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Wednesday, January 31, 2024

How Would John Marshall Explain the Trump Decision?

I don't mean how would John Marshall decide the Trump case. When I invent a time machine, we'll find out. I want to focus here on how the Court (or individual Justices) will write the opinions.

Chief Justice Marshall loved discussing issues that were unnecessary to his decisions. He talked about the merits of William Marbury's case before concluding that the Supreme Court lacked jurisdiction. He wrote a long essay on the autonomy of Native American Tribes in the Cherokee cases. He said a lot about the Commerce Clause in Gibbons v. Ogden before holding that the state law was inconsistent with a federal statute. And so on.

This should be a model for the Court today. Instead of saying as little as possible to decide the Trump case, the Court should seriously think about saying as much as possible. Explaining that the 2020 election was not a fraud, for example, would be a national service. Denouncing what happened on January 6th or Trump's conduct would also have an enormous impact. Perhaps these tasks will fall to separate concurrences and dissents and might carry special weight if they come from a Justice that President Trump appointed.  

Posted by Gerard Magliocca on January 31, 2024 at 10:51 AM | Permalink | Comments (0)

Monday, January 29, 2024

§ 3 of the 14th Amendment . . . and Baseball

I bet Gerard never thought of this angle:

Scott Bomboy of the National Constitution Center discusses the case of Victor L. Berger, a German-immigrant socialist elected to the House following an Espionage Act conviction. The House twice refused to seat Berger on § 3 grounds--following his initial election and then when he won a special election after the first refusal. SCOTUS overturned Berger's conviction in 1921, because the trial judge should have recused after making many derogatory and discriminatory comments about German immigrants.

The judge? Kennesaw Mountain Landis. Landis' reputation is shot, fairly or otherwise, for his (uncertain) actions around the integration of MLB in the 1940s. And here he is making another negative contribution to a major historical event.

Posted by Howard Wasserman on January 29, 2024 at 06:22 PM in Howard Wasserman, Sports | Permalink | Comments (0)

(Re-upping) Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie

FIU College of Law and FIU Law Review will host Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie, beginning at 9 a.m. this Friday, February 2, 2024. The programs honors the work of Megan Fairlie, my FIU colleague from 2007 until her death in 2022. The event will be livestreamed.

Program after the jump.

Opening Remarks: Dean Antony Page (FIU College of Law)

Panel IA Tale of Two Defendants in International Tribunals

Diane Marie Amann (University of Georgia School of Law)

Michael P. Scharf (Case-Western Reserve University School of Law)

Moderator: Mario Loyola (FIU College of Law)

Panel IIThe Academic Work of Megan A. Fairlie

Mark A. Drumbl (Washington and Lee University School of Law)

Göran Sluiter (University of Amsterdam)

Jennifer Trahan (NYU Center for Global Affairs)

Moderator: Kerri Stone (FIU College of Law)

Panel IIIMegan A. Fairlie's Career at FIU College of Law

Video Presentation

Altanese Phenelus (FIU College of Law '14)

Megan Roth (FIU College of Law '17)

Casey Waldeck (FIU College of Law '20)

Moderator: Howard M. Wasserman (FIU College of Law)

Panel IVSome Challenges in International Criminal Law

Nancy Combs (William & Mary Law School)

Milena Sterio (Cleveland-Marshall College of Law)

Yvonne M. Dutton (Indiana University-Robert H. McKinney School of Law)

Moderator: Tawia Baidoe Ansah (FIU College of Law)

Posted by Howard Wasserman on January 29, 2024 at 01:11 PM in International Law, Teaching Law | Permalink | Comments (0)

Can Trump Be Kept Off Red State Ballots?

My new column at The Hill is mostly descriptive, detailing the issues in the Trump ballot cases by using the standard journalism inquiries: who, what, when, where, and how? (But not in that sequence.)

It also includes an observation I have not seen elsewhere, explaining the practical impossibility of keeping Trump off of ballots in the red states, no matter what the Supreme Court says:

Trump v. Anderson formally involves only the Colorado case.

Trump being Trump, yet more chaos would likely follow if he loses, with the Supreme Court keeping him off the Colorado ballot. A finding of Trump’s ineligibility, especially if it seems hedged or just slightly equivocal, would not automatically remove him from the ballot in the red states. That would require local compliance. Republicans, however, currently control the election machinery in 27 states.

Thus, it is entirely likely that Trump’s name would still appear on the election ballots in most or all of those states, no matter what the Supreme Court says, conceivably leading to a purported majority of electoral votes. Would Vice President Kamala Harris count such electoral votes, officially certified by their state governments, even if they’re contrary to a Supreme Court decision?

You can read the entire essay at The Hill.

Posted by Steve Lubet on January 29, 2024 at 11:52 AM | Permalink | Comments (0)

Confidence- and Emotion-Denotive Language

Denotive language formally indicates something about how a judge has voted in a particular case. In an earlier post, I distinguished judgment-denotive language, such as “dissenting from the judgment,” from opinion-denotive language, such as “concurring in Part I of the Opinion of the Court.” 

But there are other, less common types of denotive language. The most salient example is “dubitante,” which sometimes presents as highly formal. For example, “Friendly, J., (concurring dubitante)” is a conventional citation in reported cases. We might call this type of expression confidence-denotive language.  

In addition, somewhat less formal expressions indicate a judge’s emotions. The most familiar example is the quasi-formal expression of respect that frequently opens or concludes dissents, such as: “I respectfully dissent.” We might label this type of expression emotion-denotive language.

Last week, Justice Sotomayor concluded a capital dissent with language that was both confidence- and emotion-denotive: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” Smith v. Hamm, No. 23–6562.

This sort of language, while extraordinary, is more common and diverse than you may think. It may also have legal significance. And it sheds light on judging’s fundamental nature.

Confidence-Denotive Language

To concur dubitante is a widely recognized, even if unusual, form of confidence-denotive language. (Dissenting dubitante also occurs but is even rarer.) What it means to be dubitante in this context—the Latin word means “doubting”—is not entirely clear. Presumably, however, it signifies a sense of special uncertainty with respect to some or all of the ruling or opinion being joined.

Could it matter, legally, whether an opinion is dubitante? Perhaps so. A unanimous ruling or opinion conveys a sense of settledness stemming from widespread agreement. The fact that one or more of the joining jurists not only was dubitantebut also said as much could undercut the decision’s authority. Perhaps the ruling ought to be more easily reversed, distinguished, or overturned when reviewed by a later court. Or the dubitante jurist himself might look back on his vote with a diminished sense of fidelity to it, ascribing it less weight as a personal precedent.

Interestingly, dubitante denotations have not always been given by the authoring judge. As Neil Duxbury points out in The Intricacies of Dicta and Dissent (2021), reporters have often denoted opinions as dubitante—sometimes sparking controversy. This history shows that conventions surrounding all types of denotive language are more fluid and changeable than one might think. Routine judgment-denotive language such as “concurring” or “dissenting” could be replaced or added to. And, in summary rulings, denotive language is sometimes absent, as the votes of some or all justices may not be indicated at all.

At the same time, dubitante has several features that render it especially suited to formal opinion denotation. Because the confidence of jurists is so central to the judicial system, dubitante votes give practical information to litigants and, as we have seen, arguably have legal import, too. Expressions of judicial self-doubt are also rare and so don’t challenge the primacy of judgment-denotive language. Finally, case reporters quickly settled on a concise, conventional way to express this denotation. By contrast, other types of confidence-denotive language may be less workable—consistent with their general absence from legal practice.

Still, one might wonder whether there is, or could be, a counterpart to dubitante, that is, a confidence-denotive term capable of expressing certitude. That possibility leads to the next, partially overlapping topic. 

Emotion-Denotive Language

Less formal is the category of emotion-denotive language. The paradigm here is the sometimes-formulaic statement: “I respectfully dissent.” At least on the surface, this remark conveys an emotional register, namely, respectfulness—as opposed to anger, resentment, despair, and so forth. While “concurring respectfully” is not part of formal citation practice in the way that dubitante is, we can imagine a world in which case reporters created such a practice. They still could.

The “respectfully” dissenting jurist can sometimes partake of confidence-denotation as well. Someone who is in the habit of respectfully dissenting might sometimes withhold the respectfully. A special absence of respectful expression conveys not only deep opposition (an emotional state) but also high confidence. 

More generally, the presence of explicitly confidence-denotive language will have implicit implications for affect (and vice versa). For example, a judge who is dubitante relatively often (such as Judge Friendly) may come across as wishy-washy (because often uncertain), confident (because willing to express uncertainty), or idiosyncratic (because doing something different from the routine).

Justice Kagan has famously embellished the “respectfully” routine. In Rucho v. Common Cause (2019), she penned what is often viewed as her greatest dissent. That opinion concludes with an oft-referenced remark: “With respect but deep sadness, I dissent.” This language signals poignant emotion at odds with the fiery or sarcastic dissents associated with, say, Justice Scalia. (Might some of his dissents be styled: “Scalia, J., dissenting vociferatio”?)

Or consider the joint dissent in Dobbs v. Jackson Women’s Health (2022). In its introduction, the joint dissent asserted: “We dissent.” No respectfully there, even though its authors often say so. Ditto for the opinion’s concluding sentence: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” The set-off language is somewhat argumentative, though it also explains and specifies the emotion-denotive language.

In addition, judges sometimes indicate in their opinions that they are concurring “regretfully” or “reluctantly.” (Thanks to Neil Duxbury for this observation and related insights.) This sort of denotation not only evinces an emotional state but also often has a specific legal implication: the judge is following erroneous-but-binding precedent. See, e.g., McKinney v. Starbucks Corp., 77 F.4th 391, 401 (6th Cir. 2023) (Readler, J., concurring) (“… I reluctantly concur”); In re Palacios, 931 F.3d 1314, 1318 (2019) (Rosenbaum, J., concurring) (“I regretfully concur . . .”). Advocates and courts alike pick up on these signals. At other times, judges or justices use these expressions to signal other qualms, such as procedural disagreements. See, e.g., Delaware v. Fensterer, 474 U.S. 15, 24 (1985) (Stevens., J., concurring) (“… I reluctantly concur in the judgment”).

Both confidence- and emotion-denotive expressions tend to surface a judge’s personality and, often, a sense of struggle or difficulty. In that sense, these expressions are at odds with legal formalism and the rhetoric of inevitability that often characterizes judicial prose. The appeal of formal inevitability is at its height in majority rulings, which is probably why confidence- and emotion-denotive language arises in separate opinions.

But perhaps that, too, is a contingent feature of practice. Might a Supreme Court majority decision one day end: “We righteously affirm”?

