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Thursday, February 29, 2024

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Posted by Howard Wasserman on February 29, 2024 at 10:29 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The “One Big Question” Shaping Legal Culture

Last week, I had the honor of giving the keynote address at the National Conference of Constitutional Law Scholars, which was hosted by the University of Arizona James E. Rogers College of Law and its Rehnquist Center.

My topic was “the One Big Question” currently shaping legal culture. 

I’ve now posted my prepared remarks. Here’s the abstract I wrote for SSRN:

Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy. 

Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing. 

This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration.

Here’s an excerpt from the address:

[I]t turns out that many legal issues are downstream of the One Big Question. Both the Left and the Right are accordingly shifting positions in light of their new answers to that question. 

Let me give you a few examples, all centering on Justices Scalia and Kagan.

First, textualism. When Justice Scalia was an insurgent force in the federal judiciary, being a textualist meant shackling the purposive judicial activism characteristic of the 1970s. Today, by contrast, Justice Kagan often invokes textualism to take the Supreme Court’s conservative majority to task. Meanwhile, conservative legal intellectuals are increasing talking about moving “beyond textualism.” Unwritten law is now hot in conservative legal circles. 

Second, agency deference. Justice Scalia supported judicial deference to agencies, not just under Chevron but also under principles like Auer deference. But that process started when conservatives were a minority force on the judiciary and President Carter’s appointees led the DC Circuit. Today, with conservatives in command of the courts, Scalia’s successors have turned sharply against agency deference. Meanwhile Justice Kagan fights to preserve agency deference in cases like Kisor and, this term, in Relentless and Loper Bright

Finally, standing. Scalia strove to tighten up standing as a way to curb liberal judicial activity. Profligate standing rules in Establishment Clause cases were perhaps his central example, as they facilitated what Scalia viewed as overly vigilant restrictions on religiosity. But conservative litigants now want access to the federal courts. They know that, under new case law, they can receive relief or exemptions from many regulations. So it is now the Left who has a special interest in enforcing or tightening up justiciability principles. Conservatives, by contrast, are tempted to fling open the courthouse doors. 

A single Supreme Court case recently illustrated all three of these trends. In the student loan case Biden v. Nebraska, several states argued that the U.S. Secretary of Education lacked statutory authority to cancel certain student debt. Three questions arose. What did the statute mean? What attitude should the Court take toward the Secretary’s exercise of administrative authority? And, should the states have standing to challenge the loan forgiveness measure—even though student debt relief had no direct effect on the states’ treasuries?

The Court ended up divided 6 to 3. Far from deferring to the Secretary, all six conservative justices invoked the atextual “major questions doctrine” to give narrow meaning to the statutory text. The conservatives also found standing on the theory that a loan service provider with no objection to the loan forgiveness plan was really part of a state; therefore, the servicer’s lost business gave the state standing to challenge the entire nationwide loan forgiveness program.

By contrast, all three liberal justices invoked textualism, exhibited respect bordering on deference toward the executive agency’s work, and rejected standing as too attenuated and artificial to justify nationwide relief. In other words, the liberal justices were much more textualist, far more deferential to the executive branch, and markedly stricter when it came to standing than their conservative colleagues. This alignment of votes and views represents an almost complete inversion of the 1980s.

A similar dynamic is visible in many other legal debates. …

I got a lot of helpful feedback—and some criticism!—from participants at the Conference. I hope to build on these themes, so added comments are most welcome.

This post is belatedly cross-posted from Re's Judicata. The video of the talk is over at Balkanization.

Posted by Richard M. Re on February 29, 2024 at 06:26 AM | Permalink | Comments (1)

Wednesday, February 28, 2024

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Crystal Clanton

Many Prawfs readers no know know of Crystal Clanton. She has just been hired by Clarence Thomas for a SCOTUS clerkship, despite her notoriety for writing a blatantly racist text, at age 20, when she worked for Turning Point USA. Although many liberals are outraged that Clanton has gotten a series of plum jobs, I think it is unfair to pillory her for youthful bad behavior, as I explain in my article on Slate.

Here is the gist:

In a classic demonstration of punching down, the Washington Post’s Ruth Marcus wrote a series of columns about Clanton—beginning when she was still in law school—that read like a campaign to make her an unemployable pariah. Thomas’ decision to hire Clanton, she said, is a “stain” on the entire federal judiciary.

Marcus got her metaphor backward. Thomas probably wasn’t intentionally channeling Joseph Welch, but he had gotten it right when he responded to the judicial ethics complaint. “We have reached a sorry state of affairs,” he said, “when a young adult can be indelibly marked with today’s ‘scarlet letter’ of defamation.”

Character attacks have been a recurrent feature of American politics since at least the time of Thomas Jefferson. They have often been effective, even if false (see: Clinton, Hillary, 2016), and they can be salutary when true (see: Moore, Roy, 2017). Office seekers know that character attacks come with the territory. But that should not be true of young people who find themselves involuntarily embroiled in controversies, and it is especially unfair when the attacks are based on youthful incidents, from years earlier, that have dubious bearing on whom they have become.

Donald Trump’s Republicans have abandoned decency as a value, with no concern for collateral damage. Liberals could set a far better example by allowing Crystal Clanton to get on with her life.

You can read the entire essay on Slate.

And as a reminder that this sort of thing keeps happening:

 

Posted by Steve Lubet on February 28, 2024 at 10:37 AM | Permalink | Comments (2)

Tuesday, February 27, 2024

The Disqualification of John Rust

Yesterday the Indiana Electoral Commission voted to remove John Rust, a Republican U.S. Senate candidate, from the primary ballot. Rust ran afoul of a state law that says a person cannot run in a primary without either voting in one of the past two party primary elections or being certified by the county party chair where the person/candidate resides. Rust did neither.

A state is disqualifying a candidate for national office without an Act of Congress. Stop the press! Even worse, a state is adding to the qualifications listed in the Constitution for a U.S. Senator. Where's the outrage? I'm sure that Rust will obtain prompt review in the United States Supreme Court, which will rule that states cannot disqualify candidates for national office and disenfranchise their voters. 

P.S. The Commission ruled (3-1) that Donald Trump was eligible for the ballot.

Posted by Gerard Magliocca on February 27, 2024 at 07:56 PM | Permalink | Comments (0)

Monday, February 26, 2024

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

Posted by Paul Horwitz on February 26, 2024 at 11:14 PM in Paul Horwitz | Permalink | Comments (0)

The medical gaslighting of long COVID patients could be nearing its end 

My new essay in The Hill is about some encouraging developments for long Covid and ME/CFS patients, as both Congress and the medical profession have become less skeptical and more attentive to the conditions. Here is the gist:

The medical gaslighting of long COVID patients could be nearing its end 

BY STEVEN LUBET, OPINION CONTRIBUTOR - 02/26/24

Presiding last month at a hearing of the Senate Committee on Health, Education, Labor and Pensions, Sen. Bernie Sanders (I-Vt.), addressed the many issues faced by patients suffering from long COVID, an often debilitating condition that can persist for months or years following a SARS-CoV-2 infection. 

