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Saturday Music Post - Memphis Soul at the White House

On April 9, 2013, President Obama hosted a "Memphis Soul" concert at the White House. It was part of a series called "In Performance at the White House: A Celebration of American Music," including a "Tribute to Motown," a "History of Gospel," "Red, White, and Blues," "Celebration of Broadway," an "Evening of Classical Music," awarding of the "Gershwin Prize" to Burt Bachrach and Stevie Wonder, and more. Some of these will be featured in future Saturday posts.

The Memphis clips are all great, but the post starts with Obama's moving introduction to the concert. Here is a brief summary, referring to Booker T. Jones and Steve Cropper: "“They weren’t allowed to go to school together. They weren’t always allowed to travel or eat together. But no one could stop them from playing music together.”

The post is at The Faculty Lounge.

DeGirolami on Traditionalism

A nice op-ed from my friend Marc DeGirolami on traditionalism, in the New York Times, which I was happy to see gave him enough space to decently lay out his view. Although the topic is not especially timely (I mean that in a good way, on the whole! "Timeliness" is an overrated and distorting quality.), he finds a nice hook by contrasting it with recent statements by Stephen Breyer and Kevin Newsom.

Normally I would say "Don't read the comments," which is the prevailing rule for sensible people everywhere. (And one that adds a sizeable question mark to claims about the democratizing discursive value of social media.) In this case I violated the rule and found it instructive. Of course there is a good deal of inanity. But much of that lay inanity reproduces exactly what ostensibly more educated and elite people who are actually in the law game have been doing for the last several years, in the time-honored tradition of fighting the last war: They give lip service to "traditionalism" or "history and tradition" up front, suggest they will be talking about it in what follows, and then proceed to criticize originalism in great detail. (Although Marc was early to this iteration of legal traditionalism, some scholars have actually started writing interesting articles about traditionalism that are actually about traditionalism, viz. recent pieces by Sherif Girgis, Felipe Jiménez, and Larry Solum. These are the exceptions.) Or they make what they think are the killer arguments against traditionalism--pointing to bad past practices or traditions--without acknowledging that most of them were addressed firmly and rightly by the Civil War Amendments and other constitutional amendments, which are an appropriate way to entrench the societal recognition that some traditions must change; others were killed in the way that bad traditions are, by the accretion of time and practice, a possibility that Mark recognizes more than once in the piece itself; and others may be constitutional but need not be enacted or practiced. (The preponderance of the remaining comments simply adopt the expedient of talking about something else.) 

You need not take any of this as an endorsement of traditionalism as a constitutional practice. I do think however that whether it is a full-on, name-in-neon-lights modality or not, accounting for and invoking tradition is not new (many of our most celebrated First Amendment decisions, for example, engage at least for rhetorical purposes in the invocation and celebration of real or fictive traditions), is probably inevitable, and happens even in the most lively of living traditionalist opinions. And I think Marc has done a valuable job in naming (or renaming) the practice. But I reserve further judgment. What I would like to see, even in a short-ish op-ed and certainly in his book, where I'm sure it will appear, is a deeper dive into all sorts of questions, such as:

• Is it relevant if a tradition is "invented"--that is, it purports to trace back to the misty past but is in fact of far more modern vintage?
• Is traditionalism as a legal practice one that yields judicially manageable standards, assuming these to be desirable?
• Is there anything to be said from a constitutional comparativist perspective about traditionalism as a constitutional practice? If we are mostly alone in using it, why is that, beyond its obvious current political uses? Is it a cultural matter, a legal-cultural matter, a function of stronger and more cohesive national cultures and practices in those nations, or a function of the relative youth of most other constitutions, which effectively start from a baseline of the state of "tradition" in those countries at the time of entrenchment of those constitutions, even if they do not speak in those terms and won't for another few decades?
• How much is traditionalism as a legal practice merely about legal "traditions?" How much should it be about cultural traditions more generally? To the extent the latter are involved, how good or bad are judges at identifying those? To the extent they're not, does it render traditionalism as a legal practice somewhat desiccated, and miss much of what really matters in thinking about constitutional law's connection to our values and practices?
• More generally, is traditionalism a legal and/or judicial skill? If so, what does it involve? How can it be cultivated or taught? Is it yet another mode of interpretation, like originalism or reliance on theories of justice, that takes judges away from their actual, common-law-like, area of greatest competence, and thus questionable, even if "true," as a judicial practice? Or is it closer to their competence because a sense of tradition is one of the qualities that marks common-law judging?
• What does bad or sloppy legal traditionalism look like? What does excellence in legal traditionalism look like?
• What is the appropriate political response to traditionalist decisions? When political majorities reject a traditionalist ruling as hidebound and out-of-date, and thus pass laws rejecting those traditional practices (or lack-of-practices), shouldn't this be celebrated by legal traditionalists, on the whole? Isn't it an as-yet under-discussed virtue of traditionalism that it shifts power and impetus to the political process, where a more pluralistic society can then examine and possibly repudiate our nation's "traditions?" If so, is there a difference between Dobbs, which purports to allow the people to pass laws protecting abortion, and Bremerton or Bruen, which entrench particular practices against legal regulation?
• If the latter practices fall into desuetude for long enough, is it proper traditionalism for a court, even in the absence of a constitutional amendment, eventually to rule that they are no longer constitutional, even though some people or jurisdictions still engage in that practice? How does one go about making that argument and identifying that state of affairs?    
• Are the current justices good or bad at traditionalism? If critics, however substantively and politically motivated they may be, come up with sound evidence that the history and traditions identified by a majority of the Court in a case like Dobbs are inaccurate in important ways, should traditionalist lawyers and scholars, however substantively and politically motivated some of them may be, openly criticize those opinions for their poor work? If they don't, or fail to at least address that evidence in their work (after all, why should we outsiders take the Justices' word for it when they describe legal traditions?), is there a problem with the state of traditionalism as a legal and scholarly practice?
• What did rights-favoring scholars who are currently ill-disposed towards traditionalism say about it when cases like Stevens and Alvarez, which invoke traditionalism in a way that is favorable toward free speech and uses it to guard against new categories of "low-value speech," were issued? Did they criticize or reject it there? Did they instead applaud it, or conveniently ignore it? 
• Are Bremerton, which is discussed in the op-ed, and the American Legion and Town of Greece decisions, which are not, examples of good or bad traditionalism? I'm not sure where in tradition Justice Gorsuch, writing in Bremerton, came up with his seeming requirement that students not "feel pressured" to participate, or the importance of the fact that he did not lead prayers with the team, or his bog-standard-liberalism assertion that "[r]espect for religious expressions is indispensable to life in a free and diverse [r]epublic." (Others have asked exactly what high school football games, or even public high schools, have to do with American "traditions." I'm not sure how strong that criticism is, but it at least suggests that traditionalism, like all other methods of constitutional interpretation, has a level-of-generality problem.) I'm not sure where in tradition Justice Alito, in American Legion, found a requirement that a monument not disparage others, or whether Justice Kavanaugh's concurrence attempting to find judicially manageable principles for Establishment Clause cases going forward should be understood as an utterly non-traditionalist opinion. I'm not sure where in tradition Justice Kennedy, who begins his First Amendment analysis in Town of Greece with the words, "[I][t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted," found the perfectly reasonable rules of etiquette he constitutionalized later in the opinion. And of course, outside the Establishment Clause, there are what we might think of as the saving provisions in Heller, which ought still to exist after Bruen. Surely those were about policy, not tradition.) Are these bad traditionalist opinions because they came up with sensible qualifications but didn't link them to tradition, and certainly not in any serious, evidence-based way? Are they good traditionalist opinions because good traditionalism, like any good method in constitutional law, must be employed--and adulterated--with a healthy measure of unprincipled Posnerian prudence, pragmatism, and consequentialist? If so, and if such adulteration makes "traditionalism" as practiced by judges look a little ridiculous, does it place it on any worse footing than living constitutionalism, which arguably is most justifiable and acceptable as a judicial practice when its liveliness is connected to--and at least somewhat hobbled by--our ties to, and the constraints of, our (evil, undemocratic, etc., etc., etc.) past, rather than being unbound in its responsiveness and justice-seeking? Or originalism, which is most reasonable when somewhat hobbled by settled precedent?
• This may not be aimed at traditionalism in particular, but more generally at modern approaches to constitutional interpretation in the U.S. After years of mocking the three-part and four-factor tests of the Burger (especially) and Rehnquist Courts, do the little qualifications and caveats in some of these opinions serve as a reminder that we may have moved to the opposite extreme, and that it may be time for a little more appreciation and revival of those former elements of judicial decision-making, which are both made-up and, in theory, conducive to judicial manageability?
• A related point: In what I think is the only useful element to be taken from the "teaching constitutional law is in crisis" assertions, how exactly does one teach--and, especially, evaluate--law students with respect to traditionalism? The same thing applies to originalism, granted, but it certainly applies to traditionalism. Does one hand students an issue-spotting question and then offer a forty-page historical appendix? (In fairness, the point is not limited to originalism or traditionalism. It's just conspicuous because of the novelty. Con law professors may pretend that students are perfectly capable of engaging in proportionality review or rights-balancing or some other form of Goldilocks-ish policy analysis or comparison of incommensurables on law school exams because we've been used to it; that doesn't make it so.)

I could go on. It's still a good op-ed, and far better than most of this kind at giving readers useful information and tools, including the tools to criticize the approach, while avoiding high degrees of advocacy, naked or otherwise. I've enjoyed Marc's work on traditionalism so far and very much look forward to his book. I do think many constitutional law professors continue to engage in an odd, perhaps unconscious pivot in which they quote judicial language concerning "history and tradition" and then start recycling old criticisms of originalism and thus render their work quite unresponsive to the current Court and the methods it is purporting to shape and use. But the study of traditionalism as a scholarly endeavor, whether by supporters or opponents, should certainly now move from identification to serious internal and external critique. Nothing is so useful or commendable, once you've identified or created a good proposal and let it loose into the world, as turning back around and setting your gunsights on it.  

The Comstock Act and Federal Express

Here's a question. The Comstock Act was a self-described regulation of the Post Office. This was clearly within Congress's authority during the 1870s. A modern use of the Act, though, presumably could not reach packages sent through a private service like UPS or FedEx. They are not the Post Office. They are not the mail. Thus, I'm unclear about what a revived Comstock Act could do aside from making deliveries more costly as everyone implicated substitutes away from the Post Office.

That's the downside of relying on a very old statute. You don't need to enact a new one, but you're stuck with the limits of the old one.

UPDATE: A subsequent amendment to the Act extended its reach to include common carriers. So what I said above does not work. Moving right along . . .

