from the river to the sea") are protected. They were "spoken" from a public space in which they had the projector. The only  issue is that they expressed them by projecting words onto the sign of a university building. So what is the property and First Amendment law for projecting images and messages onto someone else's property? (For the moment, accept that GW intends to hold itself to First Amendment obligations).

    • Is it akin to defacing a property with paint, or chalk, or paper. Government therefore can prohibit (or stop once started) any use, including expressive, of its non-forum property. Perhaps subject to not doing so in a viewpoint-discriminatory manner. I do not believe there is any history of this practice, so GW has not designated this as a public forum.

    • Does it not involve use of the property at all? Is projecting onto a building no different than projecting the images, a la the Bat Signal, into the sky? Therefore, it is speech made off and without using government property, so government cannot prevent or stop it, within First Amendment bounds.

    • If projection involves "use" of the property, what governmental interest justifies stopping that use. Not preservation of the property, since the projection does not harm or affect the property. That leaves something like wanting to keep the building clear of images, perhaps for concerns that everyone will start projecting stuff--although it can serve that interest with a lesser policy, such as a first-come-first serve or other TPM rules. Or it leaves an interest in avoiding the risk or appearance of government association with the messages.

As with other campus groups and protests, the noise-to-signal ratio is out of whack. The point is not that the students expressed antisemitic ideas or that the ideas make Jewish students feel "unsafe." That is the world of free speech. The only point is the rules around projection--whatever they turn out to be.

Update: LeeAnne Fennell (Chicago) shares Maureen Brady's 2020 HLR article and Lee's JOTWELL review on the issue. Maureen focuses on private property, arguing for something like nuisance incorporating anti-commandeering and the dignitary interest in avoiding misatttribution. Government property raises distinct issues, although the misattribution point carries forward. I think Brady and Fennell would agree that 1) projecting onto the government building is different than projecting into the sky and 2) the use of the property, independent of damage to the building, implicates a government interest.

Update: GW issued a statement. Projecting violated university policy (whatever that means), the university is investigating, and the university will take "any appropriate steps" under university policy--plus all the usual "does not reflect our values/we're here for you" pablum. Based on the comments to the tweet, the statement did not satisfy people who want the university to expressly decry antisemitism and/or want the students expelled.

Focusing just on the last point: During the 2016 election season, Emory students chalked "Trump 2016" message on campus, apparently outside of the space where chalking is allowed. Various lefty campus groups went nuts about the "pain" and the university investigated and threatened the students with punishment. Obviously, the university could sanction students for chalking in violation of university policy; it could not (if committed to abiding by the First Amendment) impose a stricter sanction for out-of-space chalking of pro-Trump messages than of anything else. That is, if chalking is not grounds for expulsion, chalking "Trump 2016" cannot be grounds for expulsion The same goes here: If projecting images onto a campus building is not grounds for expulsion (and I doubt it is), projecting antisemitic images onto a campus building cannot be grounds for expulsion. This is Free Speech 101.

On the first point, critics of GW may have a point. Emory's President met with several dozen students and expressed understanding for students' "genuine concern and pain" and ordered revision of bias-reporting proceedings. GW's statement (which as one commentator points out did not mention Jews or antisemitism) does no such thing.

Dammit, Florida, stop making me defend this crap (Update)

If government would accept that horrible ideas and those who speak them are protected, life for free-speech maximalists would be easy. Horrible speakers can engage in horrible speech and I can ignore or talk back, without having to defend them. Unfortunately, governments too often either forget or figure it is easier to score political points and lose in court. This puts free-speech advocates in the position of having to  remind government of its constitutional obligations, thereby lending public voice to a defense of bad speech and bad speakers.

Case in point in Florida: State University System Chancellor Ray Rodrigues issued a statement two weeks ago labeling as criminal activities and violations of Florida laws against antisemitic activities campus demonstrations calling for Israel to be wiped off the map and justifying the October 7 attacks and killing Jews. Rodrigues yesterday called on state universities to deactivate two campus chapters of Students for Justice in Palestine, arguing that SJP provides material support to Hamas because it considers itself "part of" the movement against Israel. Both are absurd arguments for restrictions on constitutionally protected speech and efforts that would, if pursued, cost the state an injunction and attorney's fees in court. Plus, it forces me to side with people who want to see me and my family dead.

Update: Although FIU does not have a registered SJP chapter, the South Florida chapter held a rally at FIU Wednesday, alongside a competing rally. Meanwhile, the state promises to "crack down on campus demonstrations that delve beyond protected first amendment speech and into harmful support for terrorist groups," meaningless verbiage since most "harmful support for terrorist groups" is, in fact, protected First Amendment speech. Many lawsuits to follow.

Further Update: FIRE wrote to the Presidents of UF, FSU, FIU, USF, and FAU.

Moore v. United States

In December the Court will hear argument in Moore v. United States, which asks whether a federal tax on unrealized sums is authorized by the Sixteenth Amendment. Another way of putting the question is by asking whether a federal tax on unrealized capital sums is a direct tax subject to apportionment. I wrote about direct taxes at length in my book on William Jennings Bryan.

The idea that a tax on unrealized capital sums could be direct comes from the Supreme Court's 1895 decision (actually two decisions) in Pollock. Pollock was poorly reasoned and was later repudiated by the Sixteenth Amendment. Thus, I am surprised to see many briefs in Moore citing Pollock as sound authority. Indeed, some of these briefs say that Pollock was not overruled. This is true as a formal matter but totally wrong as a practical matter

Consider a simple thought experiment along these lines. Suppose I cite Dred Scott positively with the explanation that the case was never overruled by the Supreme Court. That's equally true and equally wrong as the claim about Pollock. A constitutional amendment ratified in response to a particular decision is the most powerful rejection our system can muster. It is the equivalent of calling a case wrong ab initio.

There are many other deficiencies in Pollock, as Justice Harlan explained in his dissent. (Normally in this era, you want to go with Harlan rather than with the Court.)  

Intentional drop rule

This is a moot point since the Rangers beat the Astros in Game 7 of the ALCS Monday to advance to the World Series. But I was confused by something announcer Jon Smoltz said twice during Game 6. On two occasions, an Astros hitter batting with at least two on and less than two out hit a soft line drive (what we sometimes call a "humpback liner," often hit off the end of the bat) that Rangers shortstop Corey Seager caught. Smoltz encouraged Seager to intentionally not catch the ball and turn a double play on the base runners retreating to the bases. I am not sure what Smoltz wanted and there was a lot cross-talk, so he never fully explained. Or he was picking up on something he said earlier in the telecast and I missed it. Either way, he seemed disappointed that Seager and other shortstops did not try this.

Smoltz correctly pointed out that the infield fly rule was not in effect on either play because the balls were not hit high enough; the IFR excludes line drives. But a separate rule (enacted in its current iteration in 1975) prohibits infielders from intentionally dropping a fair fly ball or line drive in the same IFR situations. So Seager could not catch-and-drop or knock down these easily playable balls, unless he could sell it well enough to fool the umpire. Maybe Smoltz believed that, given how softly the balls were hit, Seager could have run backwards onto the shallow outfield grass and let the ball land at his feet and still start the double play (or catch the ball when he saw the baserunners take off.

IFR and Intentional Drop complement one another to eliminate the "cheap" double play. IFR excludes line drives because an uncaught line drive, unlike an uncaught pop-up, does not fall at the infielder's feet; it continues moving forward into the outfield for a hit. The intentional drop rule requires that an infielder inclined to attempt this play cannot catch-and-drop or knock down an easily playable batted ball of any kind. The infielder must intentionally not catch (as opposed to intentionally drop) the ball, which is harder with a liner than a pop-up. Maybe this exposes a hole in the rules, although a relatively uncommon one. Or Smoltz did not know what he was talking about.

Guest Post: Pharmacist Walkouts: The Cost of Unchecked Incivility

The following is by my FIU colleague Kerri Stone.

Although not coordinated by any union, numerous Walgreens pharmacy staff from around the country have staged walkouts from their jobs, protesting what they cite as harsh working conditions. One of the cited contributing factors is the bullying and harassment that they have to endure at the hands of some patients. What’s more is that news outlets report that additional walkouts are planned for later this month.

This will hit home for many Americans, as prescriptions become harder to fill. But that same public needs to consider doing more to curb all forms of workplace abuse—like passing laws to prohibit workplace bullying by and of employees. While sex, race, disability, and other protected class-based harassment is already rendered unlawful, status-neutral bullying in the workplace remains lawful. It ought to be no surprise that pharmacists and those who work with them are targeted by abusive behavior that has reached levels that impede them from serving the public. They are far from alone.  