In addition to inadequate research funding and the difficulty of accessing quality care, Sanders observed that “far too many patients have struggled to get their symptoms taken seriously” because “far too many medical professionals have either dismissed or misdiagnosed their serious health problems.”

While some physicians did grasp the problems presented by long COVID, many others were dismissive and disbelieving. 

In a Wall Street Journal opinion piece, a young psychiatrist ridiculed the condition as “largely an invention of vocal patient activist groups,” insisting instead that it was a “psychosomatic-symptom disorder.” 

The disease once known as chronic fatigue syndrome, and now generally called myalgic encephalomyelitis, or ME/CFS, with devastating symptoms strikingly similar to long COVID, was investigated by the Centers for Disease Control and Prevention in the mid-1980s, and almost immediately discounted as “yuppie flu” and even a “fashionable form of hypochondria.”

Just last week, the National Institute of Health published the encouraging results of a seven-year study of ME/CFS. The study determined that the condition is not a psychiatric disorder, but instead there are “clear biological markers” of the disease,

Although there is still no cure for long COVID or ME/CFS, it has already been a good year for patients of these chronic diseases, with deep dives into both conditions. The U.S. Senate appears ready to increase research funding and accountability for long COVID, and the NIH appears to be on a path to untangling the nature of ME/CFS. 

You can read the entire essay in The Hill.

Posted by Steve Lubet on February 26, 2024 at 12:08 PM | Permalink | Comments (1)

The Supreme Court Never Was What It Was

Today's NYT article on the crisis in constitutional law teaching is a classic example of the "back in the good old days" fallacy. Back in the good old days, the Supreme Court rendered principled decisions in constitutional cases. The Justices were not making political judgments. They were not imposing their own policy views. They were careful and thoughtful. Constitutional law was an internally consistent set of rules and principle driven by logic and reasoned debate.

When was this golden age? I have no idea. Was it when Learned Hand called the Justices the "9 fools in Washington?" Was it when Willam Howard Taft was Solicitor General and called them "a bunch of mummies?" I could go on and on. The common law process and Article V amendments can give us a more coherent framework over time, but in any given period it's a Jekyll and Hyde situation.

Take the Section 3 case. The way I've been discussing Trump v. Anderson with my students is to say that the Court will probably rule for Trump in some fashion. Why is that? What are the alternative rationales? It's easy for them to see that politics plays an important role in that case. Then you can feed that back into older decisions when the politics are less familiar now (like Marbury).

It's a great time to teach constitutional law. Or at least as great as any other time.

 

Posted by Gerard Magliocca on February 26, 2024 at 08:29 AM | Permalink | Comments (0)

Sunday, February 25, 2024

"...Growing Interest in..."

The Atlantic, which, with Slate rendered more or less irrelevant, retains its almost 170-year title as the Mecca of American Midcult, has this interesting story titled, "I Went to a Rave With the 46-Year-Old Millionaire Who Claims to Have the Body of a Teenager." (For the sake of clarity: He claims that his body is the equivalent of a teenager's, not that he has failed to dispose of a teenager's body.) "Interesting" is a strong claim, and words in the headline like "millionaire" and "rave" suggest that a better word would be "quaint," in an 80s-in-"Madchester" kind of way. The subject--yet another person who a) comes from Silicon Valley, b) would prefer not to die, and c) would very much like to sell you something--is not at all interesting. But the story is interesting.    

Specifically, the obligatory passage in which the piece attempts to rise above the noise of the crowd, and to justify its own existence and significance, runs:

Johnson told me wants to create a Don’t Die nation of 20 million people. This may sound unhinged, but people are listening. Johnson’s societal ambition echoes that of growing numbers of tech executives and venture capitalists trying to build alternative cities and states. His quest for immortality has been the subject of features and interviews in Time, Bloomberg, Vice, The New York Times, Trevor Noah’s new podcast, and more over the past year or so. The Blueprint Discord channel has more than 14,000 members, whom he calls the “Don’t Die Army.” In addition to the meetups Johnson hosted in New York on Saturday, there have been more than 200 Blueprint gatherings in 75 countries this year. Some 5,000 people recently enrolled in a self-experimentation study to see how well the Blueprint protocol works on a broader population.

Note the actual level of correspondence between the phrase "people are listening" and the evidence given. The largest number given is 14,000--the number of people on Johnson's Discord server. Of course, 14,000 ain't nothing. As Discord servers go, it's smaller than US Furries (19,000 members) and much smaller than virtually any Discord server related to sex or gaming, but larger than the membership roster of the Smooth Jazz Chill Out Lounge server. In any event, ultimately the evidence for "people are listening," which is a long way from people actually being convinced, or serious, or even particularly interested, consists of a) a small number of Discord server members, which already places them in a specialized population; b) a smaller number of people willing to "self-experiment," which probably overlaps with the number of Discord members; and--and surely most importantly--c) some number of reporters or editors for a small number of similar chattering-class-servicing publications, all of whom are pursuing the same standard-issue feature subjects, and all of whom would prefer that those be roughly the same subjects. (Being first to the subject is good if others soon follow; being alone in finding a subject interesting or newsworthy weakens the cash value of your work and opens you up to claims of unreliable eccentricity.)

References to "growing numbers" and "people" notwithstanding, then, the justification paragraph here does not really support the claim that the subject of the story is significant or that it will be of interest to many people. Indeed, it may well be of no interest to the vast majority of people. Rather, it suggests that the right sorts of people, people occupying roughly the same cultural milieu either directly (Silicon Valley) or indirectly (people willing to read features about rich tech culture in the Atlantic), are willing to treat it as interesting. The story could have said that to justify itself, of course. But apparently that sort of justification would be considered...what, exactly? Insufficient? Inappropriate? Déclassé? Too on-the-nose, too self-revealing? Nor, apparently, is it sufficient to offer no justification whatsoever, other than that one person found it interesting enough to write about. So one must have the usual recourse to flimsy numbers, vague claims of growth, and invocations of consensus on the part of similarly situated culture-and-status markers that the subject is important and the interest justified.

Nothing unusual here, of course. This sort of thing is the vast majority of what "we" read. Perhaps this serves as a reminder to be skeptical of the importance of such stories, even or especially if they engage in the usual exertions to demonstrate their own importance. It certainly serves as a reminder that how these stories justify their importance is usually fairly telling of their narrow class and cultural perspective, and of the narrow nature of the group whose interest counts to certify the story as important. And it leaves open the possibility that the vast majority of people out there would find the same story entirely unimportant, might find whatever is on offer there appalling if they did take any notice of it, and just might be able to identify other issues of vastly greater urgency and importance to them and their lives.

I offer this as a passing observation. It is wholly--well, perhaps not wholly--unrelated to the fact that it is law review submission season; that a great many papers offer almost exactly the same justifications for their own existence and for the importance of some particular subject; that these authors too would like to be first but definitely not alone; and that these authors rely on the knowledge or hope that the people doing the selecting will, in turn, fall within the same narrow class and cultural spectrum, and thus either agree with or gloss lightly over those justifications. 

