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Tuesday, April 30, 2024

"Yes, Minister" on the Purpose of Government

This exchange, which lasts about six minutes, is one of my favorites in the entire series. The conversation is more relevant than ever.




Posted by Gerard Magliocca on April 30, 2024 at 02:33 PM | Permalink | Comments (0)

Except when they're not really questions

Gerard should be right. The problem is that many questions in oral argument are not really questions. They are statements of the justice's views or thoughts or arguments about the case. And many of those views and thoughts are so off the wall as to look less like devil's advocate and more like justices flirting with (what the panicking folks regard as) troubling ideas. Or it reflects their willingness (if not intention) muck up the timing of the prosecution to do more than is necessary in the case. And while it has always been thus, it seems to be getting worse. Or the presumption of good faith surrounding the Court has so disappeared that we cannot come back--everyone assumes the justices have made up their minds and their questions are designed to further and defend their determined positions.

And this is non-partisan. Consider the EMTALA argument. Some people highlighted the eight pages of exchange (beginning on p.104) between Justice Alito and Elizabeth Prelogar, in which Alito suggested that EMTALA does not protect abortions because the unborn child is identified in the statute. It is a textually awful argument and Prelogar explained how it misreads the text and the logical end of the underlying premise. But at least Alito gave Prelogar a chance to answer, at length, pushing back when he did not like what she said. Contrast that with the five-ish pages (beginning on p.14) between Justice Sotomayor and Joshua Turner. Sotomayor began with a long hypothetical about a state prohibiting the use of insulin to treat diabetes, complete with details about the medical problems that would result, then never gave Turner a chance to offer more than a sentence in response--the colloquy ended when the Chief jumped in to get Turner to complete his answer.

Posted by Howard Wasserman on April 30, 2024 at 11:47 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Questions Can Really Be Questions

I've been surprised by the panic in some quarters about recent oral arguments at the Court. The problem, I think, is that too many people are treating questions as if they were statements in an opinion. These are, in fact, fundamentally different things. A question can just be a question. Maybe it's a devil's advocate question. Maybe the question just helps the Justice think about something. Maybe the question gets a satisfactory answer. 

I would add, though, that the Court may be partly to blame for this. Increasingly you see cites in opinions to statements by the advocate. I'm not sure why that's appropriate. It's not the same as statements in a brief. Citing those is fair because plenty of thought went into what was written. An off-the-cuff comment by a lawyer should not get the same treatment. But if the Court does so, then I can understand why people might treat the questions as authoritative in some sense.

Posted by Gerard Magliocca on April 30, 2024 at 09:16 AM | Permalink | Comments (0)

Monday, April 29, 2024

FTC final noncompete rule, and not-so-final upcoming legal challenges...

With excitement, I watched  the live vote, 3-2 at the FTC, passing the final rule banning noncompetes nationwide. 

The ban will set talent free benefiting not only employees but innovation, entrepreneurship, market competition, consumers (including patients in the healthcare industry) and the economy at large.

As expected, already lawsuits have been filed to challenge the rule and already predictions that under the current court climate, the rule will be invalidated in court under one or another major questions/lack of administrative rulemaking authority/arbitrary rule variety garden doctrines. 

Ever the optimist, my hope is that facts and empirical evidence still matter. And in any event, this is an important moment and action continues at the state and federal levels to strengthen labor market competition.

Posted by Orly Lobel on April 29, 2024 at 01:02 PM | Permalink | Comments (0)

No, not antisemitic at all

Two friends of mine wrote that the matzo boxes in two of their local supermarkets (in the same city; not Chicago) have been vandalized and had to be destroyed, making it impossible for some observant Jews to fully observe Passover. Neither chain reported the vandalism to the police, and the vandalism has not been covered in the news. Here is one of the emails:

I just stopped at a fancy local supermarket chain with a Passover section, in search of Kosher for Pesach matzo.  This is the first time we've ever run out, which may be because one of my kids has moved back home.

There was none to be found.  When I got to the checkout, the cashier explained why.  A group of pro-Palestinians had come to three stores in the chain and placed stickers on all the boxes, and they all had to be destroyed.  The owners decided not to order more, presumably expecting a return of the vandals.

The cashier told me that the store did not publicize the incident because they didn't want to upset anyone.  That clearly didn't work, since I made a special trip to a store I only shop at once a year for Pesach to discover that all the matzo had been destroyed by vandals.

She did not tell me whether the vandals had been found and arrested, which would have been appropriate.  I asked if the stickers were antisemitic or anti-Israel.  She replied that they could be interpreted that way, but said something to the effect that they called for "peace."

The stickers could have said anything and they still would have been antisemitic.  They were an attack on Jews, regardless of their politics.  I think the store was wrong not to publicize this.  Perhaps they didn't want to offend their pro-Hamas customers, while being located in one of the most Jewish neighborhoods.

Another friend told me of the same experience at a Whole Foods store in the same city.

I also searched the relevant news outlets and found nothing.

Someone will no doubt rationalize that the “peace activists” didn’t realize that they would be un-koshering the matzo (by indicating possible tampering) or otherwise making it unsellable. The non-Pesach kosher items were untouched, according to my friend, "possibly indicating that the vandals knew what they were doing." But either way, the intrusion on religious observance was unmistakably antisemitic, even if the boxes had still been usable. And keeping it quiet is sadly par for the course.

Posted by Steve Lubet on April 29, 2024 at 04:15 AM | Permalink | Comments (0)

Sunday, April 28, 2024

The Presidency Can Take Care of Itself

One lesson from Justice Jackson's Youngstown concurrence that often goes unheeded is that the Court should not give the President the benefit of the doubt in a contest with Congress. Towards the end, the opinion states: 

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."

This statement is remarkable because Jackson was Attorney General before joining the Court. Today we would tend to assume that a former Attorney General would lean strongly in favor of presidential authority. But he did the opposite as a judge (perhaps because of his intervening experience at Nuremberg).

Many constitutional cases in recent decades proceed from the premise that the Court does need to protect the President from Congress. Chadha is one example that I discuss in my forthcoming book, but the same can be said about cases such as Selia Law. I'm not sure where this idea comes from. Congress should not always prevail in a contest with the President. But the belief that greater presidential authority is a worthy goal by itself is something I don't understand.

Posted by Gerard Magliocca on April 28, 2024 at 03:06 PM | Permalink | Comments (0)

Fish on the University: It's All Academic

I haven't posted much in the past couple of weeks about the events on campus across the country, partly because of exams and other duties that actually relate to the core of a university's functioning, and partly because I wanted the time to work through my ambivalence about David Pozen's interesting Balkinization post. I thought it simultaneously had real value as a discussion of failures to follow university procedures, and ran the risk of doing the same thing I see in too much recent contemporary constitutional scholarship: the invocation of "norms" and "settlements" in a way that potentially loads up the content of those words in an imperial and conversation-stopping manner, when there is actually fair debate to be had about what the norms are, how stable the settlements are and when they may be reexamined, and what lessons we might take from the paradigm cases that gave rise to those always-contestable "norms" and "settlements." (The lesson to be taken from the vandalism, anti-intellectualism, and American-style milquetoast hostage-taking that was the 1968 Columbia occupation, for instance, including questions about its morality, efficacy, message discipline, and larger political consequences, may differ in the eye of various beholders. On 1968 as a wider global or at least Western event--in which the American version, predictably, was both closer to cosplay and further away from a meaningful connection to workers or the working class--I recommend Richard Viner's fine book 1968: Radical Protest and its Enemies.)

Of course a good deal has happened since then. I should say that the letter issued by multiple Columbia law faculty members is quite good. God bless lawyers for focusing on the key question of process, and skipping the standard sentences that genuflect to one or another standard sentiment in a way that inevitably leaves someone or everyone dissatisfied. And I am still thinking about Super's post.

In the meantime, I commend to readers a late entrant to the discussion: Stanley Fish's post A Note to University Administrators, which appears in the excellent and pleasingly eccentric Catholic journal The Lamp. Readers of Fish's other work in this area will not be surprised either by his views or by the élan with which he states them. The core of his post is that the university is a university and not something else; its job is to do its job; that job does not include "play[ing] a role on the world's stage"; and while student or faculty political speech may occur on campus in particular spots and at particular times, just as that sort of general speech might happen in lots of other places, the duty of university administrators is to ensure that the main business of the university can take place--and to act, forcefully if necessary, when that business is disturbed. 

