PrawfsBlawg

Anatomy of a Fall

I recently saw this French movie that won several awards last year. It's a courtroom drama and a story of a complicated family. I was fascinated by  a courtroom drama set in a French court with Continental-style criminal procedure, though I don't know how accurate the courtroom scenes were. 

Trump & Capone

What is the prevailing view (among the public, lawyers, legal academics, whoever) of the "justice" of convicting and incarcerating Al Capone for tax evasion (which he did but which is far from his most serious crime) when circumstances made it impossible to convict him of those more serious crimes? It seems to me that is appropriate analogy to the New York case against Trump--he committed the underlying actions, New York renders those actions unlawful, it is not the most serious crime he committed, circumstances make it impossible to convict him (or even get a trial) on the more serious crimes.

That New York brought this case as a separate sovereign from the United States enhances this point. New York pursued the lone breach of its laws (since Trump has not, yet, shot someone on Fifth Avenue) that it could pursue. Thatt violation is less severe than the violations of federal law that the U.S. might pursue, but it is all New York has. This is different (and perhaps more legitimate) than Capone, where it was one sovereign--the U.S.--downshifting to a small offense because it could not get the larger offense.

To be clear, I am separating any possible legal defects in the Trump conviction--whether the judge erred on New York law or whether New York law violates due process. I also am separating the normative question of whether New York should have the laws it does. Assuming the legal and factual correctness of the New York verdict, is it unjust for a sovereign to get Trump on something so small?

The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.

Some Observations About the Alleged Law Clerk Statement

The title of the post refers to this statement, allegedly issued by current federal law clerks, regarding the conflict in Gaza. As the Reuters story about it notes, the statement was published by "Balls & Strikes, a court news and commentary site sponsored by Demand Justice, a progressive legal advocacy organization."

I say alleged although Balls & Strikes, which sites like How Appealing treat as a valid source of information, says in an introduction to the statement that it confirmed the identity of the (of course) anonymous speakers. I personally don't doubt that it's true. But I also see no very good independent reason to trust that it is an accurate statement. Balls & Strikes does not exist to do reportorial journalism: most of its content consists of commentary, of which God knows we suffer no current deficit. Some of its contributors are bona fide journalists, others are not, a few I would put in the "I guess you could call that a journalist" category. Its parent organization, Demand Justice, is a standard modern partisan-politics vehicle. Its funding is dark but apparently comes from the grossly wealthy and wealth-derived Arabella Advisors, aptly described as "the hub" of a left-leaning dark money network. Demand Justice's heads come from the standard government-to-donor-patronage revolving door; they are well compensated and none of them were journalists, although one had a substantial career as a high-level press hack. It has a mission, but other than as a by-product, that mission is not honesty or accuracy; it's victory. Well and good. That's the environment we live in. But to take either Demand Justice or Balls & Strikes too seriously--to take seriously, in general, the endless, fundamentally corrupt networks that sell substitutes for either honest reporting or honest, public, and transparent discourse, to take it for granted and be immured to it, to pretend that this is the stuff that serious people can allow into their lives without suffering its effects--is to ignore Johnny Rotten's immortal question: "Ever get the feeling you've been cheated?"

So that's the first observation, a frequent one for me but only because it keeps being relevant and true: The fundamental crisis of contemporary society is an institutional crisis. That applies to Demand Justice and Balls & Strikes, which have moved into the empty space formerly occupied by the institutions whose death, decline, or drop in authority, often through their own actions, has been so damaging to our culture and politics. It applies to the judges mentioned by the clerks, whose boycott statements and other public actions treat the judiciary not as a special-purpose institution with substantial constraints on behavior and expertise, but as one more platform to say whatever one wants on the issues of the day. And it applies to the notion, not that law clerks might have something useful to say as individuals, but that if they want to say it as law clerks, they should go right ahead, and have been sorely treated if they can't. (Countless "professors' letters" demonstrate that this problem is not unique: Academics have long brandished their titles and affiliations on questions to which their jobs and knowledge contribute nothing--letters which ironically destroy the very authority they are trying to leverage.)       

A second and third observation: In the statement, the law clerks write, "Violations of these rules [barring law clerks from speaking out on matters of public interest] could result in immediate termination of our clerkships—a potentially career-ending ramification. We have thus been forced to spend the last several months as only passive observers of Israel’s assault on Gaza." There are two errors here--unsurprisingly, since the statement is geared toward rhetorical effect, not candor. The first: They were not "forced," except insofar as anyone who joins a special-purpose institution commits him- or herself voluntarily to the rules and norms of that institution. They were "forced" in the same way that a journalist is "forced" to avoid lying, a lawyer to refrain from speaking ill of her own client in public, or a chess player is "forced" not to move her pawn three spaces in a turn.

Nor is it true or useful to say that the termination of a clerkship is "potentially career-ending." This is a triumph of rhetoric, and perhaps self-perception, over candor. The candid version of that assertion would be similar to the notion that not taking a clerkship itself, because one can't follow the rules, is "potentially career-ending." Reframed in this way, the statement could have said something like, "potentially damaging to the kind of career that we, as elite lawyers with ambitions, want and think we deserve." Lots of people will hire a lawyer who was fired from a clerkship. Lots of lawyers who can't find jobs at fancy firms or, indeed, anywhere, hang out their own shingles. Lots of people with law degrees who don't find work in the law take other lines of work and thrive at them. All that happens to them, or that would happen to these anonymous clerks if they were dismissed, is that they wouldn't get to live out whatever high-end life plan they wrote out for themselves at some point: to work at Justice, or to get a judgeship, or to get a ticket to the inaugural ball or tenure at a cushy law school. (Although Bernadette Devlin might beg to differ.) To this, the proper reply is, tant pis. I dislike industrial-scale, well-funded doxing efforts, for the same reason I don't care for Red Channels. But the number of times people at elite-reproduction academies have evoked "career-ending" tropes in the past few months should encourage us to keep in mind the difference between "I can't find a job" and "I can't find a job at McKinsey." The classism of statements like "potentially career-ending" ought to be obvious. 

Finally, the law clerks are right to invoke the endless Judge Ho nonsense. Not every judicial action they cite in their statement is necessarily improper, and none of it is the same as their own obligation to avoid public political activity during their clerkships. But many of the examples they cite are illustrative of judges exhibiting the same desire the clerks feel the need to indulge: to perform, loudly and publicly, something other than their jobs. It is reflective of the idea that a judgeship (or clerkship) is as a good a place as any to engage in culture-war-mongering or political performance. They are right to criticize the judges, even if all that means is that both the judges and the clerks are wrong.

I don't think that Judge Ho and his ilk are responsible for the clerks' choice or that his actions justify it. It's better to see both as symptoms of a sickness that afflicts institutions, and thus our culture, in general: an unwillingness to live within norms and constraints. Which brings me back to my first point: The fundamental crisis of contemporary society is an institutional crisis.     

Was Ron DeSantis Right about Sociology?

My new essay in the Chronicle of Higher Education doesn’t agree with Gov. Ron DeSantis’s decision to remove Introduction to Sociology from the general education curriculum in Florida’s 40 public colleges and universities, but it does explain the discipline’s increasing politicization, especially as demonstrated by the American Sociological Association’s resolution on the Israel-Hamas war. 

Here is the gist:

I believe in the importance of sociology and its place in the general-education curriculum. But the discipline seems to be doing all it can to prove DeSantis right.

Consider, for example, the American Sociological Association’s Resolution for Justice in Palestine, which was recently adopted by a 59-percent majority in a membership vote.

There is not a single mention of Hamas or its October 7 massacre, as though Israel had invaded Gaza without provocation and for no purpose other than to inflict casualties. Coming from an organization that claims to study “the social causes and consequences of human behavior,” the list of predicates is remarkably one-sided and monocausal, composed in the style of an advocacy group rather than a scholarly association.

Shockingly, the resolution does not call for the release of Israeli hostages, which is obviously a necessary condition of any cease-fire. Even Rep. Ilhan Omar, Democrat of Minnesota and no friend of Israel, included the release of Israeli hostages in her own cease-fire demand.

The ASA could have issued a powerful statement in defense of Gazans — one that supported academic freedom, adhered to universal scholarly values, and recognized some complexity in the Israel-Hamas war. That would have buttressed the discipline’s claim to be “a crucial component of civic literacy.” A less extreme statement, unmarred by relentless anti-Israelism, might even have persuaded others to join the call for a cease-fire, including some of the 41 percent of members who voted against the resolution.

Instead, the ASA’s refusal to simply acknowledge the humanity of Israelis has reinforced DeSantis’s accusation that sociology has been hijacked by left-wing activists.

The full essay is here. CHE is paywalled, but most universities have subscriptions.

