PrawfsBlawg

Law faculty life

Two items on law teaching:

1) Orin Kerr posts a Twitter poll (with all the usual caveats) asking about school culture: Spend time at school; teach-and-go-home; somewhere in the middle. Only about 30 % of respondents answered, with teach-and-go-home narrowly edging middle and both doubling up spend time at school. I am a bit surprised that the teach-and-go folks were honest and did not choose middle to try to sound better. There likely is a gap--real or perceived--between what an individual faculty member would say about herself and what she says about the school's culture (the question asked). I think it is easy for an individual to make herself sound better than the general culture. Orin speculates that the move from presence began with the internet and never returned after COVID and that it varies in urban and non-urban schools.

2) As recruitment-and-hiring season nears, I saw a discussion somewhere about how soon after callbacks schools do or should notify those people who will not be hired. People believe schools have at least a courtesy obligation to notify rejected candidates relatively soon after the callback. I see the point, especially for people trying to figure out whether to accept an offer from another school or what their next steps will be. But it is worth noting that different universities, especially public, operate under different rules. Some universities have rules that a candidate is not rejected until the search closes and the search does not close until the job is filled. So while it might be courteous for schools to notify failed candidates soon after it is obvious they will not be hired, it is not always possible.

The Loughridge/Butler Report

I've written several posts over the years about the dissent  to the House Judiciary Committee's 1871 Report rejecting the argument that the 14th Amendment gave women the right to vote. This dissent, written by Representative William Loughridge of Iowa, is one of the most remarkable constitutional arguments ever made. It's basically the Harlan Plessy dissent for gender equality.

Now I've finally figured out how to write a paper on this dissent, which I will start writing as soon as I finish cleaning up the Steel Seizure concurrence book manuscript. More on that soon.

Separation of powers and judicial aggrandizement

Interesting piece in the Yale Journal of Regulation: Notice and Comment on Justice Sotomayor's  Jarkesy dissent accusing the majority of judicial aggrandizement. The idea is that the Court has aggrandized its power to become the arbiter determining the scope and separation of everyone else's powers, ignoring that the judiciary is an interested actor in the inter-branch dance and dialogue.

I make a similar point in Fed Courts about standing--separation of powers cannot serve as the "single basic idea" supporting standing doctrine, at least in statutory cases. When Congress authorizes a statutory cause of action for judicial resolution and the Court declares that invalid, the Court aggrandizes to itself the power to control the terms of the separation of powers debate. True, standing limits reflect the Court aggrandizing in the name of surrendering and minimizing its future power--judicial aggrandizement in the name of judicial limitation--whereas Loper and Jarkesy aggrandize in the name of adding to the power courts exercise in the future at the expense of the executive. Framed differently, however, judicially imposed standing limits aggrandize the judicial power to stop Congress from telling the courts what to do and when to do it.

Saturday Music Post - Good Golly Miss Molly

"Good Golly, Miss Molly" was written in 1956 by John Marascalco and Robert "Bumps" Blackwell -- the latter of whom is best known for producing Little Richard, Ray Charles, Sam Cooke, Lloyd Price, and Sly and the Family Stone, among others. I believe it was at least partially in conjunction with Little Richard, who claimed to have contributed the lyric "sure like to ball," substituting it for a milder line now lost to history. 

"Miss Molly" has been a standard cover almost since it was released in 1958. You can see some of them in today's post at The Faculty Lounge.

 

 

 

Another entry in the jurisprudence-of-sport canon (Updated)

Fischer v. U.S. wins the prize for "decision likely to gain media attention out of all proportion to its actual effect." The Court per the Chief (for Thomas, Alito, Gorsuch, Kavanaugh, and Jackson) holds that § 1512(c)(2) (enacted in Sarbanes-Oxley) is not a general obstruction statute but is limited to obstruction via doing something to things used in the proceeding, as in § 1512(c)(1). Because Fischer is a January 6 defendant, NBC News interrupted local programming to announce the decision, then say they have no idea how it will affect Trump or any other defendants. According to Ryan Goodman at Just Security, it affects at most 6 % of cases (many of whom may not push the issue) and it does not affect Trump.

Two points about the decision.

• The majority relies on two canons of construction--ejusdem generis (interpret a general catch-all term by reference to the specific terms preceding it) and noscitur a sociis (give a word more precise content by the neighboring words associated with it). I agree with Justice Barrett's dissent (for Sotomayor and Kagan)--neither applies to distinct provisions as opposed to a catch-all word at the end of a list within one provision. But what about in pari materia, requiring that distinct provisions on the same subject be read together? Wouldn't that provide a basis to understand the broad language of (c)(2) in light of the limitations in (c)(1)?

• The case adds a new entry into the jurisprudence-of-sport canon--and perhaps demonstrates the problems when judges talk about sports.

The Chief introduces the following rule in football: A player may not "grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player.” The Chief insists the "otherwise" clause cannot reach a linebacker trash-talking and hurting the feelings the quarterback, as the otherwise clause must be understood in reference to the dangerous conduct in the prior provision. Justice Jackson concurred to add that the rule cannot reach conduct at the other extreme--a player murdering or poisoning the quarterback would not violate the rule because such conduct is for the criminal law, not the rules of football.*

[*] I think this is wrong. If the linebacker shoots the quarterback, the game would stop and the linebacker would be arrested. But when the game resumes some time later, I would expect the refs to penalize the linebacker's team under this rule, as he did "otherwise attack, assault, or harm" another player. In a less absurd example, imagine the linebacker repeatedly punches the quarterback to the point of unconsciousness. The refs would apply the "otherwise attack, assault, or harm" rule to penalize him as part of the game in the moment, then the criminal law would step in following the game. (This is how it has worked in the rare cases in which states have brought criminal charges for on-field conduct).

Barrett has the better argument on this. The connection between the two provisions of the football rule is closer than between (c)(1) and (c)(2). The football rule reaches all physical conduct directed at and injurious of a player--the first part prohibiting conduct against the player's equipment and the second prohibiting other physical conduct against the player. Section (c)(1) targets objects in the proceeding while (c)(2) targets the proceeding itself.