Posted by Paul Horwitz on February 25, 2024 at 04:46 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, February 24, 2024

3rd Annual Law vs. Antisemitism Conference, Feb. 25-26 at FIU College of Law

Anti Semitism Conference poster_R4The 3rd Annual Law vs. Antisemitism Conference begins tomorrow and runs through Monday at FIU College of Law. We have more than 100 registrants from all disciplines and all over the country.

The program includes keynote speeches by Marc Stern of the AJC and Rabbi David Saperstein, formerly of the Union for Reform Judaism; a screening of the film Recipe for Change: Standing up to Antisemitism with producer Todd Shotz; and a Sunday evening reception at the Jewish Museum of Florida-FIU. And, of course, good food.

All panels and presentations will be livestreamed, for those who cannot make it to FIU. There is a link listed for each panel.

Posted by Howard Wasserman on February 24, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday Music Post - Old Whine

There was a time in the early sixties when some popular male vocalists almost seemed to whine their lyrics, which were sometimes, though not always, whiney as well. Maybe they (or their producers) were trying to distinguish themselves from contemporaries such as Elvis Presley, Chuck Berry, and Ray Charles. Or maybe they thought they were channeling Frankie Valli (they weren't).  I have no idea how or why the fad began, or exactly when it ended (which might have had something to do with the Beatles and the Stones, or Dylan). Some of the material was still really good; some really isn't. Once you've heard it, the vocal style is, well, memorable.

The clips are at The Faculty Lounge.

 

Posted by Steve Lubet on February 24, 2024 at 06:22 AM | Permalink | Comments (0)

Friday, February 23, 2024

January 3rd Comes Before January 6th

That sinking feeling you sense is the growing realization that the Supreme Court's opinion in Trump v. Anderson will probably not resolve Donald Trump's eligibility to be President. Instead, the Court is likely to say only that states cannot enforce Section 3 against a presidential candidate (at least before the election). This means that Trump's eligibility can be raised in the Joint Session of Congress on 1/6/25. And there is a decent chance that Democrats will control the next House of Representatives, simply because the numbers are so close now. If Democrats also hold the Senate (whatever likelihood you give that), then we could face a constitutional implosion.

But that's only the beginning. Before the Joint Session meets, the new Congress must be organized. Democrats in both Houses might raise Section 3 challenges against Republican members-elect. This could be done as a prelude to a Joint Session challenge, but another factor is that such challenges could increase their margin in the Joint Session. A challenged member cannot vote until the challenge is resolved. Is that likely within three days? Probably not.

There are some workarounds to these problems, but there will be time to consider them after we get the Court's opinion. I just hope that the Court is thinking what might happen if Trump wins and if the merits of the Section 3 challenge go unaddressed now.

 

Posted by Gerard Magliocca on February 23, 2024 at 09:53 PM | Permalink | Comments (0)

Wednesday, February 21, 2024

Take Back the Court on LePage v. Center for Reproductive Medicine

This essay is by Sarah Lipton-Lubet and Take Back the Court, reposted here with permission:

Another Shitty Day to be a Woman in America

The move from Dobbs to banning IVF was faster than even I imagined.

By Sarah Lipton-Lubet and Take Back the Court

We’ve all seen how the overturning of Roe has empowered radical judges to act out their reactionary fantasies as if they were writing dystopian fiction rather than adjudicating actual cases with incredibly serious consequences for millions of people.

Last week, the Alabama Supreme Court took the (latest) prize.

That court held – 7 to 2 – that embryos frozen in IVF procedures are “children” under state law. The court held that therefore children and unborn children – including frozen embryos (which are actually blastocysts, a pre-embryonic phase), or in the court’s parlance “extrauterine children” – are protected “equally” under the state’s Wrongful Death of a Minor law, which allows civil damages. 

The court based this conclusion on the 1872 Wrongful Death statute, and a 2018 ballot measure that amended the state constitution to “recognize and support the sanctity of unborn life,” and said that the amendment requires the court to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children.”

In its opinion, the court stated that “[u]nborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” And the court went out of its way to hypothesize additional future implications. I have to include this excerpt in full, partially to remind myself that it’s actually real:

“For instance, one latent implication of the defendants' position [that frozen blastocysts aren’t the same as actual children] -- though not one that the defendants seem to have anticipated -- is that, under the defendants' test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a "child" or "person," because such a child would both be (1) "unborn" (having never been delivered from a biological womb) and (2) not "in utero." And if such children “were not legal "children" or "persons," then their lives would be unprotected by Alabama law. The plaintiffs argue that this sort of unequal treatment would offend the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits states from withholding legal protection from people based on immutable features of their birth or ancestry. These are weighty concerns.”

And then there’s the chief justice’s concurring opinion, which is basically a theocratic screed. He quotes the Bible extensively, including that a person's life "cannot be wrongfully destroyed without incurring the wrath of a holy God."

"It is as if the people of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: 'Before I formed you in the womb I knew you, Before you were born I sanctified you,'" he said, quoting Jeremiah 1:5 in the Bible.

While it is appalling to see passages like these written by judges (especially ones who are supposed to be bound by a constitution separating church and state), the invocation of this language doesn’t come out of left field. 

“Personhood” – legal rights for “unborn children from the moment of conception” – has been a strategy the anti-abortion right has been trying to put in place for decades as a way to undermine Roe and lead to its eventual overturning. 

And when supporters of reproductive rights sounded the alarm that this would not only harm abortion rights (which is more than reason enough to vehemently oppose it on its own), but would also imperil IVF and fertility treatments, anti-abortion activists claimed we were lying. In fact, the leader of the effort to add this language to the Alabama constitution in 2018 referred to warnings about the impact on IVF as “scare tactics” and “so overblown that it’s almost hysterics.” 

I think we can pretty definitively say at this point that anytime someone says we’re being hysterical about something repro related, what they actually mean is: “this is, in fact, exactly part of our plan and will absolutely happen if we’re in charge.”

A quick glance at the reaction of anti-abortion groups proves the point:

    • Denise Burke, senior counsel with the Christian anti-abortion group Alliance Defending Freedom, called the ruling a “tremendous victory for life.” 
      • ADF is the group behind the pending threat to mifepristone access, 303 Creative (the anti-LGBTQ rights case from last term), and a whole bunch of others. If you want to know what is on the Christian right’s agenda – and the goals of their friends on the courts – ADF’s legal priorities provide a pretty good guide.
    • Lila Rose, founder and president of the anti-abortion group Live Action said in a statement that “The Alabama Supreme Court decision should be applauded and used as a model of honest and prudential jurisprudence nationwide.”

So what does this mean going forward?

In Alabama, it most likely means the end of IVF in the state. This is in part because the ruling is likely to make the procedure prohibitively expensive for doctors to practice there (and for patients to access, for many of whom IVF is already financially out of reach), and in part because of the Alabama court’s uncertain next moves. We don’t know what these judges will do next, or what new theories they’ll invent to criminalize providers and patients. 