What Michael O. might have said

Thinking today about my late, Michael Olivas, and his larger than life advocacy on behalf of law teachers of color, and especially Latinx faculty (that locution coming more recently, but whatever term is au courant, Brown law professors and others know what's what).  One especially aggressive piece of MO advocacy was his distribution of the so-called "dirty dozen" list -- in essence, a list of various law schools, including some of the more "elite" ones, and their baleful record of hiring Latinx faculty.  The impact of Michael's advocacy was meaningful.  When I started my teaching career at UC Berkeley in 1989, I was the second Latinx faculty member in the law school's history and the first Latino. The numbers increased with our hiring of Ian Haney Lopez and we hoped and expected that things would take off from there.  Measured by numbers, a crude but important way of determining the scope and magnitude of diversity, Latinx faculty members steadily made their way into law schools, across the range of hierarchy and geography.  So far as leadership was concerned, I came to Northwestern's deanship with colleagues such as Rachel Moran (UCLA), Eduardo Penalver (Cornell), Kevin Johnson (UC Davis), and several others who I came to know and appreciate as Latinx leaders in legal education.  I expected that the impact would only increase.

But I have, as I sit here in the early summer of 2024, with an uneasy feeling that things have stalled.  It is extraordinary and important that the ranks of African American law deans, the majority of women, has exploded in number.  Other diversity groups (including LGBTQ+ and Asian American/Pacific Islander) have seen meaningful strides.  So far Latinx law deans, and I believe the law professiorate more generally, it is my impression -- although I admit I don't have the exact numbers handy -- that progress with respect to Latinx law school faculty and, especially, leadership is not where it should be, and indeed is not where it was.

To be sure, diversity in law school hiring, including at the leadership ranks, is not a zero sum game.  We can and should expect diversity to expand within distinct sub-groups without facing the dilemma of one group displacing another.  And yet the progress that has been celebrated by so many of us, noting especially the great, and overdue, strides made by groups who have suffered the special brunt of racism and exclusion over the lifetime of the academy -- and I am especially thinking here of our African American women colleagues -- seems by one measure to be achieved without anything at all similar, even in a long stone's throw, for those Latinx professors whose history of exclusion, of discrimination, of intersectional subordination has been amply documented and is (ought to be?) the occasion for advocacy and progress.  Where is Michael Olivas's voice when we need it?  Where are the Latinx law deans?  (In my count, the number is, excluding the law schools from Puerto Rico, less than ten total).

 

COSELL Registration Now Open!

Dear Colleagues,

 

The 19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be co-hosted by the University of San Diego School of Law (USD) and California Western School of Law (CWSL) in San Diego, California on Friday, September 13 and Saturday, September 14, 2024. This is a works-in-progress event. We do not require the submission of papers.

 

We plan a full day of panels with continental breakfast, lunch, and dinner at USD on September 13. A half day of panels with continental breakfast and lunch is planned at CWSL on September 14. There is no charge for registration. Meals are provided. Speakers must pay for travel and accommodations. Our colloquium webpage is now live, and contains links for paper/topic registration and hotel reservations. Please register as early as possible but at the latest by Friday, July 19, 2024. The link to the 19th Annual COSELL webpage appears below.

 

19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL)

 

Looking forward to seeing you in San Diego! Questions can be addressed to Susan ([email protected]) or Orly ([email protected])

 

A Requiem for "Workable Government"

One of the famous passages in Justice Robert Jackson's Youngstown concurrence is about the functional nature of separation of powers.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

The Court first quoted from this passage in United States v. Nixon and did so many time afterwards. Since 1996, though, the Court has not cited or quoted these lines favorably. In Selia Law, the Court said that the arguments being rejected drew inspiration from Jackson's view.

Of course, this makes sense given the formalist turn in separation of powers law. One point that I will discuss in the Conclusion of my book on the concurrence is whether the entire opinion will fade out over the next few decades.

Trump on Closing Arguments

He happens to be right. It is quite unfair that the prosecution gets to argue last, although I have never known a Republican to complain about that in the trials of anyone else.

I actually know something about the origins of the sequence, at least in some jurisdictions. In the late nineteenth century there was a great trial lawyer named Daniel Voorhees, who was a major figure in my book, John Brown's Spy.

He was also a senator from Indiana, who had been a Copperhead during the Civil War and, as a congressman, had been one of the major opponents of the Thirteenth Amendment.

In those days, senators could practice law, and Voorhees had been almost unbeatable in a series of high-profile trials, especially because the argument sequence had the prosecutor arguing first, then the defense, with no rebuttal. The sequence was specifically changed to add rebuttal in order to give the over matched prosecutors a chance at winning convictions.

(In 1859, before he was elected to congress, Voorhees was defense counsel for John E. Cook, who was arrested following his participation in John Brown's raid at Harper's Ferry. It was one of the few trials he lost. Cook was convicted and hanged, even though Voorhees had convinced him to provide a confession implicating others, thinking he had a deal.)

 

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

First, when courts make the "federal courts apply federal procedural law" move, they mean federal courts apply the FRCP or other statutorily created procedural law. That is the lesson of Hanna--the Erie doctrine does not act as a "check" on the FRCP. But Hanna requires a different approach (and perhaps conclusion, although not in Hanna itself) when the federal rules--including procedural laws--derives from a source other than the FRCP. Courts have unfortunately (and inaccurately) short-handed the analysis. But I think that is the idea they are getting at.

Second, courts have not identified clear rules for determining when an atextual judicial gloss derives from sparse statutory text (and thus becomes part of the text) and when it reflects judge-made common law. That distinction determines whether the federal standard certainly applies under the REA (because no federal rule is invalid) or whether the court performs a far less certain "relatively unguided Erie" analysis that is more likely to require it to apply state law. This was the point of departure between Ginsburg's majority and Scalia's partial dissent in Gasperini--whether the judicially created "seriously erroneous result"/"miscarriage of justice" standard for new trials derived from an interpretation of FRCP 59(a) (Scalia) or whether the courts created it to fill statutory gaps (Ginsburg). But neither explained why their preferred understanding was correct. But it is not always obvious. Why is Twiqbal plausibility an interpretation of FRCP 8(a)(2) while the four-part Winter test for a preliminary injunction is a stand-alone test independent of FRCP 65? (the latter one is historical and predates the FRCP, but the point stands).

Although not explicit and not framed in these terms, courts seem to understand the multi-factor balance for pseudonymity as an interpretation and thus part of FRCP 10(a), which requires that the case caption include the party names. The Third Circuit explained: 1) "Rule 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings" and 2) "[w]hile not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." It follows (although the court did not say this much) that the balancing of nonexhsaustive competing interests for and against anonymity implements FRCP 10. Again, however, it is not obvious why this is the case.

So how should the District of New Mexico have resolved the plaintiff's argument for applying the more plaintiff-friendly pseudonymity rule, beyond "we must apply federal procedure." It should have said that under the Rules of Decision Act, FRCP 10(a), as interpreted through the multi-factor balancing, constitutes an Act of Congress that "otherwise requires or provides" and serves as the rule of decision; as interpreted, it is sufficiently broad to answer the question of when a plaintiff can proceed pseudonymously. The court then should have analyzed whether the rule was valid under § 2072--whether it really regulates procedure and whether it does not abridge, enlarge, or modify a substantive right. The answer would be "yes, it is valid," because every FRCP is valid. But the substantive policies underlying state law (protecting the privacy of sexual-assault victims and encouraging them to come forward) would have forced the court to either rely on "incidental effects" on substantive rights being permissible or adopt the Scalia view that a procedural rule never, in any meaningful sense, can AEM. Either way, that analysis is a lot more complicated than the footnote allows.

And what if the multi-factor test were not part of FRCP 10? The unguided Erie analysis must consider whether ignoring state law would cause the "character or result" to differ, whether a party might go to federal court to avoid less favorable state law, and whether the state law is "bound up" with substantive policy. That analysis usually points towards state law and probably would here--a defendant might remove to avoid automatic pseudonymity and the state law has underlying substantive concerns.

But this example shows why "apply federal procedure," without more, cannot be the extent of the analysis. A litigant-name rule is unquestionably "procedural"--it relates to the manner and means through which rights are enforced in court. But if the conflict with state law comes from a federal legal rule unmoored from the FRCP, the federal court may be required to apply that state law.

The Ten Commandments in Louisiana

My new essay for The Hill explains that Louisiana's Ten Commandments law is unconstitutional for more reasons than you might think. Here is the gist:

Louisiana wants the Ten Commandments in schools. But which version?

Once it is signed by Republican Gov. Jeff Landry, Louisiana will be the only state to mandate displaying the Ten Commandments, “on a poster or framed document that is at least 11 inches by 14 inches” in every classroom, “printed in a large, easily readable font.” 

The very specificity of the bill, which includes a governmentally endorsed religious text, may prove its undoing.

Posting the Ten Commandments is an essentially religious act — not only because it favors religion over non-religion, but also because it invariably favors one faith tradition over others.

The Louisiana statute requires a distinctly Protestant text, with Elizabethan language based on the King James Bible, which differs significantly from the versions used by Catholics, Jews and others. Some differences are inconsequential, but others have deep theological implications.

That is where the Louisiana legislature went badly wrong. Even the simple act of posting the Ten Commandments in schoolrooms can signify centuries-old religious discord.

You can read the full essay at The Hill.

Saturday Music Post - Gimme Shelter

The clips, for which no introduction is needed, are at The Faculty Lounge.