Barrett then offers her own football rule (she did teach at Notre Dame, after all) and does a better job of it by coming up with a football rule that mirrors § 1512(c):

Any player who:

    (1) punches, chokes, or kicks an opposing player with the intent to remove him from the game; or

    (2) otherwise interrupts, hinders, or interferes with the game,

shall be suspended.

The first clause deal with attacks on the player (which would interfere with the game) while the second deals with acts other than attacking an opposing player that also interfere with the game, such as tackling a referee. Similarly, § (c)(1) deals with attacks on documents that interfere with the proceeding while (c)(2) deals with other acts interfering with the proceeding.

Again, maybe judges need to stop talking about sports.

Update: A reader points me to the opening scene of The Last Boy Scout with Bruce Willis, in which a running back shoots the defenders trying to tackle him as he carries the ball. I added the video after the jump.

 

Admin Law and Fed Courts

A colleague asks how the new administrative-law decision--Loper Bright (overruling Chevron) and Jarkesy (securities fraud claims for civil penalties must be in Article III courts with a jury)--will affect my Civ Pro or Fed Courts courses. Given the siloing of the curriculum, the answer is not much.

For my purposes, Jarkesy is a bigger deal. I spend time on non-Article III tribunals (with a "take Ad Law" admonition), including the public-rights doctrine. Jarkesy represents the first time the Court has rejected public rights as to claims involving the U.S. as sovereign. So last year was relatively easy, as reflected in Sotomayor's dissent--public rights apply to disputes involving the U.S. as sovereign and to private claims intimately tied to a statutory scheme involving public benefits. (Alternatively, I like this framing from John Golden and Thomas Lee). Whatever the uncertainty about the latter category's boundaries, Congress could direct disputes involving the U.S. outside of Article III. Jarkesy destroys that certainty, if the claim (and remedy) can be described as "legal" in some sense. I also will have to introduce something of the Seventh Amendment into that mix.

I do not know enough ad law to comment on how Loper Bright and eliminating Chevron affects Article III courts. Perhaps they will see more cases challenging agency decisions, to the extent Chevron deference deterred some plaintiffs from pursuing more-difficult cases. And obviously the briefing and decisionmaking in those cases will change (as it will in the agencies themselves). It will not affect my course. I leave to others predictions about its effects of both cases on different pieces of the administrative state of non-Article III decisionmaking.

A quick note on the debate

Before I dive into today's opinions:

I did not watch it because I knew how it would go: Trump would not answer the actual questions asked and would ramble and lie; Biden would sound and appear old and occasionally stumble over his words; and the media narrative would focus entirely on the latter while ignoring (or at worst downplaying) the former. From what I have read, the difference is one of degree rather than kind--Biden sounded much worse than anticipated, allowing for the additional narrative of "Biden should drop out" (five NYT op-eds make this point) as another reason to ignore Trump doing exactly what everyone expected him to do.

The law of "Midnight Run"

Midnight Run is a great movie--a buddy/road trip/action-comedy with a surprising heart and amazing performances. It features Robert DeNiro in his first comedy role, Charles Grodin in his career-defining role, and great supporting performances from Yaphet Kotto, Joe Pantoliano, and Dennis Farina. It has a bunch of great quotations and one-liners, including the line that I use to close class ("See you in the next life, Jack.").

"The Duke" (Grodin) is an accountant who embezzles $ 15 million in mob money and donates it to charity; he is arrested in California, then skips on his bond. Jack Walsh ("DeNiro") is a bounty hunter. Moscone (Pantaliono), the bail bondsman who put up a $ 450,000 bond on the Duke, hires Walsh to bring the Duke back from New York to California in three days or he forfeits the bond. Also looking for the Duke are FBI agent Alonzo Mosely (Kotto) who wants him to testify against Jimmy Serrano, the wiseguy from whom he stole, and Serrano (Farina), who wants to kill him for stealing from him and to keep him from testifying. Hijinks ensue.

The latest episode of the Blank Check podcast features an in-depth (almost 3-hour) discussion of the film. Around the 1:25 mark, they attempt to unpack the underlying legal issues and processes driving the plot. As often happens when non-lawyers discuss procedure, it does not go well--including insistence that the "Ninth District" includes California and Nevada and has its home in California where federal crimes are charged. So let me try to unpack the underlying legal process and ask the crim-law folks a few questions. Spoilers, but the movie is 36 years old this summer.

Legal process first, as the case has a quiet federalism theme: The Duke was arrested in California on state embezzlement charges; he lived and worked there and that is where he took the money (although the money belonged to Serrano in Vegas). Moscone needs the Duke to appear in California state court to avoid forfeiting the bond. Mosely wants to get Serrano on federal charges and he wants the Duke in federal custody (and eventually witness protection) to testify against him, without interference from (what he regards as) pissant state charges. Serrano wants to kill the Duke. It creates a narrative triangle--Moscone loses his money if the Duke does not appear because he is killed or taken into federal custody; Mosely loses his federal case against Serrano if the Duke is killed or gets back to California; and Serrano is in federal trouble if the Duke  is taken by the feds and pissed if the Duke gets away with stealing from him. Meanwhile, the Duke fears that Serrano will kill him in any of those situations; only Walsh setting him free and leaving him to his own devices keeps him safe.

So the dueling prosecutions that drive the plot make sense. Nevertheless, the plot raises some legal questions that perhaps crim law readers can answer:

    • Would Moscone forfeit the bond if the Duke does not appear because he is murdered or taken into federal custody as a witness? It seems hard to believe a bondsman loses his money if the bailee is murdered or taken into federal custody. Federal prosecutors should be able to work out the latter with the state court. Anyway, why did Moscone have no collateral to cover all or part of the bond? It makes sense that Moscone needs the Duke to appear and cannot have him on the lamb; it makes less sense if he is worried about Serrano or the feds stopping the Duke from appearing.