According to the recently conducted Violence Study of Healthcare Workers and Systems survey, which utilized almost 600 responses from 69 countries, the majority (63%) of critical care healthcare workers fall victim to on-the-job violence, and a quarter of those workers have said that they were willing to quit over this violence. This violence includes both physical violence and threats. Healthcare workers are not alone. In the face of unprecedented “air rage” and associated viral incidents since the pandemic, many are advocating for the passage of the “Protection From Abusive Passengers Act", which would authorize the Transportation Security Administration (TSA) to create and oversee a program that would ban airline passengers from air travel if they act abusively toward airline employees.

 Last month, Senators Rubio and Manchin introduced the Safety from Violence for Healthcare Employees (“SAVE”) Act, which introduces new criminal penalties for physically assaulting healthcare workers. The rampant abuse and bullying that these workers have been forced to endure could have been stemmed greatly if a twenty-year-old Model Act that prohibits workplace bullying had been passed in any U.S. state.  Since 2003, the Workplace Bullying Institute has been advancing the Model Act—the Healthy Workplace Bill, authored by Professor David Yamada. While it has been introduced in 32 states, no state has passed it; only Puerto Rico has.

Workplace bullying seems to have been written off as something that need not be regulated, either because it is too trivial or because people should be able to navigate it themselves—or leave their employment, but this is not the case. Speaking tours of the families of those for whom workplace bullying led them to die by suicide address audiences regularly. The literature and studies on the topic show that the workforce has been impacted deleteriously by workplace bullying, with precipitous declines in workplace morale and productivity and increases in absenteeism and retention issues attributed to it. And yet, as Americans have remained unpersuaded that this behavior should be regulated in the workplace by law, just as Title VII regulates sexual and racial harassment. Believing, perhaps, that regulating bullying is best relegated to playground monitors, legislators have failed to do anything to curb some of the most insidious behavior that Americans inflict and endure.

If laws were passed in this country at the federal or state levels to prohibit workplace bullying, a larger-scale shift would likely have occurred whereby day-to-day abuse and incivility, while likely still problematic, would not be as unchecked and as rampant as they now are. The costs exacted by workplace bullying are neither always visible nor always felt directly by the general public, though everything from companies’ service to their prices arguably suffers from it. Rather, victims tend to suffer in silence and solitude, sometimes going so far as to leave their jobs altogether. When the abuse by the public of, for example, pharmacists, however, gets so intolerable that they walk out, as they have started doing this week, the public will feel the impact sharply and immediately. Society simply cannot function if those who serve as its engines cannot seek refuge and sanction from workplace abuse in the law. It may take an upending of aspects of day-to-day life before that public appreciates the gravity of all types of workplace abuse, whether it is inflicted by colleagues, customers, or supervisors.

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Dr. Glaucomflecken on Student Mental Health

 

Saturday Music Post - Chain of Songs

Following up on last week's "Unchained Melody," today's post has songs with variations on "chains" actually in the lyrics. For some, I  opted for live covers rather than audio of the originals.

The clips are at The Faculty Lounge.  

A narrower post in reply

In reply to Paul's response to my post on Jemma DeCristo, mostly to say that my focus was narrower than Paul's, so he raises issues I did not think about when writing this morning:

1) My post was focused on First Amendment protections and whether DeCristo crossed a line into constitutionally unprotected speech that other people did not. I did not think about or suggest anything about general reprehensibility and whether DeCristo's tweet was "worse" or more risible than Russell Rickford's. I probably would agree with Paul's taxonomy. My point was only that none of it (in my view) qualifies as either incitement or true threats; nothing broader than that.

2) I used "many people" as a placeholder--I saw about 4-5 random people saying it was unprotected, plus Cohn. I wanted to engage with Cohn but did not want to link to all the random people. I will refrain from such placeholders in the future.

3) I am glad to see that FIRE has been consistent in protecting so-called lefty speech in this context. I am not surprised. Although I gave that group a hard about certain issues culture-wars issues where I thought its silence was telling, it generally takes a consistent position on free speech. I continue to depart from FIRE on "canceling" and whether and how it is fair game for private actors such as law firms to impose consequences on students.

4) I gave no thought to what department sanctions would be fair game. If the speech is constitutionally protected (as I think it is) and the school wants to adhere to academic freedom norms for extra-mural speech, I presume that to be the end of the inquiry. She could be fired or at least removed as an adviser under a Pickering analysis. But schools according that extra academic-freedom protection for extra-mural speech usually do not reach that step. Or if they do (e.g., Amy Wax) they change working conditions in response to speech (e.g., no more required course or no more work as an adviser) on the view that the speech means her engagement with some students unavoidably changes (and renders hostile or discriminatory) the educational conditions for those students. Perhaps DeCristo meets that--showing herself to be an idiot who cannot be trusted to perform a task such as undergrad adviser, certainly for Jewish students.

Removing DeCristo as an adviser or taking her out of required classes raises similar concerns to Penn's decision to remove Wax from required classes--the school says it cannot sanction her in response to her speech, but materially changes the terms of her employment. Maybe that is appropriate--it balances the professor's speech interests against the Title VI/Title IX concerns from speech indicating discriminatory intent.

A Yes and a Couple of Noes for My Co-Blogger

One point of agreement, one point of disagreement, and point of, if not disagreement, then polite dismissal concerning Howard's post below. (As an update, I thank Howard for his gracious reply above. Whatever the scope of our agreement or disagreement, I feel honored to be sandwiched by him.) 

1) I agree that the hateful outburst of Jemma Decristo, who is a professor at UC-Davis, would not qualify as a true threat and therefore would be protected expression. (Not wholly incidentally, she is not a history professor, as Howard writes, but an American Studies professor.) Of course it should be treated as such, and one should resist the urge to move from a reasonable position--condemning it, pointing out that she is yet another person who proves that being a professor or having a doctorate may lead to a rebuttable presumption that one is educated but tells us nothing about whether one is or is not an idiot, and so on--to demanding her firing or even, in my view, her removal from the classroom. (I think the line is closer on the latter point. But I also think that arguments that extramural statements make students feel less safe, or are de facto harmful, and thus justify removing them from required classes specifically or classroom work more generally, are based on dangerously expansive conceptions of harm, are subject to the risk of abuse, and in fact are abused by ostensibly respectable universities and law schools.)

Howard stops short of specifying which sorts of actions by her department or university would or would not fall within the scope of either free speech concerns or speech culture concerns. I would worry about a dynamic in which Prof. Decristo was removed from her apparent position as an undergraduate advisor mostly to avoid bad press to the university or as a result of public pressure. I would worry a lot less about a dynamic in which her actions lead her department, or the dean of the UC Davis faculty of arts and sciences, to realize that they accidentally allowed an idiot to become an undergraduate advisor, and that they ought to rectify that error. After all, "free-speech maximalists," like "free-speech minimalists" or "cancel-culture minimizers," agree that speech has consequences--even, sometimes, state-enforced consequences. They simply believe that the state must be highly constrained in imposing them across a variety of circumstances and for a variety of reasons, and some believe that even where private consequences are concerned, we should be highly wary of a dynamic that is too willing to impose those consequences, often wildly disproportionately, through a combination of mobbing, no-platforming, social pressure, demands of conformity, leveraging financial and other forms of power, and so on.  

2) I think it is untrue to say, as I think Howard does on a fair reading of his post, that it would be unreasonable to believe that this speech crosses a First Amendment line that is not crossed by the other sorts of speech he describes--namely, "celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc." Of course there are perfectly sensible arguments for distinguishing between speech that celebrates violence and speech that threatens or incites violence. It is neither arbitrary nor irrational to distinguish between someone saying, "I'm so glad Mike is dead--serves him right" and the same person saying, "I'm going to kill you, Steve" or "folks should go out and kill Marcia"--even if (as I suggest is also true of Prof. Decristo's words) one concludes that in context, even the words "I'm going to kill you" ultimately don't end up qualifying as a true threat, or as incitement for that matter. 