 

An Addendum: Language Matters

It strikes me that the last couple of posts I've written about campus speech issues--on the "it's not a protest if" assertion and on the difference between "peaceful protest and non-violent protest"--lean heavily on making a big deal about what others might consider semantic quibbles. As an academic I'm fine with making a big deal out of semantic quibbles. (In the book A Terribly Serious Adventure: Philosophy and War at Oxford, 1900-1960, Nikhil Krishnan recounts the story of a don describing the philological question on which he had been lecturing at great length: "Absolutely insoluble problem, of not the slightest importance." That sounds perfectly wonderful to me.) But I think such quibbles do matter. They clarify our thinking in such matters, especially when the subject is one with great immediacy and emotional impact. They better help us describe what it is we are arguing about when it comes time to argue about whether something is permitted or not, should be permitted or not, and so on. (Are we arguing about whether and when officials can break up "peaceful protests?" Non-violent but not truly peaceful protests? Protests that "defy the authorities?" What is the it that is the subject of our attention and our arguments about what is allowed?) They enable us to better guard against mere propaganda, the use of arguments, descriptions, tropes and memes, and pre-loaded definitions that are meant to make us think as someone else would have us think rather than think for ourselves--propaganda that is often swallowed whole, often repeated unthinkingly by journalists, and competing uses of which end up taking up more time, attention, and passion than arguments about the thing itself. And as I suggested in my last post, because there is often an imperfect boundary between free speech as a doctrinal and as a cultural matter, and because discussions and understandings of one often bleed into the other, they help us better identify which domain we're arguing in and about. This is good for clarifying discussion and prescription in both domains and, for that matter, in whatever "liminal" remainder there is. These kinds of improvements to or clarifications of general public discourse may be mere drops in a bucket. But after all, when it comes to public discourse, the depositing of individual drops in very large buckets is precisely and possibly solely what academics are here to do.   

Just by way of closing, let me offer an illustration that renders the point less abstract: If one is thinking clearly and using language clearly, one knows that a boycott is a purposeful relation to deal or associate, generally for political or moral reasons and generally in the form of a measure intended to inflict economic pain. On the other hand, a judge or law firm's insistence on selecting law clerks only from "top" law schools, however ill-advised, arrogant, and foolish it may be (and I tend to think such a policy are mistaken for these and other reasons), is not a boycott. Indeed, it bears no useful relation to it, and thus is useless for purposes of analogizing to boycotts. 

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Infield fly interference double play (Updated Twice)

A wild ending to last night's Orioles-White Sox game. It offers a new entry in the Berman/Friedman "jurisprudence of sports" canon and a nice example of all the problems when the public (including "the media") discusses law.

The White Sox have 1st/2d-one out in the bottom of the ninth. The batter hits a fly ball on the infield grass. Orioles shorstop Gunnar Henderson, stationed behind second base, moves to the ball. He momentarily stops and goes around Andrew Vaughn, the runner on 2d, as he retreats (slowly) to the bag; Henderson gets under and catches the ball. The second-base ump calls infield fly, putting the batter out. The third-base umpire calls Vaughn out for interference, ending the game on a double play. Chaos and nonsensical indignation from the Sox announcers ensue and continues onto the interwebs.

From the 2024 Rulebook: Interference includes a runner who "fails to avoid a fielder who is attempting to field a batted ball." § 6.01(a)(10).  The runner is out and the ball is dead. § 6.01 PENALTY. A comment to § 6.01(a) adds a "runner who is adjudged to have hindered a fielder who is attempting to make a play on a batted ball is out whether it was intentional or not." A separate rule defining fielder right of way imposes an obligation on all members of the batting team to vacate any space a fielder needs to field a batted ball. § 6.02.

The text of the rules undermines the immediate reaction of the Sox announcers and many online commentators screaming about how Vaughn did not intend to interfere, did not know where the ball or fielder were, did not try to interfere, etc. But intent not matter. The rule prohibits the batter not from affirmatively interfering with the fielder. It prohibits the runner from "fail[ing] to avoid" the fielder--it imposes an affirmative obligation to avoid the fielder and to clear the space for the play to be made. Vaughn failed to avoid--he stopped, located the ball, and walked back towards second as the shortstop runs from behind, but in a way that, even unintentionally, blocked Henderson's direct path to the ball. That is enough under the rule. White Sox manager Pedro Grifol recognized that the umps got it right but criticized the rule's lack of intent requirement. Similarly, that Henderson caught the ball with ease does not matter--the rule does not require successful hindrance or apply only if the interference prevented the fielder from making a play.

Some open issues.

1) I cannot tell from the video whether there was contact between fielder and runner or whether the problem was that the runner hindered the fielder by making him change direction in going towards the ball. It does not matter to the rule. But the third-base umpire who called interference and the crew chief conflicted on this--the crew chief said the runner made contact, while the ump who made the call said it did not matter whether he made contact, only that Henderson had to move around him. The call is correct either way, but it helps to have the facts right.

2) Update: I completely revised this point because I got it so wrong. I initially wondered whether the order of the calls (interference and infield fly) matters--if the ump called interference first, the ball would be dead and the batter cannot be out on the infield fly. The answer is no, because of the IFR--and shame on me, having literally written the book on this, for getting it wrong. A comment to the definition of IFR provides:

If interference is called during an Infield Fly, the ball remains alive until it is determined whether the ball is fair or foul. If fair, both the runner who interfered with the fielder and the batter are out. If foul, even if caught, the runner is out and the batter returns to bat.

So interference operates differently on a potential infield fly play than it would on another play. The order of the calls does not matter. The runner is always out. And the IFR overrides the ordinary interference rule and puts the batter out, at least if the ball is fair (this ball was in the middle of the infield and unquestionably fair). Again, shame on me for not remembering that piece of the IFR. Thanks to Mike Dimino for setting me straight. And for further proof the umps got the call right.

3) The Sporting News published an article purporting to explain the play and the intersecting rules. It says the following about interference:

There are different levels of interference when it comes to baserunners.

Per MLB rules, players on the batting team, including coaches, cannot get in the way of a player trying to field a batted ball. However, the rule states that if interference takes place on a batted ball, only the batter is declared out. All other runners must return to their previous bases.

The only time a runner is declared out is when a player or coach interferes with the fielder's right of way to throw a ball. If so, the player for whom the throw was intended to get out will be ruled out.

The article links to a glossary on MLB's web site. Based on the information the article relies on, the call was wrong--the batter should have been out and the runners returned to their bases. But the definition in the glossary does not match the "fielder right of way" rule in § 6.01(b). Under that rule, the ball-is-dead/batter-is-out/runners-return provision applies to "a member of the team at bat (other than a runner)." Section 6.01(a) controls a runner who fails to vacate the right of way and calls the runner out. The Sporting News story never mentions § 6.01, nor does MLB's web site. And the web site does not accurately state the actual rule.

Reporters often do not go to the primary source of law (in this case, MLB Rules); they rely on shortcuts, such as summaries on a web site. This is sunderstandable, as most reporters are not trained in reading and parsing statutes. But MLB does not do itself any favors and fails to protect its umpires from inaccurate and unfair criticism by providing incorrect shortcuts.

Finally, some points about the jurisprudence of sports and how conversations about sports rules match conversations about the law.

1) We have the usual complaints about the game ending on the interference call, Berman's "temporal variance" in enforcing sports rules.

2) I cannot find the video, but at one point the Sox announcer demands that the crew chief step in and overrule the call. This wrongly accords the crew chief some power to overrule other umps' calls and to control what they do. We see the same thing in the demands that John Roberts "do something" about justices' ethical misbehavior--an erroneous assumption that the Chief is somehow the boss of the Court and of the other justices.

Further Update: MLB reportedly defenestrated the umps in a private communication with the White Sox, suggesting the umps were wrong in insisting they had no discretion and had to call interference as soon as they saw contact or a hindrance.

Further Further Update: A reader emails wondering why interference ever arises on an IFR--can the runner interfere with a fielder who need not catch the ball for the out. Recall that the runners can advance at their own risk on the play, which means the fielder usually wants to catch or at least control the ball to prevent runners from advancing. Absent thenterference rule, a runner has an incentive to keep the fielder from getting to the ball, giving his teammates an opportunity to advance if the ball is not caught, even if the batter is out.

Further Further Update: Another reader suggests that, if the ump had discretion, a non-call would have been appropriate here. The runner was in an impossible situation--he had to determination the location of the ball and the fielders, determine their path to the ball, and get to a spot that is out of their path and does not subject him to being doubled-off. That is a lot to ask of a runner.

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Leiter on Academic Boycotts

Brian Leiter is a long-time and often sharp critic of "US-funded Israeli crimes." Nonetheless, he opposes the renewed call for an academic boycott, with this cogent explanation:

The scale of the unfolding atrocities in Gaza has given renewed momentum for calls by academics to boycott Israel, including Israeli academia.  I won't do that, but I also won't sign the circulating petition denouncing academic boycotts of Israel:   individuals should retain the right to protest what is happening in Gaza in any lawful ways they choose to do so, including boycotts.  From where I sit, Israeli academia still represents the most reliable opposition to government policy that has brought Israel to this point, and I don't want to be party to a collective punishment of Israeli academia that will have zero impact on the current war criminals in power there (Netanyahu and company already hate academia, just like they hate the courts).