Limitation of Liability and the Baltimore Bridge Disaster

While there are many facts to discover about why the Dali collided with the Francis Scott Key Bridge, one fact that often comes as a surprise to people who are unfamiliar with maritime law is that the Limitation of Liability Act of 1851 may apply here to limit the exposure of the vessel operator to the sum of the ship's value and the value of its cargo. That sum would be far less than the damage done. It's a feature of maritime shipping law that is now a bug. Congress should reconsider this ancient statute before it does more harm.

UPDATE: Some people are incorrectly referring to the Limitation of Liability Act as the "Titanic Law." The owners of the Titanic did successfully invoke the Act, but the law long predated that disaster.

The Ten Most Influential Musical Performances of the Twentieth Century

My friend Cory Franklin has posted a terrific essay in Chicago Life, making the very convincing case -- on the occasion of the 100th anniversary of "Rhapsody in Blue" -- that George Gershwin is the greatest American composer. As Cory puts it, 

He excelled at popular music. . . . He wrote brilliant movie scores, Broadway music, and straight classical works. His opera, “Porgy and Bess”, considered among the best American operas, features the song “Summertime”, rated by some as the greatest American song (diverse renditions include those by Billie Holliday, Ella Fitzgerald, Janis Joplin, Billie Stewart and Gene Vincent, and it’s hard to find a bad one.) Other songwriter/composers – Berlin, Ellington, Bernstein, McCartney, Prokofiev - may have surpassed Gershwin in a certain genre, but no one matched his overall brilliance, all accomplished before he died at the age of 38. 

And if that isn't enough of a discussion starter, Cory also lists what he calls the ten most influential musical performances of the Twentieth Century.

Comments are open to discuss Cory's nominees, as well as my observations. Here they are:

“The Jolson Sound”: Oct. 6, 1927  - "The Jazz Singer" starring Al Jolson, one of the greatest stars in the world, premiered in New York City, and was the first feature-length film with synchronized sound.

"The Famous 1938 Carnegie Hall Jazz Concert":  January 16, 1938. Until the winter night in 1938 when a young Chicago clarinetist, Bennie Goodman, brought his band to Carnegie Hall, jazz music was limited primarily to nightclubs.

“The Columbus Day Riot, Sinatra at the Paramount”: October 12, 1944.  An unheard crowd of 35,000 girls – a new tribe known as bobbysoxers - appeared for his afternoon performance, which caused police to turn out in force.  

“1956 Newport Jazz Festival”: July 7, 1956.  On a rainy July evening at the Newport Jazz festival, Duke Ellington staged a comeback with a memorable set highlighted by a tenor solo performance of “Diminuendo and Crescendo in Blue” by saxophonist Paul Gonsalves.  The jazz classic brought the crowd to its feet and reinvigorated jazz in America.

“Elvis on ‘The Ed Sullivan Show’”: September 9, 1956.  Sixty million viewers tuned in, more than 80% of TV viewers at the time, making it one of the highest rated shows of the decade. Sullivan subsequently assured America that Elvis was “a good boy” and the marriage between rock and roll and television was in full swing.

“The Million Dollar Quartet”: December 4, 1956. Rounding out 1956, possibly the single most important year for American music in the 20^th century, was a one-time recording of an impromptu jam session at the Sun Record Studios in Memphis, Tennessee,involving four emerging country music legends:  Elvis Presley, Jerry Lee Lewis, Carl Perkins, and Johnny Cash. 

“The Beatles on ‘The Ed Sullivan Show’”: February 9, 1964. 

“Dylan Goes Electric”: July 25, 1965 - Bob Dylan, the leading folk musician of the day, sang folk with an electric guitar at the Newport Folk Festival.

“Jimi Hendrix at Monterey”: June 18, 1967. It was not foreordained the guitar would be the main instrument in rock and roll (the saxophone was an early competitor) but when it did, audiences looked to guitar virtuosos. They found a legendary one, introduced at the Monterey Pop Fest, in Jimi Hendrix.

“The Michael Jackson MTV Moonwalk”: May 16, 1983 – Historically, there were rock performers who incorporated dance into their rock acts, notably Jackie Wilson, Chuck Berry, and Mick Jagger.  Motown appreciated the combination of influences and employed a choreographer at the studio. But the seminal moment was when Michael Jackson did the “moonwalk” for the MTV program “Motown 25: Yesterday, Today and Forever.”

I have one significant disagreement with Cory's nominees; one additional performance that should absolutely be on the list, and three others that arguably belong, though I'm not sure which of Cory's could be dropped.

First, I don't think the Million Dollar Quartet belongs on the list of influential performances. Yes, it was a very cool event, but it cannot really be called influential, given that it was unknown at the time, and not even released until 1981. Elvis had already been on Ed Sullivan and other shows by then, and the other three were pretty well established, too. The impromptu session probably didn't even influence the people who were there. History would have been exactly the same if it had never happened.

The missing performance is Marian Anderson's concert at the Lincoln Memorial on April 9, 1939, which may have been the most politically important musical event in American history. After the Daughters of the American Revolution refused to allow the African American contralto to perform at Constitution Hall (which they controlled at the time, and maintained segregation), Eleanor Roosevelt resigned from the DAR and arranged for Anderson to sing on the National Mall instead, with the implicit approval of FDR.  It was a crucial date in the integration of the performing arts in America. Two months later, the First Lady appeared at the NAACP convention to award a prize to Anderson. 

Three other possibilities are:

John Lomax recording Huddie "Lead Belly" Ledbetter at Louisiana's Angola Prison in July 1933 (exact date unknown), which was arguably the beginning of the popularization of American folk music, and its multiple revivals over the years.