I should say that to conclude that it is neither arbitrary nor irrational to draw a distinction between speech celebrating violence and speech threatening violence doesn't mean one can't argue that the line is ultimately less clear than that conventional wisdom suggests. And I might observe on the flip side that some critics of "free-speech maximalism" argue that First Amendment law has been too protective of threatening speech and too narrow in its definition of true threats, and that we ought to extend the category of unprotected speech to a wider set of online activities, including "doxxing," different sorts of online mobbing, and various online threats or harassing acts. Those writers might ultimately conclude in good faith that Prof. Decristo's words don't fall within even their generous recommendations for greater regulation or liability, just as some conventional civil libertarians might conclude--wrongly, I think--that her words do count as a true threat. But it ought to be a live issue for them. Presumably some of those writers ought to believe, as a matter of principle and of the application of their own work, that Prof. Decristo's speech is punishable and ought to be punished. After all, she suggests that the whereabouts of a host of journalists--and their children!--can be easily discovered, and that "they should fear us." That's the very meat and drink of any number of scholars who write counter-civil-libertarian pieces about the First Amendment and online speech. They might add therefore add Prof. Decristo's outburst to their list of things to write or tweet about--with, I trust, the same conviction they bring to other cases.

3) I am more inclined simply to dismiss Howard's "many people" move. I'm not so much doubting or denying it as suggesting it is unhelpful. I have indeed seen some writers, some of whom are civil libertarians as opposed to people with a commitment to free speech in narrow partisan circumstances, reacting to current events in a way that seems to depart from their usual views on free speech law or speech culture, either in terms of result or in terms of the level of scrutiny and concern they apply. We all use shorthand like "many people" from time to time, law professors no less than anyone else; newspapers, for instance, frequently resort to the phrase "many people" when a reporter wants to voice his or her own view. Sometimes it has value; sometimes it is accurate.

But especially with regard to online speech, it is a particularly unhelpful measure. It is probably equally true that "many people" who are dubious of old-fashioned free speech types, or have argued that students are particularly susceptible to "harms" from professorial speech owing to power imbalances, or who favor an expansive view of what constitutes online threats or harassment or incitement thereto, have not rushed to condemn Prof. Decristo or argue that she may justly be disciplined--and that, in fact, they have not even sauntered along to suggest that this might be true of any of the professors who have offered violent or bloodthirsty remarks in the last couple of weeks. But I assume that's not universally true. Perhaps some have condemned such speech according to their own standard; I assume others simply have lives, have not seen a story that's a day old at best, and may never see it; and I assume still others may feel that way but are busy frying other fish. I think it would be unfair to use a locution like "many people" to criticize those writers who treat a great deal of speech, especially online speech, as "harmful" and regulable but apparently have not found occasion to condemn any speech of this sort in the past two weeks.  

For the same reason, I find "many people" unhelpful here--somewhat glaringly so, when it is accompanied by a link to a single individual. Perhaps it would be better to return to Howard's earlier measure and ask something like, where has FIRE been now that the shoe is on the other foot? (Apologies for dipping into the cesspool of social media.)

Free speech line drawing (Updated)

UC-Davis history professor Jemma DeCristo faces some internal and external troubles over a tweet reading "[One] group of ppl we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation,” she wrote. “They have houses w addresses, kids in school. They can fear their bosses, but they should fear us more," followed by emjois of a knife, an ax, and blood droplets. DeCristo has been disappeared from Twitter and from Davis' web site. Many people, including free speech maximalists, believe this crosses the First Amendment line, uniquely among the various rallies, tweets, and statements (including from DeCristo) celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc.

I do not see why this tweet--as despicable as it is--crosses a First Amendment line that similarly reprehensible speech has not. It does not reach incitement--it does not urge specific action at any time and place, certainly not imminently, and thus is unlikely to lead to such imminent lawless action. It does not reach true threat--it does not mention or address any particular person or group in any time or place, making it, at best, against all Jews (or at least all Jewish journalists). The emojis do not make the threat more specific in time or place. And the norms (such as they) surrounding emojis on social media arguably push this away from a threat and into rhetorical hyperbole.

Again, I am not defending this person or the content of her speech--both suck. But I do not understand why free-speech maximalists  have gotten off the train here.

Update: An email interlocutor points me to US v. Hussaini (S.D. Fla. 2022), refusing to dismiss a federal threats indictment against a person who posted You Tube videos threatening to kill Christians by stabbing out their eyes with a knife and to murder Black people by burning their bodies in a fire. The court rejected defendant's argument that his statements were not directed at a sufficiently discrete group of people, citing Virginia v. Black and US v. Cox from the Sixth Circuit. Reliance on Cox is questionable--the statement there was made by phone to a bank employee and referenced harm to "you all" and "people there" in the bank, including the listener. Reliance on Black is iffy because the Court rejected the view that any cross burning is done with intent to intimidate, which would protect most cross burnings occurring in a field and away from any particular person or group. Nevertheless, Hussaini stands as at least persuasive authority that online speech threatening an enormous group can constitute a sanctionable true threat, even if the result lacks real support and explodes this heretofore narrow category of unprotected speech. If the threats to all Christians and all Black people can be punished as threats, so can DeCristo's tweets.

Justice Barrett Endorses a SCOTUS Code of Conduct

My new column on Slate praises Justice Amy Coney Barrett’s endorsement of a SCOTUS Code of Conduct, but questions her assertion that there is “unanimity among all nine justices that we should and do hold ourselves to the highest ethical standards possible.”

Here is the gist:

Amy Coney Barrett’s Call for a SCOTUS Ethics Code Comes With an Exasperating Rider

Justice Amy Coney Barrett recently became the second member of the Supreme Court, joining Justice Elena Kagan, to explicitly support the adoption of a SCOTUS ethics code. It would be a “good idea” to adopt a code, she told an audience on Monday at the University of Minnesota Law School, “particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way than perhaps we have been able to do so far.” That was admirable candor, not least because it must have ruffled some feathers among the likely holdouts on the court.

The Supreme Court remains the only court in the U.S. without a written code of conduct. If Barrett is going to change that, she will have to confront the depressing reality that while some justices do regard ethics as an aspiration, for others they are just a nuisance.

You can read the entire column on Slate. 

Law Professors Sign-Up to Volunteer Teaching Time to Help Israeli Law Schools

Dear Colleagues,

 Israel is a very small country and the atrocities committed by the Hamas and the realities of the current situation have touched most of the population in one way or another. 

To support our Israeli colleagues we are organizing a list of law professors willing to teach a zoom class for free (either a minicourse/partial course or a full course) when the Israeli school year begins (currently early November but likely to change). We want to make it possible for our colleagues to take the time they might need  to tend to their other responsibilities and the healing their families and friends might need.

 Here is a google form link for those who are interested. https://forms.gle/MXBoHbpj37e3UJLW7  Plrsdr feel free to share this with anyone who you think might be inclined to join us.

With thanks and hoping for better days ahead,

Lisa Bernstein

Wilson-Dickenson Professor of Law

The University of Chicago Law School

&

Orly Lobel

University Professor & Warren Distinguished Professor of Law

Director, Center for Employment & Labor Policy (CELP)

University of San Diego

&

Prof. Oren Gross
Associate Dean for Academic Affairs
Irving Younger Professor of Law
University of Minnesota Law School

 

Confederate Presidential Electors

One argument in the Section 3 debate is that the presidency was excluded from the list of offices subject to disqualification because presidential electors were included. There is no way, the argument goes, that "loyal" electors would vote for a former Confederate like Jefferson Davis. There are several problems with this claim, but for now let's focus on one. A hard-core Confederate could be a presidential elector so long as he was not covered by Section 3.

Exhibit A: General John B. Gordon. Gordon was one of Lee's most trusted lieutenants at Antietam and Gettysburg. This was impressive given that Gordon had never served in the military or in office before the Civil War. This also meant, though, that Section 3 did not apply to him. In 1868, he was a Democratic presidential elector for Horatio Seymour and cast a vote for Seymour, who won Gordon's home state of Georgia. Seymour was not a Confederate. But Gordon (a vicious racist) would have voted for one if given the chance.

Fortunately, Gordon did not have that option for Jefferson Davis, because Section Three rendered him ineligible for the White House. 

UPDATE: If you look at the other Georgia presidential electors in 1868, several of them were ex-Confederate soldiers. Colonel James D. Waddell and Major J.B. Cumming are two examples.

Irony Alert, Academic Freedom Edition

On Steve's post about former Purdue President calling for the end of tenure: The last episode (Sept. 2022) of Keith Whittington's unfortunately discontinued Academic Freedom Podcast featured an interview with . . . Mitch Daniels. The episode description says "During his time at Purdue, President Daniels has carved out a national reputation as a leader on campus free speech issues. Daniels shares the principles and practices he has followed to dramatically improve Purdue’s rating as a defender of academic freedom. The university most recently appeared at number three on FIRE’s College Free Speech Rankings." I guess he changed his mind.