Justice Sotomayor in Smith v. Hamm

That brings us back to Justice Sotomayor’s remarkable denotive language last week: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” 

This sentence combines the routine “respectfully” with Kagan’s “deep sadness” expression from Rucho. (I am aware of no other cases—apart from Rucho and Smith—that use the “deep sadness” denotive language.)

In addition, Sotomayor refers to her “commitment to the Eighth Amendment’s protection against cruel and unusual punishment.”  This language connotes resolve and so adds a third emotional ingredient to the act of dissent. It also resembles the explanatory language in the Dobbs dissent by referring to arguments on the merits.

The presence of “respectfully” amidst “deep sadness” and “commitment” may suggest recognition that the majority’s view was legally reasonable. (Justice Kagan’s separate dissent argued only that the capital defendant’s claim was “Arguably” correct.) 

Or perhaps Sotomayor was accepting defeat in the present while hopefully looking toward to a different future. A comparison might be drawn with Justice Holmes’s Lochner dissent, which begins: “I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.” (Should the citation read: “Holmes, J., regretfully and dutifully dissenting”?)

While powerful, Sotomayor’s extraordinary denotive language also points toward a problem. Denotive language is effective because it is usually crisp and categorical. “Dissenting,” “concurring in part,” “dubitante,” “respectfully,” and so on are briefly stated, recognized denotation-types. When mechanical denotive language gets overlong, such as “announced the judgment of the Court and delivered the opinion of the Court, except as to Parts IV–B, IV–C, and IV–D” (National Pork v. Ross), it is both cumbersome and silly. 

The far more expressive language in Dobbs and Smith presents a related concern. Those opinions show that denotive language can become explanatory, complex, or wordy—much like the judicial opinions they accompany. And as an opinion’s denotation blurs with the opinion itself, the denotive language loses its focal power. If the denotive language from Smith were formalized, for instance, it might read: “Sotomayor, J., dissenting sadly, committedly, and respectfully.”

The appeal of crisp, categorical denotive language probably explains why there is an abiding distinction between, for example, the formal denotive language at the heading of an opinion and the less formal language that sometimes concludes it. Unsurprising then, that Sotomayor’s Smith dissent leads off with a utilitarian denotation: “dissenting from the denial of application for stay and denial of certiorari.” More elaborate denotive language remains exceptional or relatively informal—and rightly so. Still, recent opinions show that there is room for innovation, provided the right occasion. 

*          *          *

Creative uses of denotive language have always been with us, and they may now be on the rise. By giving greater insight into a judge’s personality and decisional experience, denotive language can help shape the legal system’s understanding of the judicial role. Yes, judges vote. But they variously do so with doubts, confidence, respect, regret, reluctance, sadness, sorrow, dutifulness, or commitment.

Cross-posted from Re's Judicata. (Some tiny edits shortly after posting.)

Posted by Richard M. Re on January 29, 2024 at 11:36 AM | Permalink | Comments (0)

Disqualification Does Not Equal Disenfranchisement

Donald Trump's petition for certiorari and his merits brief both assert that the Colorado Supreme Court decision "disenfranchises" millions of voters. This claim is wrong but does explain why some people think that Trump must be convicted of a crime before Section Three can be applied to him.

Voters are not disenfranchised because they cannot vote for their favorite candidate. If that were true, then all state term limits would be disenfranchising voters. So would the 22nd Amendment. And so would any other constitutional qualifications for office. Nevertheless, a court ruling that a presidential candidate was disqualified after he won the election could be understood as disenfranchisement because there can be no do-over election for President. This is why the Court should reach the merits and decide this Section Three case now.

But if you understand Trump's disqualification as the disenfranchisement of his voters, then it makes sense to say that only a criminal conviction can bring about that result. Basically, voters only forfeit their suffrage right due to a felony conviction. Taking away a person's right to vote through a civil proceeding on a preponderance of the evidence standard would be deeply wrong and unlawful. The problem is that Donald Trump's privilege to be President is not the same as the individual right to vote for someone as President. 

Posted by Gerard Magliocca on January 29, 2024 at 11:00 AM | Permalink | Comments (0)

Swarthmore, whatever comes after redux

My kid did not particularly like Swarthmore during the campus visit, so I feel ok enjoying the media-and-podcast tour by Wesleyan's president while criticizing the statements from Swarthmore's president.

That said, in response to Steve, I did not intend to criticize Smith for condemning "river to sea" or "jihadist" as part of a call for civility. (Although I am suspicious of many calls for civility, which can be vague and perverted into content-based suppression of (often) less-powerful speech on the pretext of a content-neutral concept such as civility). My point (which I did not frame well) is that she shifted within that paragraph--from explaining what is and is not protected to what she dislikes to a call for civility. And that confused her message.

And that said, Suzanna Sherry emails with a different criticism of Smith's statement (email quoted with Suzanna's permission):

Whatever the merits of Smith’s general points, I find this bit (emphasis mine) very telling about her own sympathies (which she should not be broadcasting in such a statement):

        For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews.             Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply                 unacceptable and I condemn it.

The difference between “heard by many” and “is” suggests (a) that the Hamas chant is not antisemitic but merely heard as such; and (b) that the “such rhetoric” in the third sentence refers only to the Islamophobic/anti-Arab statements and thus that “river to the sea” is not unacceptable and she does notcondemn it. The referent in the third sentence is ambiguous – it could include both the previous sentences or only the one immediately preceding it – and my point is that the difference in phrasing between the first two sentences tells us which she means.

There may be a response to that; I leave it to Steve to make it, if he chooses.

One more thing I did like in Smith's letter: Although the school allowed the sit-in to continue last semester and will not do the same with future sit-ins, those who engaged in last semester's actions may be receiving notices of conduct violations. University leaders, including the Stefanik Three, have been under fire, in part, for discovering protection for offensive speech only when it targeted Jews (Jeannie Gersen notes this criticism). I initially read Smith as saying last semester's sitters would receive a pass while putting those who engage in future civil disobedience on notice that they will be removed from the space and sanctioned--which would potentially have replayed that criticism by protecting the pro-Palestine/anti-Israel group and sanctioning future pro-Israel protesters. Rather, her point was that the sitters were not stopped in the moment but may face consequences.

Posted by Howard Wasserman on January 29, 2024 at 11:00 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Gersen on academic freedom

From the New Yorker (paywalled). Some good inside-baseball about Harvard since October 7 and the flipping of free-speech positions (what I have been calling Camp 3).

Posted by Howard Wasserman on January 29, 2024 at 08:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, January 28, 2024

Swarthmore Redux

Howard and I are not going to agree about some aspects of Swarthmore President Valerie Smith's statement, which is one of the things that makes blogging worthwhile. But perhaps we can bridge some of our differences by adding needed clarity. Smith wrote, 

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. 

Howard seems to think that this amounted to an intention to suppress such chants:

That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected.

That is a misreading. Smith was instead calling for civility, not threatening punishment, as have other university leaders, including Harvard's former president Claudine Gay:

At the same time, our community must understand that phrases such as “from the river to the sea” bear specific historical meanings that to a great many people imply the eradication of Jews from Israel and engender both pain and existential fears within our Jewish community. I condemn this phrase and any similarly hurtful phrases.

Northwestern's Michael Schill

I call on all members of our community to use our collective voices to emphatically reject statements or banners that significant parts of our community interpret as promoting murder and genocide. This includes flying flags associated with Hamas and banners with the slogan “From the River to the Sea.”

And the deans of all 17 faculties at Columbia:

Yet, when language fails to bring us together, we should still strive to acknowledge the genuine hurt felt by others: acknowledge that hearing chanted phrases such as “by any means necessary,” “from the river to the sea,” or calls for an “intifada”—irrespective of intentions and provenance—is experienced by many Jewish, Israeli, and other members of our community as antisemitic and deeply hurtful; acknowledge that the fear of being labeled as antisemitic or as a supporter of terrorism for expressing anguish about the loss of Palestinian lives in Gaza or the West Bank makes people fearful for expressing their concerns. . . . Even when language breaks down, the grace of compassionate engagement should be extended to all members of our community in equal measure.

The antisemitic, hateful, or racist impact of speech is far from "irrelevant" on a university campus, even when constitutionally protected. After all, "Jews Will Not Replace Us" was constitutionally protected when shouted at a Charlottesville synagogue by torchbearing racists, but surely Howard would agree if President Smith (or anyone else) were to say that "Such rhetoric is simply unacceptable and I condemn it."

Posted by Steve Lubet on January 28, 2024 at 05:56 PM | Permalink | Comments (0)

Swarthmore revisited

Perhaps unsurprisingly, I am less enamored than Steve of the statement by Swarthmore President Val Smith. Pieces are worthwhile, including the reminder that civil disobedience includes facing the consequences of one's actions. And her conclusion--a longer version of "it depends on the context"--is right. But the rest is vague, conclusory, and question-begging, in a way that can (and perhaps will) be used to restrict a lot of otherwise-protected speech at the school. (My disagreement with Steve's assessment of the letter may reflect our different priors about campus speech).

She calls out those who intimidate and threaten those with opposing views, clearly singling out counter-speech, although she does not explain what intimidate or threaten or retaliate means. She says speech that makes people "feel threatened" is unprotected, ignoring how targeted speech must be to constitute a threat. She says "peaceful" does not mean absence of physical harm; it also includes yelling into  bullhorns when the volume causes physical harm (whatever that means).

She at times shifts, without explanation, from what speech can be sanctioned to what she (individually or on behalf of the university) does not like to calling for civil discourse as a normative aspiration. So:

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. As we engage with those of different perspectives and backgrounds, I urge us all to be mindful that the pathway to common ground is paved with respect and understanding. I am confident that members of this community can find ways to express their views without resorting to harmful or hateful speech that impedes the effectiveness of their advocacy.

What does any of this mean? That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected. What does it mean that she "condemn[s]" such rhetoric, especially after what came before? She may be right about what makes or undermines effective advocacy, but, again, I am not sure how that fits with the rest of the letter.

She ends with:

Nothing I’ve written here is intended as a threat to free expression or an attempt to silence any particular view on campus. On the contrary, my intention is to maintain an environment where individuals are free to express varying views and opinions without fear of retaliation.

If that is her intention, she failed. If I am a Swarthmore student, I have no idea what I am able to say, other than that I cannot occupy a campus building to say it. And she suggests an overbroad interpretation, inconsistent with First Amendment principles, of campus speech codes and of how much speech the college can restrict and sanction.