    • Put aside whether a state would spend its resources prosecuting an accountant for embezzling from the mob and donating to charity. I do not see why the Duke defending himself in California undermines the Duke serving as a witness in any federal prosecution. The state case should not prevent the feds from pursuing a federal cases against Serrano, as Mosely suggests. There may be timing and administrative concerns, but courts and prosecutors handle those all the time. Maybe the Duke is somehow more vulnerable to Serrano's people in state custody than in federal custody. Again, however, state and federal officials should be able to work out the best way to do this, in terms of timing and security.

    • The movie ends with Walsh tricking Serrano into going to the Airport-formerly-known-as-McCarran to trade the Duke (whom his goons had caught) for incriminating evidence on THE DISKS and with the plan of killing the Duke and Walsh. The idea being that coming to the airport to take the disks (even though they had nothing on them) was an overt act in furtherance of a conspiracy to obstruct justice. Plus bringing the Duke to the airport was interstate kidnapping; having armed goons at the airport was conspiracy to commit murder; and doing this in the airport was interstate transport in aid of racketeering. Is that all bullshit?

    • Walsh lets the Duke go at the end, causing Moscone to lose the $ 450k. Would that get Walsh in trouble with the feds? Do the feds need Walsh and/or the Duke to testify as to these particular charges? (I would think he would need the Duke for the kidnapping charge).

Because we never see a courtroom, I do not regard this as yet another movie getting the law wrong. Plus, it's too much fun. But we do have some open questions.

Oops (Updated and Moved to Top)

Final Update: The Court released the opinion Thursday.

SCOTUS [on Wednesday] inadvertently posted the opinion in the EMTALA case, dismissing the writ as improvidently granted and lifting the stay of the district court injunction prohibiting enforcement of the law. (Bloomberg has the story behind a paywall). Bloomberg says the vote was 6-3 (Thomas, Alito, Gorsuch dissenting) as to the DIG and stay, although it also says Jackson wrote to say she would not have dismissed (which sounds like a dissent, if the disposition is a DIG).

The upshot is that the district court's preliminary injunction prohibiting Idaho from enforcing its abortion ban remains in effect pending continuing litigation.

Let the conspiracy theories of how this happened bloom.

Update: Bloomberg posted an oddly formatted draft. If it is authentic, here is the deal:

    • Six Justices vote to DIG and lift the stay of the district court injunction. Three vote not to DIG but to keep the stay in place. Jackson votes to keep the stay in place but not to DIG.

    • Kagan concurs with Sotomayor to argue that the Court never should have taken the case and with Sotomayor and Jackson to respond to Alito's dissent, especially his stupid argument (which he previewed during arguments) that the reference to protecting an unborn child means EMTALA does not require abortions.

    • Barrett concurs with the Chief and Kavanaugh to argue the DIG is appropriate because the case changed between the grant of cert and now--both from the U.S. positions as to federal law (especially as to conscience objections) and from Idaho as to the scope, meaning, and application of state law. Given these changes and the "difficult and consequential" argument that the Spending Clause cannot preempt state criminal law, the Ninth Circuit should consider the new issues in the first instance.

    • Jackson argues the Court should decide the case--having taken it, heard argument, and distorted the litigation process, the Court should decide rather than delay the issue. In particular, she criticizes Barrett's view that Idaho's legal representations before SCOTUS have changed state law or how state law will affect doctors in ERs, such that the supposed injuries to Idaho that justified intervention have gone away.

    • Alito, joined by Thomas and Gorsuch, explains why EMTALA does not require abortions as a matter of text and the special rules for finding preemption from a Spending Clause enactment. Gorsuch does not join the portion dissenting from the vacatur of the stay.

This clearly illustrates the theory of a 3-3-3 Court. So speculation on what happened at conference and what changed between conference and now? Was the Chief/Kavanaugh/Barrett planning to go with Thomas/Alito/Gorsuch, then Kagan/Sotomayor/Jackson got them to cool their heels for now? Were they willing to delay knowing: 1) President Trump makes this issue go away in 2025 and 2) the DIG leaves in place a Fifth Circuit decision that EMTALA does not preempt, pending the Ninth Circuit creating a true circuit split worthy of review? Did that group not want to hand conservatives another defeat by joining with Sotomayor/Kagan/Jackson, knowing they could wait (see the prior ¶?)? Something else?

To be clear, Justice Jackson is not happy here: "Today's decision is not a victory for pregnant patients in Idaho. It is a delay." It gives "a few months--maybe a few years--during which doctors may no longer need to airlift pregnant patients out of Idaho."

A Jewish show with a less-Jewish epilogue

We finished We Were the Lucky Ones on Hulu, based on a book by Georgia Hunter. It tells the (based-on-a-true) story of the Kurc family (parents and five grown children, plus spouses and small children), Jews from Radom, Poland, who survived the Holocaust. None was in a death or work camp. Among them, they endured multiple Jewish experiences of the time--deported to a Siberian work camp during the period of Soviet control; served in the Polish underground; hid with a non-Jewish family or in a Catholic orphanage; passed as non-Jews and worked in Nazi-occupied Poland; spent time in a Nazi prison; fought for the Polish Army in Italy; lived in the ghettos while working in German-controlled factories or other jobs. And one escaped Europe aboard the SS Alsina, a story I never knew--one of the last ships to leave Marseilles bound for Brazil, the Alina was rerouted to Dakar and then Casablanca, where the passengers were placed in a concentration camp; a small number of passengers were released and placed on different ships for South America, by which point their Brazilian visas had expired. The show depicts the information vacuum; as everyone tried to survive in their own small piece of a broader nightmare, they knew nothing of what happened to any of their family members.

This is a very Jewish show, even by standards of a Holocaust story. All but 1 1/2 major characters are Jewish. Those Jewish characters attempt to control their destinies; no "Gentile Savior" narratives here (a common complaint about many Holocaust stories). A Jewish actor plays every major Jewish character. The Jewish characters speak and pray in Hebrew. Jewish holy days, especially Passover, form a recurring motif in the story, each revealing the state of the family at that moment. It shows that Jews were unique targets--not only of the Germans, but also of Poles, French, Soviets, Ukrainians, and Brazilians--of hatred and discrimination that ranged from the violent to the banal (and mostly not overly cartoonish). It shows a bit of the Judenrat's role in governing and policing the ghetto.