To be fair, FIRE's rankings mostly measure student perception and feelings and the usual campus-speech hobby horses (tolerance for speakers, disinvitations, student attitudes towards disruption, "openness" to difficult conversations, fears that fellow students will think worse of you because of what you say, etc.). It also includes how many times a school sanctioned a scholar for their speech during a "campus controversy." Tenure, the vigor of tenure protections, and the attitude of top administrators towards tenure are not part of the study* despite, as Steve describes, the obvious connection to the university's mission of disseminating knowledge and to protecting the expression of unpopular views.

[*] Which also may explain how three Florida State University System institutions, including mine, can be in the top 50 despite a state effort to eliminate tenure in anything more than name.

Saturday Music Post - Unchained Melody

"Unchained Melody" has mostly been associated with the Righteous Brothers, who released it in 1965, but it was actually written for the 1955 prison film Unchained, in which it was sung by a heartsick convict. Interestingly, only about a minute of the song was included in the film; see clip at the bottom of Saturday's post.

Three versions were released in 1955, by three different artists, all of which charted in the top ten. The lyricist Hy Zaret allegedly refused to include the word "unchained," even when asked by the composer Alex North. Seems to have worked out pretty well, as the song has been covered hundreds of times.

The clips are at The Faculty Lounge.

In Defense of Tenure

Mitch Daniels – former president of Purdue University, as well as former Indiana governor – has called for an end to the tenure system in higher education. My new column in The Hill explains why he is wrong. Here is the gist:

The Hill

A shortsighted idea to end faculty tenure puts education last

BY STEVEN LUBET, OPINION CONTRIBUTOR - 10/16/23

Mitch Daniels waited until he retired as president of Purdue University to suggest that state legislatures ought to consider abolishing faculty tenure systems. 

While Daniels is correct that colleges and universities are facing “rising skepticism,” much of it thanks to political attacks from his fellow Republicans, he is wrong to believe that it can be addressed by dismissing the most experienced teachers and researchers.

A stable intellectual infrastructure is precisely what the tenure system provides to higher education, where the mission includes the preservation and transmission of knowledge. Daniels never mentions stability, scholarship, research or even instruction in his survey of university goals. It is all about management and cost control. Those are important objectives, but Daniels ignores the meaningful role that tenure plays in developing and maintaining an academic workforce. 

Even more important is the protection that tenure provides for the expression of unpopular or controversial ideas. At Minnesota’s Hamline University, for example, a single student complained when her art history teacher showed a slide of a 14th century Persian painting with an image of the Prophet Mohammed.

Because the instructor was in a non-tenure eligible position, the Hamline administration was able to rescind the contract she had been offered for the following semester, without notice or due process.

A tenured professor would have been entitled to a hearing and appeal, with the burden on the administration to show cause for termination. In fact, the instructor had adhered to all professional standards, which she easily could have established if given the opportunity. As an untenured teacher, however, she had no such rights, and thus no academic freedom.  

The piece says much more about the economics of the tenure system, with far less impact on university finances than Daniels claims.

You can read it at The Hill

Comments are open and will be monitored.

The right thing for a suspicious reason

We have witnessed two things on college campuses in the past week: Many schools allowing pro-Hamas rallies, statements, and literature and most schools refraining from issuing corporate statements (or issuing anodyne statements that satisfy no one).

Perhaps this is how it should be: Many believe, like Paul, that universities should not make broad statements on public disputes. Northwestern President Michael Schill urged that position,* grounded in the Chicago Principles and the Kalven Report, in arguing that the university should not speak for its individual members and that he would avoid "statements on political, geopolitical or social issues that do not directly impact the core mission of our University, the education and futures of our students, or higher education." And many believe that campus spaces, especially on public universities, are public forums that should be open for constitutionally protected speech, however offensive and obnoxious, and that administrators should not interfere to protect offended listeners.

[*] Then followed it with a somewhat more defensive statement when someone suggested he "believe[s] that the University as an entity should not be governed by a set of values … that everything is relative."

The problem is that universities reached this epiphany about campus speech when the speech celebrated the deaths of Jews and when even the stuff about Israel is tinged with comments about ovens and gas chambers. Prior to that, many (most) university officials took a different approach. They believed it necessary and appropriate to express solidarity and support African American students following George Floyd's (and other) murders or for women following Dobbs. They believed it necessary and appropriate to regulate, threaten, and sanction student speech--Halloween costumes, microaggressions, chalking sidewalks, singing songs on a bus surrounded by members of your group and unheard by anyone outside the group. Jeffrey Flier, former dean of Harvard Med School, makes this point (paywalled) in arguing that universities should move to the Chicago position of neutrality on non-educational issues, while pointing to Harvard President Claudine Gay's multiple statements and efforts to get out of the hole.

If the carousel ends in the right place on this, I am glad. But it is hard not to be suspicious of the context.

Statement of the Heads of Israel's Universities

feel free to share with your institutions. 

11 October 2023

5784-Tishrei-26

To our colleagues, heads of universities around the world,

These are difficult times. We thank you for the support and concern we have already received from so many of you.

As you are aware, early last Saturday morning, Hamas carried out an unusually brutal and violent attack primarily against civilians, within Israel. While the leadership of some academic institutions has issued public condemnations, we learned that in others this has been regarded as just "one more event" in the ongoing conflict between Israelis and Palestinians, which can be understood from multiple perspectives. We would like to emphasize that this is far from the truth. This was an act of singular barbaric violence which must be thoroughly renounced.

To show why this is so, we will need to share some truly disturbing details, as referred to in President Biden's speech and now coming to light in the international press. We know that these will disturb you no less than they have shaken us.

On the Sabbath and Sukkoth holiday and 50 years almost to the day after the fateful Yom Kippur War, Hamas unleashed a surprise rocket attack on Israel from Gaza, reaching as far north as the Tel Aviv and Jerusalem areas, while simultaneously Hamas and Islamic Jihad militants breached the border and brutally massacred those in the communities just across the border inside Israel – women, elderly, children, young families. Kids attending a music festival, peace activists, elderly people in their 80's, toddlers. Hundreds.

Many were slaughtered on the spot, others huddled in their homes for hours before being found and killed or were held hostage in their homes or communities under constant threat of death, while still others were taken captive and brought into Gaza. Horrific

videos posted by Hamas from Gaza show the parading of injured hostages in the street to great cheering, show cruelty to children, taunting of the elderly, show rape and torture. All this as hundreds of Israelis were injured or killed by indiscriminate rocket fire, which has hit both Jewish towns and Bedouin and Arab villages. Just two days ago, a mosque in the village of Abu Ghosh was hit by rocket fire.

Let's be clear. This is not "war as usual" or just another chapter in the Israeli-Palestinian conflict. There are not "good people on both sides". Hamas and Islamic Jihad have proven themselves to be cruel, barbaric organizations reminiscent of the Taliban and the Islamic State.

We have heard of initiatives undertaken by faculty and students on some campuses in countries outside of Israel to support Hamas and Islamic Jihad actions, and we understand that there has not always been a clear response from academic leadership to such signs of support. We hope that you will agree with us that there can be no support for such terror organizations in Western democratic societies, just like there is no support for Al Qaeda or the Islamic State. There can be no support for purposeful massacres of civilian populations, or for the taking civilian hostages.

As the guardians of higher education and academia, actively pursuing knowledge for the benefit of humanity, as role models for and teachers of the leadership of tomorrow, we all share the responsibility to educate our communities. What values are we passing on? Freedom of speech and academic freedom, absolutely. But a stand against barbaric violence perpetrated on civilian populations? We know you join us in renouncing such acts of

violence.

Yours,

Prof. Arie Zaban, President, Bar-Ilan University; Chairperson - Association of University Heads – VERA

Prof. Daniel A. Chamovitz, President, Ben-Gurion University of the Negev

Prof. Alon Chen, President, Weizmann Institute of Science

Prof. Asher Cohen, President, the Hebrew University of Jerusalem

Prof. Leo Corry, President, the Open University of Israel

Prof. Ehud Grossman, President, Ariel University

Prof. Ariel Porat, President, Tel-Aviv University

Prof. Ron Robin, President, University of Haifa

Prof. Uri Sivan, President, the Technion-Israel Institute of Technology

 

 

 

 

Northwestern Faculty Statement on Terrorism

The following statement was signed by nearly 60 Northwestern Pritzker Law School Faculty:

TO: Northwestern Pritzker Law School Community

FROM: Concerned Faculty

RE: Terrorism in Israel

On Saturday, October 7, Hamas terrorists perpetrated the greatest mass murder of Jews since the Holocaust. The massacre took the lives of over 1300 peaceful civilians of many nationalities, including at least 20 Americans. Many children were among the dead. Adjusted for population that would be about 45,000 deaths in the U.S., or fifteen 9/11 attacks in a single day.