Posted by Howard Wasserman on January 28, 2024 at 11:20 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, January 27, 2024

Yet More on Campus Speech

Keith Whittington, of the Academic Freedom Alliance, has an excellent essay in The Chronicle of Higher Education titled "Political Solidarity Statements Threaten Academic Freedom." He explains why official departmental statements chill dissenters and perhaps discourage students (a point that I also made here). CHE is paywalled, but here is a key passage: 

Another set of concerns involves the direct pressure put on individual scholars by the proliferation of institutional political statements. Individual members of the faculty are free to engage in individual political expression or to associate with others to express themselves collectively, and universities should be diligent in protecting the freedom of individual professors to do so. But individual members of the faculty also have the freedom to remain silent on matters of controversy and to choose their own time and manner of expressing their political views. They should not, as a condition of employment at a university, be dragooned into the political activities of others. Departmental statements make that impossible. Dissenting individuals are forced either to hold their tongue and allow statements to be issued in their name or to wade into a political controversy when they would prefer not to do so.

Meanwhile, Princeton has evidently used so-called "non-contact orders" to prevent pro-Israel journalists from covering pro-Palestinian demonstrations. As explained in a joint letter from FIRE and the ADL,

Yet Princeton is stifling these discussions and newsgathering by its student press, by permitting students who dislike certain speech to be granted no-communication or no-contact orders against other students. . . . Princeton appears to be granting these orders for any student who requests one, so long as minimal procedural prerequisites are satisfied. These orders are being issued by administrators with disciplinary authority, under threat of punishment, without a modicum of due process, and—most unconscionably—where the student-speaker is not even alleged to have violated any university policy. This practice is deeply chilling, in blatant violation of Princeton’s laudable free expression policies, and must end immediately.
In an event reminiscent of Yale Law School's "trap house" incident, a Princeton dean advised a student reporter to refrain from publishing a legally obtained report on a Students for Justice in Palestine demonstration:

The dean later informed the journalist via email that the university “cannot determine if they would be a violation of the
NCOit is possible that some statements may be interpreted by the other student as an indirect or direct attempt to communicate. The safest course of action in terms of a possible violation of the NCO would be to refrain from writing or to be interviewed for articles that mention the name of the student with whom you have an NCO (or to retract them if that’s possible).
Finally, Swarthmore President Valerie Smith issued a powerful statement on "Diverse Views and Common Values,"
“Peaceful” does not simply mean the absence of physical altercation or harm. Intimidating and harassing individuals for expressing their beliefs is not a form of peaceful dissent. Yelling into bullhorns in enclosed spaces, resulting in physical harm to multiple community members, is not a form of peaceful dissent. Vandalizing the campus is not a form of peaceful dissent. Speech that makes individuals with opposing views feel threatened is not a form of peaceful dissent.
All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. 
It is a violation of the norms of this academic community for anyone to prevent the conduct of College business, including lectures, meetings, events, […] ceremonies, or other necessary business and community functions.”
Being willing to face the consequences of one’s actions is an important tenet of civil disobedience.

Posted by Steve Lubet on January 27, 2024 at 02:05 PM | Permalink | Comments (0)

Four Views of the Third Amendment

What legal principle is embodied by the Third Amendment? Not a pressing question, but an interesting one. An interesting one because in spite of the near-total absence of case law on the provision, you can identify at least four ideas that have found a home (pun intended) in the Third Amendment's regulation of quartering soldiers in private homes.

  1. Privacy. This is the modern reading that draws from cases like Katz and Griswold. The harm from quartering soldiers is its invasion of the homeowner's privacy.
  2. Civil limits on military authority. This is how Justice Jackson cites the Third Amendment in the Youngstown concurrence. The idea here is that military officials cannot commandeer a private home (even in wartime) without legal authorization from Congress.
  3. Property. This was the nineteenth-century understanding. Quartering soldiers amounted to an uncompensated taking.
  4. Structural limit on standing armies. This was the 17th and 18th century understanding. In a world without military bases, a standing army was difficult to maintain at home without quartering soldiers. And domestic standing armies were seen as a threat.

One thing this list illustrates is that broad constitutional provisions can evolve even in the absence of applications. They just move with the zeitgeist. I'm not sure if there is a bigger theoretical point there, but maybe.

Posted by Gerard Magliocca on January 27, 2024 at 01:49 PM | Permalink | Comments (0)

More thoughts on campus speech (Updated)

Several things:

Stephen Carter writes in The Times about the importance of free speech to the campus mission of intellectual curiosity and the mistakes and inconsistency of everyone--left and right--since October 7. Some really great stuff here. I do not agree with all of it, especially as to extent of protection for interruption and private opprobrium for other speech.

• [Update]: And this ALI interview with Geoff Stone, hosted by David Levi. (Note: Stone holds the Edward Levi Chair at UC, named after David's father).

University of California's  regents will consider prohibiting academic departments from using university web sites and other channels for political messages unrelated to university business. The proposal responds to many departments at UC schools posting messages supporting Palestine and Hamas and criticizing Israel. Naturally, faculty scream academic freedom, although the inability of the department to speak as an entity does not limit their ability to speak as individual (or a group of) faculty. A question from this: Chicago Principles suggest that sub-units within a university should not engage on current events, for the same reasons the university as a whole should not. But what do Chicago Principles and ideals of academic freedom say when a sub-unit of the university (e.g., UC-Santa Cruz's Ethnic Studies Department) chooses not to abide by those principles but the university imposes them?

• At the upcoming 3rd Annual Law vs. Antisemitism Symposium, I will participate in a roundtable on the legal academy post-October 7. I plan to talk about the December 5 hearing, the range of reactions to it (back to my idea about three camps), and the lessons to be drawn. There is a lot of confusion on that last, as this story from FIRE demonstrates. FIRE is pushing back on proposals at several schools to revise campus speech codes to prohibit explicit calls for genocide against groups. I share FIRE's opposition to such efforts and its arguments against these proposals. But FIRE describes these efforts as "fallout" from the presidents' "disastrous" congressional testimony.

But what makes the testimony "disastrous?" If FIRE is worried about schools expanding their speech codes, the disaster was the presidents advancing (however inartfully) the pro-speech position ("protection of speech depends on context") and getting attacked by Elise Stefanik, who insisted that calls for genocide must violate campus speech codes ("the answer is yes!"), prompting universities to amend those codes to satisfy Stefanik and other committee Republicans. If so, the disaster lay in Stefanik's response, not in their testimony. Or the disaster was their inartfulness--failing to fully explain why context matters or to precursor their statements by condemning such speech. But that requires us to believe Stefanik--a dishonest actor--would not have had the same response to a fully articulated First Amendment vision explaining why many "river to sea" chants are constitutionally protected and thus do not violate campus speech codes.

Posted by Howard Wasserman on January 27, 2024 at 12:36 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday Music Post - I Wish I Could Shimmy Like My Sister Kate

Louis Armstrong claimed that he wrote "I Wish I Could Shimmy Like My Sister Kate" and sold it for $10 that he never received. Most sources, however, attribute it to the violinist Armand Piron, who published it in 1922. Both Armstrong and Piron were from New Orleans, which adds either credibility or motive to Armstrong's story, depending on what you want to believe. The song has been covered hundreds of times over its 100 years history, in jazz, Dixieland, ragtime, jug band, and even rock genres. (Oddly, I couldn't find a clip of Armstrong doing the song. Maybe he boycotted it.)

The clips are at The Faculty Lounge.

Posted by Steve Lubet on January 27, 2024 at 06:23 AM | Permalink | Comments (0)

Thursday, January 25, 2024

Qualified immunity and the inversion of the law/equity divide

A divided en banc Fifth Circuit inVillareal v. City of Laredo rejected First and Fourth Amendment claims by a citizen journalist arrested for publishing nonpublic-but-lawfully-obtained information. The majority found no Fourth Amendment violation in her arrest for violating a state statute and that it was not clearly established the statute was constitutionally invalid--no precedent held as much and this does not rise to obviousness invalidity; standard qualified immunity stuff. The case produced four dissents including from Judge Willett argued that QI should not apply to this non-fast-moving, non-split-second situation. Again, standard QI stuff at this point.

Here is one paragraph early in the opinion.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.

Three things strike me about the passage:

One is the denigration of what the plaintiff journalist does, a theme repeated throughout the opinion. That the journalistic ethics of her practices (contrasted with "[m]ainstream, legitimate media") render her less worthy of legal protection, in combination with a desire to benefit (in "reputation and career") from publishing stuff.

Second, this point captures the inversion of the law/equity divide in civil rights litigation. Historically, courts of law, and the remedies they provided, were the preferred forum for vindicating rights; plaintiffs should turn to courts of equity and equitable remedies only when legal actions could not remedy their injuries. But the majority says Villareal's first move should have been equitable-- she should have "challenged that law in court," meaning refrain from publishing and bring an offensive pre-enforcement EpY/§ 1983 action for a declaratory judgment and injunction. That is, she should have turned to equitable relief rather than legal relief.

Third, that advice imposes a catch-22. The Fifth Circuit may have rejected Villaeal's EpY action on standing grounds--whether because her intent to publish is not sufficiently immediate or likely or because the city disclaims any intent to enforce the law ("of course we would never arrest a journalist for attempting to publish truthful lawfully obtained information"), depriving her of the necessary imminent injury. Courts are forgiving in First Amendment cases, but views of merits infect the standing analysis; this is true of all courts and of standing generally, but the Fifth Circuit is uniquely obvious. This also begins to make the EpY action resemble a licensing scheme--the federal court order acts as permission to publish.

A bad decision all around. Query whether it prompts SCOTUS review. As Steve Vladeck has noted, SCOTUS spends much of its time correcting Fifth Circuit mistakes. What is one more among friends?

Posted by Howard Wasserman on January 25, 2024 at 09:14 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 24, 2024

The First Supreme Court Citation to the Scopes Trial

Until today, I never noticed that Justice Frankfurter's dissent in Barnette (the flag-salute case) was the first Supreme Court citation of the Scopes Trial. In his discussion of the intersection of public education and faith, he cites Scopes v. State. 

Posted by Gerard Magliocca on January 24, 2024 at 08:18 PM | Permalink | Comments (0)

The Constitutional Eligibility of Vice President Cheney

In 2000, a federal lawsuit was brought by voters alleging that Dick Cheney was ineligible to be Vice President. The argument was that Cheney lived in Texas and was thus barred from the Vice Presidency by the Twelfth Amendment because George W. Bush also lived in Texas. In Jones v. Bush, the Federal District Court held that the voters lacked Article III standing and that Cheney was, in fact, a resident of Wyoming. The Fifth Circuit affirmed in a ruling from the bench that said in part that Cheney was a Wyoming resident and thus eligible.

Note that neither court said that the constitutional eligibility of the Vice President was a political question for the Joint Session of Congress. Nor was there any Act of Congress that gave the courts authority to adjudicate the case. The Twelfth Amendment was treated as self-executing. 