I do not agree with 100 percent of Fish's post. He could have said more about the genuine enforcement difficulties involved when administrators face large numbers with few resources (a problem that would be eased if they had acted earlier and more consistently on such matters). In saying--correctly--that speech and conduct that "threatens to undermine the main business of the enterprise...must be curbed and even silenced," he could have added a few words about consistency and procedural regularity. He could have noted the difference, for purposes of university autonomy, between university administrators inviting in the police and state or local politicians sending them in. Finally, I don't think Tinker v. Des Moines was the best case to cite for his purposes. So I hover at only around 80 to 90 percent agreement. But Fish is basically right, certainly right on the fundamentals, and much better and more sensible than many other recent interventions.

The silliest of those, I think. at least outside social media, is this (paywalled) piece in the Chronicle of Higher Education, the gist of which is that the only reason students are currently forced to shout so loud is that the universities have failed to truly listen to them. The piece, by Chicago historian Gabriel Winant, offers some perfectly sensible statements about the consumer orientation of the modern university, which has indeed been a terrible mistake. And I think it uses "listen" accurately; often enough, when someone writes "failed to listen" they actually mean "failed to agree or capitulate." But Winant's piece seems to walk a fine and perhaps strategic line between suggesting that the current protests highlight the failure of current "democratic norms [in] the academic community," and arguing that whatever form the university currently takes, it ought to be a democratic institution. He writes: "Substantive democracy on campus — in which students, faculty members, and staff are meaningful participants in the governance of the university — is the only way to realize the values of academic freedom and freedom of speech that are so widely touted by university leaders and the donors and politicians whom they serve." His view that the university is or ought to be a democracy is connected to a larger complaint about the "undemocratic structures of American social institutions," which I take to include more than just universities.

All this is quite wrong. (I set aside the fact that when someone appends a word like "substantive" to a word like "democracy," you should get ready to be flim-flammed.) The university is not a democracy. It should not be a democracy. If "American social institutions" are currently in bad shape and losing public trust, it is not because they are undemocratic; if anything, the converse is closer to true: the more these institutions try to satisfy everyone's needs and drown their distinctiveness in democratic waters, the less they satisfy anyone. There is room to argue about the proper structure of university governance. But "meaningful, democratic representation for students, faculty, and staff on university boards" is not "the only institutional mechanism that can secure" what the author calls "the university’s role as a place for the free development of critical thought and democratic citizenship." To the contrary. Fish has it right: the way universities contribute to "democratic citizenship" is not by reproducing democracy (or, I guess, "substantive democracy," a phrase whose meaning, again, may end up including all sorts of questionable moves), but by doing their job of "instruction and the advancement of knowledge in the humanities, social sciences, physical sciences and computer sciences." As anyone who has fairly received a high or low grade, fairly been granted or denied tenure, or been praised for advancing knowledge or criticized for erroneous or repetitive scholarship can tell you, these are not democratic activities. 

Here are some passages from Fish's post, all of which is worth reading, although I doubt it will be pleasing to those who favor virtually untrammeled student protest, and I am sure that Fish's response to those who see this moment as requiring a purge of instructors or courses of instruction on a non-disciplinary basis would be equally displeasing to them. (I don't think he would have much sympathy, for instance, for a doctoral student complaining about the "platforming" of an academic lecture on theology and asserting that "the nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice." I think he would say, "As an academic matter, and if the academic speaker is academically qualified, you bet your ass they are.")   

University administrators faced with sit-ins, tent encampments, and other forms of protest continue to betray an inability to understand their situations. A prominent (and even poignant) case in point is Columbia’s president, Minouche Shafik, who began a recent statement by acknowledging the obvious: “There is a terrible conflict raging in the Middle East with devastating consequences.” She then notes that many on her campus “are experiencing deep moral distress and want Columbia to help alleviate this by taking action.” Her next sentence falls off the cliff. “We should be having serious conversations about how Columbia can contribute.”

No, no, no! What she should have said is this: “Intervening in a political crisis is not within our job description; it’s not something we are either equipped to do or assigned to do. Our job is to introduce students to the materials and histories of various academic disciplines and to provide those same students with the analytical skills that will enable them to proceed on their own after a course is over.” That’s it, nothing else. Any “contribution” we as members of the academy might make to the solving of society’s problems would be indirect....

If this account of what institutions of higher learning appropriately do—they don’t do everything, they do the academic thing—is accepted, a conclusion (no doubt counterintuitive to many) immediately follows: colleges and universities have no obligation to foster or even allow political protests on campus. Indeed, it is quite the reverse, for if the overriding and defining imperative is to ensure the flourishing of the academic enterprise—classes being taught, research being conducted, procedures being followed—administrators have a positive duty to remove any impediments to that flourishing, including tent encampments, sit-ins, obstacles to exits and entries, building occupations, forcing the cancellation of classes and a host of other things now occurring....

When you are granted a platform [in the institutional context of the university], you are expected to produce speech that contributes in a significant way to the practice that has accepted you as a member. This is not free speech, but speech constrained by the norms and protocols that define and monitor the profession. As with any other practice, it is always possible, and indeed mandatory, to say of something offered, “That’s not the kind of thing we do around here.” In the academy political protest is not the kind of thing we do around here; it is not part of the core mission, although universities can decide to permit a bit of it in designated places on the model of a Hyde Park corner. But once the permitted political speech gets out of hand and threatens to undermine the main business of the enterprise—instructing students and advancing the state of knowledge—it must be curbed and even silenced....

Colleges and universities are not in the free speech business or the democracy business. They are in the education business; and while institutions of higher education may decide to allow a certain amount of political speech on their campuses, they are not required to do so. They are, however, required to silence that same speech once it enters the stage of interference and disruption.

“Required” is a strong word and it hearkens back to my earlier phrase “positive duty.” Some administrators see themselves as torn between the obligation to support free speech and the obligation to maintain a secure and safe campus. But they can dispense with their moral dilemmas (a hard thing for academics to do) and the hand-wringing that accompanies them once they remember that they were hired to administer an enterprise, not to be constitutional watchdogs or guardians of democracy. Removing obstacles to the functioning of the academic process (even by calling in the police) is not something they should apologize for, but something that follows from the office they hold....President Shafik is said to be in danger of losing her job. If that happens, it will be because she doesn’t know what it is.


Posted by Paul Horwitz on April 28, 2024 at 10:52 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, April 27, 2024

Seen at the Northwestern Divestment Encampment

Encampment sign

In fact, the quotation is from Barry Goldwater's acceptance speech at the 1964 Republican National Convention. Malcolm X later debated the same proposition at the Oxford Union, acknowledging Goldwater's authorship and advocating the Republican's position. 

Posted by Steve Lubet on April 27, 2024 at 04:14 PM | Permalink | Comments (0)

Saturday Music Post - Mr. Tambourine Man

In 1965, "Mr. Tambourine Man" was released as the first track on the acoustic side of Bob Dylan's fifth album, Bringing It All Back Home. That is a little surprising, given that the Byrds' electric version, which reached number one on the Hot 100, was released as a single only a few months later. The lyrics are open to many interpretations, including drug references (which Dylan has denied), to the search for a muse, to simply an appreciation of guitarist Bruce Langhorne's actual tambourine playing. Both Dylan's version and the Byrds' (much truncated, with only one of Dylan's four verses) made Rolling Stone's list of the 500 greatest rock songs.

You can draw your own conclusions after checking out the clips at The Faculty Lounge.

Posted by Steve Lubet on April 27, 2024 at 06:05 AM | Permalink | Comments (0)

Friday, April 26, 2024

Supersessionism at the Harvard Divinity School

“Supersessionism” is the theological argument that Abraham’s covenant with G-d has been superseded by Christianity. It has been repudiated as antisemitic by most Christian denominations, but it is apparently welcome at the Harvard Divinity School, as described in the below oped from the Harvard Crimson (reposted with the author's permission).

How Dare You Reinterpret Our Religion for Us?

By Genia Lukin, Contributing Opinion Writer

Genia Lukin is a second-year Ph.D. student at the Graduate School of Arts and Sciences.

On April 16, the week before Passover, Christian-Palestinian theologian Mitri Raheb spoke at Harvard Divinity School about his recent book “Decolonizing Palestine: The Land, The People, The Bible.”