But I cannot stop thinking of the aftermath. Hunter's grandfather was one of the grown children--he was aboard the Alsina, then managed to escape to Brazil; he anglicized his name, married a non-Jewish American woman, and moved to Massachusetts after the war. As Hunter tells the story, she did not know her grandfather was Jewish (and thus that she was part-Jewish) until he died when she was 15. He used to travel to see family in Brazil specifically for Passover, but never told the family why he was going. She obviously knew nothing of his or his family's experiences during the War. Hunter attended a family reunion a few years after her grandfather's death, which prompted her to research the family and tell the story (in fictionalized form). I came away curious how much of that extended family (we are now probably six generations down, maybe seven) continue to identify as Jewish and continue to practice the faith. Some relatives live in Israel, so at least some piece. It would seem a sad (from the standpoint of the Jewish people--any individual does as he sees fit) coda to such a uniquely Jewish story. It is somewhat ironic that the storyteller comes from the part that moved away from its Jewishness--or maybe that part of the family should best tell the story.

I highly recommend the show. I may need to read the book.

No standing in jawboning case (Updated)

Murthy v. Missouri--6-3, per Barrett, finding that any injuries were not fairly traceable to the government defendants; Alito dissents for Thomas and Gorsuch.

• The decision limits these massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims--a record of undifferentiated "stuff that looks bad" is not sufficient to get a broad injunction stopping the government from engaging in future conduct.  Instead, plaintiffs must show "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." These plaintiffs encountered two further problems--1) any (questionable) past injuries were merely evidentiary on claims for prospective relief but could not themselves establish standing; 2) they needed to link the government defendants' actions to those of the non-party social-media sites, a longer chain of causation. As Jonathan Adler puts it, the Court's message to litigants is "do the work" if you want to push aggressive legal claims.

• The decision will have cross-ideological effects, as liberal plaintiffs must similarly tailor their lawsuits. Of course, courts have hamstrung liberal plaintiffs for years, so this is nothing new for them.

• The case illustrates why standing makes no sense independent of the merits. Even for the one plaintiff (Jill Hines, a medical commentator) able to "eke[]" out a showing of traceability, the challenged conduct does not rise to the level of coercion that would violate the First Amendment. So talking about whether she is suffering an "injury" traceable to not-unlawful conduct as a basis to enjoin not-unlawful conduct seems like a waste of time. The essence of this decision is the plaintiffs sued the wrong people, which would be a merits decision in, for example, a tort claim. It should not be different in a constitutional action.

    Update: Michael Dorf argues that the majority hides within the standing analysis "a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side." But by framing this as standing, it leaves the Court room to find coercion in future jawboning efforts that go farther than this does.

    But this case and Michael's hypothetical future case both address the merits, distinguishable only by the facts and the constitutional line. Why is it not better for the Court to be honest about that, rather than disguising a determination that no rights were (or presently are) violated as the absence of jurisdiction.

    I wonder if the answer to the incoherence of standing is Thayerian judicial review. Courts will reach the merits more often, so review should be more deferential. Have to give that some thought.

• The Court recognized the standing of Louisiana and Missouri as nonsense. But here are the arguments the states tried to make: 1) States suffer an injury when sites moderated posts from state legislators; and 2) States suffer a sovereign injury when the federal government prevents their citizens from speaking to them and prevents them from hearing from their citizens. The latter is prohibited parens patriae in disguise. But it seems hard to square both arguments with the positions states and state officials took in Lindke and O'Connor-Ratcliff about the power of state officials to block citizens from social-media pages. Lindke made clear that officials do not want to hear from their citizens all that much. And under Lindke, which required the defendant to have the legal power and obligation to speak for the government, no legislator will be subject to suit because no individual legislator possesses that power or obligation. It seems hard to square the argument that states are injured if legislators cannot speak on social media with legislators are not sufficiently connected to the state when their blocking readers on social media.

• Although spread across two sittings, three cases--Murthy, NetChoice, and Vullo--danced around similar issues about the extent to which government can affect or influence one actor as it relates to the speech of others. We have two and await NetChoice. Alito's dissent linked them: He argued that the "censorship" (his word) here was as dangerous, if more subtle, than the action declared invalid in Vullo; and he argued that social media sites are more susceptible to government coercion because of their dependence on § 230 and susceptibility to antitrust suits. Might the latter point hint that the Court will declare the state laws in NetChoice invalid--with Alito placing his marker for a dissent arguing it is inconsistent to limit state power over site moderation to the detriment of particular speakers while leaving the federal government free to (indirectly) run roughshod over the same group of speakers.

• Will this bring the Fifth Circuit to heel--the second time in less than a month the Court has reversed, on standing grounds, an overbroad universal injunction in a conservative constitutional challenge to a Democratic administration, forum-shopped into the Fifth Circuit? I doubt it. (Note: Adler adds California v. Texas as another example of the Fifth Circuit ignoring traceability problems to pass on the invalidity of federal law).

Reporting Judicial Misconduct

A recent article in the Wall Street Journal reported on the appalling conduct of former U.S. Bankruptcy Judge David R. Jones, in Houston, who was forced to resign from the bench when it was revealed that he had a years-long romantic relationship with a lawyer whose firm frequently appeared before him (and who billed time on those cases). It seems that various lawyers had known about the relationship but had taken no action, and the situation was only made public by an anonymous letter.

As it happens, my friend Deborah Thorne, a U.S. bankruptcy judge in Chicago, recently published (with two coauthors) a comprehensive article on the duty to report judicial misconduct. Here is the introduction:

[W]hat are the obligations for a lawyer under the Rules of Professional Conduct to report if they observe the unethical conduct of a judge? Are they required to assist in maintaining the ethical integrity of the profession? Does the ethical duty to report conflict with other ethical obligations to vigorously promote the best representation of a client?

In an intertwined bankruptcy law community, there is an understandable reluctance by lawyers to call out judicial misconduct. Despite this reluctance, it is imperative that lawyers are familiar with the process of reporting and the ethical duties mandating them to report any knowledge of misconduct.