Posted by Gerard Magliocca on January 24, 2024 at 10:29 AM | Permalink | Comments (0)

Challenger Breaks 40% in New Hampshire Primary, Causes Winner to Quit the Race

Not yesterday, of course, but 1968, when Eugene McCarthy's 42% led Lyndon Johnson to withdraw from seeking reelection. Another interesting detail: The first-in-the-nation primary was held on March 12.

Posted by Steve Lubet on January 24, 2024 at 05:49 AM | Permalink | Comments (7)

Tuesday, January 23, 2024

Statement on the January 2024 Emergency Motion Adopted by the Modern Language Association’s Delegate Assembly

The Alliance for Academic Freedom, of which I am a member, has issued the following statement regarding the Modern Language Association's recent resolution on the Israel/Hamas war. 

January 22, 2024 – Washington DC: As organizations that seek to foster and promote the guiding principles for higher education faculty across the academy, we write to express our grave concern over the emergency motion that the Delegate Assembly (DA) of the Modern Language Association (MLA) endorsed at its annual meeting on January 6.

Faced with two competing emergency motions—one urging universities to ensure the physical safety and free speech rights of all students and faculty versus another claiming that only certain students and faculty were at risk and merited the MLA’s attention—we are dismayed and disheartened that the DA voted in favor of the latter.

The motion that the DA has now endorsed fails to preserve campuses as welcoming learning environments where academic freedom and free expression are guaranteed for all. The motion also establishes a virulently anti-Israel political orthodoxy, despite the fact that disagreements and debate about the Israeli-Palestinian conflict have a long history in English and foreign language departments. But politics and policy were not only at stake in the choice. The identities of Jewish and Palestinian students, faculty, and staff, along with their allies, were on the table for judgment. In endorsing a divisive and exclusionary motion, the DA found one identity worthy of the MLA’s action and the other lacking. Such a denigration of the beliefs and experiences of a core MLA constituency is intolerable.

We are appalled that at an open meeting during which the two emergency motions were debated Jewish and Israeli MLA members were reportedly disrespected and “hissed” into silence, including when attempting to highlight the plight of the hostages remaining in captivity in Gaza. Such conduct, which was tolerated by MLA leadership in the room, is unacceptable and a stain on the organization’s reputation.

We deplore the DA’s indifference to Jewish peoplehood and to the anguish that many Jewish, Israeli, and other members of the campus community suffer as their loved ones face death and violence. We deeply regret that while the DA was presented with multiple reports documenting that both Israeli and Palestinian students feel threatened, unsafe, and unable to express their positions and beliefs on their campuses, it chose to embrace one group but not the other. As the MLA’s Executive Council considers what actions to take in response to the DA’s emergency motion at its February meeting, we urge it to reject this biased and divisive motion unequivocally and to act decisively to support the political, cultural, ethnic, and religious perspectives and beliefs of both peoples. Both pro-Israeli and pro-Palestinian members of the academic community have been threatened and bullied since October 7. As an academic association the MLA should speak out against all such threats, not just some of them.

The Alliance for Academic Freedom is a national organization of scholars and academics who believe in empathy for the suffering and aspirations of both Israelis and Palestinians, and respect for their national narratives. Its members insist on the importance of academic freedom and open intellectual exchange, and so reject calls for academic boycotts and blacklists, as well as efforts to punish academics for their political speech, including those who support the academic boycotts that we oppose.

(Note: The Alliance for Academic Freedom is not the same as the newer and far better financed Academic Freedom Alliance, but it is the older of the two.)

Posted by Steve Lubet on January 23, 2024 at 02:30 AM | Permalink | Comments (1)

Monday, January 22, 2024

Lost in Translation

Yair Rosenberg makes an important point in The Atlantic, explaining that much of the rhetoric regarding Israel's so-called genocide in Gaza is based on mistranslations. The seemingly inculpatory statements of various Israeli military of government officials, some of which were offered by South Africa in the ICJ proceeding, were actually far less incriminating than the press has reported. For example:

Last week, a similar exchange unfolded on BBC radio, when an anchor pressed British Defense Secretary Grant Shapps about Israel’s conduct in Gaza. “Thee defense minister said, ‘We will eliminate everything,’ in relation to Gaza,” the host observed. Wasn’t this a clear call to violate international humanitarian law?

Translated from the original Hebrew, here is the relevant portion of what he said: “Gaza will not return to what it was before. There will be no Hamas. We will eliminate it all.” This isn’t a matter of interpretation or translation. Gallant’s vow to “eliminate it all” was directed explicitly at Hamas, not Gaza.

And yet, the misleadingly truncated version of Gallant’s quote has not just been circulated on NPR and the BBC. The New York Times has made the same elision twice, and it appeared in the Guardian, in a piece by Kenneth Roth, the former head of Human Rights Watch. It was also quoted in the Washington Post, where a writer ironically claimed that Gallant had said “the quiet
part out loud,” while quietly omitting whom Gallant was actually talking about.

There is much more in that vein, refuting nearly all of the accusation of genocidal intent. You can (and should) read the entire essay here.


Posted by Steve Lubet on January 22, 2024 at 02:02 PM | Permalink | Comments (0)

Denotive Language in National Pork Producers Council v. Ross

Courts care about the difference between judgments and opinions, yet that boundary often blurs in significant ways. Consider the denotive language that prefaces most judicial opinions, such as “concurring,” “concurring in the judgment,” or “dissenting.” This kind of language not only indicates how a justice has voted with respect to the judgment in the case (judgment-denotive language), but also locates the judge’s opinion, if any, among other opinions (opinion-denotive language). In a legal system that relies on preclusive judgments and precedential opinions, denotive language is key to the everyday operation of courts.

On reflection, however, denotive language is often quite confusing—or confused. This post focuses on a recent and unusually interesting use of denotive language—namely, Chief Justice Roberts’s separate opinion in National Pork Producers Council v. Ross (2023). In brief, the Chief denoted his opinion as “concurring in part and dissenting in part,” but he was simply dissenting with respect to the Court’s judgment. The Chief’s denotive language may have been a bid to strengthen his opinion’s claim to precedential authority. And it could also reveal—or encourage—a view of the judicial role grounded in law-declaration.

I. Concurring in the Opinion–But Not the Judgment

National Pork involved a challenge under the “dormant” Commerce Clause. Two enumerated “claims for relief” appeared in the complaint: one grounded in principles of extraterritoriality and the other in interest-balancing. The complaint’s prayer for relief sought declaratory and injunctive remedies, along with fees. The district court dismissed the case, and the court of appeals affirmed.

The Supreme Court fractured along several axes, resulting in a partial majority opinion and no complete agreement on the proper rationale. Still, a majority agreed to “affirm” the lower courts’ dismissal for failure to state a claim. By contrast, the Chief Justice, joined by three other justices, sought to “vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim” under an interest-balancing test.

One might think that the Chief’s opinion—which was joined by Justices Alito, Kavanaugh, and Jackson—must be denoted a dissent, full stop. After all, the majority “affirms,” whereas the Chief would “vacate” and “remand.” These dispositions of course represent distinct and divergent judgments. In fact, however, the Chief’s opinion is designated as “concurring in part and dissenting in part”—an ambiguous denotation consistent with some judgment-level concurrence.

Yet the Chief apparently wanted to signal agreement only with certain aspects of the Court’s opinion. As he explained at the outset of his separate writing, the Chief agreed with the Court’s “view” of certain precedents on extraterritoriality, and he also agreed with the Court’s “conclusion” rejecting a certain extraterritoriality rule. The Chief favorably cited specific pages of the Court’s opinion on these issues. Was the Chief therefore “concurring,” not in any part of the Court’s judgment, but only in part of the Court’s opinion?

The key question here is how to understand the judgment unit that denotive language operates on. (Thanks to John Harrison for this term and related insights.) The Chief may have believed that each pleaded basis for relief generated its own judgment unit and so could separately be “concurred in” or “dissented from.” Again, the Chief agreed with the Court that the plaintiffs’ extraterritoriality arguments failed, but he favored continued litigation as to the balancing arguments. If the extraterritoriality arguments generated their own judgment unit, then the Chief may have joined in the Court’s affirmation of their dismissal. But is that way of understanding judgment units correct?

Different answers are available. For purposes of denotive language, potential judgment units include the following:

  1. Each argument or theory put forward by a plaintiff
  2. Each request to alter prevailing case law
  3. Each basis for relief enumerated as a “claim” in a complaint 
  4. Each distinct legal principle invoked by a plaintiff
  5. Each distinct remedy adjudicated by the court
  6. Each decree formally issued by a court
  7. Each case decided by a court. 

Options 1-4 would support the Chief’s use of denotive language in National Pork, but those views are probably incorrect. The fact that many different arguments, requests, listed claims, or principles are at play in a plaintiff’s request for relief does not mean that the plaintiff will ultimately obtain as many different judgments. The judicial power traditionally operates on the legal status of persons, not on law in the abstract. True, a judgment can affect a party’s ability to raise certain issues and arguments, such as when there is collateral estoppel; but that very point depends on the distinction between specific judgment and abstract law.

That leaves Options 5-7, none of which support the Chief’s denotive language. The Chief did not concur with respect to the remedies, the decree, or the case as a whole. Which among these potential judgment units is correct or most defensible is a harder question, but the strongest view is probably Option 5. Again, the judicial power operates on the legal status of persons, and that power is exercised every time a remedy is adjudicated. Still, one might think that courts can bundle remedies within a single decree or case (Options 6 or 7). Or we might combine or nuance various options. One might think, for instance, that a sufficiently distinctive legal principle can generate a distinct judgment unit; but even if so, different dormant commerce clause principles probably aren’t different enough.

In sum, the Chief appears not to have concurred in the judgment at all. As he correctly wrote in the body of his separate writing, he was agreeing only with a “view” or “conclusion” in the majority opinion. The Chief concurred in part of the Court’s opinion, but not in any part of the Court’s judgment.

II. Jockeying for Precedential Authority

Willingness to blur opinion and judgment, while in some respects technical or formalistic, can have significant practical implications. 

The so-called “Marks rule” offers an example. Here is that rule, as originally stated by the Court: 

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . ” (emphasis added).

Many lower courts have relied on the italicized language to disqualify non-concurring opinions from being precedential. Could dissenting justices circumvent that restriction by denoting their opinions as concurrences in part?

Something like this seems to have been afoot in National Pork. Because the opinions were so fragmented, the justices jockeyed for precedential authority. For instance, Justice Kavanaugh’s opinion, which imitated the Chief in being denoted as “concurring in part and dissenting in part,” argued as follows:

In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Ante, at 1 (SOTOMAYOR, J., joined by KAGAN, J., concurring in part); ante, at 2-3 (ROBERTS, C. J., joined by ALITO, KAVANAUGH, and JACKSON, JJ., concurring in part and dissenting in part)[.]