The book criticizes the use of Biblical texts in substantiating Israel’s right to statehood and calls for the decolonization of Palestine, which, according to Raheb, requires decolonizing theological concepts including “Israel, the land, election, and chosen people.”

The presentation at HDS is the latest in a series of pro-Palestinian programs that feature speakers like Raheb who seem to have a great deal to say about Jewish scripture, Jewish theology, and Jewish identity. Somehow, it has become acceptable for Raheb to dictate to Jewish people — the people who have read and interpreted the Torah for millenia — how to “decolonize” their own identities to suit his own political agenda. It is cultural appropriation par excellence.

The expectation that Jewish history and identity need to be adjusted to be acceptable to the current socio-political landscape disregards the endurance of Jewish traditions through 3,000 years of development, often in the face of extreme oppression, colonialist displacement, and ethnic cleansing. Never mind the fact that the Torah has already been frequently usurped and weaponized against the Jews by both Christians and Muslims, who reinterpret key Jewish texts in an attempt to harm Jews.

Let me be clear: You can’t tell Jewish people how to be Jewish. We don’t need non-Jewish academics to explain to us concepts central to our identity — such as the land of Israel, the people of Israel, or the return to Zion. We can figure them out ourselves. And, guess what? We have.

For more than a thousand years, Jewish theologians and Bible commentators have developed Zionist ideas, advocating for a literal return to a literal land, before our current understanding of Zionism or colonization ever developed.

Jewish philosophers in medieval Spain regarded the return to the land of Israel not just as a theoretical concept, but as a concrete religious duty. They treated it seriously enough to get on a ship, and voyage across the perilous mediterranean to the land of Israel.

Later, Maimonides, one of the greatest scholars of Jewish philosophy, talked about the Messianic age as a political upheaval, liberating the Jews from bondage to other nations in their own land.

And after the expulsion of Jews from Spain, Yosef Nasi tried to create a Jewish prefecture in the Land of Israel under Ottoman rule. He was even appointed governor of Tiberias with the express aim of encouraging Jewish resettlement in “Palestine,” though his attempt was ultimately unsuccessful.

So now, in 2024, we do not need a Christian blatherer to tell us about how we were wrong about Zionism all along.

The audacity of Raheb to strip us of our theological and historical agency — an idea that would be unthinkable for any other minority group — is staggering. The “theologian” in question also champions the Khazar theory, which posits that modern Ashkenazi Jews are descendents of Turkic converts to Judaism, denying them of links to the land of Israel, notwithstanding large amounts of evidence to the contrary.

Consider the precedent Harvard is setting. Would it be acceptable to invite a speaker who claims that the descendants of English settlers are the “real” Indigenous peoples of North America, effectively erasing the historical claims of the First Nations? Or a speaker who claims that globally recognized cultural monuments were actually built by Europeans? The Divinity School has done the equivalent by hosting a speaker who peddles ahistorical, politically motivated conspiracy theories that marginalize Jews, all under the guise of academic discourse.

I do not see how Harvard, an institution claiming to uphold “Veritas,” can justify platforming such viewpoints. I’m a religious Jew, with an excellent religious education. I don’t need to be patronized and mansplained the tenets of my own faith. The nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice.

Genia Lukin is a second-year Ph.D. student at the Graduate School of Arts and Sciences.


Posted by Steve Lubet on April 26, 2024 at 04:29 AM | Permalink | Comments (0)

Thursday, April 25, 2024

JOTWELL: Craig on Shatzman on clerkship whisper network

The new (guest) Courts Law essay comes from Jade Craig (Nova-Southeastern) reviewing Aliza Shatzman, The Clerkship Whisper Network: What It Is, Why It's Broken, and How to Fix It, 123 Colum. L. Rev. F. 110 (2023).

Posted by Howard Wasserman on April 25, 2024 at 10:55 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Harari and McWhorter on Gaza, Israel, and Columbia

Yuval Noah Harari and John McWhorter have written important essays on the the Israel/Hamas war (Harari, in Haaretz) and the response on American campuses (McWhorter in the NYTimes). Both are well worth reading in full, and I have excerpted a few paragraphs of each below.

Harari, "From Gaza to Iran, the Netanyahu Government Is Endangering Israel's Survival":

Following the horrendous massacre of October 7, Israel needed to liberate the hostages and disarm Hamas, but these should not have been its only aims. In light of the existential threat posed to Israel by Iran and its agents of chaos, Israel also needed to deepen its alliance with Western democracies, strengthen cooperation with moderate Arab forces, and work to establish a stable regional order. However, the Netanyahu government ignored all these aims, and instead focused on revenge. It has failed to secure the release of all the hostages, and has not disarmed Hamas. Worse, it intentionally inflicted a humanitarian disaster on the 2.3 million Palestinians in the Gaza Strip, and thereby undermined the moral and geopolitical basis for Israel's existence.

The decision to inflict on Gaza a humanitarian catastrophe resulted from a combination of three long-term factors: lack of sensitivity to the value of Palestinian lives; lack of sensitivity to Israel's international standing; and skewed priorities that ignored Israel's real security needs.

Netanyahu continues to promise Israelis "total victory," but the truth is, we are a step away from total defeat. Whatever could have been achieved by fighting – rebuilding domestic trust in the IDF following the October 7 debacle, rebuilding Israeli deterrence abroad, and eliminating most of Hamas' military capabilities – have already been achieved. Nothing more will be gained from continuing the war. It is a dangerous illusion to believe that one more victory, in Rafah, will bring about the collapse of Hamas, the release of all the hostages, and the surrender of Israel's many enemies. Every additional day of war only serves the purposes of Hamas and Iran, and intensifies Israel's international isolation.

McWhorter, "I’m a Columbia Professor. The Protests on My Campus Are Not Justice."

I thought about what would have happened if protesters were instead chanting anti-Black slogans or even something like “D.E.I. has got to die,” to the same “Sound Off” tune that “From the river to the sea” has been adapted to. They would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence. I’d wager that most of the student protesters against the Gaza war would view them that way. Why do so many people think that weekslong campus protests against not just the war in Gaza but Israel’s very existence are nevertheless permissible?

However, the relentless assault of this current protest — daily, loud, louder, into the night and using ever-angrier rhetoric — is beyond what any people should be expected to bear up under, regardless of their whiteness, privilege or power.

Social media discussion has been claiming that the protests are peaceful. They are, some of the time.

And besides, calling all this peaceful stretches the use of the word rather implausibly. It’s an odd kind of peace when a local rabbi urges Jewish students to go home as soon as possible, when an Israeli Arab activist is roughed up on Broadway, when the angry chanting becomes so constant that you almost start not to hear it and it starts to feel normal to see posters and clothing portraying members of Hamas as heroes. 

What began as intelligent protest has become, in its uncompromising fury and its ceaselessness, a form of abuse.

As McWhorter and Harari point out, it should be possible to oppose the nature of the war in Gaza without descending into antisemitism. Unfortunately, that isn't happening in too many places.

Posted by Steve Lubet on April 25, 2024 at 03:10 AM | Permalink | Comments (0)

Wednesday, April 24, 2024

Lateral position announcments at Notre Dame Law School

The Notre Dame Law School has advertised some open lateral searches, tenured and tenure-track.  The searches are not limited to any particular subject(s). Come join us in South Bend!  

Posted by Rick Garnett on April 24, 2024 at 10:47 AM in Rick Garnett | Permalink | Comments (0)

Trump's Admiration for Robert E. Lee

[Cross-posted on The Faculty Lounge]

In a recent speech at Schnecksville, Pennsylvania, former President Trump had this to say about the Battle of Gettysburg:

The Battle of Gettysburg. What an unbelievable — it was so much and so interesting, and so vicious and horrible, and so beautiful in so many different ways. It represented such a big portion of the success of this country. Gettysburg, wow. I go to Gettysburg’s Pennsylvania to look and to watch, and the statement of Robert E. Lee, who’s no longer in favor, did you ever notice that? No longer in favor. ‘Never fight up hill, me boys. Never fight up hill,’ he said. Wow. That was a big mistake. He lost his great general.