Deborah's article does not mention the Jones fiasco, but it could not be more timely. You can read the entire piece here.

The WSJ article is paywalled, but you can read more about Jones here, here and here.

 

Tea leaves on gender-affirming care? (Updated)

SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.

• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).

• Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?

• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.

• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.

I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.

The FTC Prohibition on Employee Noncompetes Is Good for Health Care

My new essay for The Hill explains why the FTC’s new rule prohibiting employee “noncompete” provisions – including for physicians – will benefit both doctors and patients. It is a regulation even Republicans should love.

Here is the gist

FTC’s crackdown on noncompete clauses will help your doctor and your health

Now let’s say that your beloved doctor has a falling out with the private equity firm that recently acquired her group practice. So she decides to strike out on her own.

Your doctor likely signed a noncompete provision, prohibiting her from joining or opening a competing practice in the same geographic area for up to five years. 

In other words, leaving her employer would also mean leaving her town and patients behind.

The new FTC rule addresses that problem by banning new noncompetes for employees nationwide, including doctors.

The American Academy of Family Physicians applauded the formal adoption of the rule. 

The U.S. Chamber of Commerce and the Business Roundtable have already filed a lawsuit challenging the rule in a federal court in Texas. The plaintiffs no doubt hope to prevail in the conservative Fifth Circuit, but they may be in for a surprise. Physician noncompetes are unpopular, even on the right. Indiana’s legislature, for example, with a Republican supermajority, has already passed a law prohibiting noncompetes for primary care physicians, with no exception for nonprofits, which may be the beginning of a trend.

You can read the full essay at The Hill.

The limits on judicial departmentalism

In response to Steve:

I agree it presents difficult line-drawing problems. There are prudential limitations--lawmakers should not do this lightly and perhaps requires some good-faith belief that the law should or might change. Two legal doctrines impose a drag on officials. A successful § 1983 plaintiff can recover attorney's fees under § 1988--this increases the cost of defending these laws by placing government on the hook for the plaintiff's legal fees if the courts ultimately declare the law constitutionally invalid. And state officials would lose on qualified immunity in a post-enforcement damages action--SCOTUS precedent clearly establishes most rights.* Elections and the electorate provide the ultimate check--a functioning polity (and yes, we do not have that in all respects now) might punish officials for wasting public money on performative legislation that loses in court and costs the state money in damages and funding litigation costs for both sides.

I take the point that those drags apply only where actual or threatened enforcement allows offensive § 1983 litigation, whether pre- or post-enforcement. This would be more difficult with Steve's example of a state reinstating capital punishment for minors. A defendant could not sue for damages over the decision to pursue the death penalty--prosecutors would enjoy absolute immunity for the litigation decision. An offensive EpY action also may be problematic, although this is a tricky question. A minor not yet subject to a capital prosecution would lack standing; someone facing an ongoing capital prosecution could be Younger barred from going to federal court ("could" because a capital prosecution contradicting binding precedent might fit within Younger's "flagrantly unconstitutional" exception). In any event, a truly brazen example such as this would be litigated to an immediate, potentially pre-trial answer in the first case in which the state sought the death penalty against a minor (assuming case fits, as I think it would, in Cox Broadcasting's fourth finality category of seriously eroding federal policy if SCOTUS must await final judgment).

The capital-punishment example raises concerns for injuries--minors pleading out or spending time on Death Row until SCOTUS resolves (again) the constitutional issue. This warrants a few responses.

    1) Those costs exist in every period before SCOTUS decides any constitutional issue. Not to minimize, but they are inherent in the system of constitutional litigation. Minors sat on death row before Roper; I doubt they were less injured than any minors placed on death row while the state attempts to relitigate Roper. Especially were SCOTUS to overrule Roper and affirm the propriety of those sentences.

    2) They assume lower courts will ignore Roper, allow capital prosecutions of minors, and sentence minors to death. I instead would expect lower courts to apply Roper, bar the capital portion of the prosecution, and force the state to appeal to SCOTUS for new precedent.

As for where it ends, it may not not have an "end," so long as we tie constitutional decisionmaking into adversarial litigation and require some mechanism for reconsidering precedent. The alternative is that rights-increasing constitutional precedent survives forever (unless overruled by constitutional amendment).

O'Connor and Cromwell

Somewhat apropos of John Roberts's refusal to take any responsibility for lower courts' confusion over Bruen, Mark Tushnet writes at Balkinization:

Reading recently published tributes to the late Justice O'Connor reminded me of the throw pillow she had in her office, with an inscription: "Maybe in error but never in doubt." It's always struck me that without elaboration that's exactly the wrong attitude a judge should have. For me Oliver Cromwell provides better guidance: "I beseech you, in the bowels of Christ, think it possible that you may be mistaken."

I am pretty confident, however, that Justice O’Connor would have agreed with Tushnet about the pillow; it is indeed the wrong attitude for a judge. In O'Connor's chambers, the slogan was surely ironic or self-mocking, a reminder about the pitfall of overconfidence. I say this because I heard the same slogan from judge-friends, long before I knew of O’Connor’s pillow, who said it laughingly (or critically of certain of their colleagues).

Cromwell himself, of course, was never known for appreciating irony or exercising self-correction, as his various opponents soon learned.

(When asked if I ever wanted to become a judge, I've always explained that I have the two worst qualities for judging: I am both impatient and indecisive.)

 

Fifteen years of the Annual Law and Religion Roundtable

Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!) years now.

We got the idea, if I recall correctly, from a workshop-style conference for younger property-law scholars that Ben Barros (now at Stetson) and Nestor Davidson (now at Fordham) put together out in Colorado. Each year -- well, we had to Zoom two of them, and miss one year altogether, because of COVID - we've held our version at a different school -- a "movable feast", as Paul likes to say! -- and exploited the on-site generosity of different colleagues.  Over the years, several hundred scholars -- from a variety of disciplines, at a range of career stages, with a variety of interests and perspectives -- have participated, and we've met from Stanford to Virginia to Toronto to Notre Dame (and a bunch of other places in between).