Celebrants at a music festival were gunned down without mercy. Homes were invaded by gunmen, who used explosives to ensure there would be no survivors. There was no military purpose to the attack, only the goal of murdering as many Israeli civilians as possible. The terrorists posted videos of their barbarous acts. Over 100 hostages were kidnapped and taken back to Gaza, evidently including two women from Evanston.

These events have affected many students and faculty, of all faiths and backgrounds, in the Northwestern Pritzker community. In Israel, 18 students from our partner Tel Aviv University are among the murdered.

As faculty members dedicated to the rule of law, we choose to make clear that we unequivocally condemn Hamas’s wanton acts of terrorism, which have made the establishment of a just peace, recognizing the human rights of every community, all the more difficult to achieve.

Some have claimed that the Hamas atrocities must be blamed on Israel. What Hamas perpetrated was unspeakably evil. It is dehumanizing to blame the murders on the victims. We absolutely reject such acceptance, and near-endorsement, of terrorism.

Creating a better baseball post-season

A break in a bad week for some sports frivolity:

Baseball's LCSs are set--the 90-win Astros against the 90-win against the 90-win Rangers in the AL, the 90-win Phillies against the 84-win Diamondbacks in the NL. Five teams won more than 90 games this year (Braves, Orioles, Dodgers, Rays, Brewers); all are out. The Astros are the sole remaining division winner (they tied with the Rangers and were named division winner based on head-to-head record, baseball having eliminated one-game playoffs). They are the sole remaining team that received a first-round bye. And none of the division series went the full five games; two (Diamondbacks and Rangers) swept teams that won at least ten more games during the regular season.

Since introducing non-division winners into the post-season in 1995, baseball has struggled to calibrate its system to serve multiple needs--create late-season excitement, give multiple teams hope, incentivize and reward regular-season success, and create a a format that identifies the "best" team of a given season. Baseball's uniqueness creates some issues. It has the longest regular season, producing a sufficiently large sample size to separate teams by quality. At the same time, the best teams lose 40 % of their games and probably lose three in a row, or 3-out-of-5 or 4-out-0f-7 at some point (maybe several points) in the six-month season. That means any team can win a short series and upsets become more likely. (A play-off series accurately reflecting the regular season would be best-of-75).  And at least this year, it appears the first-round bye--the sole reward for winning a division and having one of the two best records in the league--cooled good teams off rather than giving them beneficial rest (the Braves, who had one of the best offenses in baseball history, scored 8 runs in four games).* Meanwhile, teams that played in the first round got hot.

We are in the early days of the latest format, so it will take time to see how this system performs over several years. Meanwhile, my baseball research side wants to go through results back to 1903 to see how often the post-season winner reflected the regular season and how much that has changed through various post-season iterations.

Yes, it is

It is difficult to talk about whether something constitutes "cancel culture" or not, since "cancel culture"--like "cancel culture doesn't exist," "critical race theory" as an epithet, "abolition," "taking back," "defund," "woke," and many other descriptive phrases and assertions that serve as substitutes for actual thought--is not a natural kind, but a bumper sticker whose definition is contested, indefinite, manipulable, and subject to endless motte-and-bailey exercises. For what it's worth, however, if cancel culture is defined, roughly and somewhat lengthily, as "a culture or cultural phenomenon in which social media and their dynamics frequently if not invariably play a principal role, in which objections to some alleged speech or action (one that is often misdescribed by the person or people complaining) move, sometimes immediately and en masse, from disagreement to an effort to ensure that the person loses jobs, job opportunities, existing and future speaking engagements, and so on, generally by leveraging social media and relying on bandwagon effects and other people's and institutions' fear of bad publicity or a similar fate," then yes, I would say that the NYU law student discussed by Howard has indeed been subjected to "cancel culture." I would add that this dynamic seems to me wrong and unhealthy in her case, as in many or most others. (I exclude the reported efforts of fellow students to remove the student from the position of SBA president for speaking ultra vires while purporting to represent the association. That does not seem illegitimate to me.)  

Because I--along with many or most other halfway serious people who worry about this dynamic, I think--believe that this is precisely a question of an unhealthy cultural dynamic (and an unhealthy cultural-technological combination) rather than some alleged absolute rule or formula, I do not find my general concern about this dynamic outcome-determinative in any individual case. One can dislike the dynamic and its seeming increased prevalence (including under-the-radar instances, as well as unreported actions or inactions resulting from chilling effects, like avoiding certain issues in the first place) while still evaluating individual cases, just as one can (for example) worry about government overuse of classification, believe that it is becoming too frequent or casual, and still conclude that a particular instance of classification was justified.  Obviously, opinions on this student's treatment will differ, especially in the heat of the moment.

In my case, I tend to think that the rescinding of the offer was a mistake. (Frankly, I go back and forth on this and, as I say below, I would hardly be offended by a contrary conclusion. But I do indeed tend to think so, mostly because of the dynamic behind the rescission.) I believe more strongly that Winston & Strawn's public rescinding of the offer was wrong. I find it indicative of the very dynamic that worries me. An institution that finds a person or his or her views repugnant, and/or decides with sincerity that they are a bad fit for the institution in light of their words or actions, may indeed decide not to hire that person; but it has no particular need to do so with fanfare. An institution that not only gets rid of someone, but makes sure to do so in a public statement, is that much more likely to be acting in at least some measure, if not completely, to propitiate a mob and dowse bad publicity rather than because of any considered decision about how that person will do the actual work of the institution. It's that dynamic I find highly unhealthy for a halfway decent culture of free speech and pluralism.  

Where I might differ with some is that I think the discussion around such issues would be greatly benefited by a dose of truth serum and some stripping away of the customary bunkum. I am happy to assume that Winston & Strawn in fact possesses some "firm values," although, honestly, my reaction to law firms and other business institutions--including universities--engaging in broad invocations of "values" is to worry about what comes next rather than to feel good about that institution. I am happy to assume that the student was sincere in their statement, although the statement itself strikes me as nothing but one rote delivery of tiresome bumper-sticker slogans after another, requiring nothing in the way of serious thought or commitment. (Obviously that tendency to rely on slogans is not limited to any particular political affiliation.) I am happy to assume that many people were genuinely outraged in their reaction to the statement, partly because outrage comes cheap online but also because I had a similar, if more ironically inflected, reaction to it myself.

But I think a truly candid statement by the law firm would have been something like this: "Frankly, we don't care much what our associates think. Why would we, as long as they're getting their work done and recording their hours correctly? But this statement has caused tsuris for us with the public, with important clients, and with our own colleagues, and it's just easier to cut her loose than to deal with even the few more days of bad publicity we would suffer. It's not at all clear why we focus on hiring graduates of high-ranked law schools instead of top graduates of the 150 other law schools out there. But even graduates of high-ranked law schools are a dime a dozen, and it will be easy to replace this one." A candid defense of the student would run something like, "Of course the student's statement was horrible. But they probably barely meant it, and they'll probably believe something different but equally idiotic next year. Anyway, if you got rid of every person with dumb views at any institution with a population larger than Paul Horwitz [and I'm not so sure about me, either], we'd all be out of a job." A candid criticism of the student would focus on the awfulness of the student's statement, rather than on ginned-up nonsense like an invocation of the bar's fitness rules. I don't presume to speak for the student. But I rather assume that the view of many similarly minded people in this situation would be roughly like Justice Black's opinion in Everson: "My views on pressing matters of social justice and the remaking of societal institutions are strong. They are urgent. They will not bend. And they do not prevent me from keeping my head down and doing document review on behalf of Raytheon so I can collect the outsized paycheck of a big-firm associate." None of these sentiments are the kind of thing one engraves in stone. But they're human-sized sentiments, and I think they would be a more candid description of everyone's actions and views.  

As I said, I don't think my views on the cancellation dynamic (especially in its connection to social media) are outcome-determinative about this particular individual and this particular case. And I don't think the fact that they are not outcome-determinative says much one way or the other about whether the dynamic exists or is worthy of concern. The view that the tort of defamation should exist, and even sometimes be available to public figures, hardly prevents someone from believing there are good reasons to cabin its scope, especially in cases involving public figures. People sharing my concerns about "cancel culture," as I've defined it, will surely disagree about particular applications. Thus, I will hardly be offended if someone shares my general concerns but thinks there were sufficient reasons justifying the law firm's actions here. But if Howard's question was non-rhetorical, then I would answer: Yes, it is an instance of the dynamic I'm concerned about, however one comes out on the individual case; and yes, even in application, at least one person thinks the law firm probably acted wrongly here.   