That was not Trump's first expression of admiration for Robert E. Lee, who committed treason in defense of slavery (and did not talk like a pirate). In 2017, Al Brophy and I published an oped in the Chicago Tribune explaining why Trump's comparison of Lee to George Washington was offensive and wrong:

Why Trump is wrong to equate George Washington with Robert E. Lee

By Alfred Brophy and Steven Lubet

PUBLISHED: August 20, 2017

The recent neo-Nazi march in Charlottesville, Va., was purportedly held to protest the municipality’s decision to remove a statue of Confederate Gen. Robert E. Lee. In an alarming news conference, President Donald Trump seemed to indicate respect for the marchers’ goal, if not their tactics.

If the Lee monument is removed, he asked rhetorically, “are we going to take down statues to George Washington?” The president’s personal lawyer was even more explicit, circulating an email that directly equated Washington with Lee. Under the subject line “The Information that Validates President Trump on Charlottesville,” the email said: “You cannot be against General Lee and be for General Washington (because) there literally is no difference between the two men.”

The comparison, now made by both the president and his attorney, is deeply offensive for some reasons that should be obvious to everyone and others better known to historians.

First and foremost, of course, is the fact that George Washington was a patriot and Robert E. Lee was a traitor. Washington led his countrymen in battle to win the independence of the United States, while Lee did his utmost to destroy our “more perfect Union” for the sake of chattel slavery.

And make no mistake, the very purpose of the Confederacy was to perpetuate and expand slavery. The Confederate Constitution, which Lee took an oath to uphold and defend, prohibited laws “impairing the right of property in negro slaves,” meaning that no state could ever abolish slavery even if it wanted to. In all, there were 10 specific references to slaves or slavery in the Confederate Constitution. The 11 state secession conventions focused on Abraham Lincoln’s election as a threat to slavery, and declared the need to leave the Union to create a slaveholders’ republic.

It is true that Washington was also a slaveholder, but that is where his resemblance to Lee ends. As Matthew Yglesias pointed out in Vox, we revere Washington today because of his many accomplishments on behalf of the nation that had nothing to do with slavery. He was the military leader in the Revolutionary War, he presided over the Constitutional Convention in 1787 and, perhaps most important, he established the precedent of peacefully leaving office at the end of his term.

Lee, in contrast, had virtually no achievements other than the military defense of slavery, which led to the deaths of hundreds of thousands of Americans. If Washington is remembered despite his connection to slavery, Lee is remembered only because of it. To be sure, Washington’s slaveholding is, and must be, an indelible stain on his reputation. Lee, by contrast, would have no historical reputation at all if he had not committed treason to defend human bondage.

There is one more distinction between the two men that depends on an understanding of abolitionist history. The lives of Washington (1732-1799) and Lee (1807-1870) did not overlap, and they were divided by a crucial inflection point in American attitudes toward slavery.

It is well understood that the American abolitionist movement began in 1831, when William Lloyd Garrison published the first issue of The Liberator, an abolitionist newspaper. There were anti-slavery activists before that time, of course, but they were primarily devoted to measures such as ending the slave trade or limiting the expansion of slavery, as opposed to stamping it out completely. There were emancipationists, but not abolitionists.

During his entire life, Washington was never exposed to the idea that slavery could be entirely abolished. Although it is painful to recognize today, slavery was regarded as normal — or at worst, a necessary evil — among the intellectual elite of the late 18th century. In 1776, every one of the 13 colonies recognized slavery, including those that we now think of as the free states of the North. In 1787, when the Constitution was written, only Massachusetts and Pennsylvania had taken any steps toward emancipation. Washington prospered from the forced labor of slaves. Although some white people in his era knew that slavery was wrong and opposed it, Washington lived in an age when there were few who challenged slavery. Slavery was often considered distasteful, or even morally questionable, in Washington’s lifetime, but ending slavery was never actually a political issue.

In contrast, Lee came into adulthood when slavery was the political issue dividing the United States. Beginning with the Missouri Crisis of 1819-20, there was never a time when slavery — first its extension and later its abolition — was not front and center in American political discourse. As the scion of two leading families in Virginia, it would have been impossible for Lee to ignore the growing demand of freedom for the enslaved.

Washington had no opportunity to hear voices such as Frederick Douglass’ — who was, in fact, doing great work in the 1840s and 1850s — but Lee could not have avoided them. Washington had no way of knowing that the British would abolish slavery throughout their empire, but Lee saw it happen in 1833.

Washington took the small step of freeing some enslaved people in his will — which was far too little to balance the moral ledger — but he never truly comprehended a world without slavery. Lee, however, saw freedom coming and did all he could to resist it.

There can be no defense for slaveholding at any point in history, but Washington’s relationship to the institution was nonetheless far different from Lee’s. The Confederate generals understood exactly what they were fighting for, and it wasn’t just independence. We should all recognize that, even if President Trump doesn’t.

Posted by Steve Lubet on April 24, 2024 at 05:17 AM | Permalink | Comments (0)

Tuesday, April 23, 2024

2024 Symposium on AI Disrupting Law

2024 Symposium on AI Disrupting Law https://studentorgs.kentlaw.iit.edu/cklawreview/live-symposia/ai-disrupting-law-symposium/

feel free to join in!

Friday, April 26, 2024

Time (CDT)


Zoom Link 

12:45 PM – 2:00 PM 

Georgia Jenkins, A Principle of Artistic Data Sovereignty: Linking Creative Reuse to Author Remuneration

Daniel Gervais, Artificial Intellectual Property

Commentators: Pam Samuelson & Dan Hunter


2:00 PM – 3:15 PM

Camilla Hrdy, Trade Secrecy Meets Generative AI

Ryan Abbott, Creative Machines: Generative Artificial Intelligence and Copyright Law

Commentators: Sonia Katyal & Orly Lobel


3:15 PM – 3:30 PM

Coffee Break


3:30 PM – 4:45 PM

James Grimmelmann & A. Feder Cooper, The Files Are in the Computer: Copyright, Memorization, and Generative AI

Catherine Sharkey, A Products Liability Framework for AI

Commentators: Derek Bambauer & Eugene Volokh


Posted by Orly Lobel on April 23, 2024 at 01:59 PM | Permalink | Comments (0)

Monday, April 22, 2024

Antisemitic Images on Campus

My new essay for The Hill addresses recent antisemitic incidents on American campuses. Here is the gist:

Free antisemitic speech is still antisemitic and indefensible


Although anti-Israel activists typically assert that their protests are leveled only at Zionism, some have lately demonstrated a shocking inclination to employ classically antisemitic themes and images.  

Law Students for Justice in Palestine placed posters throughout the law school, as well as on their Instagram account, featuring a grotesque caricature of Dean Erwin Chemerinsky holding a bloody knife and fork, with the caption “No Dinner with Zionist Chem While Gaza Starves.” 

Chemerinsky recognized the image as “blatant antisemitism,” invoking the “horrible antisemitic trope of blood libel” and attacking him for “no apparent reason other than I am Jewish.”  

He wasn’t exaggerating. 

The portrayal of Jews as leering blood drinkers — historically known as a “blood libel” — dates back to Medieval times, and it has been used ever since as an excuse for pogroms, expulsions, and worse. It was a staple of Germany’s Der Stürmer in the Nazi era and can be seen today in its American descendant, the far-right, neo-Nazi publication The Daily Stormer.

You can read the full essay at The Hill.

Posted by Steve Lubet on April 22, 2024 at 12:20 PM | Permalink | Comments (0)

Two Nuggets on The Application of the Draft

In my research on the draft, I recently come across two interesting items.

First, every draft law (Civil War, World War I, World War II) exempts the Vice President (and all other significant federal officials) but does not specifically exempt the President. This may be because Congress assumed that drafting the President is unconstitutional, or that the President was put in charge of the draft and would presumably not pick himself. I'll be looking into more closely.

Second, I did not know that the Pennsylvania Supreme Court declared the draft unconstitutional in 1863. (Kneedler v. Lane). The Court reversed itself a year later after state elections that went well for Republicans. There is secondary literature on this that I will dig into.

I think that this might well be my next book. With Uncle Sam on the cover.

Posted by Gerard Magliocca on April 22, 2024 at 10:26 AM | Permalink | Comments (0)

Saturday, April 20, 2024

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

Posted by Howard Wasserman on April 20, 2024 at 09:43 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday Music Post - Worthwhile Canadian Music

The Canadian folk and folk-rock duo Ian & Sylvia began performing together in New York in 1961. They married in 1964 and broke up -- musically and maritally -- in 1975 (with at least one later reunion concert). Their most famous song, written by Ian, was "Four Strong Winds," which has been covered many times. In 2005, CBC listeners vote "Four Strong Winds" the greatest Canadian song of all time. 