This tradition (!) has been -- for me, anyway! -- a highlight of the academic year. Notwithstanding disagreements about non-trivial questions, methodological differences, and a diversity of commitments and priors, the conversations have been productive and collegial, and the socializing and fellowship uplifting and encouraging. I've been particularly struck by (among other things) how strongly I've come to prefer the roudtable/workshop-type academic gathering to the panels-and-audience type (which is not to say I don't welcome your invitations to the latter!).

I know there are other, similar events that happen in other fields or around other themes ("The Schmooze", etc.), and I'd welcome hearing about others' experiences in the comments . . .   

On Responding to Muddy Complaints -- and a Comment on Departmentalism

Granting everything Rick says, my point is that Roberts's response to lower court confusion was too SCOTUS-centric. He could have said something such as "firearms regulation is necessarily indeterminate and we'll give you as much to go on as we can as part of a continuing process." Instead, he said "we've explained it twice; nevertheless, lower courts have misunderstood what should be 'a commonplace task for any lawyer or judge,' so we'll just have to do it again."

If the principle is hard to apply, that's one thing. Just say so. If the lower courts "misunderstood" SCOTUS's directions, that's SCOTUS's fault, which is something the Chief cannot bring himself to admit.

Let's put it this way: An umpire calls balls and strikes. If the players cannot understand which way the call went, that's the umpire's fault and nobody else's.

Now, on to departmentalism.

Howard argues that the Alabama legislature acted legitimately when ordering every public school classroom in the state to display the Protestant Ten Commandments, even though there is contrary Supreme Court authority prohibiting it (actually, the statute lists eleven commandments, which I guess is closer to the 21 verses in Exodus). Without such seemingly unconstitutional legislation, he explains, "a court could never reconsider or revisit precedent."

That is logical, but where does it end? An unconstitutional statute, after all, imposes burdens on people while it is making its way through the courts -- especially given Howard's view that many statutes can only be challenged defensively.

Does a legislature have an obligation --prudential or ethical, if not legal -- to avoid acting unconstitutionally in the hope that a law might be upheld after several years of enforcement?

Let's say that a legislature decides that the juvenile death penalty is permissible, notwithstanding Roper v. Simmons. Would it be "legitimate" to start seeking the death penalty for fifteen-year-olds, while waiting to see what happens at SCOTUS? If so, an untold number of young defendants would probably plead guilty to lesser offenses, for fear of execution. And some number would have to be actually sentenced to death, and presumably placed on death row, before an effective defensive challenge could be raised.

So the statute would have a serious effect even if eventually found unconstitutional (which the drafters might consider a success).

Like I said, where does it end?

On complaining about mud: a response to Steve

Steve echoes, in his recent post on the Rahimi case, a complaint that we are hearing from some law professors, namely, that the Court has not yet provided a clear (enough) standard for distinguishing firearms regulations that comply with the Second Amendment from those that do not.  I like clarity; I'm kind of a formalist; I generally like "rules" more than "standards" (in law); so, I think I "get" the impulse.  Still, the complaint seems, to me, misplaced. 

Now, to engage the issue, it seems to me, one has to accept the premise that the Second Amendment has something to do with regulations besides those dealing with the National Guard.  Those who profess to hold the view that the Second Amendment provides no protections to -- has nothing to say about -- individuals who wish to own, buy, possess, and use firearms wouldn't seem to have much constructive to say about the doctrinal question presented in a case like Rahimi.  And, it seems to me that, to constructively engage the Court on this matter, one has to accept, if only for the sake of argument, that the Second Amendment's judicially enforceable content has some connection to the "original meaning" of the Second and Fourteenth Amendments.  That is, if one's view is that the answer to Second Amendment questions that come up in courts is "uphold the regulations that are sound policy, and strike down the ones that are not", it doesn't seem to me that there's much point to wrestling with the Court's efforts to announce and apply "originalist" (and capable-of-being-understood-by-regulators-and-lower-courts) doctrines.

So, has the Court dropped the ball? Are things actually "mud"? I'm not sure, but . . . compared to what? It seems unlikely to me that lower courts have less to go on, when it comes to firearms regulations, than they did under, say, the "effects" part of the Lemon test in the 1970s and 80s . . . or most areas of con law, including ones that Rahimi critics like.  The law with respect to cooperation between religious schools and public authorities, for example, is way, way clearer now than it was 40 years ago, but my sense is that this clarity doesn't make most online legal scholars happy. Is the inquiry that Rahimi calls for any "muddier" than the one that, say, all applications of "strict scrutiny" in rights cases call for? (Is the question whether an interest is, or is not, "compelling" any "muddier" than the question whether a particular firearms regulation is meaningfully like a regulation that was accepted at the time of the relevant ratifications?) 

Rahimi: Still Clear as Mud

Con Law specialists will have much to say about the content of Rahimi, but I have a further observation from an advocacy perspective.  Chief Justice Roberts's majority opinion describes the holdings in Heller and Bruen, and then says:

Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases.

First, note the grammar choice. Use of the present perfect continuous tense indicates that the misunderstandings occurred in the past and are still ongoing, which makes them more serious that the simple past or past perfect.

Then note the conjunction "nevertheless." Not, "unfortunately," and certainly not "predictably." In other words, despite SCOTUS's explanations, lower courts got it wrong.

Now the advocacy point: As I taught my students for fifty years: If someone misunderstands you -- especially a judge or juror -- it's your fault, not theirs.

Let me repeat that. It is the lawyer's job to speak or write with clarity. If there is a misunderstanding, it is the lawyer's mistake, not the readers' or the listeners'.

Roberts, however, takes no responsibility for the misunderstanding, in the passages that immediately follow his acknowledgement:

As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26–31. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. 

So you see, SCOTUS already explained everything, and the dense lower court judges just failed to follow instructions. There was nothing wrong with Bruen, as anyone should have been able to see. After all,

Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28. 

To paraphrase Erich Segal, being Chief Justice means never having to say you're sorry.

Saturday Music Post - The Wonder Years

I wonder, wonder why there are virtually no covers of this great song:

But there are plenty of other wondering and wonderful clips at today's post on The Faculty Lounge.