(I take no view on Howard's closing shot. At its core is an empirical question, and to answer it one would have to troll through social media, as to which God forbid. I'm not sure why he focuses on "the right" rather than on everyone who worries about cancel culture, since that larger population is ideologically diverse and not immune from hypocrisy, error, or tunnel-vision either. Also since he focuses on "the right," I assume he is not referring to FIRE, since that would be a misdescription, depending on how he defines "right" and "left" in the first place. [I do think FIRE ought reasonably to be concerned about this case, at least as a cultural rather than a legal matter.] And I should think that since he limits himself to those who think that "cancel culture is the worst thing ever," he is excluding from his count many people for whom cancel culture, actually and appropriately defined, is a) a genuine concern that b) is still subject to some degree of individualized consideration, like most things and c) a concern among many others rather than the worst thing ever, whatever that might be. And he might have added a word or two about those who belong to the "usual 'cancel culture doesn't exist' crowd" but have discovered a newfound concern over online crowds whipping each other up to demand someone's firing.)  

Is this cancel culture (Again)?

The president of NYU's SBA sent a message, as President, to the student body placing "full responsibility" for the terrorist attack in southern Israel on Israel. Winston & Strawn withdrew her employment offer. It also appears there is a move to try to remove her as President.

Cancel culture? Orin Kerr (who believes such a thing exists) has several thoughtful Twitter threads. He argues that the line between the expressive act of imposing consequences on someone's speech and cancellation involves the tendency to react too quickly to the speech, to construe ambiguous statement ungenerously, and to ignore historical context. That is consistent with arguments tying it to proportionality--"cancellation" is often disproportionate to the objected-to message.

I would note that the usual "cancellation is the worst thing ever and a violation of free speech norms" voices on the right are, as always, silent when the targeted/canceled speaker comes from the left. 

Hamas and Proportionality

Please watch this video interview with Ilan Troen. He is an emeritus professor at Brandeis whose daughter and son in law were murdered in the Hamas pogrom:

Ilan is the friend of a friend. He and his family have been firmly in the peace camp, advocating Palestinian rights, which of course made no difference to the terrorists.

As the Israeli analyst Haviv Rettig Gur has pointed out, the purpose of the Hamas attack was simply to kill Israelis, with no other military objective:

Families were butchered in cold blood. In one home, a terrorist shot the parents dead, took a child’s cellphone and started broadcasting it all in a livestream on their Facebook account. Grandmothers were pulled in wheelchairs to waiting vehicles ready to carry them as hostages into Gaza. Then came the mothers carrying babies. Footage circulated on social media, put there by Hamas, of an Israeli child asking his mother if the gunmen that surrounded them were going to kill them. “They said they won’t,” the mother replied as they were taken outside to some unknown fate.

The stream of videos didn’t stop. An IDF soldier’s body was paraded in Gaza. A young woman, bleeding, was pulled by the hair from a car after being kidnapped and taken into the Strip. And all of it was broadcast by Hamas to the world in joyful pride, sparking celebrations in Tehran, Ramallah and no small part of the online pro-Palestinian activist world.

There are many other accounts with narratives of even more barbarous acts, but I will not post them.

Much has been said about the need for "proportionality" in Israel's response to the greatest massacre of Jews since the Holocaust.

The progressive blogger Scott Lemieux, for example, has warned of “the immorally disproportionate response that is surely coming." Needless to say, he has not identified his vision of a morally proportionate response to the intentional murder of over 1200 civilians and kidnapping at least 150 civilian hostages from many nations. 

The siege of Gaza is a measured response, aimed at depriving the terrorists of the means to renew their supply of missiles and other weapons. No country in the world would provide fuel and power for the manufacture of arms to murder its civilians. The blockade of food and water must end soon, as international humanitarian law requires Israel to provide necessities to civilians, but the blockade of fuel and power is both permissible as a military measure and essential to continue indefinitely.

What Lemieux and others do not acknowledge is that the principle of proportionality in international humanitarian law, according to the ICRC, requires that the anticipated "loss of human life and damage to civilian objects should not be excessive in relation to the concrete and direct military advantage expected from the destruction of a military objective." In other words, Israel is entitled to use as much force as is reasonably necessary for the “destruction” of Hamas.

Hamas sought no military advantage other than the murder of Israelis, thus committing a massive war crime. The Hamas threat to execute civilian hostages and "broadcast it with audio and video" is further evidence of inhumanity, intentionally reminiscent of the ISIS beheadings.

In 1977, I coauthored what may have been the first article in any American Jewish publication advocating the establishment of a Palestinian state. The Hamas terrorists have set back the cause of Palestinian independence for at least a generation. No Israeli will agree to allow Hamas control of Gaza's borders, nor should they.

Israel's response must be proportionate to the objective of destroying Hamas and removing its ability ever to launch another terror attack. Nothing more.

One Observation About University "Statements"

One generally has, or has not, an appetite to wade into questions when they touch on matters that are greatly upsetting to many people (including me); I generally don't, since words fail or are repetitive or superfluous. And it is perhaps harder, or at least more unwise, to wade into such questions by way of general policy discussions, given the strong feelings of such moments. Still, allow me to make one observation about university "statements," the presence or absence, or strength or weakness, of which have been much discussed in the past few days.

As a matter of background, I believe that as a general rule, "universities" should not make statements on any issues except those which directly and immediately affect the mission and function of the university. For one thing, "universities" in this context does not mean "universities." It means university offices of public communications or other non-professorial apparatchiks writing under the name of the president or trustees of the university, neither of whom speak in any useful sense for other shared governors of the university and neither of whom generally take a sounding of those other governors before speaking. Why professors, who spend most of their time enumerating the ways in which their administration does not speak for them, should want PR statements issued on the deeply affecting issues of the day from such figures is beyond me. For another, university presidents have no relevant expertise on most of the issues on which they pronounce--and that is assuming, charitably and generally fictionally, that the pronouncements come from them personally and not from an even more unqualified flack. Third, and as we have seen, once such a practice takes hold, its scope widens ever further, the dynamic surrounding such statements favors ever more statements, the controversy surrounding the issuance or non-issuance of such statements and their contents becomes ever greater as more statements are issued, and whatever comforting or galvanizing quality they are supposed to have becomes ever weaker. Finally, I believe they are based on a false and clichéd premise, one that universities are happy to trumpet in speeches and sales materials: that the university is a "family" or a "community." The first is false, and arguably harmfully so: few disappointments are so bitter as discovering that your "family" is in fact nothing of the sort, and cannot or will not do everything for you that a family does. The second is truer, but it is more accurate to say that the university is a particular, special-purpose community, defined by a shared commitment to a common academic enterprise.

Better, then, not to issue such statements at all, except insofar as they touch very directly on matters occurring at or of immediate concern to the university qua university--and without widening and attenuating the meaning of "immediate concern" in the now-usual ways, involving vague and/or disingenuous invocations of safety or security or harm. The Kalven Committee's Report on the University’s Role in Political and Social Action is quite right on these questions: "The university is a community only for [ ] limited and distinctive purposes," "cannot resort to majority vote to reach positions on public issues," and should limit itself to speech on matters which involve either specific managerial or internal functions or which go directly to "the very mission of the university and its values of free inquiry." (Statements on such issues by sub-units of the university, such as individual departments, or, most of the time, by disciplinary organizations, generally again speaking on questions as to which they lack expertise and issuing statements as to which they have not sounded out their members properly, raise questions of their own. The answer to such questions is not "no," but "God, no.")  

Notwithstanding the committee's wisdom on these questions, universities have gotten hooked on the statement habit and it's unlikely they will kick it easily. (It is not an incidental or coincidental fact, but a fundamentally connected one, that such statements have exploded at the same time that universities have embraced a heavily consumer- and market-oriented conception of themselves. University statements of concern, solidarity, and the like are not impassioned reactions to, but part and parcel of, "late capitalism" or "neoliberalism" or whatever your stock phrase of choice is.)

In the present moment, that means that some universities, which have been slow to offer statements or have offered anodyne ones designed to offend no one, and which therefore invariably offend many people, have been accused of pusillanimity, specifically as their recent statements are compared to other recent statements on other issues.