Sylvia also wrote the much-covered song, "You Were on My Mind." 

The clips are at The Faculty Lounge.

[For those who did not get the reference in the post's title -- intended absolutely ironically, I assure you -- see here.]

Posted by Steve Lubet on April 20, 2024 at 06:12 AM | Permalink | Comments (0)

Thursday, April 18, 2024

More zombie laws

Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.

Posted by Howard Wasserman on April 18, 2024 at 04:53 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, April 17, 2024

Blaming the courts for everything (Updated)

A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.

No one is happy with the decision, but for interesting reasons.

The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.

The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.

But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.

Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.

Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.

Posted by Howard Wasserman on April 17, 2024 at 09:43 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, April 16, 2024

USC's (Bad) Choice

David Schraub of Lewis & Clark has a useful new article titled, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Campus Speech. I haven't fully digested it so I have no general commentary, agreement, or disagreement. His focus, or exemplar, is campus protests, especially in "fast-moving" contexts. But he places these in the general realm of the problem of how we "facilitate public debate" on campus. And one point he makes, quite fairly, is that we might spare a thought for the administrators, especially lower-level staffers, who are faced with dealing with these issues on the ground and in the moment. Amen to that, but of course some of the dilemmas he discusses run up and down the administrative chain. 

That is the most charitable light in which I might place USC's decision (announced by the provost, Andrew Guzman, who is also a professor at USC's Gould School of Law) to cancel the speech of its valedictorian at commencement. The valedictorian is described in the Times article I've linked to as having written "social media posts supporting Palestinians," at least one of which a campus group has objected to for the writer's now-standard equation of Zionism to settler colonialism etc. The objecting group, also adopting the tedious language of our times, complains that the university "chose to platform" a student it believes will exacerbate anti-Semitism on campus. The provost's announcement is replete with equally standard language about safety.

I think the university's decision was wrong. If, as its own letter suggests, having the valedictorian speak at commencement is standard--a "tradition," in the letter's terms--and if the selection of the valedictorian proceeded according to its governing processes, as it appears to have, then that tradition should not give way to threats. It's also not clear what those threats are. The Times story reports none, but is not well-reported. The USC Daily Trojan does a better reporting job than that, quoting an official saying that "the University received threats relating to Tabassum via email, phone calls and letters" but declining to provide further details. Unless it has well-grounded fears for her physical safety, it should move forward with the usual order of speeches. The complaint about "platforming" the speaker appears to fall in line with the usual recent complaints about platforming, which is to say it conflates content-neutral facilitation with promotion and agreement. The valedictorian is apparently chosen on the basis of both academic achievement and "service and leadership." Those criteria do not include "social media history" and the service and leadership for which the speaker was cited are commendable, not objectionable. I have no idea what she would have spoken about, but it's not relevant and it's not the reason she was given a "platform," any more than a public school is advancing religion when it selects a valedictorian speaker who has the highest class rank and also turns out to be vocally religious. "Platform," especially in its pernicious verb form, is one of the many recent locutions we could use a long, healthy break from.

But take the mildly charitable view for a second. Graduation ceremonies are indeed an occasion for community, family, and fundraising celebration. Universities want them to be pleasant. One no more wants or expects the Days of Rage at a commencement than one does a portable loudspeaker at a dinner party. If the university is aware of genuine and serious safety concerns, it faces potentially great challenges in assuring that safety--a job which will be done by staff and security officers on the ground. If it faces a threat of more-than-mild protest--say, something that graduates from the usual turned backs or slogans on mortarboards to an attempt wrongly to shout down the speaker, who has precedence according to the speech norms of the occasion and is entitled to be heard--then it will have to use its resources, or those of the police, to ensure the speaker can be heard and that those causing the disturbance either simmer down or are removed (and hopefully, depending on their actual conduct in these still-hypothetical circumstances, arrested or subjected to discipline). That's not the kind of thing universities want to put photos of in their alumni newsletter. As Schraub notes in his article, it will face the blame one way or the other: for failing to protect the speaker or for being too hard on the protesters. 

One can thus sympathize with the administrators and those on the ground. One can assume its choice was not based on the identity or views of the speaker but on the "threats" or reactions it anticipated. But the university's choice was still wrong--and dangerous. The university's announcement says that its decision "has nothing to do with freedom of speech. There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period." Of course the latter sentence is important. But much depends on what the actual threat is. Again, words like "security" and "safety" can encompass all manner of things, from genuine security and safety to the weaker senses in which these words are now often used, and to something weaker still, like disruption or discomfort or bad optics. I'm doing my best to take seriously the university's statement that it faced real threats to safety without simply swallowing it whole. One may occasionally doubt the accuracy of non-detailed official statements, and the less detail USC gives, the less one ought to credit it. But if the threat to safety were real and grave, such that no amount of security would suffice, I think USC's duty then would be to "choose" to give the speaker a "platform," finding some safer way for her to deliver her intended address before friends and grandees and then broadcasting it.

And the first point is a distraction. No, there is no First Amendment right to speak at a commencement. Yes, it does indeed have a great deal to do with freedom of speech, or, perhaps more accurately, with the system of speech on campus and, in a broader sense, with freedom of speech. That's so not simply because a student wishes to speak, but because this is the speech the university customarily provides and facilitates on these occasions, and it is giving way, altering its "tradition," in the face of identity- or speaker- or viewpoint-based opposition. It has an obligation not to do so. It should prefer a lousy, unpleasant graduation with the intended speech to a graduation ceremony that goes swimmingly, pleasantly, and pusillanimously. That's so especially because it is almost certainly going to get protests and disruptions no matter which path it takes. So it might as well take the right one.   

Posted by Paul Horwitz on April 16, 2024 at 07:32 PM in Paul Horwitz | Permalink | Comments (0)

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:

Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 15, 2024

Ken Holtzman Z"L

Ken Holtzman, the winningest Jewish pitcher in MLB history, died Sunday. Holtzman won 174 games in a 14-year career with the Cubs, Oakland, and individual seasons with the Orioles and Yankees. Holtzman pitched two no-hitters with the Cubs and won three World Series with the A's, including the Series-clinching win in Game 7 of the 1973 World Series. He was the # 3 started on that staff (behind Hall of Famer Catfish Hunter and Vida Blue), but the A's relied on him as much as the other two in big games. Among Jewish pitchers, he is first in wins, sixth in ERA, second in strikeouts, fourth in appearances, and first in innings pitched. He also homered in the 1974 World Series, the last then-acknowledged-as-Jewish player to homer in a World Series until Alex Bregman and Joc Pederson traded homers in 2017.

As I described, Holtzman plays a big role in the Jewish-players-on-Yom-Kippur story. He never pitched on the holy day. In 1966, his first full season in the Majors, Holtzman opposed Koufax the day after Yom Kippur when both pushed their starts back to avoid the holy day; Holtzman pitched a two-hit complete game, in a game he said his mother hope he would get a no-decision. Holtzman attended Yom Kippur services in Baltimore in 1973 when the holy day coincided with Game One of the ALCS. Another story is less uplifting. In 1977, the Yankees petitioned MLB to move a 1977 game from Yom Kippur day to the evening. They cited Holtzman's unavailability, although Holtzman appeared in 18 games that season (which some stories attribute to manager Billy Martin's antisemitism) and would not have pitched even if was at the park; Holtzman was not pleased at being used in that way.

Zichrono livracha.

Update: Howie Megdal's Baseball Talmud ranks Holtzman as # 2 lefty starter, # 3 starting pitcher, # 10 All-Time (after Koufax and a bunch of non-pitchers), and falling out of the top-ten if, by 2035, Alex Bregman and Max Fried continue the careers they have been having.

Posted by Howard Wasserman on April 15, 2024 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Conscription and the Two-Term Tradition

As I've mentioned before, I'm working on a project about the use of conscription in constitutional argument. A prominent non-judicial example came in 1940 when FDR announced that he would run for a third term. Obviously, in doing that he was breaking with George Washington's precedent. How did he explain that? By saying that he could not refuse a draft from the people while the people were being drafted. Here is the argument from his radio address to the Democratic National Convention. It's interesting and it worked.