It is hard to understand why he won't sign the "circulating petition" (presumably this one, posted on Prawfs and elsewhere), on the ground that individuals should retain the right to boycott. There is nothing in the statement that remotely contradicts or challenges anybody's right to protest or boycott Israel. Instead, it says:

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions.

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community.

Of course, Leiter can sign or not sign anything he chooses, but the statement seems to coincide almost precisely with his own recognition that "Israeli academia still represents the most reliable opposition to government policy" and his opposition to "a collective punishment of Israeli academia." 

The statement now has over 5500 signatories, and is open for additional signatures here.

Woodrow Wilson and the Senate

I came across an interesting bit of trivia today. President Wilson gave a speech to the Senate in 1918 urging them to ratify the Nineteenth Amendment after the House passed the proposal. As far as I can tell, this is the only time in modern history that a President gave a speech to only one House of Congress. Presidential speeches are, of course, usually to a Joint Session. George Washington did go to the Senate at the very beginning to get their "advice and consent" on something, but quickly realized that was not the right approach.

Statement Opposing Boycott of Israeli Academics [Signatories Now Released]

UPDATE: Names of over 6600 5500 3200 signatories have now been released and can be seen here. Additional names can be added here (scroll to the bottom).

Please consider signing the following "Statement against the Boycott of Israeli Academics." It was written by Anne Rethemann (Freie Universität Berlin), Helmut Walser Smith (Vanderbilt University) and Daniel Siemens (Newcastle University).  It responds to a report in Haaretz of growing cancellations and boycotts of Israeli academics, especially in the Humanities and Social Sciences. Here is a link to the Haaretz report (paywall): https://archive.md/pyavQ.

The statement opposes the boycott of Israeli universities and individual academics because it threatens academic freedom, while also undermining the most open and anti-authoritarian institutions in the country. This is not a statement of support for the Netanyahu government.

I have signed the statement and suggest that others sign it here as well. 

Statement against the Boycott of Israeli Academics

May 14, 2024

 

We, scholars from various fields of the humanities and social sciences, are deeply concerned about the increasing isolation of our academic colleagues in Israel. Calls for boycotts against Israeli academic institutions are not new, but since the brutal attack by Hamas on October 7th and the subsequent Israeli-Hamas War, these calls have taken on a new dimension. On April 12, 2024, the Israeli daily newspaper Haaretz published an article based on interviews with over 60 Israeli scholars and reported an astonishing range of discriminatory practices. These include the termination of scientific collaborations, cancellation of conference invitations, refusal to consider scholarly submissions to journals, rejections of promotion evaluations, and withdrawal of offers for academic appointments, among other instances.

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions. We firmly advocate for intensive cooperation and continued work with them. We are also convinced that the gradual, often subtle exclusion of Israeli scholars contradicts fundamental principles of professional comportment and academic freedom. Moreover, an academic boycott against Israel is counterproductive regarding internal Israeli debates as well as Israeli-Palestinian dialogue, as Barak Medina argued in his compelling essay, Is it Justified to Boycott Israeli Academia?

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community. The alarming trend of excluding Israeli scholars from international academic discourse requires unequivocal response on our part. We, the undersigned, call on scholars to stand in solidarity with our Israeli colleagues on this critical issue.

Statement Authors

 

Anne Rethman, Freie Universität Berlin, visiting at Hebrew University 

Daniel Siemens, Newcastle University

Helmut Walser Smith, Vanderbilt University

 

You can sign here.

 

Names will be published on Saturday, May 18.

Saturday Music Post - I’ll Be Your Baby Tonight

Released in 1967 on Bob Dylan's Nashville album John Wesley Harding, "I'll Be Your Baby Tonight has been a staple of his live shows ever since.

The clips are at The Faculty Lounge.

 

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

Globalizing the Intifada

This is the meaning of banners seen at Northwestern and other encampments:

As reported by CNN:

Police have shot dead an armed attacker who was trying to set fire to a synagogue in the northern French city of Rouen, according to authorities.

As reported in the New York Times:

The identity and motives of the man who attacked the synagogue were not immediately clear, but the French authorities were treating the incident as an antisemitic act. Local prosecutors have opened an investigation into “religiously motivated arson” and assault.

As reported by Reuters:

French police shot dead a knife-wielding Algerian man who set fire to a synagogue and threatened police in the city of Rouen on Friday in the latest antisemitic attack, officials said.

France, like many countries across Europe, has seen a huge spike in anti-Jewish acts since Hamas' Oct. 7 attack on Israel and Israel's military response in Gaza.

 

New SEALS Faculty Recruitment Platforms

Posted on behalf of SEALS:

The Southeastern Association of Law Schools is excited to offer a new set of free services to the law teaching community, including and especially prospective members who are interested in joining legal academia.  For it to be effective, we must get the word out and encourage candidates to register and schools to use it.  Please help us by circulating this information widely to your VAPs, alumni, and search committee members.

The SEALS faculty recruitment platform is now live with two new hiring portals.

• The Faculty Hiring Portal allows faculty candidates to indicate their interest in finding an academic job and permits faculty hiring committees to search for candidates who meet the school’s hiring needs.
• Meanwhile, the Visiting Faculty Portal allows current law school faculty to indicate their interest in visiting opportunities on a look-see, podium, or overload basis. Meanwhile, schools interested in hiring are able to create institutional accounts (a single law school account provides access to both portals) and view candidate materials.
• Finally, the Job Postings site is a bulletin for schools to advertise their various hiring interests and position details.

We welcome your questions and suggestions for the SEALS Faculty Recruitment Committee, which can be directed to committee chair Linda Jellum at [email protected].

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.

 

Bar reform in California. A promising start

Innovation in legal services is a slog.  One that rewards those who take the long view, and who can find some cautious optimism in a world of setbacks -- of protectionism, parochialism, inertia, and even the occasional crisis (financial; pandemic, etc) that knocks back fruitful experiments to the beginning or off the stage altogether.  This is at least as true of lawyer credentialing and the administration of the much-maligned bar exam.

And so we should welcome the interesting experiment just announced out of California.  The Golden State is eschewing its cooperation with the Nat'l Conference of Bar Examiners (NCBE), the organization based in Madison, Wisconsin -- peculiarly, given that this is the state that grants the diploma privilege to state law school grads, but I digress.  The NCBE has had an iron death-grip on the content, and many elements of administration, of the bar exams of states around the country.  The organization has not had a reputation for being especially innovation minded; nor has it been, in my experience, a constructive cooperator.  Anecdote: I was once in a meeting of twenty or so deans with the then-director of the organization, in the hopes of facilitating a useful exchange of student performance and bar data, data which has long been critical to a better understanding of where law schools fail, where NCBE and bar authorities come up short, and how we might improve the world for our students.  The response was, and this is mighty close to a direct quote:  "Well, we have high-level psychometricians at NCBE who work on these difficult issues and law schools (and other groups) couldn't possibly grasp the nuance of this performance information."  Us pea-brained deans got the message, and left without any optimism that law school/NCBE cooperation would be forthcoming.  About a dozen years later:  Same as it ever was.

Into this frustrating status quo comes California's decision to work internally on key matters of bar administration, including the possibility of an in-home version of the test -- something that so many grads pleaded for during Covid, and disabled grads would benefit from going forward.  Even more promising is the prospect that, in collaboration with Kaplan, Inc., California will develop some ambitious new types of content -- something that is really truly a "new generation" bar exam, which the NCBE has been touting with some fanfare for the last few years.  By way of context, I was involved in some conversations with state bar staff and an organization whose name I won't here disclose about the prospect of leveraging new ways of assessing knowledge, perhaps drawing from developments in gamification and AI/machine learning.  While I honestly don't know if this future-oriented discussion is part of this new initiative, I hope California will use all the big brains it can muster to give us novel, constructive ideas.

To be sure, this is a partnership with a company that has skin in the game.  I won't speak to either the incentives or the bona fides of Kaplan in regard, not for any cagey reason but just from a dearth of actual knowledge of the arrangement struck.  But I'll just say that the fact that California apparently knows what it doesn't know and seeks out external help from an organization other than one whose monopoly over bar exam ventures has hobbled innovation, is a promising development.  Many things betwixt cup and lip for sure, but we should watch with great interest what happens in California.  A failure will be a setback, but this natural experiment will yield valuable information.  That's what laboratories of experimentation are all about.  And if this succeeds, both in solving some serious financial problems that plague Cal Bar and in advancing the welfare of our graduates, that's a game-changer.  And change is what we need.

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Lawsky Entry Level Hiring Report 2024

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2024. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 International license, cited as Sarah Lawsky, Reported Entry-Level Law School Hiring Spring 2024, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2024/05/lawsky-entry-level-hiring-report-2024.html.

Here is the full spreadsheet:

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There were 117 tenure-track hires at U.S. law schools reported, at 76 different law schools.

Q: How does 117 reported hires compare to past years?

A: Roughly consistent with the last two years; at this point, 2014-2021 looks different than 2022-2024. The average number of hires per year in the full 2014-2024 span is 88. But the average number of hires per year in the 2014-2021 span (inclusive) is 76, and the average number of hires per year in the 2022-2024 span (inclusive) is 121.