This passage suggests that the Chief’s opinion contributes to a precedential rule in favor of a particular balancing analysis. 

And, in debating that claim, the justices were attuned to denotive language. As Kavanaugh observed, “The portions of JUSTICE GORSUCH’s opinion that speak for only three Justices (Parts IV-B and IV-D) refer to THE CHIEF JUSTICE’s opinion as a ‘dissent.’” Having noted that denotive relabeling, Kavanaugh resisted its implication: “But on the question of whether to retain the Pike balancing test in cases like this one, THE CHIEF JUSTICE’s opinion reflects the majority view because six Justices agree to retain the Pike balancing test . . . .” Kavanaugh also suggested Option 3 above by positing that a non-majority part of Gorsuch’s opinion was the “controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim.” 

The motive for wrangling over denotive language is clear. Whether under Marks or general practice, “dissents” generally have little if any authority. Thus, justices have an incentive to depict themselves as at least partly concurring in the Court’s decision. Readers should be aware of that incentive, its tendency to mislead, and its potential to undermine rules like the one associated with Marks. We usually trust denotive language, but we must also verify it.

More fundamentally, creative uses of denotive language put pressure on the dispute-resolution model of judicial authority. In cases like Haaland v. Brackeen (2023), the Supreme Court has lately insisted that federal courts have power only because, or if, they are resolving specific disputes by issuing judgments. Careful use of denotive language can help maintain that norm by focusing attention on how judicial opinions specifically relate to judgments. 

But denotive language can also undermine the dispute-resolution model, or reflect its incomplete realization, by blurring the line between opinions and judgments. A view of judicial authority focused on declaring the law would follow Kavanaugh in emphasizing opinions, including dissents, independent of any judgment. Opinions, after all, shape legal practice far beyond the dispute at hand. National Pork shows the pull of that perspective. For instance, the Chief may have viewed the Court’s decision not to alter extraterritorial case law as a judgment unit.

Concurrence may even be incoherent unless it is partly a concurrence in the judgment. At least under the dispute-resolution model, the point of issuing a judicial opinion is to describe a particular resolution of the case at hand. From that standpoint, concurring only in an opinion is a jurisprudential non sequitur. A judge might agree with lots of ideas out there in the world, whether expressed in majority opinions, treatises, or law review articles. To concur, by contrast, is to join a court’s reasoning in support of a particular judgment.

Other uses of denotive language, too, put pressure on the dispute-resolution model. Examples include United States v. Zubaydah (2022) (which I blogged about here) and Justice Thomas’s opinion “concurring in part and dissent in part” in Grutter v. Bollinger (2003) (where he seemed to concur only in parts of the majority opinion, such as its “25 years” expectation, but not any part of the judgment). 

* * *

If denotive language is sometimes ambiguous, there is a straightforward solution: make it clearer, especially in fractured decisions like National Pork. Rather than simply saying “concurring” or “concurring in part,” justices might specify what they are concurring in. That is, they might say, “concurring in the opinion and in the judgment” or (as the Chief apparently intended) “concurring in the opinion in part and dissenting from the judgment.” This precision would help reveal the justices’ understanding of their role, as well as their conception of precedent.  

Denotive language is not the most pressing issue facing the federal courts today. But, here as elsewhere, we can sometimes start to get a handle on big issues by focusing first on what seems small. 

Cross-posted from Re's Judicata.

Posted by Richard M. Re on January 22, 2024 at 12:55 PM | Permalink | Comments (0)

Saturday, January 20, 2024

Every animal who, under color . . .

Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But the court ignored two other paths to the same result.

One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.

Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.

Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Unanimously Wrong

Some of the media commentary on the Trump case declares that the Supreme Court must "unanimously" reverse the Colorado Supreme Court. Why unanimity is necessary or desirable is unexplained. But that goal is foolish. 

The only way to get a unanimous opinion is for the Court to decide very little. The precedent here is the first decision in Bush v. Gore, which unanimously remanded the case to the Florida Supreme Court for clarification. In that situation, kicking the can was probably worthwhile because the can was being kicked only for a few days or weeks. Here, though, the equivalent unanimous opinion would be postponing a final decision until Trump wins the nomination or wins in November. That would be disastrous, for the reasons given in several of the amicus briefs. The people who want unanimity have not thought this through carefully.

Posted by Gerard Magliocca on January 20, 2024 at 09:59 AM | Permalink | Comments (0)

Just Like a Natural Woman

"Just Like a Woman" was released on Bob Dylan's 1966 double album Blonde on Blonde. The Dylan song is at the bottom of today's music post, but there are a few other first, including Aretha Franklin and and Helen Reddy. They are all at The Faculty Lounge.


Posted by Steve Lubet on January 20, 2024 at 05:22 AM | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Posted by Howard Wasserman on January 19, 2024 at 10:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More interrupting during argument?

Is it me or do justices increasingly cut-off litigants not to ask a new question or to push back on an answer but to stop the litigants from talking anymore in response to a question. In essence, the justice saying "I've heard enough in response to the question I asked; stop talking."

It is particularly bad during the sequential/serial/round-robin stage. The Justices use the time to make speeches and arguments and lead attorneys into one-word answers  ("Don't you agree . . ."), then cut them off with a "thank you" when the attorney attempts to give a complete answer or to try to use the answer as part of her argument. This supports criticism (I cannot remember where is saw it) that appellate arguments have morphed into congressional hearings, in the worst sense. 

But I noticed it three times in the "main" arguments in Devillier v. Texas (on how to sue for just compensation for a taking)--once each from the Chief, Alito, and Gorsuch. This is more jarring, because it undercuts what the advocate is supposed to be doing. The skill in argument involves weaving answers to questions into affirmative arguments. An attorney did not only answer the justice's question, she used her answer to further her prepared argument. Stopping the attorney from completing her answer makes that impossible. In all instances, another justice jumped in with questions, so the attorney was not left hanging. But if it becomes more commonplace, it reflects a real change in what argument is supposed to be.

Posted by Howard Wasserman on January 19, 2024 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 18, 2024

Former Presidents Are Not Exempt From Section Three

I want to refute one argument that is in some of the amicus briefs. The argument goes like this:

1. In 1868, there were no living ex-Presidents who were Confederates. (John Tyler died in 1862.)

2. The Framers of the 14th Amendment did not need to disqualify insurrectionist former Presidents. 

3. Therefore, Section 3 does not disqualify insurrectionist former Presidents.

But #3 does not follow. Virtually all ex-Presidents are covered by the officer language of Section 3 because they served in another office before becoming President. (George Washington is an exception: He served only as President under the Constitution.) Thus, Section Three does exclude "former Presidents" who engage in insurrection. Donald Trump may be deemed an exception, but not because of a special ex-President exemption. There is none.

Posted by Gerard Magliocca on January 18, 2024 at 05:55 PM | Permalink | Comments (0)

Wednesday, January 17, 2024

JOTWELL: Mullenix on Lammon on finality

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. (forthcoming 2024) on parties manufacturing finality through voluntary dismissals and other moves.

Posted by Howard Wasserman on January 17, 2024 at 09:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 16, 2024

Yes, "From the River to the Sea" Is Antisemitic. Here's Why.

My new essay at The Hill explains why the chant “From the river to the sea, Palestine will be free” is antisemitic. I am not arguing to ban it, but it should be recognized for what it is:

The Hill

Rabid hate speech against Jews isn’t a matter of interpretation 


Consider the frequently heard chant, “From the river to the sea, Palestine will be free.” 

As Hassan Nasrallah, the leader of Hezbollah, recently warned Israel’s Jews, “Here, you don’t have a future, and, from the river to the sea, the land of Palestine is for the Palestinians and for the Palestinian people only.”

Even assuming good faith when Tlaib, and others, assert that “from the river to the sea” means something benign and democratic, why would they insist on repeating a phrase that is also associated with terrorism and perceived as murderous by so many who hear it?

It cannot be that a speaker’s intent — rather than the impact on listeners — should determine the acceptability of a phrase or symbol. On that theory, it is perfectly fine for right-wing demonstrators to wave the Confederate battle flag, which they often claim is an expression of southern heritage unrelated to slavery or white supremacy.

If protesters truly reject Hamas’s eliminationist objective, and instead are seeking only, as Tlaib put it, “freedom, human rights and peaceful coexistence,” they could make a simple change in their slogan that would make it less menacing and more humane:

“From the river to the sea, Palestinians will be free.”

It would still rhyme while allowing for Israel’s survival. But of course, that is not what they are after.

You can read the entire essay at The Hill.

Posted by Steve Lubet on January 16, 2024 at 01:11 PM | Permalink | Comments (0)

A New (for me) Course on "The Law of American Democracy"

This semester, I am excited, and fortunate, to be teaching a course to undergraduates (primarily Political Science majors) at the University of Notre Dame. The class is called "The Law of American Democracy" and it is a mash-up of topics and material I've taught in Constitutional Law (the "structure" stuff), Constitutional Theory, Freedom of Speech, Freedom of Religion, and some directed readings on Election Law and Voting Rights.  Some animating aims include proposing to the students that they should be thinking not only about a political system's policy "outputs" but also about the legal (and other) features of its "operating system" and that they should engage with the particular features of "our democracy" (about which we hear a lot in nervous contemporary commentary) and not just with a notion of "democracy" in some kind of ideal or abstract form.  (Another motivator, I think, was my unease with Martin Loughlin's Against Constitutionalism.)

The reading for the first day (today!) is Raz, "On the Authority and Interpretation of Constitutions:  Some Preliminaries" (thanks to Ernie Young for directing me to this paper, years ago).  

I'd welcome suggestions and advice, either in the comments or directly!

Posted by Rick Garnett on January 16, 2024 at 12:27 PM in Rick Garnett | Permalink | Comments (1)

Monday, January 15, 2024

Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie

FIU College of Law and FIU Law Review will host Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie, beginning at 9 a.m. Friday, February 2, 2024. The programs honors the work of Megan Fairlie, my FIU colleague from 2007 until her death in 2022. The event will be livestreamed.

Program after the jump.