Already, as data from Pregnancy Justice illustrates, “Alabama accounts for nearly half of all criminal cases related to pregnancy across the country.”

More broadly, the decision could set off a wave in other states.

    • According to Pregnancy Justice, “At least 11 states have broadly defined personhood as beginning at fertilization in their state laws.” 
    • Some states may be taking the stealth strategy. For example, in Tennessee, after Dobbs an anti-abortion activist told Republican lawmakers to “wait a few years” before talking about IVF and how to regulate it.
    • And then there’s Florida, where last week, even before the Alabama decision, the chief justice of the Florida Supreme Court raised questions about personhood in a challenge to a proposed ballot measure that would protect abortion access in the state. Now that the Alabama Supreme Court has ruled in LePage, the activists bringing the Florida challenge have already said they’ll use it to their advantage.

“Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location. . . . This important ruling has far-reaching implications. Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage,” said Matt Staver, founder of Liberty Counsel.

    • In fact, Liberty Counsel has already filed a supplemental filing in Florida using LePage.

And there are national implications. With right-wing groups like the Heritage Foundation spreading misinformation and fabricating narratives that equate IVF with “circumvent[ing] the natural body and God’s “package deal” of marriage, sex, and procreation,” it’s not hard to see where this movement’s aims lie when it is able to gain even more power.

In a nutshell, this is the guiding theory of people who are planning what a second Trump term would look like: for example, the Center for Renewing America, a think tank run by Trump’s former OMB Director, Russell Vought. Vought himself defines Christian nationalism as: “An orientation for engaging in the public square that recognizes America as a Christian nation, where our rights and duties are understood to come from God.”

As Sarah Posner writes for MSNBC, “When activists warmly embrace the Christian nationalist label, they are very loudly telling you exactly who they are.” 

With right-wing extremists like these waiting anxiously for their next opportunity to step back up to the policymaking plate, it’s clear how this case from Alabama has huge implications for all of us — no matter where we live, whether we’re trying to start a family or wanting to end a pregnancy, or if we care about any of our fundamental reproductive and sexual rights. 

No doubt, there are plenty of people who will try to argue when we talk about this danger that we’re “overreacting,” or “hysterical.” That’s when we know that we need to be even louder.

As of today, mirroring many healthcare clinics’ fates after the Dobbs decision, University of Alabama at Birmingham has halted IVF procedures out of fear of legal action against providers and patients. This is just the beginning.

As Jonathan Mitchell, author of SB 8, Texas’s bounty hunter abortion ban and Trump’s personal lawyer, said, “I think the pro-life groups should keep their mouths shut as much as possible until the election.” 

They’ll keep trying to hide what they’re doing, so it’s essential that we don’t let them.

Sarah Lipton-Lubet is president of Take Back the Court

Posted by Steve Lubet on February 21, 2024 at 08:28 PM | Permalink | Comments (0)

Tuesday, February 20, 2024

Civil Rights Museum, James Meredith Statue, Blues Revival

Linda and I just got back from our first road trip in 18 years. Between us, we could handle driving about 300 miles/day. Memphis is under 600 miles from Evanston, so we did it with an overnight. 

The main purpose for our trip was a visit to the National Civil Rights Museum in Memphis, which neither of us had seen. The museum, which is part of the Smithsonian network, encompasses parts of the Lorraine Motel where Martin Luther King was assassinated, including the room where he spent the last might of his life. It would be deeply moving for anyone, but especially for those of a certain age who remember the events as they happened.

One of the exhibits is burned bus (although not the bus) from Anniston, Alabama, where a mob attacked Freedom Riders in 1961, who had to escape through windows. There were equally emotional moments at virtually every exhibit. There is also a room about the murders of James Chaney, Andrew Goodman, and Michael Schwerner in 1964. It is terrifying to remember how long and violently white southerners resisted voting rights and integration, with so many beatings and murders.

We also visited several music museums, of which there are many in Memphis. Most interesting was the Stax Museum, telling the story of Stax Records, which existed only from 1961-75 (with other iterations preceding and later revived). Operating out of a former movie theater, Stax was famous for the “Memphis Sound” of stars like Otis Redding, Booker T and the MGs, Rufus and Carla Thomas, Eddie Floyd, Sam and Dave, Isaac Hayes and others. An interesting subtext in several exhibits was the unspoken disdain for Motown Records, because of that label’s more “mainstream” sound.

Stax was also notable for being 50% woman owned, and for its integrated house band. The huge museum (in the old movie theater) was almost empty, with only the two of us and two others.

In contrast, the much smaller Sun Studio was packed. They run 7 tours a day of 30 people (that’s over 200, for those who are counting), and we were told it is always full. Our tour included a bus load of tourists from Poland. I get that Elvis is the biggest name in Memphis music (we had no interest in Graceland), along with Johnny Cash, but it was hard to ignore the disparity between overwhelming interest in the predominantly white studio, versus the nearly empty Black studio.

The Civil Rights Museum was well attended, including many groups of local school children. There were 10 or 12 busses lined up outside as we were leaving (we were there at opening, of course). So that was good to see.

Our next stop was Oxford, Mississippi, to see the James Meredith statue at Ole Miss. For those who may not recall, Meredith integrated the University of Mississippi in 1962, when he was a 29-year old Air Force veteran. Eight years after Brown v. Board of Education, the university had still never admitted an African American.

Meredith’s first two applications were denied, and he was finally admitted only after a successful lawsuit, which the university resisted all the way to the Supreme Court. (He won in the Fifth Circuit and cert was denied.)

Meredith was greeted by rioting students. Cars were burned, rocks and bottles thrown, and two people were killed in the ensuing violence. Meredith was unable to register despite the efforts of over 500 deputy U.S. marshals and other federal agents. He was finally able to enroll only after Pres. Kennedy called up the national guard, employing over 30,000 troops in the largest invocation of the Insurrection Act since Reconstruction. 

Meredith was treated abominably by classmates, who harassed him in the dorm and refused to sit near him in the dining hall. Fortunately, he needed only two semesters to graduate.

I was surprised to learn that the statue was only erected in 2006, forty-five years after Meredith graduated. The “Civil Rights Memorial” has Meredith walking toward a portico, with “Courage” written on the side facing him, and “Opportunity” where he would presumably emerge. There are two inscriptions on the memorial, but not a word about Ole Miss's furious resistance to integration, or the federal intervention that was necessary for Meredith to attend Ole Miss. A lot happened between "Courage" and "Opportunity," but you wouldn't learn about it from the Civil Rights Memorial.

Then on to Clarksdale in the Mississippi Delta, which was really interesting. Clarksdale is sometimes called the home of the blues, though it is hardly unique in producing blues musicians. Still, it was home at one time or another to Robert Johnson, Sam Cooke, John Lee Hooker, Son House, Muddy Waters, Ike and Tina Turner, W.C. Handy, and many others.