Alan Lomax's recording of McKinley "Muddy Waters" Morganfield, in Stovall Mississippi, in August 1941 (exact date unknown), which inspired Muddy to move to Chicago, where he popularized the electric blues.

Leonard Bernstein's first "Young People's Concert," January 18, 1958, which brought televised classical music to the American public.

Comments are open for suggestions, disagreements, and general discussion.                                                                                                                     

 

Who Cares If the Supreme Court Justices Like Each Other?

It is practically an article of faith – at least among lawyers – that the Supreme Court “functions better” when the justices get along with one another. But I say, who cares? I explain my reasoning in a new essay in The Hill.

Here is the gist:

The Supreme Court’s friendships are not above the law

The latest episode of performative collegiality featured Justices Sonia Sotomayor and Amy Coney Barrett in a series of joint appearances, where they insisted that their profound disagreements about constitutional law do not affect their daily interactions. 

But why should anyone care about the justices’ interpersonal relationships? When Supreme Court decisions affect millions of lives, sometimes for better and often for worse, what does it matter if they routinely patch it up afterward? 

No parent grieving a child killed in the latest school shooting will be consoled because the justices still enjoy lunch together while effective gun control has been made nearly impossible. No woman forced to endure an ectopic pregnancy can take comfort in the justices’ bonhomie following the demise of Roe v. Wade.

The justices’ unwavering camaraderie also results in deference to each other’s ethical choices, even when a colleague has engaged in misconduct.

The eight other justices have graciously stayed silent while Thomas remains in a case implicating both his wife and his protégé.

No amount of courtesy, affability, relationship building or overall good feeling can justify the Supreme Court’s quiescence in the face of Thomas’s flagrant misconduct.

You can read the entire essay in The Hill.

Northwestern v. UConn

Northwestern, appearing in its third NCAA Tournament and second in a row, beat FAU 77-65 in OT in the first round. I was teaching during most of the game. I tuned in with a minute left and NU down two (I later found out we had gagged away a nine-point lead); saw us tie the game on a lay-up with 3 seconds left; then watched us blow FAU away in OT by making our first 9 shots (5 baskets and four FTs). The prize for the win is playing UConn--the defending national champion and # 1 overall seed. This is the first time Northwestern and UConn have ever played in basketball.

That brought me back to the spring of 1986, when I was a Northwestern-bound HS senior, planning to work as a student manager for the basketball team. Northwestern and UConn had coaching openings. Northwestern offered the job to Jim Calhoun, then at Northeastern. Calhoun declined, saying that while he is willing to build a program, good movement for Northwestern would be from 10th to 7th, which would not be good movement for Jim Calhoun. Calhoun took the job at UConn, coming off four seasons near the bottom of the (original) Big East. UConn went 9-19/3-13 (compared with Northwestern's 7-21/2-16) his first year. They won the NIT his second year (when the tournament, while no longer prestigious, did not have major-conference schools routinely decline invitations). And they lost on a buzzer-beater in the Elite Eight his fourth year. Meanwhile, Northwestern won 32 games (8 conference) in my four years, although I loved working for Bill Foster and his staff.

Calhoun also had NCAA problems, graduation-rate problems, and a big personality, so query how well he would have played at NU or whether he could have done there what he did at UConn. Still, my bit of personal history in anticipation of tomorrow's game.

Saturday Music Post: Éirinn go Brách - Part Two, Outlaws and Everyone Else

Today's post is Part Two, with songs of outlaws and everyone else. Don’t miss the important cameo appearance at the bottom of the post at The Faculty Lounge. Part One, with songs of rebels and martyrs, is here.

Pulsifer v. United States as Permissive Interpretation

When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it.

With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.” 

In brief, Pulsifer involved a statute whose literal text naturally invites a reading that would have helped many criminal defendants. But lots of contextual information made that literal reading seem like an odd fit with the legislature’s apparent goals.

For example, the statute took the following form: “defendants are entitled to resentencing if they do not have A, B, and C.” This construction is most naturally read conjunctively, so that the property of having A-and-B-and-C is what disqualifies someone from the benefit. By analogy, “Don’t drink and drive” means “don’t drink-and-drive,” not “don’t drink” and also “don’t drive.”

But that conjunctive reading has some strange implications in the statute at issue. As the Pulsifer Court argued, for instance, the literal reading “would allow relief to defendants with more serious [criminal] records while barring relief to defendants with less serious ones.” That result seems at odds with the legislature’s evident goals in distributing resentencing opportunities.

This glimpse of the back-and-forth in Pulsifer suggests a conflict between two of the basic rules. First, the literal rule allows courts to enforce a statute’s literal meaning. Second, the mischief rule allows courts to deviate from literal meaning when doing so comports with actual legislative goals.

In Pulsifer, each side had one basic rule in hand: the majority had the mischief rule, and the dissent the literal rule. So, under the basic rules, either outcome was permissible. Consistent with that view, the Court’s 6-3 voting alignment cut across ideological and methodological lines. Relatively textualist jurists combined with relative non-textualists, and left jurists aligned with right ones. Lower courts, too, generated splits of authority formed out of unusual alliances.

Other interpretive principles lay in the background. While the dissent’s literal reading had odd implications, it was not so shocking in its consequences as to seem either catastrophic or senseless. That point explains why the third basic rule, called the golden rule, did not come into play. (A similar point can be made about the related and more familiar “absurdity” rule.)

What about the rule of lenity? The majority cast it aside on the ground that the statute wasn’t “genuinely” ambiguous; thus, there was no permissive choice for the rule of lenity to resolve. The dissent, by contrast, trumpeted the rule of lenity. Does the majority’s striking conclusion, in the face of a dissent, mean that the rule of lenity has effectively been overruled?