It would useful to know the percentage of those on the market who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. The x-axis here is Hiring Year; thus, for example, if the Hiring Year is 2024, the FAR forms were released in 2023.

As that graph suggests, the hires per FAR form were roughly comparable to 2019 and onward; last year seems to have been an anomaly.

As is true every year, some people who received entry-level jobs and are represented in this data did not participate in the AALS/FAR process.

Q: You say the hires were at 76 law schools. How does that compare to previous years?

A: Comparable to previous relatively recent years.

Q: How many reported hires got their JD from School X?

Yale: 23; Harvard: 13; NYU: 8; Georgetown: 6; Chicago: 5; Berkeley: 4; Michigan: 4; Hebrew University: 3; Baylor: 3; Penn: 3; Virginia: 3; Fewer than Three: 41

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Chicago Kent; Minnesota; Northwestern; UCLA; Vanderbilt; William & Mary

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Adam Mickiewicz University; Alabama; Arizona; Arizona State; Brooklyn; Cardozo; Columbia; FGV Direito São Paulo; Geneva; Houston; ITAM; Kogi State University; LSE; Lahore University; Marie Curie-Sklodowska; McGeorge; Nanchang; Nat'l Law University Jodhpur; Notre Dame; Ohio State; Pepperdine; Reichman; San Francisco; Stanford; Tel Aviv; Tennessee; UNLV; Universidad Torcuato Di Tella; Washington & Lee

A high percentage of hires every year get their degree from Yale, Harvard, Stanford, or NYU.

However, over time, many schools are represented as the source of entry-level hiring.

The schools with four hires include: BYU; British Columbia; CUNY; Cardozo; Chicago Kent; Indiana-Bloomington; Iowa; LSU; Tel Aviv; Tulane; USC; Washington (St. Louis).

The schools with three hires include: American; Arizona; Arizona State; Arkansas-Fayetteville; Baylor; Brooklyn; Davis; Emory; Florida; George Mason; Howard; ITAM; Miami; Mitchell Hamline; Northeastern; Pittsburgh; Pontificia Universidad Católica de Chile; Washington (University of).

The schools with two hires include: Cambridge; Colorado; East China University; Florida State; Georgia; Kansas; Kentucky; Lewis & Clark; Nat'l Law School of India; New Mexico; New South Wales; Nigeria Law School; North Carolina; North Dakota; Oklahoma; Oregon; Queen's University; Queensland; Reichman; San Diego; Seoul Nat'l U; Sorbonne; St. Louis; Suffolk; Thomas Jefferson; UNLV; Universidad Torcuato Di Tella; West Virginia; William & Mary.

The schools with one hire include: Adam Mickiewicz University; Ain Shams Fac of Law; Alabama; Aristotle U; Athens; Augsburg; Barry; Belarusian State U; Bonn; Catholic (Portugal); College of Mgmt Acad Stud; Cologne; Connecticut; Dayton; DePaul; Democritus of Thrace; Denver; Diego Portales; FGV Direito São Paulo; Freiburg; Fundacao Getulio Vargas; Geneva; Genoa; Georgia State; Ghent; Haifa; Hamburg; Hawaii; Hofstra; Houston; Humboldt; Idaho; Inter-American; Irvine; Kogi State University; LSE; Lahore University; Lisbon; Louisville; Loyola-Chicago; Loyola-LA; Loyola-New Orleans; Maine; Marie Curie-Sklodowska; McGeorge; McGill; Melbourne; Montana; Nanchang; Nat'l Chengchi U; Nat'l Law University Jodhpur; Nebraska; New Hampshire; Ohio State; Passac (Germany); Penn State; Pepperdine; Phillipines; Pontificia Universidad Javeriana; Richmond; Rutgers; SMU; San Francisco; Sao Paulo; Sapienza; Savannah; Shandong; Shenzhen; South Carolina; Southern; Southern Illinois; Sydney; Tehran; Toronto; Trinity; Tsinghua; Tulsa; UCL; Universitat Pompeu Fabra; University of Ljubljana; Utah; Vermont; Vienna; Wayne State; Whittier; Zimbabwe.

Again, this is a partial list, as over time I am certainly missing hires. This is just an aggregation of the information reported to me in the spring of the year in which I do each report.

And each year, there are relatively many unique schools represented.

The number of unique schools may be in part a function of the number of hires. Unique schools as a percentage of total hires is comparable to recent years. (This graph represents the number of unique schools from which hires got their JD in a given year divided by total number of hires for that year. If in a particular year there were five total hires, and each came from a different law school, the graph would show 5/5 = 100% for that year. If in a given year there were five total hires, and three of those hires came from School X and two came from school Y, then the graph would show 2/5 = 40% for that year.)

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued.

Q: How many reported hires had a fellowship, degree, or clerkship?

88 (about 75%) had a fellowship; 57 (about 49%) had a clerkship; 70 (about 60%) had a higher degree. 5 people had none of these credentials. The percentage of each of these credentials was consistent with but slightly lower than percentages in recent years.

Venn diagram. Of the five people who did not have a fellowship, clerkship, or advanced degree, at least four of the five had significant, extensive academic experience (three were non-tenure-track to tenure-track hires and one was a current professor in another field).

Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--last year seems to have been an anomaly.

Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

NYU: 16; Harvard: 14; Stanford: 5; Columbia: 5; Penn: 4; Chicago: 4; Georgetown: 4; DePaul: 3; Gonzaga: 3; UCLA: 3; Yale: 3; George Washington: 3; Berkeley: 3; Fewer than Three: 39

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees.

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 70 “highest” advanced degrees broke down like this:

Doctorate: 41; Masters: 21; LLM: 7; MBA: 1

Topics ranged all over the maps. For the 41 Doctorates, a number of topics had multiple hires, including Law: 16; Philosophy: 6; Political Science: 6; History: 4; Health: 2. The other doctorate topics, each of which had one hire, were Education; Psychology; Finance; Literature; Religion; Sociology; Environment.

Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

82% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. The percentage of reported hires with doctorates is roughly comparable to years since 2017, though still below 40%.

The percentage of doctorates who also had a fellowship is 80%, which is comparable to recent years (except for last year).

Q: How long ago did these reported hires get their initial law degrees?

Zero to Four Years (Graduated 2020-2024): 16; Five to Nine Years (Graduated 2015-2019): 49; Ten to 19 Years (Graduated 2005-2014): 45; Twenty or More Years (Graduated before 2005): 6

Q: How do the "years since initial degree" numbers compare to previous years?

Consistent with prior years.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this report is certainly missing some information. It is without question incomplete. If you are aware of an entry-level hire who is not reported, please let me know and I will add that person.

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about entry-level hires reported to me as of the spring before the school year starts.

Originally posted 5/14/2024. Updated 5/15/24 to fix the JD school over time graph and add text for schools with fewer than five hires over time. Updated 5/16/24 to add hires and add text related to NTT to TT hires. Updated 5/29/24 to add one fellowship to fellowship school information. Updated 6/1/24 to fix FAR/percent graph. Updated 6/14/24 to add hires and to update the averages information in the "reported hires" question. Updated 5/19/24 (approximately), 5/23/24, 5/31/24, 6/1/24, 6/11/24, 7/2/24, 7/19/24 to add hires.

2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) San Diego September 13-14, 2024 - book your hotel with group rate

Dear Friends,

This is a reminder that the 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held in San Diego on Friday, September 13 - Saturday, September 14, 2024. The host schools are California Western School of Law and the University of San Diego School of Law. We hope you will calendar these dates and plan to attend.

An event webpage should be available for registration and abstract submission in the next 2 - 3 weeks. This works-in-progress event does not require submission of a paper, but we do ask that you provide a paper abstract so that submissions may be organized thematically into appropriate panels. We will post again once the 2024 COSELL registration webpage is live.

In the meanwhile, we have reserved a block of rooms at the Marriot Courtyard San Diego Old Town, which is equidistant from both host campuses. A reservation link  appears below. The start date for the US$194 per night conference rate is Thursday, September 12, 2024. The end date is Saturday, September 14, 2024. The last day to book is August 13, 2024.

Here is the the link for the hotel registration:

Book your group rate for CoSELL Conference 

If you have difficulty with the link or any other questions, please contact Susan Bisom-Rapp ([email protected]) or Orly Lobel ([email protected]).

Warm regards,

Susan Bisom-Rapp, Dean Steven R. Smith Professor of Law, California Western School of Law

Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment & Labor Policy, University of San Diego School of Law

The Judges' Boycott of Columbia University is Bad, Bad, Bad

My new essay for The Hill explains why 13 Trump-appointed judges are wrong – in so very many ways – to boycott graduates of Columbia University. Here is the gist:

In an open letter to President Minouche Shafik, 13 Trump-appointed federal judges have announced that they will not hire graduates of Columbia University because the campus has become “ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints.” 

The boycott, including undergraduates and law students, is irrational, self-defeating and unethical — with no redeeming features.

Savvy judges should easily be able to weed out any bad actors unless they believe there is a conspiracy among Hamas supporters to establish sleeper cells in judicial chambers. Even Fox News hasn’t gone that far.