There is a blues history revival in Clarksdale, advertising live blues seven days a week. The result is a mix of tourist-oriented business, a few remaining local businesses, and many empty ruined storefronts. There was a surprising number of dress and fashion shops, including a bridal shop. A large storefront had a big sign for “Shankerman’s,” probably a variety store dating to the ‘30s or '40s. The place looked open, no doubt under different ownership, but we didn’t go in. 

Much of the blues revival is being done by white people, playing for mostly white audiences. I think the festivals – there are five every year in warm weather – are probably pretty cool and much more racially diverse, with dozens of acts playing outdoors and in various venues for thousands of people. There was a recent segment about them on 60 Minutes.

A random Saturday in February is a different story. We went to three sparsely-attended shows during the day, all very sincere, although amatueurish, by guys who owned the venues.  Gotta give ‘em credit for moving to Clarksdale and investing in the place, but I probably wouldn’t take time to hear them in Evanston (and definitely not all three). It’s hard to say how much impact these places have had on the local economy. There were only about 20 tourists in sight that afternoon, and I suppose we all had at least one meal in a restaurant, but that seemed to be about it. The festivals are probably better for the locals, depending on who can set up food stands.

The music is obviously better at night, with several clubs offering shows, but we were limited by our early bedtime (we could only stay up for one set at one club). 

We chose Morgan Freeman’s Ground Zero Blues Club, featured on the 60 Minutes segment,  which is a big deal locally and nationally. It was packed on Saturday night; mostly locals because we hadn’t seen that many tourists. It was one of only two places where we saw Black and white people interacting other than commercially. (The other was our hotel.) 

Music was by Keith Johnson and the Big Muddy Band. His great-grandmother was Muddy Waters’s sister. They never met, as Muddy died well before Keith was born. I’d seen Muddy Waters many times when I was a Chicago teenager in the late 1960s, so it was great to see his collateral descendant. He didn’t sound like Muddy, and didn’t try to, but he did play a few of his numbers. The show was a mix of classic blues and more contemporary R&B and Motown. Very professional and enjoyable.

Of course, we went to the legendary crossroads (now said to be US 61 and US 49) where Robert Johnson sold his soul to the devil.

Bob Dylan sang about G-d and Abraham at the other end of the same highway.

Our next road trip will be to Minnesota, because my brother lives there. He is a Dylan scholar at the University of Minnesota, so perhaps we will get to Hibbing.

Posted by Steve Lubet on February 20, 2024 at 06:37 PM | Permalink | Comments (0)

JOTWELL: Thomas on Frampton on jury integration

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, ___ N.Y.U. L. Rev. ___ (forthcoming 2024).

Posted by Howard Wasserman on February 20, 2024 at 02:42 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, February 19, 2024

Calabresi and Kerr on Trump's "Victimless Crimes"

My friend and colleague Steve Calabresi has posted a long essay at The Volokh Conspiracy titled "President Trump's Kafkaesque Civil Trial in New York State." Among his other condemnations of what he calls a "Stalinist nightmare in New York State," Calabresi writes, "not a single bank claimed that it had been defrauded by Trump in the loans it had made to him.  This is truly a victimless crime."

Orin Kerr disagrees, also at the Volokh Conspiracy, in a post titled "Thoughts on Judge Engoron's Opinion, A Response to Calabresi." According to Kerr, it does not matter whether the loans, obtained via Trump's lies, were "successfully repaid." Using the analogy of drunk driving prosecutions, Kerr points out that it doesn't matter "if the person who drove drunk made it home safely on that particular trip" because "it's the established risk of harm, not actual harm" that constitutes the offense."

I agree with Kerr, but I think there is a better analogy. Everyone knows that drunk driving is wrong and dangerous, but that is not so obvious  -- or so Trump argued, and Calabresi agreed -- about inflating one's net worth on a loan application.

So consider Model Rule of Professional Conduct 1.15, which prohibits lawyers from depositing clients' funds in their office operating accounts. The offense of "comingling" occurs when the lawyer fails to keep clients' property "separate from the lawyer's own property." Clients' money must always be kept in "one or more trust accounts."

It makes no difference if the clients' are eventually paid or made whole. Lawyers can be sanctioned, and some have been disbarred, for repeated comingling -- in other words, endangering -- clients' funds, even when the clients have suffered no financial loss. There is nothing Kafkaesque or Stalinist about it.

Posted by Steve Lubet on February 19, 2024 at 05:40 PM | Permalink | Comments (5)

Saturday, February 17, 2024

Passing the batons: Reform and Reckoning in 2024 Legal Education

To say we are experiencing "a moment" risks cliche.  But as to the potential for reform in the legal education space, there may in fact be a moment, for two colliding reasons:  First, the problems that have long plagued legal education are not fundamentally abating, and, indeed, some are worsening.  The annus horribilis (plus) of Covid may have masked persistent problems that had little to do with the pandemic as such.  Now a couple years past the worst of that crisis, we might return to what we saw simmering and, in some ways, boiling over.  The American model and practice of legal education disserves renewed scrutiny.  Problems need to be solved for the betterment of our enterprise, of our profession.  Second, it just so happens that there is a very large turnover in leadership at the organizations that have long been the primary regulators and engines of influence.  To name names, Bill Adams will step down as ABA Legal Ed Section managing director at the end of this academic year, and will be replaced by Dean Jennifer Rosato Perea.  Kellye Testy will leave LSAC to become the next executive director of the AALS.  Kellye will be replaced, although I have no idea at all about the identity of her replacement.  One other interesting fact along these same lines:  The incoming chair of the ABA Legal Ed council is a well-known maverick and fearless innovator, Bridget McCormack, the former chief justice of the Michigan Supreme Court.  And so we are at one of those rare moments where new leadership might steer this big, bulky legal ed ship in a new direction.

I intend this as not merely a gesture of hope, but one of urgency and imperative.  Among the issues that call for close attention and action from these able new leaders:

1) Resolving an issue that is currently before the ABA Section council and has been a hornet's nest for the past several years:  What can law schools do by way of admissions testing?  In 2021, the ABA gave its stamp of approval for the use of the GRE as a valid & reliable admissions test.  Before and after that, the Section twice proposed the removal of Standard 503's requirement of a test, but was met by fierce resistance within the ABA, stoked by LSAC naturally, and backed away.  And this month the council considers whether to approve the use of a novel new initiative -- called JD-Next (on whose academic  advisory board I sit as a volunteer) -- as a possible supplement or replacement for the two tests, the LSAT and GRE, which have previously been approved.  JD-Next has provisional approval under a variance; the question is whether law schools will be able to use it at their discretion going forward. (I am likely to post separately about JD-Next, and so I won't get into the arguments' weeds now).  The matter of admissions testing, and holistic admissions in general, has an urgency, of course, as a result of the Supreme Court's recent affirmative actions decisions, not to mention the continuing struggle to land on systems that reveal student ability that will enable them to succeed in law school;