No, because the rule of lenity in practice operates as a plaudit. In other words, compliance with the rule of lenity generates legalistic praise for opting in favor of a particular permissible option; but the rule does not mandate anything. The Pulsifer dissenters garnered that praise in many quarters by favoring lenity. And, in passing up that praise, the majority left the plaudit where they found it. So, instead of being overruled, the rule of lenity abides.

The basic rules have had a vaunted career in both British and, at one time, American legal culture. As I have just argued, moreover, Pulsifer illustrates the explanatory power of these rules today. Yet some aspects of Pulsifer show a gap between current practice and the permissive basic rules.

Most obviously, the justices denied that there was a permissive choice at all. While agreeing that there were “two grammatically permissible readings,” for instance, the Court worried about textual superfluity and that “more serious” offenders might receive preferential treatment. That is why, as already noted, the Court rejected lenity: “The two possible readings thus reduce to one.”

For another thing, both sides in Pulsifer appealed to both of the basic rules at play. That is, the majority spent a lot of time trying to deflect arguments from the text; and the dissent stretched to find support in congressional goals. In a more overtly permissive regime, these relatively strained arguments would be superfluous and disposable. Each side could rest on its strongest points to establish legal permissibility, and there would be no need to claim overall victory on all aspects of the case.

Most fundamentally, a permissive approach would have invited both sides to explain why they chose the formally permissible option that they did. For the majority, this might involve a claim about the importance of denying relief to the “more serious” offenders alluded to above. And the dissent might point to the benefits of resentencing as many offenders as possible. To some extent, these ideas already appear in the competing opinions. But, in a permissive system, the case’s deeper moral implications could assume a more central role, potentially changing justices’ votes. Judicial personality, or a judge’s personal rules of decision, could likewise fill gaps in formal law.

In this way, the permissive basic rules would allow judges, and legal culture generally, to recognize the force of formal legal argument while also acknowledging its limits. Again, the Court insisted that the “two grammatically permissible readings” ultimately “reduce to one” mandatory conclusion. But no formal principle of law dictated that result. The Court’s conclusion is better understood as a choice among legally available options, even if it did not view its own decision in that way.

To be clear, avowedly permissive interpretation would leave many cases unaltered. Sometimes, the basic rules converge or otherwise dictate a single legal answer. And, at other times, the key dispute is whether a single basic rule applies. In those cases, the basic rules would mark the boundary between what is mandatory and what is disallowed, consistent with a non-permissive view of interpretation. 

In hard cases like Pulsifer, however, the law does not dictate an answer because the fundamental determinants of interpretation conflict with one another. When two basic rules diverge, formal law does not specify just what to do. Legal culture would benefit from more candidly acknowledging those zones of indeterminacy. Once recognized, they can be confronted or managed. 

Whether an overtly permissive approach is ultimately desirable is a complicated question. The more essential point here is descriptive. We should reject the notion that the justices are all textualists now. And we should also deny that the Court is divided between textualists and non-textualists. Instead, cases are largely decided according to the permissive basic rules.

Cross-posted from Re's Judicata

JOTWELL: Carroll on Gluck, Burch, and Zimmerman on bankruptcy and mass tort

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Abbe R. Gluck, Elizabeth Chamblee Burch, & Adam S. Zimmerman, Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation, 133 Yale L.J.F. 525 (2024), questioning the "turn to bankruptcy" to resolve mass tort cases.

Winning the nomenclature war

In Murthy v. Missouri, Deputy S.G. Brian Fletcher and Justice Gorsuch both referred to these "enjoin everyone from doing everything everywhere" orders as "universal injunctions" rather than "nationwide." So proud.

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Trump Law Redux

The Supreme Court hears arguments today in two cases involving the use of government pressure and/or "jawboning" to influence the decisions of private parties. Murthy v. Missouri is another Fifth Circuit special concerning the degree to which the government can communicate with, or lean on and coordinate with, social media companies to influence their content moderation policies. National Rifle Association v. Vullo asks how far the government can go in using its regulatory power to pressure companies to stop doing business with a politically disfavored group. 

A good deal of the media discussion has had to do with the serious issue (however dubious most of the public discussion and a good deal of the nascent academic "discipline" may be) of "misinformation," questions of social media platform responsibility, how far government can go in leveraging its power and conversely, how much the courts can or should limit government from engaging in normal regulatory, oversight, and communicative activity. All valid questions, and there are more besides. But if I may venture a mild suggestion: The question the Court should be asking, albeit perhaps quietly, has less to do with current or past events. Rather, the Court is now in "pathological First Amendment" territory. It should be asking: What sort of opinions should it write in these cases with a future presidential administration in mind that may be irregular, vengeful, and punitive?   

Update: Monbiot on ME/CFS

Last week, I posted a short summary of British columnist George Monbiot's important essay in The Guardian on the mistreatment of ME/CFS patients in the UK. He was especially critical of a coterie of revanchist psychiatrists who have refused to abandon their psychogenic model, despite its repudiation, over the past decade, by leading health authorities on both sides of the Atlantic. Oxford's Michael Sharpe came in for especially pointed censure, as explained by Monbiot, 

But some people never give up. Despite an overwhelming weight of evidence, the old believers, including Sharpe and Wessely, have continued to try to justify their model. . . . Protected by powerful friends in the media, they could breathe life into their hypothesis long after it had been debunked. The new evidence-led thinking has yet to penetrate parts of the health system: some patients are still being mistreated.