Opening Remarks: Dean Antony Page (FIU College of Law)

Panel IA Tale of Two Defendants in International Tribunals

Diane Marie Amann (University of Georgia School of Law)

Michael P. Scharf (Case-Western Reserve University School of Law)

Moderator: Mario Loyola (FIU College of Law)


Panel IIThe Academic Work of Megan A. Fairlie

Mark A. Drumbl (Washington and Lee University School of Law)

Göran Sluiter (University of Amsterdam)

Jennifer Trahan (NYU Center for Global Affairs)

Moderator: Kerri Stone (FIU College of Law)


Panel IIIMegan A. Fairlie's Career at FIU College of Law

Video Presentation

Altanese Phenelus (FIU College of Law '14)

Megan Roth (FIU College of Law '17)

Casey Waldeck (FIU College of Law '20)

Moderator: Howard M. Wasserman (FIU College of Law)


Panel IVSome Challenges in International Criminal Law

Nancy Combs (William & Mary Law School)

Milena Sterio (Cleveland-Marshall College of Law)

Yvonne M. Dutton (Indiana University-Robert H. McKinney School of Law)

Moderator: Tawia Baidoe Ansah (FIU College of Law)

Posted by Howard Wasserman on January 15, 2024 at 09:31 AM in Howard Wasserman, International Law, Teaching Law | Permalink | Comments (0)

Sunday, January 14, 2024

Dan predicted the future of college sports

Catalyzing Fans (Harv. J. Sports & Ent. L. 2015) was Dan's last published paper, co-authored with Michael McCann (New Hampshire) and me. The paper was accepted several weeks before Dan's murder.

The topic and journal were ironic, since Dan did not know or like sportsball. He hatched the germ of an idea--fans crowdfunding to attract players to come to their favorite teams or to convince teams to sign and keep fan-favorite players--and came to Michael and me as people who do like and know something about sportsball. The proposal was marginally or indirectly practical when we were writing (2012-14). Marginally practical as to professional sports because actually player salaries dwarf whatever groups of fans can raise, meaning those funds are not likely to affect player or team choices (at least financially; perhaps the show of fan love has emotional effects). Indirectly as to college sports because players could not be paid for anything relating to their play or status as athletes; fan money could go to, for example, producing and distributing t-shirts to help recruit a star high-school athlete.

But then I learned about Michigan's One More Year Fund, which has been credited with helping retain many of the players who helped them win the college football national championship, and its new successor, the One More Year Fund, which raised more than $ 100,000 in three hours earlier this month. These funds operationalize Dan's idea--fans contribute any amount of money to a central committee that distributes the funds to players who, in this case, stay with the team rather than enter the transfer portal. And they have a direct and meaningful practical effect in college sports. Because players do not receive salaries from the universities and certainly not in the tens of millions annually, the hundreds of thousands or low millions that star players receive provide a meaningful income and thus a meaningful incentive to decide to return to the school.

Posted by Howard Wasserman on January 14, 2024 at 02:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Universal Amnesty and Section 3

After the Fourteenth Amendment was ratified, a popular slogan in certain circles was "universal amnesty and impartial suffrage." This idea, most closely associated with Horace Greeley, was that the next step should be to remove all Section 3 disabilities and guarantee voting rights to Black men. In 1869, Greeley wrote a public letter to Congressman Benjamin Butler arguing that Section 3 waivers be given to anyone who pledged to support ratification of the Fifteenth Amendment. After the Fifteenth Amendment was ratified, the idea morphed into "amnesty in exchange for vigorous enforcement of Black voting rights," and Greeley campaigned on that compromise in 1872.

Throughout this debate, everyone assumed that universal amnesty could be achieved only by a two-thirds vote of each House of Congress. Nobody in 1869 or 1870 said that the answer was for Congress to refrain from passing Section 3 enforcement legislation because Section 3 could not be enforced without an Act of Congress. Likewise, after federal enforcement provisions were enacted in 1870, nobody said that "universal amnesty" could be achieved simply by repealing those enforcement provisions. There was a lengthy debate in Congress over what became the 1872 Amnesty Act. The fact that nobody suggested an alternative that would have required only a majority vote in each House is telling.  

Posted by Gerard Magliocca on January 14, 2024 at 10:00 AM | Permalink | Comments (0)

Florida DA prevails (for the moment) in dispute with DeSantis

Andrew Warren, the Democratic state's attorney in Florida fighting his suspension by Ron DeSantis, prevailed (at least for the moment) in the Eleventh Circuit last week.

The court adopted a broad scope for elected officials' free-speech rights against elected officials with supervisor authority. It expressed "skeptic[ism]" as to whether Garcetti applies to elected officials. It declined to resolve that point, because even under Garcetti, an elected official occupies a unique employment space and can speak on matters of public import, under his office's auspices, without reducing them to policy and without them undermining his office. The court then held that DeSantis relied on four First Amendment-protected reasons in suspending Warren, rather than two, as the district court held. The court (and Judge Newsom in a concurrence) focused on the district court conclusion that Warren's support for a reform-prosecutor organization's statement was unprotected because the statement contained one sentence about committing to not enforcing new post-Dobbs abortion laws; the district court erred in pulling that sentence out of its broader context, where Warren never enacted any such blanket non-enforcement policy.

The Eleventh Circuit remanded for the district court to redo its analysis of whether DeSantis would have made the same decision based on the remaining two unprotected considerations--a policy of scrutinizing certain low-level arrests and Warren's general existence as a "reform prosecutor." This is why I say Warren prevailed for the moment. The district court may conclude DeSantis would have removed him for those reasons standing alone. In fact, the district court probably should conclude as such, since it is pretty obvious DeSantis targeted Warren (Judge Newsom's concurrence notes that Warren bragged about this during a GOP primary debate) and would remove him from office for any reason he can find--whether it's two or six. So I expect that DeSantis wins on remand and the Eleventh Circuit affirms, owing discretion to the trial court's balancing.

To be clear, suspending Warren for those two remaining reasons likely violates state law, which allows removal for "misfeasance, neglect, or incompetence." But the state-law validity of the removal is not relevant to the federal claims. Newsom drops a footnote admonishing the district court for "repeatedly" declaring that that the firing violated state law and insisting that "[o]n remand, the district court should avoid such unnecessary (and impermissible) asides regarding the consistency of Governor DeSantis’s conduct vis-à-vis Florida law." (I raised this point in a prior post and the Florida Supreme Court complained about it in denying a writ of quo warranto seeking reinstatement). Warren loses his First Amendment case if DeSantis would have fired him even in violation of state law. And I think it is clear DeSantis would have fired him no matter what--whether because he genuinely believes all reform prosecutors are misfeasant, neglectful, or incompetent and acted on that honest belief; because he believes a Republican-supermajority State Senate will sign off on his decision;* or because he wants the short-term political benefit (in running for president) and is willing to lose at the end of the day. (My money is on # 2 or # 3).

[*] Under state law, the governor suspends the local elected official, which sends the matter to a trial in the Senate. The Senate can affirm the governor's decision and remove the official or reject the governor's decision and reinstate the official.

And so we return to my point since this case began: The real issue is here is the suspension's state-law validity; the First Amendment is a sideshow that does not affect the outcome or allow Warren to return to office. My initial view holds--the district court should have abstained under Pullman or at least certified the state-law issues to the Florida Supreme Court.

Posted by Howard Wasserman on January 14, 2024 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 13, 2024

Saturday Music Post - Bei Mir Bist Du Schoen

"Bei Mir Biz Du Sheyn" was written in 1932 by the renowned Yiddish lyricist Jacob Jacobs and the even more renowned composer Sholom Secunda (who also wrote "Dona Dona," among others). It premiered in the Yiddish musical comedy "I Would If I Could," starring the great Aaron Lebedeff. The Yiddish title was more poignant -- "Men Ken Lebn Nor Men Lozt Nisht," "You Could Live, but They Don't Let You." I have no idea what the plot was, and the show was not a big hit on Second Avenue.

Sammy Cahn and Saul Chaplin provided English lyrics in 1937, leading to the Andrews Sisters first big hit under the Germanized title "Bei Mir Bist Du Schoen."

As the story goes, Secunda first offered the song to Eddie Cantor, who turned it down as "too Jewish." In contrast, the Greek-Norwegian Andrews Sisters first attempted to record it in Yiddish, but couldn't get it right and had to turn mostly to English. To this day, it is probably the most popular mainstream Yiddish-inspired song, though only the title and a single line remain of the original.

"Bei Mir Bist Du Schoen" has become a jazz standard, with countless covers. Don't miss the origin story, by Jacob Jacobs's granddaughter, which is at the bottom of the post on The Faculty Lounge.

Posted by Steve Lubet on January 13, 2024 at 08:21 AM | Permalink | Comments (0)

Friday, January 12, 2024

Camping ban case

A fascinating and potentially important case from the 9th circuit involving Oregon's so-called camping ban.  Pits the wicked problem of homelessness in cities around the country with the capacity and efficacy of judicial intervention.  The specific legal question is whether these restrictions reflect cruel and unusual punishment.  Might seem like a stretch at first glance, but the opinions in the panel decision and, as well, Judge O'Scannlain's effort to convince the 9th circuit to hear the case en banc are carefully reasoned and worth a close read.

As with many contemporary issues of social policy, including housing policy, in its myriad dimensions, it seems hard to imagine the courts constructing a rubric that gives local governments clear guidance and assistance in dealing with problems that are hugely vexing, and given the magnitude of the homelessness crisis (not unrelated to the evolving situation involving migrants), quite urgent.  Is this the best use of the federal courts, given the local nature of the problem?  And, looking at this issue through an originalist lens, what true utility is the original public meaning of an amendment that could not well contemplate the problem to which these local anti-camping ordinances are directed?  

I suppose the smart money is on a SCOTUS reversal.  But what questions with the Justices asks and what opinion will the Court write to illuminate the complex issues involved and give shape to the question of the modern police power's utility and limits in a society with social divisions and civic problems?


Posted by Dan Rodriguez on January 12, 2024 at 06:30 PM in Daniel Rodriguez | Permalink | Comments (5)

Interview with Danielle Holley of Mount Holyoke

I mentioned The Syllabus podcast last week for a discussion about campus protest. Maybe I will make this a permanent feature. Oppenheimer this week interviews Danielle Holley, the new president of Mount Holyoke College; they discuss the benefits of HWCs, "gender-diverse" HWCs, campus free speech and antisemitism, working with SFFA, and the problem of schools pushing STEM at the expense of the humanities. Holley is a former law school prof and dean, hanging in the land of liberal arts.

Some interesting non-law things in the talk: We visited MHC on the college circuit and a friend's daughter graduated from there. And my kid had the same reaction as Oppenheimer's daughter--why does everyone talk about STEM and not English and History on the campus tours.

The interesting law thing: Holley defends Magill and Gay that context matters. She argues that they should have recognized the BS context of the hearing and the premises of Stefanik's questions and thus prefaced every answer with "Of course I oppose antisemitism, but here is why this is protected."