2) Confronting the issue of cost and student debt.  These problems have not gone away; rather, they seem to be worsening.  Tuition rates continue to climb; university bailouts that might have cushioned somewhat the impact on schools looking to furnish adequate financial aid have basically ended; and the post-Covid legal job market (even including Biglaw) struggles and strains to furnish positions and remuneration sufficient to keep most graduates from leaving law school with crushing debt.  This is, not to be glib about it, a collective action problem.  Law schools will likely fix this in their own backyards only when the market pushes them to do so.  That said, the relevant legal regulatory/influence organizations can implement policies, and decline to implement others, that alleviate some of the cost drivers.  In short, they can help constructively to address these economic problems, even if they cannot (and will not) solve them for the schools themselves;

3) Related to the economics of legal education, but presenting itself as a more complicated "wicked problem," we have a serious access to justice problem in the U.S.  The vast majority of ordinary citizens cannot afford a lawyer; and so they are overmatched in matters close to the bone of their lives, including consumer debt, housing, and family law.  As a nation, we may be "overlawyered," but yet the A2J problem persists.  We must think creatively about structures and practices in legal education worsen this problem; and we should likewise think about how best to inculcate in our students lessons and strategies that will equip them to address the A2J crisis after graduation (even if for some, they will tackle these issues indirectly).  Happily, the new leadership of these legal organizations are all individuals who have made demonstrable contributions to these issues in their careers.  And so there is a basis to be hopeful that they will see this as within the scope of their agenda and objectives;

4) In an ambient sense, we should also see the reckoning in legal education as about our commitment to innovation -- in our educational structures, our pedagogy, how we configure our worklife as teachers, scholars, and administrators -- and our taste for creative problem-solving.  While these are individual choices (as professors) and institutional choices (as law schools), they can be mobilized and incentivized in the right general direction by leadership in legal organizations such as the ABA (both parts, the Section and the "big'" ABA), AALS,  LSAC, AccessLex, NCBE (and other orgs).  Will this transition in leadership bring a temperament for innovation, for bold ideas, for public-regarding, rather than private-interested reform?  Will the ghost of Daniel Burnham influence these leaders?  A commenter on a twitter/X post this morning (Patrick Lamb of ElevateLaw) wryly commented "the guild standing strong against innovation is so certain Vegas bookmakers won't take bets on it."  Nicely said, but I hope he's wrong.  

These leaders can show that they understand the reckoning we are witnessing and the reform that is necessary by coming strong and hard out of the box.  Let's look at what they do, not just what they say, and work with them to improve our collective legal ed welfare.

 

 

Posted by Dan Rodriguez on February 17, 2024 at 12:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (11)

Notre Dame Law Review Symposia 2024-25 Call for Proposals

The Notre Dame Law Review is seeking and accepting proposals for symposia to appear in its 100th anniversary volume:

RFP

Posted by Rick Garnett on February 17, 2024 at 10:12 AM | Permalink | Comments (1)

Saturday Music Post - Rock Me Baby

"Rock Me Baby" is one of the most instantly recognized blues numbers, made famous by B.B. King and Muddy Waters, and covered by dozens or even hundreds of artists. As with so many twelve-bar blues numbers, the lyrics are reminiscent of earlier songs, including Muddy Waters's own "All Night Long" and Big Bill Broonzy's "Rockin' Chair Blues."

(I queue the posts up about six months in advance, and I don’t look ahead once they are posted. So I was surprised to see BB King when I woke up in Memphis. Total coincidence.)

The clips are at The Faculty Lounge.

Posted by Steve Lubet on February 17, 2024 at 04:27 AM | Permalink | Comments (0)

Thursday, February 15, 2024

Confusion About Dates

Here's a technical issue that I often encounter about the dates of nineteenth-century cases. When one of my articles is being cite-checked, a student editor will sometimes look at a Supreme Court case from, say the 1869 Term and conclude that the case was decided in 1869. I then gently point out that by a certain point Supreme Court terms wrapped around two calendar years, so an 1869 Term case could be an 1870 case. Old Supreme Court reports, though, do not contain the date of decision, so it's an understandable mistake.

Circuit cases present a different problem. Take Corfield v. Cornell. Sometimes the case is cited as decided in 1823. Sometimes the cite says 1825. Which is correct? The answer is 1825. Why, then, do some cites say 1823? Because that's when the case was tried. The final decision came out two years later because there was an intervening Supreme Court decision--Gibbons v. Ogden--and a reargument. The practice in the 1820s--or for Justice Bushrod Washington's reports-- was to date the circuit case to its inception rather than its conclusion.

Now consider another example. The proceedings in Jefferson Davis's treason case ended in 1868 (or 1869, if you include the formal dismissal of the case after his pardon). But the circuit report says 1871. Why is that? I'm less certain, frankly, but this does confuse people. How could the case be from 1871 if Davis got a pardon in 1868? 

The bottom line is that you need to pay careful attention to case dates from this era.

Posted by Gerard Magliocca on February 15, 2024 at 01:20 PM | Permalink | Comments (0)

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, February 14, 2024

"Yes Minister" on Precedent

Sir Humphrey Appleby:
Minister, if you block honours pending economies, you might create a dangerous precedent.

James Hacker:
You mean that if we do the right thing this time, we might have to do the right thing again next time. It seems on that philosophy, nothing would ever get done at all.

Sir Humphrey Appleby:
On the contrary, many, many things must be done...

Sir Humphrey Appleby, James Hacker:
[together] but nothing must be done for the first time.

Posted by Gerard Magliocca on February 14, 2024 at 08:24 AM | Permalink | Comments (0)

Monday, February 12, 2024

Columbia Law School Denied Recognition to Law Students Against Antiemitism

My essay about it is posted at The Hill. Here is how it begins:

When Marie-Alice Legrande, who is not Jewish, and several friends decided to form Law Students Against Antisemitism, they expected to fill an obvious need, bringing Jewish and non-Jewish students together to “raise awareness and educate about both historical and contemporary antisemitism.” 

They had no idea that their proposal would draw furious opposition from people identifying themselves as “Concerned Jewish Students at CLS” and “Jewish pro-Palestine students,” who objected to its incorporation of the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism. 

They were shocked when a majority of the law school’s student senate voted to deny them formal recognition, spurred by an inflammatory and misleading letter from the so-called concerned students.  

Even worse, the Law Students Against Antisemitism students got no help from the law school administration in dealing with a blatant case of viewpoint discrimination.

It took almost a quarter of the semester, but the senate finally re-voted and approved the group -- no thanks to the law school administration, which declined to intervene.

The full story is in my piece at The Hill.

Posted by Steve Lubet on February 12, 2024 at 05:20 PM | Permalink | Comments (0)

The DC Circuit's Use of the Youngstown Concurrence

I want to talk about how the DC Circuit cited Justice Jackson's concurrence in its opinion on ex-presidential immunity from criminal prosecution. One theme in my forthcoming book is that people cite the concurrence for many different propositions. For example, cases quote the opinion to support a functional view of separation of powers. Others do so to criticize originalism. And so on.