Sharpe has now petulantly replied in a letter to the editor, writing, 

George Monbiot appears to confuse the doctor paying attention to a patient’s fears and emotions with dismissing their illness as somehow “unreal”. I suggest such a view is ill-informed and likely to be unhelpful for patients with any illness.

This is an extraordinarily disingenuous response. Without acknowledging his changed position, Sharpe has gone from claiming that Cognitive Behavior Therapy can "reverse" ME/CFS, which he attributed to "unhelpful illness beliefs," to the anodyne position that he has merely been "paying attention to a patient's fears and emotions," as he evidently recommends for "any illness." And though he has never called ME/CFS "unreal," he has repeatedly termed it an "illness without disease" (to which David Tuller and I replied here), while discouraging biomedical research.

One might think that an Oxford psychiatrist would recognize defensiveness and rationalization, and refusal to admit error, but evidently not. To paraphrase the great physicist Max Planck, science advances one retirement at a time.

 

Saturday Music Post: Éirinn go Brách - Part One, Rebels and Martyrs:

There were too many Irish songs for just one post, so Part Two will be up next week.

Don't miss Paul Robeson at the bottom of this week's post at The Faculty Lounge.

What Was in the Scandalous Brief?

My last post explained that in 1918 the Supreme Court rejected a constitutional challenge to the World War I draft and criticized petitioner's brief for its intemperate and scandalous remarks. 

Here are some of the subheadings:

RULES OF CONSTRUCTION THIS COURT MUST FOLLOW IN PASSING UPON THE PRESIDENT'S MONSTROUS CLAIM OF
AUTOCRATIC MILITARY POWER SET UP UNDER THE ACT OF MAY 18, 1917.

SHALL THE EXISTING POLITICAL DICTATORSHIP BE TRANSFORMED INTO A MILITARY DICTATORSHIP BY A JUDGMENT OF THIS COURT?

Here is part of what the Solicitor General wanted stricken: 

"Such autocratic control as that over the private life and private property of the people was never assumed by the monarchy in France, even in the darkest days that preceded the French Revolution. This court must further take judicial notice of the fact that under some claim of authority based on some one of the group of war-statutes, the Executive Power has suddenly seized and taken into its possession and control, without any judicial proceedings whatever, thousands of millions of private property belonging to the railroads of the country, which it is now operating and which it proposes to hold and operate either indefinitely or for a long period after the war has terminated, thus clearly indicating the fact that the existing Dictatorship is to continue after the war has ended. The court must further take judicial notice of the fact that there is now pending in Congress a bill, backed and urged by the Executive Power, which, if it takes on the forms of law, will at least, as a de facto statute (it cannot possibly be anything more) sweep into the hands of the President "as Commander-in-Chief of the land and naval forces" (that is the language of the pending bill) such an aggregation of powers as no monarch ever wielded in any constitutional government that ever existed."

Seems pretty tame by modern standards, though I can't speak to the norms in wartime over a century ago.

 

Lawsky Entry Level Hiring Report 2024 - Call for Information

Time once again for the entry level hiring report.

 

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.

You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.

If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)

If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.

Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

[This paragraph further clarified on March 17, 2024.] The list does not include someone who was a full-time non-tenure track clinician at a school that does not provide tenure to clinicians, and then moves as a clinician to a school that does provide tenure to clinicians, with credit for their prior work experience as a full-time faculty member. This person does not seem to be an entry-level hire. However, someone who was a full-time professor (clinical or otherwise) at one school, and then moved to an entry-level position (clinical or otherwise) with a tenure track or promotional clock that started fresh, would be an entry-level hire.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2023 initial post, 2023 spreadsheet, 2023 report (with graphs).

2022 initial post, 2022 spreadsheet, 2022 report (with graphs)

2021 initial post, 2021 spreadsheet, 2021 report (with graphs)

2020 initial post, 2020 spreadsheet, 2020 report (with graphs)

2019 initial post, 2019 spreadsheet, 2019 report (with graphs).

2018 initial post, 2018 spreadsheet, 2018 report (with graphs).

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

‘You don’t want to get better’: the outdated treatment of ME/CFS patients is a national scandal

The British investigative journalist George Monbiot has an excellent column in The Guardian, exposing the decades of medical abuse and neglect imposed on ME/CFS patients in the UK. Almost ten years after the U.S. Institute of Medicine (now the National Academy of Medicine) determined that ME/CFS is a biomedical disease,  and not psychogenic, and over a year since the British NICE did the same, prominent British psychiatrists still insist on recommending graded exercise therapy (GET), even though it has been shown to be damaging to at least half of all patients (and useless to everyone else).

Here is the gist of Monbiot's article:

It’s the greatest medical scandal of the 21st century. For decades, patients with ME/CFS (myalgic encephalomyelitis/chronic fatigue syndrome) have been told they can make themselves better by changing their attitudes. This devastating condition, which afflicts about 250,000 people in the UK, was psychologised by many doctors and scientists, adding to the burden of a terrible physiological illness.

Long after this approach was debunked in scientific literature, clinicians who championed it have refused to let go. They continue to influence healthcare systems, governments and health insurers. And patients still suffer as a result.

But some people never give up. Despite an overwhelming weight of evidence, the old believers, including Sharpe and Wessely, have continued to try to justify their model, obliging Nice recently to publish a strong refutation. Protected by powerful friends in the media, they could breathe life into their hypothesis long after it had been debunked. 

You can read the entire article here.