This leads to my single observation. Such statements may indeed be pusillanimous. But given the dynamic I described above, which every inhabitant of the university and of many other institutions besides is now fully familiar with, even the more full-throated statements that universities have issued in recent years on matters beyond their expertise and immediate function have generally been issued out of fear, under pressure, to head off protestors or the press, or for PR purposes closely related to the desire not to alienate potential tuition-payers, donors, foundations, and other internal stakeholders or external pressure groups. No doubt conviction has played a role too, but it has been only one factor and not necessarily the most important one. In short, we should not limit ourselves to the suggestion that university statements issued in the past couple of days have been pusillanimous. Instead, we should take a moment to consider the possibility that the kinds of recent statements that are now being held up as examples of what universities say when they really care or are really brave are, at bottom, equally pusillanimous.    

  

This is Not Another Round of Violence

sharing this from two Hebrew U. law professor, important to read. 

This Is Not Another Round of Violence
Netta Barak-Corren* and Michal Shur-Ofry**
Readers of headlines over the past two days might be mistaken to think that the world now
witnesses yet another round of violence between Hamas and Israel, the former firing rockets
from Gaza, the latter responding in air raids. That much has been implied, over and over
again, in stories, on the front page of the United Nations, and even an email that a Harvard
Dean sent to her entire school, referring to “more than 1,100 people [who] have been killed
and hundreds more wounded by the actions taken by Hamas and the Israeli government.”
Nothing is further from the truth.
The horrors that Hamas unleashed on Israel at the dawn of October 7th, 2023, almost 50
years to the date of the Yom Kippur war, are nothing like Israel and the Palestinian-Israeli
conflict itself has ever encountered. Indeed, it started out with thousands of rockets being
fired toward the southern and central regions of Israel. But it soon transpired that the rockets
were a distraction to divert Israel’s attention from the main attack on the ground, inside
Israeli borders. Approximately a thousand terrorists invaded the southern region of Israel
from the ground, sea and the skies, raiding towns and villages, reaching as deep into the
country as Sederot and Ofakim. Their coordinated mission: slaughter and incinerate civilians.
Hamas terrorists invaded house after house, street after street, and executed civilian residents,
in some cases murdering entire families. Houses whose residents tried to lock themselves into
safety were set on fire. Inhabitants who got out were slaughtered outside.
And this does not sum up the list of horrors. More than 150 Israelis—the official numbers
have not yet transpired—including elderly women and men, youngsters, mothers, children
and even babies, were forcibly kidnapped to Gaza.
In Holit, a tiny Kibbutz of 150 residents just south of the border, thirteen people were
murdered and two are still missing. A 33-years old young mother, Adi Kopalon, was
kidnapped with her children, a four years old toddler and 6 months old baby. At the border,
she was separated from her children who were left on the ground alone at night, while their
mother was hailed away to Gaza. The children were later found by a woman who managed to
escape a similar fate and carried them on her hands to safety. In kibbutz Nir Oz, Doron Asher
and her two girls, 3 and 5 years old, were kidnapped to Gaza along with the grandparents.
And it goes on and on. Young couples. Elderly men and women, some older than 80 years
old, on wheelchairs, all forcibly transported beyond enemy lines.
Simultaneously, Hamas raided an outdoors festival near Kibbutz Re’im, killing more than
260 of the party’s participants and the numbers still go up. They executed those who fell to
the ground and threw a grenade into a protective vehicle were festival-goers tried to hide,
burning it to the ground. Dozens of the participants, among them Noa Argamani and her
partner Avinatan Or were taken hostage, their kidnapping documented and circulated through
social media.
There is still no official information about the whereabouts of those who were kidnapped. But
in social media videos abound, in scenes that are taken directly from the ISIS playbook:
Last updated: October 8, 2023
Hamas brutalizing and tormenting Israeli civilians, parading with their bodies around Gaza to
the cheers of a rapturous, massive crowd. Elderly people forced to pose to the camera holding
rifles. Young women stripped naked and presented as trophies to chants of Allah Akbar. An
Israeli child being brutalized, screaming for his mom.
As we write, the numbers of the dead continue to rise, estimated currently at more than 800
murdered Israelis, more than 2300 wounded, and more than 150 taken hostage, the majority
of all of whom civilians. With Israel’s population being roughly 9.5 million people, these
numbers are equivalent to roughly 30,000 Americans murdered on American soil and 5000
taken hostage by terrorists, on a single day.
As this devastating moment, when Israel still fights to clear its territory of terrorist assassins
and is yet to retrieve those who were kidnapped, one thing should be clear: Hamas has defied
any measure of humanity and exceeded every form of cruelty. While a lot can be said about
the complexity of the Palestinian-Israeli conflict, and the share of blame of each side, what
the world is now witnessing is a manifestation of pure evil and horror.
Don’t shut your eyes to this truth.
* Hebrew University Law School and Princeton University
** Hebrew University Law School

The Preamble in the Loughridge/Butler Report

Continuing with the thread on the House Judiciary Committee dissenting Report on women's suffrage in 1871, let's turn to how the dissenters used the Constitution's Preamble to make their case that the 14th Amendment gives women the right to vote.

Try this question by a consideration of the objects for which the Constitution was established, as set forth in the preamble, 'to establish justice.' Does it establish justice to deprive of all representation or voice in the Government one-half of its adult citizens, and compel them to pay taxes to and support a government in which they have no representation? Is 'taxation without representation' justice established? 'To insure domestic tranquility." Does it insure domestic tranquility to give all the political power to one class of citizens, and deprive another class of any participation in the government? No. The sure means of tranquility is to give 'equal political rights to all," that all may stand 'equal before the law.'

'To provide for the common defense.' We have seen that the only defense the citizen has against oppression and wrong is by his voice and vote in the selection of rulers and law makers. Does it, then, 'provide for the common defense,' to deny to one half the adult citizens of the republic that voice and vote?

'To secure the blessings of liberty to ourselves and our posterity.' As has been already said, there can be no political liberty to any citizen deprived of a voice in the government. This is self-evident; it needs no demonstration. Does it, then, 'secure the blessings of liberty to ourselves and our posterity,' to deprive one half the citizens of adult age of this right and privilege?

Tried by the expressed objects for which the Constitution was established, as declared by the people themselves, this denial to the women citizens of the country of the right and privilege of voting is directly in contravention of these objects, and must, therefore, be contrary to the spirit and letter of the entire instrument.                                                                                        

You don't see people make constitutional arguments from the Preamble anymore. The last case that addressed this point, I think, was Jacobson v. Massachusetts (the vaccination case), where Justice Harlan rejected a liberty argument grounded in the Preamble.

Petition to be submitted to the CEDAW Committee of the United Nations regarding the hundreds of hostages held by Hamas

Law professors are signing a petition to be submitted to the CEDAW Committee of the United Nations regarding the hundreds of hostages held by Hamas, dozens of civilians, many of which are babies and the elderly. Please forward it to anyone who may be interested:  https://bit.ly/petition-to-free-hamas-hostages

Comparative Causation Project

I've been discussing a possible project on causation with Professor Marco Martino at the University of Bologna. The idea would be to get some civil law perspectives on causation (in a philosophical or a practical sense) and some common law perspectives and for essays that would go into an edited collection. If any of you might be interested in this, please let me know.

JOTWELL: Wasserman on Johnson on question selection

I have the new Courts Law essay, reviewing Benjamin Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022), an excellent history of how SCOTUS seized the power to grant cert and review discrete questions rather than entire cases.

Guest Essay about SCOTUS in NY Times

For those interested and not otherwise distracted by serious events elsewhere, I wrote an essay with Nora Donnelly, a Fordham student, in the NY Times about the Supreme Court's docket.  You can read it here.  It distills a larger study, "Statutory Interpretation in the 2020s: A View of the Cathedral," we are set to publish in the Southern California Law Review's Postscript.  The larger research effort can be downloaded here.

Saturday Music Post - Shout

"Shout" was improvised by the Isley Brothers at a concert in 1958 when lead singer Ronald saw that the crowd wanted him to extend the closing number.  They recorded and released it in 1959 -- not unlike the story of Ray Charles's "What'd I Say," also released in 1959 --  and it has been covered by dozens of acts, and played at thousands of weddings and parties, ever since. In 2004, Rolling Stone ranked "Shout" number 119 in the 500 greatest songs of all time.

The clips are at The Faculty Lounge. There isn't much variation, but I think that's kinda the point.