Law clerks and other staff are public employees, provided to judges for assistance in deciding cases. It is flatly improper to use the positions as a reward, or punishment, dangled before third parties to bully their compliance with a judge’s ideological agenda.

You can read the full essay at The Hill.

Desuetude

Recent discussion on the possible revival of the Comstock Act got me to thinking about desuetude doctrine. Though there is no federal version of that idea, there are state cases where courts say that a criminal statute cannot be enforced due to desuetude. One example is State ex rel. Canterbury v. Blake, a 2003 West Virginia Supreme Court case. In applying desuetude there, the Court said that three factors were pertinent:

(1) The statute proscribes only acts that are malum prohibitum and not malum in se;

(2) There has been open, notorious and pervasive violation of the statute for a long period; and

(3) There has been a conspicuous policy of nonenforcement of the statute.

 

Anyway, food for thought.

 

 

Saturday Music Post - Crashes

Surprisingly many musicians have died in plane crashes, including some who are less well known than the stars.

Today's clips are at The Faculty Lounge.

 

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

Why I (Probably) Won't Sign the Statement from Jewish Faculty Opposing the Antisemitism Awareness Act

There are now nearly 800 signatories to the "Statement from Concerned Jewish Faculty Against Antisemitism," but it presents a tough problem for me. I agree with the bottom line that the "Antisemitism Awareness Act," already passed by the House, should be defeated in the Senate or vetoed by Pres. Biden, because it is wrong to codify the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism. The IHRA definition has much to commend it as an educational tool. By its own terms, however, it was intended to be "non-legally binding," and it would be a mistake to make it legally enforceable.

The Statement goes further, however, inaccurately stating that the IHRA definition “conflates antisemitism with criticism of the state of Israel.” In fact, the IHRA definition simply points out that criticism of Israel may be antisemitic, which is unquestionably true, and that "criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic." That is the opposite of conflation.

The Statement is signed by many people I respect, but it also includes Judith Butler and Gabriel Winant, who have no credibility on antisemitism, among others with whom I do not care to associate.

So this is a tough one for me. The Antisemitism Awareness Act would do more harm than good, but the Statement from Concerned Jewish Faculty also misrepresents and undermines the IHRA definition even for educational purposes. I am still undecided, but leaning against signing (the default being inaction).

The Federal Judge Who Put an Innocent Child in Handcuffs Has Been Disciplined, Sort Of

Howard recently posted about the sanctions imposed on Judge Roger Benitez for placing a defendant's 13-year-old daughter in handcuffs, purportedly to teach her a lesson about drugs. He and I had an earlier exchange about whether Benitez would face meaningful consequences. Well, the Ninth Circuit Judicial Council has now issued a disciplinary order, leading Howard to explain that he will "leave it to those who study judicial ethics to opine on whether any of this constitutes 'real consequences.'"

I now have a new column in Slate about Benitez, who has finally been disciplined, sort of.

Here is the gist (I did not write the headline):

A Judge Had a 13-Year-Old Girl Handcuffed for No Reason. A Year Later, He’s Faced Basically No Consequences.

[Benitez] implausibly denied that he had done anything to “demean or shame” Puente’s daughter, as though standing in a crowded courtroom, weeping and handcuffed, while receiving a lecture on drug use, was something an innocent child could be expected to endure without humiliation.

“Trying to help a 13-year-old girl,” Benitez maintained, “can’t be judicial misconduct.”

While the [judicial council's] condemnation of Benitez’s conduct was unequivocal, the consequence did not match the offense.

In a typical criminal case, for example, a defendant’s lack of remorse would call for a significant sentencing enhancement, and Benitez showed no contrition.

Nonetheless, the judicial council issued only a public reprimand and prohibited Benitez from presiding over new criminal cases for three years.

A more fitting penalty also available under the law, although unmentioned in the judicial council decision, would have been to suspend Benitez from presiding over any cases at all “for a time certain.”

Perhaps 10 months completely away from the bench—the same length of time to which he sentenced Mario Puente—might bring about some serious and much-needed reflection.

You can read the entire essay on Slate.

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024.  The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2024.

Constitutional Compromise

It's a game for kids (4th-6th grade) that you might like. Here is the link.

The AAUP Continues Its Policy of Antisemitism Denial

As an AAUP member, I recently received an email from President Irene Mulvey regarding the "Crisis on Campus." She commends various AAUP chapters for "standing up and speaking out to defend free speech and peaceful protests on our campuses and for condemning in the strongest possible terms the repressive and violent militarized responses ordered by college and university administrators." She does not mention the protests that have interfered with other students' access to university facilities, or the incidents of harassment directed at perceived "Zionist" and visibly Jewish students.

Regarding antisemitism, Mulvey says: 

The AAUP has been clear that antisemitism and hate have no place on our campuses or anywhere. On many campuses, criticism of a war and the policies of governments and institutions, including criticism by Jewish students, is being conflated with antisemitism.

She says nothing about the documented incidents of non-conflated antisemitism, such as the blood libel against Berkeley Law Dean Erwin Chemerinsky or the similar poster depicting Northwestern's President Michael Schill with horns. A recently opened civil rights investigation at UC Berkeley conflates islamophobia with a law professor's attempt to ensure civility in her own backyard. Will we see an objection from the AAUP?

The link in Mulvey's email goes to a single tweet, which reads:

Here’s a quick thread clarifying the AAUP’s stance on antisemitism.

The AAUP views the growth of antisemitism as a severe threat which can & should be addressed under existing civil rights laws as religious or race discrimination.

That's it. The AAUP's stance is that antisemitism should not be recognized as a unique phenomenon, with a unique history, even though, as I explained here, it has features that transcend, and cannot be adequately covered, by religious or race discrimination laws.

In other words, the AAUP is firmly opposed to antisemitism in the abstract, but takes no notice of it in the real world, where it is invariably said to be either nonexistent, weaponized, or impermissibly conflated. 

Nor has the AAUP made similarly dismissive statements about other forms of discrimination -- such as genetic information, parental status, domestic violence victim status, or use of worker's compensation -- that are often enshrined in universities' conduct codes.

Likewise, the AAUP called on university administrations to refrain from issuing statements about Hamas's Oct. 7 terror attack on Israeli Jews, in order to maintain neutrality, while saying exactly nothing about the scores of Palestine solidarity statements that university units -- including over 130 gender and feminist studies departments, among many others -- have issued for years.

It gets worse. Mulvey goes on to say,

Suppressing speech or silencing peaceful protest in the name of safety is antithetical to the mission of higher education to promote free and open expression, inquiry, and debate. 

We all know that the invocation of emotional "safety" has been overused and abused by students and DEI programs to shield students from all manner of merely uncomfortable speech. It would be good to eliminate it from the lexicon of student services. The AAUP, however, repudiates student "safety" only when it is invoked to protect Jewish students. The longstanding use by other minorities to suppress or discourage speech has not been challenged by the AAUP.

To be sure, antisemitism has lately been exploited as a wedge issue by opportunists in Congress. The now-pending Antisemitism Awareness Act goes much too far by requiring use of the International Holocaust Remembrance Alliance's definition of antisemitism "for the enforcement of Federal antidiscrimination laws." The IHRA definition has much to commend it as an educational tool, but it was not intended to be enforced and should never be written into law.

The AAUP quite rightly calls itself the “most prominent guardian of academic freedom” for faculty and students in the U.S. Its cursory approach to antisemitism -- which is typically acknowledged in a single-sentence platitude, or less, followed by a much longer disclaimer -- is a deeply troubling reflection of contemporary politics on the left, which undermines the organization's reputation for objectivity. Even so, the AAUP otherwise plays an invaluable in irreplaceable role in academic life. I intend to maintain my membership and I encourage others to join.

Is Boycotting a University the Best Means of Criticizing it? Is it Even a Good One?

The federal district court judge who served as the speaker at my law school's graduation ceremony yesterday--congratulations to our newest alumni!--gave a speech that was in turns funny and moving. In the latter category, he shared a couple of incidents from his life, including serving as a bone marrow donor, to remind our graduates to look for those moments when your gut is telling you to do something and seize them as opportunities to do the right thing. I appreciated his sharing the recollection and admired him for his donation. But I don't recall him issuing a press release about his donation; his goal at that moment, I'm sure, was to help someone and not to self-aggrandize. That is a good quality in a judge, since for the most part judges, like pets and children, are at their best when they're fairly quiet and avoid calling attention to themselves. It's a classic judicial trait, partly as a matter of disposition and partly as a matter of office and ethics. 

Then there is Judge James Ho, who once again is co-signing and, of course, trumpeting a boycott announcement. This one says that he and other co-signers "will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024." The boycott shares several things in common with the current demands of student protesters. One is the letter's overwrought prose, and its self-seriousness--which always risks becoming a form of self-regard. Another is its sweeping nature, which embraces the guilty and innocent alike. A third, perhaps, is its assumption that there are no innocents, because any students who choose to become members of that institution are ipso facto guilty. Another is a ready willingness to attribute motives to others. There is also the fact that it makes demands vague enough that there is no clear gauge for their satisfaction, so that one can continue one's boycott for as long as one wishes and end it just as easily (although probably much more quietly). 