I have been writing about this since I outed myself in 2015.

 

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

303 Creative, Exclusive Private Enforcement, and Blue-State Revenge

(Finally; it only took 7 hours) available on SSRN. If you or someone you love operates a law review, it is available.

Here is the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

AI screws up SSRN (Update)

I uploaded a new paper to SSRN, the latest in Rocky and my series on exclusive private enforcement. I would share the SSRN link, but the medical team at SSRN flagged it as having a "medical and/or health term that has initiated a medical screening process;" they removed removed the paper from public view pending further review. According to an SSRN person, the "medical and/or health term" triggering review is "patient"--as in "this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right."

I assume this is because of an AI filter and not because some human being was stupid enough to make this mistake. But I wonder what would happen if someone wrote a sentence such as "Justice Kagan believes the Court is not patient in seeking constitutional change."

I find it distressing that circulation and publicity of our work is in their hands.

Update: An emailer says this was a simple algorithm rather than "AI." Fair enough and I stand corrected. SSRN still screwed this up. How much? Well, here is the email I got in response to asking to speak to someone with some ability to resolve things:

Your paper or analysis may be framed around a legal, economic or other topic question; however, if the data that is used in the analysis is medical or health related, we must use caution around both patient and health information.

 
The SSRN system performs an initial automated scan of the submission to identify medical and/or health terms. Depending on the scope of the medical content, SSRN's Medical Team will conduct a deeper medical screening on any such papers that include medical or health data in order to provide complete transparency and to follow best practices around any health data. Due to the caution that is required around health care or medical preprints for prevention of harm and to meet required reporting standards, SSRN screens these papers to ensure they have appropriate declarations around competing interests and funding as well as ethical approval and trial registration, where appropriate.

Your paper is now available on your "My Papers" page and has been expedited.  It is also publicly available on SSRN's website.

Again, we used the word as a noun to describe someone who, seeking a medical procedure, sues to challenge the validity of a law. The word patient(s) appears 7 times, once in the title of a source. Oh, and the paper is not available on SSRN's website or "My Papers;" the link says "This paper has been removed from SSRN at the request of the author, SSRN, or the rights holder." Since I am the co-author and co-rights holder (and I am quite sure Rocky did not remove it), the cause is obvious.

After all this, the article better attract some readers.

The Secrecy of Certiorari, Trump, and Justice Thomas

My new essay in The Hill explains how the Supreme Court’s “lifeline” to Donald Trump may have been improperly decided by Justice Thomas’s conflicted vote. Here is the gist:

Which Supreme Court justices threw Trump the immunity lifeline?

The delay, with special prosecutor Jack Smith’s case suspended in the meantime, means that Trump may escape trial before the November election.

Justice Clarence Thomas, despite a glaring conflict of interest, might even have cast the deciding vote. 

The Supreme Court’s acceptance of appeals requires the votes of only four justices, but the actual total is rarely disclosed, nor are the names of the justices who voted for or against the review. 

The result is a shrouded process in which the public never learns which justices are responsible for placing cases on the Supreme Court’s docket. The secrecy of certiorari votes has gone on for so long that it probably seems normal, but it is otherwise an anomaly in a democratic society. 

It is, thus, conceivable that Thomas delivered the crucial final vote to grant review and delay the trial. 

Or maybe not. It is also possible — perhaps even likely — that five or more justices voted to take up the issue of presidential immunity, making any single vote irrelevant. Unfortunately, the Supreme Court’s insistence on secrecy has made it impossible to know whether Thomas has improperly exerted a determinative influence on the court’s agenda, in one of the most significant certiorari decisions in history. 

You can read the entire essay in The Hill.

Saturday Music Post - Hot Clubs

The Quintette du Hot Club de France was founded in 1934 by Django Reinhardt and Stephane Grappelli, remaining active as the house band into the late 1940s. Although the Hot Club was the venue, not the ensemble, many jazz groups -- usually featuring guitar and violin, but sometimes with other instruments and even vocalists -- have taken the name Hot Club over the ensuing 90 years.  Today's post is a sampling, with some emphasis on the Hot Club of Cowtown, which uncharacteristically adds western swing, just because I like them.

The clips are at The Faculty Lounge.

What Was In This Brief?

In 1918, a man who was conscripted into the Army for World War I sought a writ of habeas corpus claiming that the draft statute was unconstitutional. The Court rejected this claim in Cox v. Wood and then said this at the end of the opinion:

But before so ordering we must notice a suggestion made by the government that because of impertinent and scandalous passages contained in the brief of the appellant the brief should be stricken from the files. Considering the passages referred to and making every allowance for intensity of zeal and an extreme of earnestness on the part of counsel, we are nevertheless constrained to the conclusion that the passages justify the terms of censure by which they are characterized in the suggestion made by the government. But despite this conclusion which we regretfully reach, we see no useful purpose to be subserved by granting the motion to strike. On the contrary we think the passages on their face are so obviously intemperate and so patently unwarranted that if as a result of permitting the passages to remain on the files they should come under future observation, they would but serve to indicate to what intemperance of statement an absence of self-restraint or forgetfulness of decorum will lead and therefore admonish of the duty to be sedulous to obey and respect the limitations which an adhesion to them must exact.

What were these "scandalous" passages that the Government wanted stricken? Stay tuned when I find them!

Notre Dame Religious Liberty essay contest

The Program on Church, State & Society at Notre Dame Law School is pleased to announce its annual writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs them.

 

More information is available here.