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Fifth Circuit overrules Ex parte Young

Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.

If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.

• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.

• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.

• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.

• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.

So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.

EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.

That's One Way to Put It

From the Sunday New York Times,"Alabama's I.V.F. Shield Law Now Faces a Constitutional Challenge":

“The new challenge to the shield law comes as Southern Baptists, the country’s largest Protestant denomination, voted this week to oppose the use of I.V.F. at their national conference.”

 Yeah, but is it still okay to use I.V.F. at a clinic? (And who would want to do it in the middle of a national conference, anyhow?)

Hmmm….

Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

Saturday Music Post - I've Just Seen a Face

"I've Just Seen a Face" was released in the U.S. in 1965 on the Beatles' album Rubber Soul (it was on Help in the UK). It was written and sung by Paul, who also played guitar -- there was no bass on the cut. 

McCartney has called it a "skiffle" song, although the original cut (at the bottom of today's post) had a decidedly non-skiffle introduction. It has since been covered mostly as a bluegrass or C&W song. There are no live clips of it by the Beatles, but Paul performed it often with Wings. I don't know if left-handed Paul played the 12-string on the album, but he sometimes played one with Wings.

Paul's left-handed twelve-string is at the bottom of today's post at The Faculty Lounge.

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Justice Thomas's Amended Disclosure Is Still Wrong

My new essay at The Daily Beast explains that Justice Clarence Thomas’s amended financial disclosure is still inconsistent, incomplete, and inaccurate. Here is the gist:

The two explanations cannot both be true. Either Thomas had intentionally excluded Crow’s largesse because he believed it to be “unreportable,” or he had somehow “inadvertently” (hastily? carelessly?) forgotten to include it.

As a cross-examiner might ask, was he fooling us then, or is he fooling us now?

But it is worse than that. The amended disclosure lists only “food and lodging” for a single night in a Bali hotel, with no mention of transportation to the destination on Crow’s private jet or on the extended cruise through the islands, both of which were thoroughly documented by ProPublica.

Although I seldom agree with Thomas’ jurisprudence, I can still appreciate the clarity of his written opinions. When it comes to his financial disclosures, however, it is all omission, contradiction, and obfuscation.

You can read the full essay at The Daily Beast.

Hiring Plans and Hiring Committees 2024-2025

Link to a tool to search and filter the information on the below spreadsheet by subject area sought, location, and lateral/entry level.

---

I am collecting information about (1) whether a particular school plans to hire in 2024-2025, and (2) if so, information about the school's hiring committee and hiring interests. Due to some technical difficulties with comments, I'm having to move to a different approach this year for collecting the information.

Please fill out a Google form or email me to provide information about your school's hiring committee and hiring interests for 2024-2025 (scroll down for the list of specific information I'm hoping to collect). Any responses to the Google form can be viewed by anyone.

I will aggregate cleaned, standardized information submitted through the form, emailed to me, or gathered from other sources (such as public hiring ads, posts on the web, social media, etc.) in a downloadable, sortable spreadsheet. You cannot edit this spreadsheet directly. To provide this information, fill out the Google form or email me.

Use a web tool available on the Lawsky Projects website to filter the information in the spreadsheet by subject area, location, and lateral/entry level. All that the tool on the Lawsky Projects website does is sort and filter what is in the spreadsheet; it is therefore only as useful as the spreadsheet is complete.

Here is the specific information I'm hoping to collect. You can submit this information through the Google form or by emailing me:

First:

(a) your school;

 

(b) whether your school is pursuing entry-level hiring in 2024-2025;

 

(c) whether your school is pursuing lateral hiring in 2024-2025.

If your school does plan on pursuing hiring in 2024-2025:

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--I hope that this information will be useful for both entry level and lateral candidates);

 

(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

 

(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) whether you are open to direct applications/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 

 

(h) your committee's preferred way to be contacted; 

 

(i) the website, if any, that candidates should use to obtain information about the position or to apply; and

 

(j) the number of available faculty positions at your school.

The form also provides a space to provide additional information, such as pasting in a hiring ad.

Again, comments are not reliably working, so to submit this information, please use the Google Form or email me directly.

Can Governor Hochul Use Federal Law to Stall New York’s Congestion Pricing Program?

NY Governor Hochul surprised just about everyone last week by declaring that she would “delay” New York City’s congestion pricing program on account of its impacts on the city’s central business district. This announcement was surprising because of Hochul’s long-standing support for the program. Just last December, for example, the same Gov. Hochul touted congestion pricing as a “nation-leading” component of her “New New York Plan” that would “Make it Easier for New Yorkers to Get to Work,” “generate billions in revenue for the MTA and improve overall regional air quality.” Hochul is not only contradicting herself but also ignoring state law. The congestion pricing policy that Hochul so casually put on hold had been painstakingly planned for five years since New York’s legislature enacted the Central Business District Tolling Program (codified as Vehicle and Traffic Law Chapter 44-C) in 2019. VTL Chapter 44-C commanded the Metro Transit Authority and New York City — not the Governor — to design tolls for roads, bridges, and tunnels leading into New York City’s central business district. Since 2019, thousands of pages of environmental assessment have been approved. Gantries and transponders have been installed. Contracts had been awarded to vendors. Hochul’s announcement, therefore, risked hundreds of millions in wasted expenditures. Even worse, the announcement carved a $15 billion hole into MTA’s capital plan. The consensus reaction to Hochul’s announcement was most accurately captured by Politco’s headline: “dumpster fire.”

Hochul’s pulling the brake on congestion pricing so abruptly — indeed, chaotically — is certainly terrible policy and likely lousy politics as well. But this is a legal blog, so the question we must ask is: Is it legal? Given that state law seems to give the decision to MTA and New York City, where does the governor get the power to scuttle this state policy?