During the past few months, with due Congressional approval, we in the United States have been taking steps to implement the total defense of America. I cannot forget that in carrying out this program I have drafted into the service of the nation many men and women, taking them away from important private affairs, calling them suddenly from their homes and their businesses. I have asked them to leave their own work, and to contribute their skill and experience to the cause of their nation.

I, as the head of their Government, have asked them to do this. Regardless of party, regardless of personal convenience, they came—they answered the call. Every single one of them, with one exception, has come to the nation's Capital to serve the nation. These people, who have placed patriotism above all else, represent those who have made their way to what might be called the top of their professions or industries through their proven skill and experience. But they alone could not be enough to meet the needs of the times.

Just as a system of national defense based on man power alone, without the mechanized equipment of modern warfare, is totally insufficient for adequate national defense, so also planes and guns and tanks are wholly insufficient unless they are implemented by the power of men trained to use them. Such man power consists not only of pilots and gunners and infantry and those who operate tanks. For every individual in actual combat service, it is necessary for adequate defense that we have ready at hand at least four or five other trained individuals organized for non-combat services.

Because of the millions of citizens involved in the conduct of defense, most right thinking persons are agreed that some form of selection by draft is as necessary and fair today as it was in 1917 and 1918. Nearly every American is willing to do his share or her share to defend the United States. It is neither just nor efficient to permit that task to fall upon any one section or any one group. For every section and every group depend for their existence upon the survival of the nation as a whole. Lying awake, as I have, on many nights, I have asked myself whether I have the right, as Commander-in-Chief of the Army and Navy, to call on men and women to serve their country or to train themselves to serve and, at the same time, decline to serve my country in my own personal capacity, if I am called upon to do so by the people of my country.

In times like these—in times of great tension, of great crisis-the compass of the world narrows to a single fact. The fact which dominates our world is the fact of armed aggression, the fact of successful armed aggression, aimed at the form of Government, the kind of society that we in the United States have chosen and established for ourselves. It is a fact which no one longer doubts -which no one is longer able to ignore. It is not an ordinary war. It is a revolution imposed by force of arms, which threatens all men everywhere. It is a revolution which proposes not to set men free but to reduce them to slavery—to reduce them to slavery in the interest of a dictatorship which has already shown the nature and the extent of the advantage which it hopes to obtain.

That is the fact which dominates our world and which dominates the lives of all of us, each and every one of us. In the face of the danger which confronts our time, no individual retains or can hope to retain, the right of personal choice which free men enjoy in times of peace. He has a first obligation to serve in the defense of our institutions of freedom—a first obligation to serve his country in whatever capacity his country finds him useful.

Like most men of my age, I had made plans for myself, plans for a private life of my own choice and for my own satisfaction, a life of that kind to begin in January, 1941. These plans, like so many other plans, had been made in a world which now seems as distant as another planet. Today all private plans, all private lives, have been in a sense repealed by an overriding public danger. In the face of that public danger all those who can be of service to the Republic have no choice but to offer themselves for service in those capacities for which they may be fitted.

Those, my friends, are the reasons why I have had to admit to myself, and now to state to you, that my conscience will not let me turn my back upon a call to service. The right to make that call rests with the people through the American method of a free election. Only the people themselves can draft a President. If such a draft should be made upon me, I say to you, in the utmost simplicity, I will, with God's help, continue to serve with the best of my ability and with the fullness of my strength.


Posted by Gerard Magliocca on April 15, 2024 at 03:48 PM | Permalink | Comments (0)

Sunday, April 14, 2024

Confirmation Bias Is a Helluva Drug

Dr. Paul Offit's name came up in conversation this morning, which reminded me of an essay I wrote for Social Science Space in 2020 about the renowned vaccine expert's own blind spot -- unfortunately typical among physicians -- when it comes to the judicial system.

Confirmation Bias Is a Helluva Drug

We expect to see confirmation bias play an active role in the politics, where there is a satisfying emotional payoff from assuming the worst of the other side. We do not expect the same phenomenon among highly educated professionals, especially in their seemingly well researched publications. But it turns out that even the most astute physicians, in the grip of motivated reasoning, may end up believing fantastical tales about lawyers and the legal system, so long as they confirm their assumptions about medical malpractice abuse.

Consider Dr. Paul Offit, a renowned academic pediatrician and vaccinologist, with a well-earned reputation as the scourge of scam artists, quacks, and dangerous frauds.  In 2013, he won Robert P. Balles Prize in Critical Thinking from the Center for Skeptical Inquiry for Do You Believe in Magic?: The Sense and Nonsense of Alternative Medicine. There may be no doctor in America more identified with critical thinking than Paul Offit.

Nevertheless, Offit himself recently fell for a patently phony story about medical malpractice. In his latest book, Overkill: When Modern Medicine Goes Too Far, Offit recounts the shocking tale of a woman who obtained a $986,000 malpractice verdict for the loss of her alleged psychic powers. As Offit tells it, a plaintiff named Judith Haimes sued Temple University Hospital and her neurologist following a CT scan, claiming that her paranormal abilities had vanished and she could no longer “make a living by communicating with the dead.” Then,

On March 27, 1986, after deliberating for forty-five minutes, the eight-member jury awarded her $986,000. In order for jury members to have reached this verdict, they have to have agreed on three separate facts: one, that people have psychic powers to lose; two, that psychic powers can be lost in a CT scan; and three, that the neurologist should have known better than to have ordered a CT scan on a psychic.” (Offit 2020, pp. 211-12.)

This outrageous story reinforces Offit’s complaints about “today’s litigious climate” and the influence of the “plaintiff’s bar,” and his plea to eliminate “nonmedical juries,” but nearly everything he says is untrue.


Judith Haimes did file suit for the alleged loss of her psychic abilities (which did not include communicating with the dead) due to an adverse reaction to the dye injected before a CT scan. That claim, however, was dismissed by the trial judge, who told the jury to “disregard all evidence related to plaintiff’s loss of psychic powers.”

Instead, the jurors were specifically instructed to consider only “such physical pain, mental anguish, discomfort, inconvenience and distress as [Haimes] may have endured immediately and shortly after the dye was administered.” Her physical injury allegations were supported by the medical testimony of an otolaryngologist. The jury was never presented with any of the three propositions posed in Offit’s example.

Offit does report that the huge verdict was thrown out by the trial judge. Unmentioned in his book, however, is what the judge said concerning rumors about the case:

Many lobby groups, legislatures and government agencies perverted the facts of this case and the basis of the jury verdict and used it as an example of one of the causes of the alleged insurance crisis.

That was in 1986, on the first page of the opinion rejecting the verdict. It is remarkable that the “perverted” facts are still making the rounds among prominent and thoughtful physicians 34 years after they were identified and refuted in court. Offit’s misleading anecdote has already been recited least once, ironically by the aptly named “SkepDoc” in a post on the invaluable and widely read Science Based Medicine site.

I realized there was something fishy about the psychic story the moment I read it. The likelihood of a staggering verdict for the loss of psychic powers was about the same as the possibility of curing COVID-19 with a bleach injection. Offit’s own critical thinking, however, simply failed him when it came to lawyers and lawsuits, thus offering the nonsensical account in support of his plea to “eliminate jury trials.” That was the sort of motivated reasoning, or confirmation bias, that he has warned against throughout his exceptional career.

It was easy for me to find the true facts of the Haimes case once my mental alarm bell prompted me to look for it. Others have exposed similar tort stories as urban legends, some that are wildly spun out of real lawsuits, and some that are wholly imaginary. The distinguishing feature of these fables is that they have been eagerly accepted and repeated, no matter how far-fetched, so long as they reinforce preconceptions about law and justice.

The real Haimes case actually demonstrates that the legal system works pretty well. Judith Haimes experienced a serious adverse medical event, and she sincerely if mistakenly believed it had damaged the psychic powers from which she made a living. After she brought her complaint to court, the trial judge neatly separated her viable claim – for pain, nausea, vomiting, and seizures, purportedly caused by the dye injected for the CT scan – from her invalid one for damage to her psychic ability. The jury returned an excessive verdict, and the judge promptly threw it out. How else should a legal system work?

As the Haimes judge recognized, many bogus stories have been circulated by insurance lobbyists, who have an interest in discrediting personal injury litigation. I have great respect for Dr. Offit, and I read his work with much appreciation. But a skeptical physician should use his own well-tuned mental alarm bells to resist such spurious tort stories, rather than validate and spread them.

[I sent this essay to Offit, who did not respond.]