Amendment gaps

Gerard's post about near amendments and search for sources reminded me of my similar request to a listserv a few months ago. I had been thinking about the 61-year gap between the 12th (1804) and 13th (1864) Amendments, the longest period between amendments in history. More recently, I was thinking that we are closing in on that record, at 53 years and counting since the 26th Amendment and no amendment likely to be ratified any time soon. But I forgot about the 27th Amendment, ratified in 1992, although proposed in 1789. Resetting the clock, we are at 32 years--about half the record and a decade short of the 43-year gap (to the day--February 3) between the 15th and 16th.

Northwestern University Law Review Exclusive Empirical Cycle - 2024

The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue!

NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.

The exclusive submission window for the Volume 119 Empirical Issue of the Northwestern University Law Review will open on March 18, 2024, and run until April 30, 2024. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by mid-July 2024. Final publication decisions will be issued by mid-August 2024, with the publication date set in March 2025.

Submitted publications must be between 15,000 and 30,000, and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue - Northwestern University Law Review (northwesternlawreview.org) or reach out to Alisher Juzgenbayev, Senior Empirical Editor for the Northwestern University Law Review at [email protected].

Near Constitutional Amendments

After reading something recently, I was thinking that it would be fun to look at all of the proposed Article V amendments that received a 2/3 vote in just one House of Congress. We know all of the ratified constitutional amendments. And many people are familiar with the ones (like the ERA) that were proposed by Congress but not ratified by the states. But there is no easily accessible list of the amendments that got somewhere in Congress but not far enough. I know of some examples, but surely don't know  them all. As I come across them, I'll write up some descriptions.

Birthright Citizenship and Invasion

One implication of the ongoing fight between Texas and the United States over immigration is the constitutional definition of invasion. So far, courts have rejected Texas's argument that the flow of illegal immigrants constitutes an invasion because an invasion involves the use of force and because a contrary view would raise all sorts of problems (such as authorizing Texas to attack Mexico).

I'm interested in this question due to its relationship to birthright citizenship. At common law, there were two exceptions to birthright citizenship. One involved children born here to foreign ambassadors. The other involved children born to enemy soldiers on our territory. Some of the arguments for denying birthright citizenship to children here to illegal immigrants rely on the second exception and say that there is an analogy. The recent cases rejecting the invasion argument make that analogy even more implausible than it already was. It'll matter because--sooner 0r later--the birthright citizenship question will be litigated.

Students at faculty workshops?

I gave a talk at another law school yesterday and the audience included five students. The faculty invites students to attend all talks--they send a school-wide, first-come email and make space for the first 10-or-so students. Two of the students asked very good questions.

Do other schools do this and what are people's thoughts on it? That students generally are not included in faculty workshops reflects the difference between law students and PhD students, who often attend department workshops and often are treated more as colleagues than as students. One point against it is that it changes the tenor of the talk by adding to the audience listeners who lack the expertise to engage in the presentation. On the other hand, a 1L is as competent to discuss a bankruptcy paper as I am. And I see some benefits, such as community building and filling the room (harder in the era of work-from-home). And I realized that the audience in most law school symposia, beside the other symposium speakers, consists of students (journal members, etc.). So why not for individual talks?

Would like to hear what other schools do. Comments left open.

Equality of Silence

Thorough discussion in the Chronicle of Higher Ed (paywalled) about private universities enacting (mostly*) content-neutral restrictions on the time, place, and manner of campus speech in the interest of keeping the peace. The piece includes comments from Brian Soucek (Davis) and Genevieve Lakier (Chicago). Brian captures the problem with these peace-keeping policies--"It really takes some commitment to decide no, we’re going to stand by our First Amendment principles even when they mean that campus will be a little more unruly and disruptive than we’re used to."

[*] Some--American's requirement that fliers be "welcoming and build community" or regs limiting fliers to advertising campus events--are content-based.

In fairness to the universities, they do not act solely out of an institutional desire avoid unruliness and disruption. The threat of Title VI liability--imposed regardless of the protected nature of the speech at issue--drives them to "stop" antisemitism by stopping antisemitic speech. And the only way to do that is to stop all speech. So here we are.

The Ghost of Section 3

There is a "ships-passing-in-the-night" aspect to the commentary on Section Three. One thread is looking at whether Donald Trump will be disqualified and, of course, comes to the conclusion that the chances of that happening are very low. The other thread is looking at the risk of instability that the country will face if Trump wins because the Supreme Court did not resolve his eligibility.

I've always been concerned about the latter problem. One reason for litigating the case was so that we could get a definitive resolution before the election. But the Court did not give us that yesterday. Maybe that won't matter because Trump will not win in November. But if he does win, the transition will be rough, especially if he is convicted of a felony and wins anyway. I'm going to work on an essay about this in the coming days that lays out these issues more fully.   

JOTWELL: Bartholomew on Rapallo on attorney-client privilege in Congress

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 1oo Wash U. L. Rev. 455 (2022).

Saturday Music Post: R-E-S-P-E-C-T

Otis Redding's release of "Respect" was a hit in 1965, and it was an even bigger hit for Aretha Franklin in 1967, winning two Grammies. Franklin's version, with a slightly slower tempo and feminist lyrics, has been more frequently covered in the following 50+ years. Steve Cropper produced and played guitar on Redding's cut, along with the rest of the Stax session musicians. I always thought I recognized Cropper's signature guitar style on the Franklin release as well (on Atlantic, which had a distribution agreement and often recorded at the Stax studio in Memphis), but it turns out that it was Chips Moman.

The clips are at The Faculty Lounge.