One interesting exchange. Oppenheimer pushes on the benefits of the free-speech maximalist position; Holley exchanges why that ship has sailed, in part because neither side of the political spectrum will accept it and both sides want colleges to restrict speech. Of course, the fact that all sides want the college to restrict speech demonstrates why they should not restrict any (constitutionally protected) speech--the maximalist position requires neutrality of the rulemaker and letting all ideas out, no matter who supports or opposes, because someone will oppose everything. (Stipulating that universities have not been consistent--I remain happy if they figure it out now and moving forward).

Posted by Howard Wasserman on January 12, 2024 at 12:32 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, January 11, 2024

Is the British Monarchy different from all other constitutional monarchies?

I share Dan's views of the final season of The Crown. And I look forward to reading his paper. The paper also gives me an excuse to post something I thought about after watching the final season and doing some googling about the real people and events: Is the British monarchy unique compared compared with the many other constitutional monarchies of Europe? That could be as a matter of power. Or it could be as a matter of how seemingly out of hand it is--in terms of monetary cost, public interest and obsession, "out of touch," being tabloid fodder, whatever. The perception is that the British royal family is dysfunctional. Is it uniquely so compared with the royal families of Norway or Denmark? We don't hear stories about those families--is it because they are not as closely connected to the US or is the British monarchy different?

Posted by Howard Wasserman on January 11, 2024 at 03:52 PM in Howard Wasserman | Permalink | Comments (0)

Teaching when the going gets tough

I don't always agree with Prof. Eugene Volokh, but I think he is spot on with this post.  The gist of the matter is whether and to what extent we as professors should be comfortable teaching and working with students whose views we find morally repugnant.  There will be gray areas for sure, but, like Volokh, I think the answer is basically yes.

The challenge for us is to provide the space in which students can share their views, at least to the extent relevant to the class, have these views tested and interrogated, and shape discussions and lectures in a way that enables the transmission of knowledge, and also perspective.  These morally terrible (maybe so views as more subjective than objective in this regard) views may evaporate; they may evolve.  But the university serves its best function by being a place where such views can be tested, in environments led by ideologically diverse and well-intentioned teaching.  Sometimes this testing will be easy, and consensus seamlessly achieved.  Other times the debates will be intense and difficult, and the professor will have some sleepless nights.  But we can do our best in our roles as discussion leaders and trained academics transmitting knowledge and fomenting learning.   

Posted by Dan Rodriguez on January 11, 2024 at 12:30 PM in Daniel Rodriguez | Permalink | Comments (0)

Reexamining the Bar Exam

A new year typically comes with high hopes about reform and innovation.  In legal services regulation, these hopes remain high, even though like the proverbial Charlie Brown and the football, these hopes are usually dashed in the face of inertia, parochialism, and protectionism. 

And yet our hopes might be rewarded in one key area of legal services regulation, and that is in the complex area of attorney licensing.  This is due to the important work of serious scholars and reformers who have been working hard to develop a truly comprehensive and novel body of research to illuminate the question of what is and is not successful in the examination of new law graduates.  Among these great contributions over the past several months in this space, two stand out for their deep rigor and refreshing reformism (maybe even radicalism?).  A year ago, Professor (and former dean) Joan Howarth gave us Shaping the Bar, a book distinctive in its highly informed connections between the troubled history of the bar and attorney regulation and the predicaments that we face in a rapidly changing, and hopefully more inclusive, world.  This should be required reading for all efforts to look anew at the current situation.  Likewise, Deborah Merritt, recently retired from Ohio State, has been working for years on professional competencies and bar issues (among other topics within her expertise).  With the COVID pandemic, a number of states started experiments in non-exam licensing, albeit usually provisional.  California, for its size and impact, was the most important of these states.  Professor Merritt, and her co-authors, have undertaken a major research study on California’s reforms.  They promise more deep and dense research on other states (Oregon, notably) that are experimenting with reform.

Progress in licensing reform has been rather glacial in he past many years.  The advent of the Uniform Bar Exam was important, but did not really disrupt the edifice of traditional post-graduate testing.  Nor does the so-called “Next Generation” bar exam, presently being crafted by NCBE, portend a revolution in how we evaluate law graduates and new lawyers.  It is, after all, a coat of somewhat different colors, but is not nearly the sort of comprehensive competency-based evaluation that diligent reformers recommend.

And so maybe, just maybe, the door is sufficiently ajar to see meaningful change.  In this area, scrupulous empirical work is required.  So, too, are bold ideas, and a new generation of reformers (whom I won’t name, only because I risk omitting some), building upon the great work of the titans in this space, are steadily offering such ideas for our consideration.  Will the gatekeepers listen and learn?

Posted by Dan Rodriguez on January 11, 2024 at 11:38 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, January 10, 2024

Personal Positivism

In public remarks last year, Justice Kagan took a position on what the law is not. “If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you,” Kagan argued, then, “you know, that just doesn’t seem a lot like law.” This basic view is widespread, even commonplace.

Yet we all know that changes in judicial personnel do in fact yield major legal transformations. So while Kagan’s comment may reflect an attractive moral view of what the law ought to be, it doesn’t well describe what law actually is.

In a draft article (“A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary”), I take seriously the idea that the personal rules of individual judges constitute the law. This point is usually covered over by other features of legal practice, such as frequent agreement among judges and personal rules directing convergent behavior. But recent events help reveal the law’s personal foundations.

Seeing the fundamental role of judges’ personal rules is a bit like removing a computer’s casing and looking at the wires and circuit boards that lie inside: the appearance may be strange—it “just doesn’t seem a lot like” a computer, to use Kagan’s words—but the internal workings are closer to the computer’s essence.

To a great extent, legal practice already recognizes as much. In cases on everything from the Second Amendment to Chevron deference, sophisticated advocates home in on the expressed views of specific justices—even if those views are found in lower court rulings, dissents, or law review articles. Court opinions often follow the same sources. And commentators frequently measure the rise of methods like textualism and originalism by counting heads.

This personalized view of the law addresses some of the most fundamental controversies facing our legal system. It counsels that there is still genuine law in contested cases, that the law of the United States is now largely defined by a conflict between two groups of judges, and that court reformers should harness judicial individuality rather than ignore it.

While this project has already benefited from a lot of comments and conversations, it is still in draft. Additional thoughts are most welcome!

Cross-posted from Re's Judicata.

Posted by Richard M. Re on January 10, 2024 at 01:40 PM | Permalink | Comments (3)

Bon Voyage to The Crown

With the holiday break, I was able to catch up on some TV watching, including the final episodes of The Crown.  It’s a terrific series, one whose flaws have been dissected from various quarters, certainly including those (not me) whose expertise in things Royal bring into question, or even into doubt, some of the renderings of this most interesting, complex family and of history Brittania over the more than half century time span depicted in this series.

At the end, the series leaves Her Royal Highness to ponder and puzzle the question of sacrifice and self.  Was it worth it?  Was it still worth it as she completed her decades of service with her death in the fall of 2022?  What was lost in her service to Great Britain – service who, in just the longevity alone, will likely not be equaled?  Ending the series with the wedding of Charles and Camilla, the writers and directors made no elaborate effort to interrogate larger questions of the worthiness of the Crown in the early years of the 21st century.  Was it moving along with Queen Elizabeth herself toward old age, if not decrepitude?  Could the Windsor family, with internal and external pressures, make the major pivot to bring this monarchy, surely the most important one in the world over the past century’s time, to “relevance?”  Alluringly, the series ends with, as we know, another two decades to go in this Queen’s reign and, with it, the waiting, the painful waiting of Prince Charles.  And, of course, we know that more drama would yet come, including the events that ruined Prince Andrew’s reputation and status and, even more notable, the separation of Prince Harry and his American, biracial wife, Meghan, from the royal orbit.  And so the series ends on a cliffhanger, with viewers left to fill in the meaning of the last two decades, not only in the grand and banal doings of this royal family under the constant spotlight, but also in the relationship between the creaky monarchy and modern Britain, on the island and in the world.

As to the last series of the season itself, so much intrigue, so little time.  The much-maligned first half of the final season is taken up with the variegated dramas of Princess Diana.  But to call these episodes, as many have, overly melodramatic and oddly stylistic is, I think, to miss the point that she was truly larger than life.  The series, to me, did an admirable job of interrogating both the elusive Diana, the troubled relationship between her and her long-suffering (?!) husband, her emerging efforts to find a new life under unimaginable scrutiny and, after all, in her young 30’s.  The episodes also helped frame her connection with the stage upon which she was thrust (and, to be sure, thrusted herself in various ways).  That she died when she did was, in addition to being a terrible tragedy, left Britain’s citizens, and so many of the rest of us, bewildered (was she in love with Dodi?), bereft, and frankly akimbo.  The great counterfactual is what would become of the royal family in both its extravagance and in its struggle toward meaning and prominence in a complex world, a world in which Princess Diana (and next the two boys, becoming men) would always have the glamour, the attention, and in many ways the impact.  Someone will someday write that novel or make that movie that imagines totally this counterfactual and looks (in a way akin to the Last Temptation of Christ) to what might have been.

To me, the most interesting episode in this last season was the one involving Queen Elizabeth and her relationship with Tony Blair.  The Clintonesque charisma of the prime minister meets the wise old monarch and beyond mere jealousy there is the fascinating dynamic of the two single most important Brits interacting, tangling, and figuring out their place, and their empire’s place, in the world.  I thought the ending was much too tidy, with PM Blair getting his come-upings in a speech before a crowd well within the wheelhouse of Her Royal Highness.  But within the confines of what you can do in an hourlong episode, it was interesting and fueled more thought.

Viewing this as not much of a Royal watcher, and not even a reader of biographies and other missives about the Windsor family or of British monarchs generally, I was nonetheless aware of the limited scope of the series, and also of its resort to the usual methods of drama and narrative to tell a story that is neither principally historical nor analytically.  Still, the Crown nudges folks interested in leadership in a difficult world to think more about a rather large counterfactual, and that is what if there was no Queen Elizabeth, or if her tenure had been merely ordinary, or . . . one can fill in so many “what ifs.”  Inescapably prominent as well, even if looming only in the background of the series, is the place of a monarch of extraordinary cultural, if not so much constitutional, relevance in this troubled modern world.  If there had not been a seven-decade-long reign by the remarkable Queen Elizabeth, would we have wanted the invent one?  And what does her rein truly portend for, barring a possible upending of the whole apple cart, another half century that may be marked by two most intriguing kings, now Charles and next William?

(These are hardly scholarly reflections, but, fwiw, here is a paper by Tom Ginsburg (lead author), me, and political scientist, Barry Weingast, that reflects upon the place of a constitutional monarchy in nation-states.)