Posted by Steve Lubet on April 14, 2024 at 10:46 AM | Permalink | Comments (0)

Saturday, April 13, 2024

Saturday Music Post - Santiano

It's been a while since we've had a sea shanty, and this one -- also known as "Santiana," "Santy Anna," "The Plains of Mexico," and other variations -- is especially rousing. The older version, which dates to the 1850s or earlier, seems to commemorate a victory of Mexican General Antonio Lopez de Santa Anna over U.S. forces in the Mexican-American War on the "plains of Mexico," which is something that did not actually happen. One theory is that it was sung by British deserters from the Royal Navy who had joined the Mexicans resisting U.S. aggression. A later version completely changed the lyrics, making no mention of Mexico and referring instead to a voyage "around Cape Horn" to California. Yet other versions changed the lyrics completely.

Did I mention that it is especially rousing? I've found renditions in French, German, and Polish, which says something about the appeal of the melody. And there is a true surprise at the bottom of today's post, which is at The Faculty Lounge.

Posted by Steve Lubet on April 13, 2024 at 05:49 AM | Permalink | Comments (0)

Friday, April 12, 2024

Will There Be Discipline at Berkeley?

Paul questions whether the students who disrupted Erwin Chemerinsky's dinner will face disciplinary action:

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

According to David Lat:

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

My guess is that there will be no disciplinary proceedings because (1) it is very late in the school year and the student, Malak Afaneh, is about to graduate; and (2) Erwin probably wants to put the issue behind him.

On the other hand, Afaneh may face employment consequences, depending on her post-graduation plans. A public interest job is probably safe, if she has one, but a law firm might have second thoughts about hiring her. I am not advocating consequences, but I am not a Biglaw management partner.

Posted by Steve Lubet on April 12, 2024 at 11:09 AM | Permalink | Comments (0)

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

Posted by Paul Horwitz on April 12, 2024 at 08:38 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 11, 2024

National Lawyers' Guild (Updated)

I am curious how the National Lawyers' Guild feels about being dragged into the Erwin Chemerinsky mess, cited as legal authority and counsel to tell Erin Chemerinsky that she had a First Amendment right to give her speech at Chemerinsky's home. Did someone from NLG give the advice? And how do they feel about being ridiculed nationwide for how wrong they are about the First Amendment?

Update: David Schraub (Lewis & Clark) shares the answer. NLG acknowledges that the student said it had advised her that she had a First Amendment right to pull this stunt, it does not confirm doing so or the content of the advice. It says a person's First Amendment rights may extend into non-public forums and that the government actors' suppression of speech in those spaces may violate rights. While true as a legal principle, most commentators agree it does not apply to this situation.

Posted by Howard Wasserman on April 11, 2024 at 07:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Posted by Howard Wasserman on April 11, 2024 at 01:42 PM in First Amendment, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)

Wednesday, April 10, 2024

Dean Erwin Chemerinsky Responds to Antisemitism

On Tuesday evening, April 9, Berkeley Law Dean Erwin Chemerinsky attempted to host a dinner at his home for graduating students. Sadly, the celebratory event was disrupted by a student with a megaphone -- reported by the Washington Free Beacon to be the head of Berkeley Law Students for Justice in Palestine -- representing a group that had earlier proclaimed "No dinner with Zionist Chem while Gaza starves." The student refused to leave or stop the disruption when requested. 

Erwin is an old friend, and I am deeply sympathetic to his situation, especially because I am a Berkeley Law alumnus. In the past, he has supported Jewish students at Berkeley knowing that it would be unpopular in some quarters, while adhering to his nearly absolutist view of free speech.

His statement below, posted on the Berkeley Law website, describes the events is sorrowful detail.

Statement from Dean Erwin Chemerinsky

April 10, 2024

I write this with profound sadness. Since I became a dean, my wife and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights – April 9, 10, 11 – that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.


Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Let me just expand a bit on the antisemitic nature of the poster and disruption. As Erwin explained, the vicious image of Jews as blood-drinkers dates back to at least Medieval times, and has been used as an excuse for pogroms and expulsions. There is no question that the poster was aimed at Erwin because he is Jewish, as there was no other reason to target him. Blaming all Jews for the real or perceived wrongdoing of others is likewise a classic example of antisemitism. Erwin has had nothing to do with the Gaza war. He has opposed the Netanyahu government and called for Palestinian rights (as have I) for many decades. But he is visibly and proudly Jewish, which appears to have been reason enough to violate his home.

The poster is after the jump:

Posted by Steve Lubet on April 10, 2024 at 06:24 PM | Permalink | Comments (0)

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

Posted by Howard Wasserman on April 10, 2024 at 12:41 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, April 08, 2024

Trump's Meritless Motion to Disqualify the "Hush Money" Judge

My new essay in The Hill explains why Trump’s latest delaying tactic, seeking to recuse the judge in his upcoming hush money trial, is bound to fail. Here is the gist:

Don’t buy Trump’s baseless motion for a new hush money judge

The latest episode in creative obstruction is a meritless last-minute motion to recuse Judge Juan Merchan, who presiding over Trump’s “hush money” case in Manhattan.

The disqualification motion, filed only two weeks before the scheduled beginning of the trial, is based on the political activity of the judge’s adult daughter, Lauren Merchan — the owner of a consulting firm that exclusively serves numerous Democratic Party clients, including “Kamala Harris, Adam Schiff and others.”

Sometimes, the validity of a motion can be best determined by its omissions and elisions. Tellingly, they make almost no mention of the actual New York law of recusal. When they finally get around to the specific legal provisions — totaling only about five pages of discussion — they quote them quite misleadingly.

For example, the motion claims that disqualification is required by a court rule when “the judge knows that a close relative ‘has an interest that could be substantially affected by the proceeding.’” This is a disingenuous misstatement of the rule itself, which limits the relationships mandating recusal to “the judge’s spouse or minor child residing in the judge’s household.” 

You can read the entire essay in The Hill.

Posted by Steve Lubet on April 8, 2024 at 11:10 AM | Permalink | Comments (0)

No Editors at the New York Times?

In a eulogy to Joe Lieberman, James Kirchick writes,

Though Mr. Lieberman lost the nomination to Mr. Lamont, he refused to let the Democratic primary electorate have the final say. He mounted an independent candidacy in the general election and became the first and only senator in American history to lose a party primary and regain his seat in the same cycle.

That's two mistakes in one sentence. Yes, Lieberman was the first senator to lose his primary and still win reelection, but he isn't the only one. Alaska's Lisa Murkowski did the same thing just four years later in 2010. Unlike Lieberman, who created an independent party and got his name on the ballot, Murkowski ran as a write-in. 

Also, Lieberman did not "regain" his seat; as a successful incumbent, he retained it.


Posted by Steve Lubet on April 8, 2024 at 06:12 AM | Permalink | Comments (0)

Saturday, April 06, 2024

How old is too old?

Josh Barro argues that Justice Sotomayor, aged 70, should retire following the end of the Term so Biden can appoint a younger successor. The merits of urging timed retirements aside, the question becomes how old is too old and how long Justices should serve.

Barros believed that the organized campaign to urge Breyer to retire in 2021 shows that Democrats learned the lesson of Ginsburg's 2014 non-retirement. He expresses disappointment that the resistance to Sotomayor retiring--some frame the resistance to Sotomayor being Latina, which pisses Barro off--shows they have have not learned that lesson.

But Ginsburg was 81 and a cancer survivor in 2014, whereas Sotomayor is 70. Barro downshifts to Scalia--he was 70 when he failed to retire in 2006 in the same circumstance as Ginsburg 8 years later (same-party President, party about to lose Senate) and Republicans avoided a similar fate because of Mitch McConnell and an inside-straight presidential victory. Barro also points to Thurgood Marshall not retiring in 1980, at 72, so Carter could appoint his successor and Obama could have appointed that successor, leaving the Court with a liberal majority through the '90s and '00s.

Sotomayor has been on the Court for 15 years, less than the 18 she would serve under most term-limits proposals (Ginsburg has been on the Court 21 years as of 2014). Marshall had been on the Court for 13 years in 1980. In the name of avoiding judges getting old and dying when the wrong party controls the political branches or being unable to "hold on" until an aligned President returns to office,* we force judges into ever-shorter terms--too short to figure out the job. Or we compel Presidents to appoint ever-younger judges--Barrett will have served 22 years by the time she reaches 70.