Women's Suffrage and Original Expected Application

The Loughridge/Butler report is the Plessy dissent of sex discrimination. In other words, their dissenting report shows that some people in the 19th century did read the Fourteenth Amendment broadly using arguments that make sense to us. But the Loughridge/Butler report is unknown, in part because the dissent came from the House of Representatives rather than from the Court.

In my prior post, I shared an excerpt where the dissenting report argued that sex discrimination for voting was an arbitrary classification no different from denying suffrage to redheads. Now let's turn to another passage that addresses original expected application:

[I] is said in opposition to the "citizen's right" of suffrage that at the time of the establishment of the Constitution, women were in all the States denied the right of voting, and that no one claimed at the time that the Constitution of the United States would change their status; that if such a change was intended it would have been explicitly declared in the Constitution or at least carried into practice by those who framed the Constitution, and therefore, such a construction of it is against what must have been the intention of the framers. This is a very unsafe rule of construction. As has been said, the Constitution necessarily deals in general principles; these principles are to be carried out to their legitimate conclusion and result by legislation, and we are to judge of the intention of those who established the Constitution by what they say, guided by what they declare on the face of the instrument to be their object.

I added the italics to make this section clearer. Next time I'l take about how Loughridge and Butler used the Preamble and why the Preamble is no longer used much in constitutional argument. 

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

This is what ignoring a court order looks like (Maybe) (Amendment)

 

People often accuse government officials of "ignoring" or "disregarding" court orders. Most use the term inaccurately. They apply it to cases in which governments continue to enforce zombie laws contrary to Supreme Court precedent prior to a court ordering them to stop that--the Southern Manifesto or Cooper v. Aaron. Or they apply it to edge cases, such as the recently resolved dispute in Allen v. Milligan over Alabama's congressional maps--Alabama read the non-explicit court order narrowly, attempted to get away with not drawing a second majority-Black district, lost when the new map returned to district court and SCOTUS refused to stay the order, and acquiesced to the court-drawn map (with the second district).

By contrast, a real example of ignoring a court order appears to be playing out in Florida. The district court found Florida law and regs prohibiting Medicaid coverage for gender-affirming care violates the 14th Amendment, ACA, and the Medicaid Act and enjoined enforcement. Florida appealed, but neither the district court nor Eleventh Circuit has stayed the injunction. Nevertheless, according to plaintiffs' motion to enforce, Florida continues to enforce the reg and to deny coverage. Florida has good reason to believe it will prevail on appear and the district court's judgment is not long for this world--if Florida can ban gender-affirming care, as the Eleventh Circuit held, it is hard to imagine the court saying Florida cannot refuse to pay for that care. But it does not matter. A district court judgment binds the defendants as to the plaintiffs unless it is stayed or reversed on appeal. The departmentalist power to continue enforcing the law as to the plaintiffs based on disagreement, belief a higher court will reverse, or to try to set-up reversal has disappeared. Florida can appeal the judgment, as it has. But until the judgment is stayed or reversed, Florida must comply. And its failure or refusal to do so can warrant sanctions.

Note, by the way, how much leeway the plaintiffs expect the court to give. They do not request sanctions. In essence, they want the court to reaffirm or clarify its judgment (which is perfectly clear) and to remind Florida it may not enforce the law. Sanctions are several steps away.

Amendment: Maybe. The injunction (properly) prohibited enforcement of the law as to the four plaintiffs. The motion seems to challenge the state's blanket efforts to continue enforcing its regs, such as public statements of intent to continue enforcement, recoupment efforts, and cease-and-desist letters to insurance carriers. To the extent those blanket efforts cause enforcement against the four plaintiffs, this motion gets it right--the state fails to distinguish those the injunction protects from enforcement from others who remain unprotected. But the language in the motion is much broader--it seems to argue that, given the court's finding that the reg is invalid, the injunction bars all enforcement against all people. I take back--or at least soften--everything I said above.

Keeping no one happy

In the wake of a May 2023 student speech at CUNY Law graduation that some saw as defending Palestine, others saw as anti-Semitic, and which every relevant government actor responded to incorrectly, the Forward reports, based on the minutes and student notes of a September faculty meeting, the school will not have a student speaker. But students will speak at some pre-graduation programs.

They say a good compromise leaves everyone unhappy. If so, mission accomplished. Critics say the school is silencing students and curtailing speech rights. An anti-Semitism activist says allowing the student to speak at the pre-graduation ceremony is a step in the right direction but does not go far enough. He also calls for the dean to be fired for complaining about anti-Palestinian harassment following last spring's graduation, which he reads as co-extensive with the "Jewish community’s outrage and pleas to CUNY to recognize their civil rights on campus."

This is not going away easily.

The Loughridge/Butler Report

To break up the monotony of Section 3 posts, I thought that I would do some on one of my favorite Reconstruction sources. I'm referring to the dissenting report in the House Judiciary Committee on Victoria Woodhull's 1871 petition requesting a declaration that Section One of the Fourteenth Amendment gave women the right to vote.

By way of background, Woodhull's petition was rejected by the Committee. The majority report, written by John Bingham, explained that voting was not a privilege or immunity of citizenship within the meaning of Section One. That conclusion was buttressed by the existence of Section Two and (as applied to women) by the inclusion of the word "male" in Section Two. 

Two members of the Judiciary Committee dissented. One was Benjamin Butler, the well-known Radical Republican from Massachusetts. The other was William Loughridge of Iowa, who was a state legislator and judge before he reached Congress. Their report is fascinating, in part because it shows that the modern reading of the Fourteenth Amendment as applying to sex discrimination was made then.

Here's one powerful passage:

Could a state disfranchise and deprive of the right to a vote all citizens who have red hair; or all citizens under six feet in height? All will consent that the States could not make such arbitrary distinctions the ground for denial of political privileges; that it would be a violation of the first article of the XIV Amendment; that it would be abridging the privileges of citizens. And yet the denial of the elective franchise to citizens on account of sex is equally as arbitrary as the distinction on account of statute, or color of hair, or any other physical distinction.

One reason I find this discussion striking is that the "red hair" example also comes up in Plessy v. Ferguson. Everyone agrees that state discrimination against redheads is unconstitutional in the 19th century. No such agreement then on race or sex.

I'll have more on the Loughridge/Butler report over the next week or two.

UPDATE: If you would like to read the entire dissenting report, it's here.

Who's Keeping SCOTUS from Adopting an Ethics Code?

Justice Kagan says that the Supreme Court has been working on an ethics code, despite the concerns of one or more holdouts. My new column at The Hill explains the likelihood that Justices Alito and Thomas have been keeping SCOTUS from adopting a code of conduct.

Here is the gist:

Can Elena Kagan save the Supreme Court?

Supreme Court Justice Elena Kagan carefully chose her words when she told an audience at the Notre Dame Law School that she wanted her court to adopt a written code of ethics. That would “go far in persuading other people that we were adhering to the highest standards of conduct” she said. “I hope we can make progress.”

Kagan hesitated, however, when law school Dean Marcus Cole followed up by asking which justice was opposed to adopting a code. “What goes on in the conference room goes on in the conference room,” she demurred. “I don’t want to suggest that there’s one holdout.”

It is a safe bet, given recent events, that there are actually two holdouts – Justices Clarence Thomas and Samuel Alito. They have the motive, means and opportunity to keep the court from adopting an ethics code.

A robust Supreme Court Code of Conduct would spell the end of Alito’s and Thomas’s constant skirting of rules that apply to all other judges. That gives them a uniquely compelling reason to block approval of a code for the Supreme Court, or to hold out for the elimination of key requirements.

Ever the optimist, Kagan told the students at Notre Dame that “There are some things to be worked out. I hope that we can work them out.” I suppose she has the right to hope.

The entire column is at The Hill.

CFP: Third Annual Financial Restructuring Roundtable, April 4, 2024

The Third Annual Financial Restructuring Roundtable will be held in person on April 4, 2024 in New York City. Spearheaded by Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

The Roundtable invites the submission of papers. Selected participants will receive a $2,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting. 

We seek papers exploring diverse topics and will be interested in interdisciplinary perspectives. Papers will be selected through a blind review process. Junior scholars (with one to ten years in academia) are invited to submit a 3 – 5 page overview of a proposed paper. Submissions may be an introduction, excerpt from a longer paper, or extended abstract. The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed.

Please submit proposals by October 30, 2023. Invitations will be issued via email by December 1, 2023.  Working drafts of papers should be available for circulation to participants by March 1, 2024.  

Proposals – as well as questions and concerns – should be directed to Samir Parikh at [email protected].