The panel's first references to the concurrence (and to Youngstown more generally) say that a president is subject to Acts of Congress and that courts can review presidential actions that are contrary to federal law. In this case, of course, the relevant statutes are criminal laws. And the President's power falls into Category Three if he is indicted on a federal criminal charge: 

The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

The second type of reference is that we are a nation of laws and not of men. 

Beyond simply making explicit that a President must enforce the law, the Take Care Clause plays a central role in “signify[ing] . . . the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown, 343 U.S. at 646 (Jackson, J., concurring). It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.

The third reference goes to the idea that the courts should not read the President's formal powers or immunities broadly because he already has so much informal power and immunity.

To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted).

This last point is probably the most under appreciated aspect of the concurrence, but I haven't drafted that chapter yet. Alas.

Posted by Gerard Magliocca on February 12, 2024 at 11:01 AM | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday Music Post - The Times They Are A'Changin'

"The Times They Are A'Changin'" was written by Bob Dylan in 1963. It was released in 1964 as the title track on Dylan's third album, which was his first with exclusively original songs. He picked up the locution "a'changin'" from the British and Appalachian folk ballads popular at the time; the phrase was not current among his urban audience or even in rural Minnesota, but it certainly struck a chord among millions of American youth. Covers abound, and it has remained popular, if not quite equally prophetic, over the years.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on February 10, 2024 at 06:16 AM | Permalink | Comments (0)

Friday, February 09, 2024

In Memoriam: Dan Burk

Many of our readers have probably already heard the sad news about the passing of intellectual property legal scholar giant Dan Burk. Dan was a pioneer in his field, a wonderful mentor, leader and friend. His passing brought sadness to many around the country and the world. Today at UC Irvine a conference in his honor, planned before his passing, is taking place. https://www.law.uci.edu/faculty/full-time/burk/event2023/

https://www.kudoboard.com/boards/HiBiHBTq - a link for paying tribute

In sorrow, here are tributes from two schools where Dan was a leader. 

Minnesotta: https://law.umn.edu/news/2024-02-07-minnesota-law-mourns-passing-former-professor-dan-l-burk

The UCI Law community is mourning Dan's loss. https://news.law.uci.edu/2024/02/04/in-memoriam-remembering-dan-l-burk/. As noted there, a memorial service celebrating Dan's life and contributions will be announced later.


Posted by Orly Lobel on February 9, 2024 at 04:01 PM | Permalink | Comments (1)

Some Impressions From Yesterday

I was lucky to have a seat in the Court yesterday and wanted to share some thoughts while they are fresh.

First, there is a tradition--dating back to the Marshall Court--of Supreme Court arguments as a social occasion. There was some of that spirit. The line to enter for members of the Supreme Court was long. People were dressed formally. I was able to connect with lawyers and scholars involved in the litigation (some of whom I'd met before and some not). I met the lead plaintiff and sat behind her. It was fun.

Second, the security at the Court is ridiculous and sad. This was my first oral argument in person since the 1990s. At that time, you just stood in line and took your seat. It's nothing like that now. Granted, this was a high-profile case. Maybe ordinary cases are different. In general, though, the openness of government buildings in Washington has declined sharply from when I lived there.

Third, Justice Barrett was the best questioner. She understood the case extremely well. Some of the other Justices, frankly, did not. Normally I'm not in a position to assess that because I don't know all of the details--I'm more or less a casual listener. But I'm inclined to pay more attention to her questions in cases going forward.

Fourth, the answer to the Court's uniformity concerns is pretty simple--Congress can create a uniform process. Saying that the Constitution requires Congress to do so, though, is a non sequitur. Here's what I said about this in a Lawfare essay in January 2021:

[T]here is the question of whether Section 3 is self-enforcing. The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today. 

Congress enacted Section 3 enforcement legislation in 1870 that authorized the Department of Justice to bring quo warranto actions—a common-law writ asking, “by what warrant” does someone lawfully hold office—to oust from office some ineligible officials. But Congress repealed this statute in the 1940s as part of a broad cleanup of “obsolete” provisions. If Chase was right, then Congress would be well advised to enact new Section 3 enforcement legislation. The quo warranto provision of the 1870 Ku Klux Klan Act could be reinstated with some adjustments. For example, the act authorized actions against ineligible officials, not ineligible candidates. There are instances, though, where enforcement should be authorized before elections are held so as to resolve any ex ante uncertainty about whether someone can serve.

I was an advocate of federal enforcement legislation then because (1) the process would be better and (2) the Court might wrongly say that an Act of Congress was required to enforce Section Three. Was there any real prospect of getting federal legislation in 2021? Probably not. The issues were too novel and complex for quick congressional action.

Finally, it is strange to say the least that the only person disqualified by Section Three after January 6th, 2021 may be Couy Griffin, a New Mexico County Commissioner. The Supreme Court's opinion is unlikely to help him. He'll be a constitutional trivia answer for all time.

 

Posted by Gerard Magliocca on February 9, 2024 at 09:25 AM | Permalink | Comments (0)

Thursday, February 08, 2024

The constitutional validity of the Presidential Succession Act

Following on Steve's point: The Presidential Succession Act does not permit someone to simultaneously serve as a House and act as president. Section 19(a)(1) states the "Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b)(1), should it devolve to the PPT, states "the president pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President." The West Wing producers did not have the character do this for the good of the country--the statute requires resignation. And it does so to avoid the Incompatibility Clause problem.

Legislative succession may raise other constitutional problems. Article II § 1 cl.6 empowers Congress to provide by law for a double vacancy by "declaring what Officer shall then act as President." This raises two possible problems. There is some question whether the Speaker or PPT, while legislative officers, qualifies as an officer of or under the United States; legislative officers may not qualify for succession, incompatibility aside. Alternatively, in the moment he resigns the Speakership and his House seat, the person ceases to be an officer--the condition to act as president--who can then take the oath to act as president.

So there may be constitutional problems with § 19. It is not the problem Calabresi identifies because the statute does not say what he suggests it says. And the statute, by requiring resignation, does not prove the larger point about whether the President is an officer.

Posted by Howard Wasserman on February 8, 2024 at 10:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Is the Presidency an "Office Under the United States"? A View from "The West Wing" [UPDATED]

Writing on the Volokh Conspiracy, my good friend Steve Calabresi seeks to explain why the presidency is not an "office under the Untied States," and thus not subject to Section 3 of the Fourteenth Amendment. Let me suggest that his argument may depend on a misreading of the Incompatibility Clause.

According to Calabresi,

If the presidency is an "office *** under the United States" that covers Donald Trump under Section 3, of the Fourteenth Amendment, then it has to also be an "Office under the United States" for the purposes of the Incompatibility Clause, which bars Members of Congress from holding any "Office under the United States."  That would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows either the Speaker of the House of Representatives or the President Pro Tempore of the Senate to serve simultaneously as a Member of either House and to hold the Presidency in the absence of both a President and a Vice President, which Presidency is wrongly said to be an "Office under the United States". (All boldface original.)