[*] For Marshall, the black swan event in terms of modern politics was Republicans getting 12 years in the White House from 1981-93, which Democrats could not pull off after Clinton and Obama. Here is a counter-factual--what if President Dukakis had been able to appoint successors for Brennan and Marshall in 1990?

If we are going to play this game, why stop with Sotomayor? Kagan turns 64 this month--why not urge her to retire so Biden can rewind the clock by an extra 10-15 years? Does 6 years make that big a difference? Sotomayor has some health problems (Kagan does not, as far as we know) but Barro limits them to a passing mention. He argues from age, not health. Maybe we should research justices' family and geneological histories.

Posted by Howard Wasserman on April 6, 2024 at 05:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday Music Post - Loving Her Was Easier (than Anything I’ll Ever Do Again)

"Loving Her Was Easier" was written and recorded by Kris Kristofferson in 1971. It was also released by Roger Miller the same year, which surprised me to learn because it is far more serious than was his usual stuff in those days. Tompall and the Glaser Brothers released it on an album in the '70s and as a single in 1981.

Covers and duets abound, as can be found today at The Faculty Lounge.



Posted by Steve Lubet on April 6, 2024 at 05:50 AM | Permalink | Comments (0)

Thursday, April 04, 2024

JOTWELL: Effron on Bookman on default judgments

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming 2025), on the rules for default judgments and how they harm defendants.

Posted by Howard Wasserman on April 4, 2024 at 04:12 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 03, 2024

Proposed Revision to Section 314(b) of ABA Accreditation Rules

I thought I'd post this comment that I submitted to a proposed change to the ABA's law school accreditation rules. I may elaborate in a future post. 

I am writing to urge the Council to reconsider the proposed Section 314(b) requiring every 1L course to include at least one formative assessment. As a regular teacher of 1L courses (Torts and Constitutional Law) over the past two decades, I have strong objections to the use of any assessment prior to the final exam. Students spend enough of their lives focusing on tests and assignments at the expense of gaining knowledge. Nothing in my experience supports the conclusion that a midterm or other formative assessment will be anything other than a distraction from learning. Others are free to disagree and use more frequent assessments, of course, but under the proposed 314(b) that disagreement could not extend to using the traditional law school assessment method of a single final exam in a 1L class. Adoption of 314(b) would be a serious mistake.

Posted by Gerard Magliocca on April 3, 2024 at 09:10 AM | Permalink | Comments (0)

Tuesday, April 02, 2024

Final Four(s) (Updated)

Interrupting law for some sports, specifically the basketball Final Fours (Finals Four?) and a bunch of interesting story lines:

• First time that two schools have men's and women's teams in the Final Four--UConn and NC State.

• Two teams vying for historic standing--undefeated South Carolina women and UConn men vying for consecutive championships and taking a wrecking ball to their opponents (how did they lose 3 games during the season?).

• A major-conference Cinderella in NC State--would have missed the NCAA, went on an unbelievable run to win the Conference tourney and get the automatic bid, and continued a hot streak. It rhymes with (if it does not repeat) the school's run to the 1983 championship. The only thing missing was playing Houston, which they would have done in the Elite Eight had Houston's best player not been hurt.

• Alabama men make the Final Four for the first time in program history. And they do it the year after one of the program's historically best regular seasons led by one its historically best players, who left for the NBA after one season.

• Paige Bueckers (UConn) and Caitlyn Clark (Iowa) entered college the same year and both became instant stars on the court and off, raking in massive NIL money (far more than they will make in WNBA salary). Bueckers won all major national player of the year awards as a freshman and UConn beat Iowa on the way to the Final Four. But Bueckers missed most of the next two seasons with injuries, while Clark became the all-time scorer in Division I and all women's basketball history. I find the story of these players and how their stories and historical places have flipped interesting.

• On the court: A prospective UConn-Purdue finales between two huge, skilled-but-not-very-athletic back-to-the-basket centers--Purdue's 7'4" 300-lb Zach Edey and UConn's 7'2" 280-lb Donovan Clingan. Basketball isn't supposed to be played that way anymore.

Update: One more, on what these Final Fours lack: The lightning rod of LSU and coach Kim Mulkey and all the off-court controversy she carries.

Posted by Howard Wasserman on April 2, 2024 at 10:38 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Terrific New Product Liability Article

Few articles ever force me to reconsider how I should teach part of a course. But Alexandra Lahav's new paper on "A Revisionist History of Products Liability" does. I don't teach products liability in Torts every year, but the next time I do I will be far more circumspect about Cardozo's opinion in McPherson. Here is the Abstract: 

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments, and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.

I won't use Larry Solum's catchphrase. Let's just say--you should definitely read this paper if you teach products liability.

Posted by Gerard Magliocca on April 2, 2024 at 09:40 AM | Permalink | Comments (0)

Don't Bogart That Joint, My Friend

These are the opening paragraphs of the Sixth Circuit opinion in White v. Wilkey. The facts, as the court noted, are unique, but that's not why I am blogging about it. As can be seen in the bolded passage below, it appears that "roach" has become such a common term that it can be included in a judicial opinion without explanation. 

This case arises from a traffic stop that ended like no other of which we are aware. Deputy Daniel Wilkey stopped Shandle Marie Riley, suspecting that the window tint on her car was too dark. By the end of their encounter, Wilkey and Riley were
discussing religion, which led to the deputy’s baptizing the suspect in a lake.

Riley then brought suit, claiming that Wilkey had violated her First and Fourth Amendment rights. Riley was deposed but subsequently died in circumstances unrelated to this case. The administrator of her estate, Bailey White, continued the suit in Riley’s stead. Wilkey sought qualified immunity against White’s claims, which the district court denied. We dismiss for lack
of jurisdiction.

The stop occurred on the evening of February 6, 2019. During the stop, Riley told Wilkey that she had a marijuana roach in her car. Wilkey asked her to step out of her car, briefly searched her person, then placed her in handcuffs as he searched the vehicle. While this took place, Wilkey and Riley began to discuss religion, and Wilkey asked Riley if she wanted to be baptized. Riley expressed some hesitation but, according to her testimony, agreed to be baptized after Wilkey said that he would only write her a citation and that he would speak on her behalf in court if she agreed. She testified she was afraid of “go[ing] to jail.”  They drove separately to a nearby lake, where Wilkey baptized her.

Opinion by Judge John K. Bush (Harvard), joined by Raymond M. Kethledge (University of Michigan) and Chad A. Readler (University of Michigan). Two of the three marijuana savvy judges attended the University of Michigan for both undergrad and law school, a datum on which I express no opinion.

Posted by Steve Lubet on April 2, 2024 at 05:40 AM | Permalink | Comments (4)

Monday, April 01, 2024

Briefplaints, press releases, and long-shot lawsuits

A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.

There is a lot here related to what I teach.

Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.

Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.

Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.

    This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.

Posted by Howard Wasserman on April 1, 2024 at 05:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Five-Four: Dissecting Supreme Court Tightly Split Decisions

I want to draw attention to a new book by my colleagues Nicholas Georgakopoulos and Frank Sullivan. Here is the Abstract:

This book develops new techniques to see the work of supreme courts, work characterized by much greater complexity than that seen either by the usual lawyers’ focus on one topic’s current law or popular and media focus of left versus right. For example, the book measures the “fluidity” of the voting coalitions in tightly split decisions of various supreme court compositions. The book presents (including in enclosed fold-out posters) visualizations showing the vastly complex oppositional geometry of tightly split decisions. And the book offers some interesting applications of these techniques. The visualization of criminal procedure decisions produces six dimensions in a single subject matter. The book identifies three “Super-Dissenters” who shaped the Court’s output—and a paradox that, regardless of the overall ideology of the United States Supreme Court, its 5–4 decisions have a measurable conservative tilt, the investigation of which shows how 5–4 splits are formed and leads us to the conclusion that the justices are not driven by politics. By analyzing the vast complexity of judging using new techniques of simple quantification and visualization, this book makes a contribution to understanding how supreme courts work. The authors believe that there is more work to be done in this regard and hope that readers will find more patterns to explore using techniques such as those developed here.

I would add that the production value of this book is superb and contains the kind of quantitive data that political scientists love.

Posted by Gerard Magliocca on April 1, 2024 at 12:54 PM | Permalink | Comments (0)