Yet another is an imperfect regard for accuracy. As Josh Blackman notes at the Volokh Conspiracy, Justice William Brennan did not "refuse[ ] to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty." Rather, as Blackman helpfully points out, quoting Owen Fiss, Brennan "decided to end his practice of hiring his clerks, as a matter of course, from Harvard." The key language is "as a matter of course." Brennan, like some justices before him, had previously effectively contracted out the job of clerk selection to a professor at a single school, in this case Paul Freund at Harvard. After he "became somewhat disillusioned with his alma mater," he changed his practice. He no longer selected Harvard graduates "as a matter of course," but began looking at clerks from other schools, while still also hiring Harvard graduates, although at a slower clip. (The "somewhat disillusioned" quote is from Stephen Wermiel's article on Brennan and his law clerks. Wermiel agrees with Fiss's explanation that faculty reactions were at the root of Brennan's disillusionment. Illustrating that recollections like Fiss's are not history and should not be taken as the whole story, however, Wermiel notes other bases for dissatisfaction on Brennan's part, and adds that Brennan had faced pressure for some time not to select his clerks from one school only.) Judge Ho is still a young man, and so we might excuse a little inaccuracy here and there just as we excuse it for feckless young student protesters: by saying "they're just kids" or "it's just a little exaggeration for effect." I prefer to think that people of legal age who come from fancy schools are responsible for their own words and actions, and that if you're going to close a statement with a flourish, you'd better stick the landing.     

Finally, there is the simple fact of seeing the boycotts of institutions, and specifically the application of that boycott not to institutional leaders or the institution qua institution, but to its members--including, say, 18-year-olds rendered guilty by choosing to attend that institution--as a useful approach. I can't say I agree. For one thing, at least in this context, it's rather elitist in its treatment of elite schools. I not concerned, for present purposes, about some thoracic surgeon's kid who ends up choosing among Columbia, Stanford, and Penn. But I don't begrudge the decision to go to a school like Columbia to a smart kid who got into only one such place, or a smart kid with no means who only got into one that would offer enough scholarship money to make it viable to go there. And it gives short shrift to the other reasons people choose particular schools, even fancy-pants ones, beyond their general elite status. It doesn't really make much difference what law school you go to: a smart, hard-working young man or woman can fail to learn the Rule Against Perpetuities all across this great country of ours. But it matters for other sectors of university education. It does matter when a particular program is only offered at some schools (maybe the student wants to study at a school where freshmen still have a Great Books requirement!), where there are qualitative differences in approach or focus between schools in particular departments, and so on.

But these are secondary concerns. I simply doubt that boycotting a school is the best means of either criticizing it or reforming it, and a good deal of the time I doubt whether it's even a particularly good one. People who care--actually care--about institutions would much rather see them meaningfully strengthened and steered back onto the right path than withered and gone, or given over to those who would remake them in ways that would further detract from the core functions of that institution. That requires involvement, not the back of the hand. And that's especially true for students. Their exercise of voice will be much more powerful coming from within that institution, and their use of exit will be of limited importance. And, however much the letter may be addressed to the president of Columbia, it's the prospective students the boycott is addressed to in its effects. Even now, some students are choosing to attend Columbia not because of, but despite, the tents or the cops or any other distractions, and for sound academic reasons. I would just as soon not put them on some list by virtue of guilt by association, or treat their choice as necessarily tainted because of it.

Ultimately, the letter seems to me to be much closer in spirit to those student protesters who do seem to reject the idea that institutions, and nations, are varied and complex, and that individual decisions to participate in them are varied and complex, and instead prefer to slather the concept of moral complicity on everything with the gusto of a starving man with a jar of peanut butter.

(What justification those students--or faculty--can claim for continuing to be associated with these schools is another matter. Given some of the views that have been enthusiastically expressed on the topic of moral complicity, and given that the protests merely called attention to features that they claim are longstanding and persistent, the choice to attend or teach at such an institution rather than withdraw or resign from it is much more morally dubious for individuals holding these views. One wonders at the fact that there has not been a much larger faculty exodus from Columbia and other similarly “complicit” universities, or that students at elite universities who hold such views do not balk at attending them.) 

Although I agree with Josh that the letter writers close their announcement with an inaccuracy, I can't say I agree particularly with him that it was "fitting" that the announcement was issued on Holocaust Remembrance Day. Since there is no single Jewish view on this (or just about any other) question, I don't begrudge him a different view. As a Jew, though, I will note that although anti-semitism is mentioned in the letter, twice, on the whole it barely figures in it. I don't question the letter writers' sincerity. But given the passel of other issues it raises, and the general sense that it's just another routine salvo in the culture wars, I can't help but feel that--despite the fact that it happened to be issued on Holocaust Remembrance Day--Jews occupy a wholly familiar role in the letter: an incidental and convenient one, in which we are mere objects and not subjects. Thanks all the same, but I'll pass.     

Writers Attacking Pen America over Israel Are Burning Down Their Own House

My new essay on the inexcusable boycott of Pen America has been posted at The Hill.

Here is the gist:

Writers attacking Pen America over Israel are burning down their own house

Almost tragically, a hard corps of American writers — some prominent, others emerging — have, evidently, set out to all but destroy Pen America for the perceived sin of being insufficiently condemnatory of Israel’s Gaza war. 

There is a crucial scene in “A Man for All Seasons,” Robert Bolt’s iconic play about the role of integrity in human affairs, when Sir Thomas More explains his unwavering principles to a disbelieving William Roper: 

More: “What would you do? Cut a great road through the law to get after the Devil?” 

Roper: “Yes, I’d cut down every law in England to do that!” 

More: “And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat?” 

To the writers who would flatten Pen America for the offense of insufficient demonization of Israel: Where will you find a champion, should the zeitgeist turn ‘round on you? 

You can read the entire essay at The Hill.

Saturday Music Post - Reason to Believe

"Reason to Believe" was written and recorded as an album cut by Tim Hardin in the mid-1960s. It was covered on albums by The Youngbloods, Peter Paul & Mary, and even Peggy Lee, but it did not become widely known until Rod Stewart released it as a single in 1971. Interestingly, it was originally the A side of a record with "Maggie May" on the B side. Both were hits, but "Maggie May" made it all the way to number one on the Hot 100. Yes, I should have included that in my earlier post about two-sided hits.

The clips are at The Faculty Lounge. And because today is Kentucky Derby Day, there is a bonus clip at the bottom of the post.

The Papers of Bushrod Washington--Digital Edition

This week Mount Vernon launched a new website dedicated to Justice Washington. Check it out.

UPDATE: There is a long-felt but unmet need for a similar project on John Bingham.

State law jurisdictionality

I have written a lot on why the failure of a federal claim on the merits should never (even if the claim is frivolous) be a basis for destroying jurisdiction. I had not thought about how the problem might arise in diversity cases because the jurisdictional facts (party citizenship and amount-in-controversy) have no connection to the underlying merits of the state-law claim.

The Fourth Circuit wrestled the issue in a worker's comp claim. State law strips state courts of jurisdiction over certain tort claims and places them within the jurisdiction of a state agency. So what happens when the injured plaintiff files an otherwise-barred tort action in federal court? Obviously the plaintiff must lose--an unguided Erie analysis requires the federal court to apply state law. But will the federal court dismiss on the merits or for lack of jurisdiction? The district court said the latter, the Fourth Circuit said it must be the former. The court had jurisdiction under § 1332 and state law cannot expand or limit the jurisdiction of federal courts. Thus, the unavailability of the claim under state law is a merits failure in federal court.

This may be right, but I need to think on it. The court is right that the jurisdictional inquiry in federal court begins and ends with § 1332. But there is something odd about the state-law dismissals being for different reasons in federal and state court. And does a merits dismissal have the preclusive effect that a jurisdictional dismissal does not, especially the defendant tried to get to fed court by removing.

"Peaceful Protest" and "Non-Violent Protest"

Campus protest season is winding down, unevenly, unprettily, and sometimes unlawfully, and for a variety of reasons, not least the academic calendar, which is the eternal annual balm for campus unrest. My views on the propriety of the conduct of both protesters (and counter-protesters) and universities are determined and bounded by my sense of  the First Amendment's demands, and also by my sense of the role of universities and the norms that should govern in that institutional space. But I would like to make one point.  

The point may feel somewhat semantic, but it clearly feeds into the understandings of both the participants and the wider public. The phrase du jour was "peaceful protests." That's a pretty imperfect phrase, or at least one that requires further specification. It seems to me to elide the difference between "peaceful protest" and "non-violent protest." At least based on what I have read, there is an excellent argument that the vast majority of protests and protesters were engaged in non-violent protest. Of course one can engage, if one wishes, in arguments about what constitutes "violent" protest, with potential pushback from two sides. One is the conventional contemporary argument that violence to property can never be considered violent as such. As a strictly intuitive matter--as a question of how I would fit some example into my perhaps eccentric mental schema--I doubt I'd think of spraying graffiti on a building as "violent" simply because it constituted damage to property. I would think of shattering the windows of a building or breaking down its doors for purposes of breaking into and occupying it as "violent," even if no people are harmed. I would think of it in those terms, not to put too fine a point on it, because it is violent, and the argument to the contrary is bosh. From the other side comes the argument that any protest, or any slogan, that is emotionally or psychically harmful to some audience is violent. I am equally unpersuaded by this line of argument. Whether "from the river to the sea" is a just slogan or a stupid one, it is not "violence."  