Posted by Dan Rodriguez on January 10, 2024 at 12:22 PM in Daniel Rodriguez | Permalink | Comments (5)

The Attempted Lynching of Caesar Griffin

I've mentioned elsewhere that the underlying facts of Griffin's Case, a Section Three precedent that will be discussed next month by in the Supreme Court, are very disturbing. Here is one account written about twenty-five years ago in a biography of Robert E. Lee. The shooting for which Griffin was convicted occurred in the town where Lee was the President of the College (now Washington & Lee).

"Mrs. John Brocken-borough, wife of the judge, was walking home with her son Francis, who was not quite old enough to attend the college. A group of black men were standing about the sidewalk in front of the Brockenborough house. They 'refused to give the pavement,' as a student put it, forcing Mrs. Brockenborough and her son to step into the gutter to get around them and to their front gate. Enraged, young Francis saw his mother to the door, came back down the walk, and attacked one of the blacks with a stick. The black drew a pistol and shot him in the chest." The account goes on to say that an angry crowd of students then searched the town for the gunman and "[o]ne party succeeded in getting him and they came very near to lynching him." 

They came very near indeed. The black, Caesar Griffin, would certainly have been hanged from a tree had not it not been for one of those timely arrivals that had quelled earlier disturbances. This time the students had a rope around their intended victim's neck and had marched him to the courthouse square--the preferred place for lynchings, since it implied that justice had been done. Assistant Professor Harry Estill, a former Confederate captain, strode out of the night. The slender, black-bearded veteran ordered the students to turn their captive over to the jailer, which they did.

The Supreme Court should be made aware of these background facts. The source is Charles Flood, Lee: The Last Years 184-85 (1998). There are similar descriptions in other Lee biographies.



Posted by Gerard Magliocca on January 10, 2024 at 08:51 AM | Permalink | Comments (0)

Tuesday, January 09, 2024

Visiting Chair Search Announcement

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW seeks a senior visiting faculty member to fill the McKinney Family Chair in Information Technology Law for academic year 2024-25. Applicants must hold a J.D. degree or equivalent degree, possess at least 10 years of prior academic or practice experience (or a combination of those), and be passionate about teaching, scholarship, and student advising. The visiting chair will produce scholarship and teach courses in Information Technology Law or one of its sub-fields, such as cybersecurity, privacy, data protection, intellectual property, artificial intelligence, legal technology, blockchain, or other areas that inform the impact of technology on human life or the practice of law. The Visiting Chair will teach four courses, advise students, and serve as interim director of the joint MJ/BS in Informatics.

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

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

IU-McKinney is in Indianapolis, the state capital and the nation’s 16th largest city by population, with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams.

Review of applications will take place on a rolling basis, beginning immediately. To apply, please forward a CV, a letter of application, and a list of references. For experienced instructors, please provide teaching evaluations from a recent course and, in your letter of application, a description of your pedagogy. Interested candidates may locate other application requirements and submit their application at https://indiana.peopleadmin.com/. For more information, please contact Vice Dean Max Huffman at [email protected] or 317-274-8009.

Posted by Gerard Magliocca on January 9, 2024 at 08:23 PM | Permalink | Comments (0)

AALS, forward

I was sorry to miss this year's AALS annual meeting, a meeting I have long participated in, in both "official" and unofficial capacities, from my earlier years up to the present.  Flawed, inconvenient, and expensive, it still is the single best gathering of law profs to schmooze, exchange ideas, make and renew friendships, and participate in the extra-law school community of which we are a part.

This year was momentous in one key respect:  It reflects the end of the tenure of Judy Areen, the long-time executive director (before that, the acclaimed Georgetown law dean).  As a point of personal privilege, I led the search that brought Judy to AALS many years ago, a search that involved not only the methodical vetting of talented candidates but, frankly, a full court press on Judy to convince her to undertake this major role in legal education following so many years of service she had already provided as dean and in other respects.  We said yes, she said yes, and the rest has been a splendid history, with Judy contributed so much to the organization and to the legal academy.  Mazeltov, Dean Areen, and thank you for your exceptional service.

As we turn our direction toward the future, I would put at the top of my wish list of fundamental improvements to the Assn'n, improvements which can only happen with the resolve and hard work of a new director, and the contributions of volunteers who are part of the leadership crew:

First, AALS needs to step up as an organization to collect in a meaningfully systematic way data, data about all sorts of matters critical to our collective welfare.  This includes data concerning entry-level hiring (the pool, outcomes, etc), lateral hiring, visits, deans and other leadership positions -- in short, key data which bears on the workforce of the professiorate and management of member schools.  My colleague, Sarah Lawsky, has done yeoman service to us in her efforts to collect and collate data on, especially, entry-level hiring. But Sarah has frequently noted that without the muscle and skill that AALS could and should provide as an organization, the ultimate information is incomplete.  This is absolutely critical for AALS to get deeply engaged in, with the help of the many empiricists who populate member law schools.  Do it, AALS!

Second, and related to the above, AALS should actively encourage analysis and studies (small, medium size, and big) involving law school issues.  This includes not only faculty-related issues, but issues involving students, expenditures (including law school costs and financial aid), curricular initiatives, and outcomes.  Even if the AALS believes itself limited in its capacity to do big studies internally, there is an army of law professors ought there who would be adept at undertaking important analyses, if only they had data and some logistical help.  AALS could and should provide such help; it currently doesn't, except in the thinnest of ways; and under new leadership, if should step up its game;

Third and finally, AALS should look more actively for opportunities to facilitate conferences, meetings, and other gatherings (because of costs, it may well be that remote gatherings are a more reasonable compromise) to assist law professors, especially younger ones, with their work.  Strangely, professional development used to be a bigger part of the AALS agenda than currently.  Thanks to the good efforts of student law journal editors and myriad centers and institutes, there is much activity in the scholarly space.  (The work of clinicians, under the aegis of AALS, CLEA, and other relevant orgs, should be noted).  But AALS can contribute through important, focused efforts and energies.  Some of this started during the pandemic; new leadership should accelerate these efforts.

There are many more suggestions I could make; and perhaps even better suggestions that others could contribute from their own experiences with AALS.  But, with new leadership, and the fresh energy and perspectives it brings, it is a very good time for reflection upon what AALS could do but presently does not (or at least does not so much).  

Posted by Dan Rodriguez on January 9, 2024 at 12:41 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Monday, January 08, 2024

Sprigman on narrowing plagiarism

Chris Sprigman (NYU Law) argues for narrowing the definition of plagiarism to ease its use as political weapon. Sprigman emphasizes plagiairism's twin purposes--protecting the original sources of ideas and protecting readers from being defrauded--and limits the "core offense" to copying of "valuable collections of words," those that readers and original authors would care about, in light of the academic work's core intellectual contribution. Sprigman does IP, so he compares how copyright polices the use of ideas with plagiarism's (current) overinclusiveness.

Posted by Howard Wasserman on January 8, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Frederick Douglass on the President As an "Officer of the United States"

From a speech delivered in March 1860:

I hold that the right to suppress an insurrection carries with it also the right to determine by what means the insurrection shall be suppressed; and, under an anti-slavery administration, were your humble servant in the presidential chair of the United States, which in all likelihood never will be the case, and were an insurrection to break out in the southern states among the slave inhabitants, what would I do in the circumstances? I would suppress the insurrection. and I should choose my own way of suppressing it; I should have the right, under the constitution, to my own manner of doing it. If I could make out, as I believe I could, that slavery is itself an insurrection—that it is an insurrection by one party in the country against the just rights of another part of the people in the country, a constant invitation to insurrection, a constant source of danger—as the executive officer of the United States it would be my duty not only to put down the insurrection, but to put down the cause of the insurrection.

Posted by Gerard Magliocca on January 8, 2024 at 06:39 AM | Permalink | Comments (0)

Saturday, January 06, 2024

When Do You Stop Running For Office?

One argument in the Section 3 case is that there is a distinction between holding office and running for office. A person who is ineligible to hold office, the argument goes, can still run for office. Here's my first question about that.

Suppose I bring a contest challenge after an election saying (as some state statutes permit) that the presumptive winner is actually the loser because he is ineligible to serve. Is that a challenge to running for office or serving in office? I think that the answer is running. The person is not yet serving and the election is not yet final.

But if that's true, how can someone bring a Section 3 challenge against a presumptive President? What's the vehicle? The answer would seem to be only the Joint Session of Congress on January 6th. Thus, I think that the running for office/holding office distinction, at least as applied to Presidents, is no different from declaring the issue a political question for Congress.


Posted by Gerard Magliocca on January 6, 2024 at 08:28 PM | Permalink | Comments (0)

What do we mean by "Socratic Method"?

Orin Kerr posted his 1997 article on the decline of the Socratic Method in law school. It is an interesting read, featuring interviews with several HLS professors (Orin wrote the piece for a seminar). He divides the subjects into three groups--Traditionalists (using the true-and-traditional SM); Quasi-Traditionalists (mixing Socratic "flavor" with other techniques); and Counter-Traditionalists (rejecting SM in favor of panels, lectures, and group problems).

So a question I have wondered about since I began teaching (and maybe since law school): What does the "Socratic Method," in the purest sense, entail? What are its essential elements? What did the professors of the '40s-early '60s do that post-'80s teachers do not? From the descriptions of what the non-traditionalists (whether quasi- or counter) do, I think I identify the following elements:


    Targeted at one on-call individual for at least some period

    Case-centric and tied to the Langdellian case method. That is, the Q&A focuses on a particular case and hypothetical off-shoots of those cases. No pre-set problems or hypos. No broader discussion of the issues as a whole, disentangled from the particular case.

    No prof resolution of the questions or issues at the end of the questioning

    Randomized cold-calling with no (or very little) notice or warning of when you might be called on. No volunteers.

    Last names only.

    No passing unless the student has formally opted-out in advance. Or at least the pass results in some embarrassment for the student or the burden falling on his neighbor.

Additional elements? Did I list anything that should not be part of the definition?

If I am right about these "elements," then I have never had a traditionally Socratic professor, including among those who began teaching before the 1990s. Even the greatest media representation--The Paper Chase--was not purely Socratic; one plot line involved Hart gathering the courage to raise his hand in class. No one on my faculty uses the pure-and-traditional SM. I am not purely Socratic for a bunch of reasons that vary by class, although my student evals seem to disagree. FWIW, this fits my experiences on appointments committees, where every candidate describes her teaching style as "modified Socratic"--code for "rigorous but not obnoxious."

Also if I am right, I am not sure what is lost. I do not see the pure SM as so much more rigorous and challenging than the modified SM Orin's subjects describe.

Comments left open, because I am curious about this.

Posted by Howard Wasserman on January 6, 2024 at 03:23 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)