But the Incompatibility Clause only says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

Doesn’t that simply mean that the Speaker or Senate President Pro Tempore would have to resign from the legislature in order to assume the presidency (as the statute requires)? That certainly makes more sense than assuming that one person could continue to be both president and Speaker, which is what Calabresi seems to be saying.

Thus, the presidency could be an “office under the United States” and the Presidential Succession Act would be perfectly constitutional, although the Speaker or President Pro Tempore would be put to a tough choice.

This observation was the plot line of the 88th episode of The West Wing, in 2003, when President Bartlet invoked the Twenty-Fight Amendment to suspend himself from office because of his reaction to his daughter’s kidnapping. The Vice President had previously resigned in a sex scandal, so the Speaker of the House (played by John Goodman) had to step in as acting president.

But here’s the point: The Speaker resigned from Congress just to assume the temporary role of acting president, in order to comply with the Incompatibility Clause, which he did for the good of the country.

So over twenty years ago, a technical advisor in Hollywood recognized that the presidency is an “office under the United States” and reconciled that with both the Incompatibility Clause and the Presidential Succession Act.

I have no strong opinion about this, and have written to Steve Calabresi for his reaction, but Jed Bartlet is a damn good authority.

UPDATE: Prof. Calabresi has responded:

I have considered the possibility that the Speaker might resign to eliminate incompatibility, but if he did he would no longer be able to act as President.  Under the 25th amendment, the Vice President actually becomes President when that job is vacant, but the Speaker is only Acting President ex officio of his being Speaker, and, indeed, his first obligation as Acting President under the 25th Amendment is to nominate a Vice President who, when confirmed by both Houses of Congress will then become President displacing the Speaker acting as President who nominated him.  I think the cleaner conclusion, which is supported by the legislative history of the 1792 presidential succession act is that the President is not an “Officer under the United States!

UPDATE: Here is President Bartlet handing over authority to now-ex Speaker of the House Walken:

 

Posted by Steve Lubet on February 8, 2024 at 08:16 PM | Permalink | Comments (0)

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The DC Circuit Decision and the Youngstown Concurrence

Today's decision rejecting presidential immunity from criminal liability for actions taken while in office cites Justice Jackson's opinion multiple times for the proposition that the President is not above the law and that his office needs no further aggrandizement. When I have more time, I'll explore those issues further. 

Posted by Gerard Magliocca on February 6, 2024 at 12:19 PM | Permalink | Comments (0)

Monday, February 05, 2024

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

Posted by Howard Wasserman on February 5, 2024 at 11:38 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Dan Burk--RIP

I note with sadness the passing of Dan Burk. He was a leading IP scholar and a tremendous mentor to young faculty in the field. When I started out, Dan was a mainstay at IP conferences and was very generous with his time and comments. And when I was looking to bring a big name IP scholar to give a lecture at my school. I reached out to him. I'm sure he couldn't have picked me out of a phone book at that time, but he came anyway. It was a delightful visit and he gave me wise advice. He will be sorely missed.  

Posted by Gerard Magliocca on February 5, 2024 at 09:08 AM | Permalink | Comments (0)

Sunday, February 04, 2024

20 Years of Mirror of Justice

With apologies for shamelessly promoting another blog's news . . . this weekend was the 20th anniversary of the first post at the Mirror of Justice blog - a project that purported/aspired to be about "Catholic legal theory", which I co-founded with then-Dean Mark Sargent, well, 20 years ago. I confess, I'm a bit thrown off by the realization that computers existed, let alone blogs, 20 years ago but, put that aside. Happy birthday to us! 

Posted by Rick Garnett on February 4, 2024 at 11:09 PM in Rick Garnett | Permalink | Comments (1)

Saturday, February 03, 2024

Upcoming Event at Westminster College

On March 23rd, I'll be at Westminster College in Missouri to talk about Winston Churchill's views of the Constitution. Westminster is where Churchill delivered his famous "Iron Curtain" speech in 1946. The description of that weekend's events is here.

Posted by Gerard Magliocca on February 3, 2024 at 12:24 PM | Permalink | Comments (0)

Saturday Music Post - At Midnight Tonight . . .

. . . I turn 75.

Appropriate music clips (Wilson Pickett; Patsy Cline) are at The Faculty Lounge

Posted by Steve Lubet on February 3, 2024 at 06:10 AM | Permalink | Comments (2)

Friday, February 02, 2024

The Articles of Confederation

For something completely different, I decided to give a close read to the Articles of Confederation. Couple of things I noticed:

  1. The Articles, unlike the Constitution, uses the word "Governor" to describe the executive leader of some states. The Constitution only uses the phrase "executive authority."
  2. The Articles often required nine states to vote for an action. This was probably the source of the Constitution's rule that only nine states were required for ratification. (The Articles did not use nine states as the amendment rule.) 
  3. The Articles provided for a Standing Committee to do business when Congress was not in session. Many political bodies around the world use this form, but the Constitution does not.
  4. The Articles, unlike the Constitution, refers at one point to "white inhabitants."

Posted by Gerard Magliocca on February 2, 2024 at 11:58 AM | Permalink | Comments (0)

Thursday, February 01, 2024

Thomas Friedman on the "Biden Doctrine"

In today's NYTimes, Thomas Friedman addresses the advent of a potential "Biden Doctrine" on the Middle East:

A Biden Doctrine — as I’m terming the convergence of strategic thinking and planning that my reporting has picked up — would have three tracks.

On one track would be a strong and resolute stand on Iran, including a robust military retaliation against Iran’s proxies and agents in the region in response to the killing of three U.S. soldiers at a base in Jordan by a drone apparently launched by a pro-Iranian militia in Iraq.

On the second track would be an unprecedented U.S. diplomatic initiative to promote a Palestinian state — NOW. It would involve some form of U.S. recognition of a demilitarized Palestinian state in the West Bank and Gaza Strip that would come into being only once Palestinians had developed a set of defined, credible institutions and security capabilities to ensure that this state was viable and that it could never threaten Israel. Biden administration officials have been consulting experts inside and outside the U.S. government about different forms this recognition of Palestinian statehood might take.

On the third track would be a vastly expanded U.S. security alliance with Saudi Arabia, which would also involve Saudi normalization of relations with Israel — if the Israeli government is prepared to embrace a diplomatic process leading to a demilitarized Palestinian state led by a transformed Palestinian Authority.

If the administration can pull this together — a huge if — a Biden Doctrine could become the biggest strategic realignment in the region since the 1979 Camp David treaty.

I found the essay persuasive and well worth reading.

(But the Times needs a better copy editor, preferably someone who didn’t learn geography from a New Yorker cover. In his closing paragraph, Friedman says “[i]t is a strategy that could work with Arab Americans on Lake Michigan.” The Detroit area is on Lake Huron.)

Posted by Steve Lubet on February 1, 2024 at 06:37 AM | Permalink | Comments (0)