But there's a difference between "non-violent" and "peaceful," I think. And the statement that many protests were non-violent but not necessarily peaceful seems like an accurate summation--and one that's more accurate than simply using the blanket description "peaceful protests." Of course many protests were both peaceful and non-violent. But if, as was sometimes the case, protests were sufficiently loud and disruptive; if students, faculty, or staff were prevented from going whither they would on campus, sometimes because a space was occupied and sometimes by a degree of mobbing; or, no doubt, if other conditions were met--then I think it would be more accurate to call those protests non-violent than to call them peaceful. (Likewise, many counter-protesters were non-violent but not peaceful. I would add that I began writing this post a few days ago, before recent counter-protester action that was clearly and disturbingly violent.)

Is it a side issue? Yes and no. The First Amendment protects protest in many ways, just as it generally protects many other forms of expression. And it generally draws the line at violent activity, not just for protest but for other forms of expressive conduct. But there is no absolutely protected category of "peaceful protest," not least because "peaceful expression," whether in general or with respect to protest in particular, is not in itself an absolutely protected category. It is always potentially subject to any number of limitations. Not least among them is the difference between public and private property, but even on public property that has been since "time out of mind" used for protests and other forms of assembly, there are, among other things, permissible time, place, and manner restrictions. One may argue quite reasonably that the permissible spaces for that expression have shrunk, and that the courts should take a different and more expansive and protective approach to speech in those spaces. But it is beyond question that permissible limitations existed even when the courts were at their high-water mark in lauding and protecting protest, and would even if the legal landscape changed.

In that sense, what to call the campus protests is, legally speaking, close to irrelevant, although both the protesters and others seemed to place a great premium on the allegedly sacrosanct legal status of "peaceful protest." But a protest has always been, and certainly is these days, not just a thing in itself, but an object for media consumption, in which it is not just described, but branded, marketed, and propagandized from all directions. To convey and sell a mental picture of utter placidity and harmlessness, it is more useful to call a protest "peaceful" than merely, and somewhat pregnantly, "non-violent." The protesters, and their advocates (among whom I count myself as to some but not all of their conduct), surely appreciated this. More accurately, probably, some of them appreciated the strategic value of the right label and thus pushed "peaceful protest," and many others simply absorbed it and took it for granted. But it's an imperfect label and we should question it, regardless of one's conclusions about the legality or morality of particular protests.

One other point. I try to avoid the Other Place, but someone sent me a tweet by Scott Shapiro, a legal theorist at Yale, who wrote, "Now that Hamilton Hall has been cleared, Columbia students can go to class and learn about the glories of liberalism." Far be it from me to argue with a legal philosopher, or just about anyone else, about the nature of liberalism and its merits and demerits. And quips on Twitter, along with anything else written there, should not be paid undue attention. But it seems to me this quip nicely achieves two layers of irony. The first is what I assume is the obvious and intended one. The second-layer irony, however, is that whatever else one might say about the manner of retaking Hamilton Hall from those who occupied it, the general fact of retaking a university building that has been forcefully occupied by students, and doing so through the threat or use of state force, is entirely consistent with liberalism. Perhaps the second layer was intended too, even if its audience does not seem to have appreciated it that way. Of course one is free, in our liberal society, to make up one's own mind about whether this counts for or against liberalism.     

Recruiting activists

Tyler Austin Harper, a professor of environmental studies at Bates College, argues that colleges promoted themselves to activist students as places that encouraged and celebrated activism and protest, making recent university actions a greater betrayal. Orin Kerr offers thoughts, grounded in his prior view that university views about protest changed when the topic of protest shifted to non-consensus issues (as Orin puts it, when "one person's protest for justice is another person's collective attack on their identity").

Harper assumes any commitment to activism and protest includes the right to civil disobedience without consequence--including occupying and camping in campus buildings and public spaces. There is no difference in permissibility between Columbia students barricading themselves in a campus building (without food) and UT students milling on the quad shouting stuff. By promoting their histories of activism and selling themselves as places students could engage in activism and protest ("trad[ing] on the legacy," Harper says), schools gave students permission to engage in all forms of protest--lawful and unlawful, including occupying buildings--when they believe the cause worthy. And schools reneged on their commitment by stopping the occupations and expelling or sanctioning students for conduct that violates otherwise-neutral school regulations.

I think this has two problems. It effectively means universities ceded control of campus spaces if and when students want to occupy them. By offering students the opportunity protest and engage in activism as the carrot to get them to enroll, they offered preferred access of campus spaces for their expressive use. And if the universities did not surrender all control, they limited their ability to regain control when activist students took over--no cops, no academic consequences, you can have it back if you put us on the committee that decides university investments. Second, it continues to treat civil disobedience as creating a free-speech immunity from sanction for violating content-neutral conduct regulations, rather than either: 1) a drag on how quickly or forcefully universities should act (urging some "leeway") or 2) students willing to risk sanction to highlight an injustice and effect change.

A possible response to what I just said: By celebrating past civil disobedience, universities confess error for cracking down on those protests. They thus promised to do better, to not repeat past administrations' mistakes, and to allow occupations because--as 1968 showed--they change history. I like Orin's reply: Administrators assumed "students hold the protest, break a rule here or there for a bit, and then go back to the status quo," whereas recent events appear more aggressive, more interfering, and more permanent--and schools did not know how to react. I think this jibes with my idea above--universities give students leeway to break small rules for a short time to shout themselves out, unless the occupation never stops.

Marco Rubio and the Twelfth Amendment

Senator Rubio may be under consideration to be Donald Trump's running mate. An objection to that idea is that Trump and Rubio both live in Florida. As a result, that ticket would violate the 12th Amendment. But that claim is wrong.

The relevant point in time for the 12th Amendment rule is when the electors vote. Before December, Senator Rubio can change his legal residence to DC, where I assume that he has a house or an apartment. Probably that would happen in November if and only if Trump wins, when you also might expect Rubio to resign his Senate seat.

The upshot is that there is no practical constitutional barrier to a Trump/Rubio ticket.

"Violence" at UCLA

As UCLA's Joey Fishkin pointed out at Balkinization, the media reports of “violent clashes on campus” used passive voice to obscure what was actually an attack on the protest encampment by a gang of pro-Israel thugs. This is completely in accord with an eye witness account I received from the emeritus rabbi of the UCLA Hillel:

The instigators were clearly the pro-Israel thugs. They had already demonstrated their penchant for violence on Sunday as part of the Jewish Federation’s effort to demonstrate its support for Jewish students (btw, no one asked them for this support and they were asked by Hillel not to come). These ‘thugs’ included a chasid(tzitzit flying) who was waving a big yellow flag that proclaimed Moshiach with one hand and spraying some substance with the other. The pro-Israel mob threw firecrackers, parts of the barrier, 2x4’s and other projectiles aside from attempting to break through to the encampment. At times you could only hope that no one would get killed. 

I watched the confrontation for 2 1/2 hours and I didn’t see any violence that was initiated by those in the encampment. I will check on the young woman to determine what happened. But, while certainly condemning her beating, the aggression was overwhelmingly from the pro-Israel side.

I just got off the phone with a Jewish student who wants to organize a statement condemning the Jewish initiated violence last night.

All the best,

Chaim

****

Rabbi Chaim Seidler-Feller

Director Emeritus,UCLA Hillel

I have been very critical of the antisemitism displayed by some of the protesters (more on that next week), but there is no excuse for physical attacks against them.

No Advice and Consent

A convention of American politics is that new presidents get their Cabinet picks and other executive appointees confirmed. Every so often a person is rejected, but that's rare. But let's try out a thought experiment.

Suppose President X is elected. The Senate is controlled by the other party. They refuse to confirm any executive appointments unless and until certain demands are met. The new President is thus stuck with holdovers from the prior Administration or civil servants. This would effectively remove the President's removal power of his subordinates and make him far weaker. Yet this is constitutional--the Senate is not required to confirm anybody. 

Judge sanctioned for handcuffing teenager

In March 2023, Steve and I had an exchange about Judge Benitez (S.D. Cal.), who probationee's daughter handcuffed and placed in the jury box during a revocation hearing, purportedly to teach the girl a life lesson. Steve and I debated whether judicial immunity would protect Benitez in a damages action and Steve worried that he would suffer no real consequences.

Fourteen months later, we have something: The Judicial Council of the Ninth Circuit reprimanded Benitez; prohibited Benitez from taking new criminal cases for three years;* and allowed defendants in pending or future probation-revocation hearings to move to recuse Benitez, with the motion going to the Chief District Judge.

[*] Relatively meaningless, because Benitez took senior status in 2017 and no longer takes new criminal cases.

I leave it to those who study judicial ethics to opine on whether any of this constitutes "real consequences."