The answer to this question rests on federal law, not state law. Because New York is imposing tolls on federally aided highways, it must abide by federal rules pertaining to tolls. One of those rules, codified at 23 U.S.C. section 129(a)(3), requires the “public authority with jurisdiction over a toll facility” to “ensure that all toll revenues received from…the toll facility are used only for” federally permitted purposes, The Federal Highway Administration (FHWA) has issued a 2012 guidance requiring the state’s “public authority” to enter into a tolling agreement with the federal government governing this and other federal requirements. From a legal standpoint, Hochul presumably hopes to scuttle the congestion pricing program by refusing to sign such an agreement with the FHWA. She apparently reasons that she is the “public authority” whose consent is needed for congestion pricing to go forward.

After the jump, I will explain that Hochul is wrong to think that she speaks for New York on congestion pricing. Moreover, even if she were right, she would have to give a better reason than her claim (ridiculed here by Jeff Maurer) that working-class drivers would otherwise be paying tolls to eat at Manhattan diners and shop at Manhattan hardware stores. But behind these legal technicalities lies a larger issue of federalism: As a matter of constitutional principle, it is perverse to construe a federal statute to give governors the power to shut down state law. Giving such federal vetoes to state officials will just add to the policy-making gridlock that is now discrediting democracy in America.

I. Does the text of either state or federal law give Governor Hochul the power to shut down New York’s congestion pricing program?

Hochul is a state official, not a federal official, so let’s analyze her powers by starting with the relevant state statute. The 2019 state statute that created New York’s congestion pricing program is Chapter 44-C of New York’s Vehicle and Traffic Law. The relevant part of that law (section 1704(3)(a)) provides that, “[n]otwithstanding any law to the contrary, the [MTA Board], pursuant to the memorandum of understanding executed pursuant to subdivision two-a of this section with the city department of transportation shall plan, design, install, construct, and maintain the central business district tolling infrastructure” (emphasis added). That this is a statutory command, not an option, is plain from the use of “shall.” That the MTA and New York City’s Department of Transportation have exclusive power to carry out this command is plain from the enumeration of these two entities (expressio unius, etc.) and the “notwithstanding” clause, which shoves aside any other state laws that Governor Hochul might invoke to impede the tolling program. Judged just by its plain text, therefore, the state congestion pricing statute deliberately carved the governor out of any role in implementing the congestion pricing system.

That’s why Hochul has to reach for a federal emergency brake: She is invoking federal law to kill a program created by state law, because state law otherwise gives her no role to play. The federal law in question is the requirement that New York comply with federal conditions on federal money used to build federally financed highways when tolling the use of those highways. One of those conditions is imposed by a federal statute known as “MAP-21,” part of a long series of federal statutes with equally annoying acronyms governing interstate highways. MAP-21 continues a program known as the “Value Pricing Pilot Project” (“VPP”) program, under which states can enter into agreements with the Federal government to toll highways at peak hours to see whether and how such charges reduce traffic congestion.

Hochul claims that she speaks for “the state” when negotiating and entering into agreements with the federal government. That’s why she believes she has the right to withhold her state department of transportation commissioner’s signature from any agreement with the FHWA.

Put aside for a moment the weirdness of a governor’s invoking federal law to scuttle the state statute that the governor is charged with faithfully executing by Article IV, section 3 of the New York Constitution. Focus, for now, only on the text of state and federal law: What law justifies Hochul’s claim to be able to destroy a program painstakingly created by the state legislature, the MTA, and NYC?

It cannot be state law: As noted above, state law provides no role for Hochul to play in creating or implementing congestion pricing.

So what about federal law? MAP-21 is silent on this question: Unlike ISTEA, the 1991 statute that was updated by MAP-21, MAP-21 says nothing about any requirement that states enter into agreements with the FHWA. The obligation to sign any such agreement comes from the FHWA’s 2012 guidance document, which says nothing whatsoever about who speaks for the state. Section 129(a)(3) of ISTEA had imposed the obligation on “the public authority (including a state department of transportation) having jurisdiction over the highway, bridge, or tunnel,” while MAP-21 replaced this section with an obligation that the “public authority having jurisdiction over the tolled facility…ensure” that toll revenue was spent for federally specified purposes. The phrase used in both statutes — “public authority having jurisdiction over” infrastructure — suggests that each state gets to define for itself which “public authority” has the right to sign any tolling agreement with the federal government, because each state’s legislature defines “jurisdiction” over tolled infrastructure.

Under this reading of federal law, the New York legislature has plainly designated the MTA as the appropriate body to do any signing, because the MTA is in charge of the facilities being tolled.

II. Do principles of federalism suggest that Governor Hochul cannot use federal law to shut down New York’s congestion-pricing program?

Suppose, however, that you were unconvinced by my reading of the statutory text. There is a background principle of statutory construction presuming that the powers of state officials to carry out federal law are defined by state law. As SCOTUS noted in City of Columbus v. Ours Garage more than twenty years ago in construing cities’ power to regulate towtruck prices, “federal courts should resist attribution to Congress of a design to disturb a State's decision on the division of authority between the State's central and local units over safety on municipal streets and roads.” The same goes for states’ decisions about dividing power among executive institutions: Whether the MTA or the governor speaks on behalf of New York is really none of the FHWA’s business. Because the state legislature has given the MTA authority over the tolled infrastructure, the FHWA should deal with the MTA, not the governor.

There is a good reason for that traditional presumption that state law defines state officers’ powers to bargain with the federal government: As I argued twenty-five years ago, this presumption is part of the normal division of labor required by sensible federalism: Each level of government designs its own institutions and takes the other level’s institutions as each level finds them. Otherwise, Congress might create a Frankenstein’s monster in a fit of absent-minded statutory drafting, accidentally conferring federal power on state officials that no one ever foresaw. Congress lacks the personnel, experience, or flexibility to design good state institutions: Gridlocked by partisan division and distracted by a giant federal bureaucracy and budget, congresspersons have neither the time nor inclination to figure out what sorts of powers can be exercised by the thousands of state officials in the fifty different political cultures of the states. Likewise, the President cannot control federally empowered governors who serve a distinct constituency and, unlike cabinet members or other federal agency chiefs, do not serve at the president’s pleasure.

Governors who invoke obscure phrases in obscure federal statutes to set aside limits on their own powers are, therefore, likely to assume powers that no one in either the state or federal government ever dreamed that such governors should exercise. Governor Hochul’s car-jacking of the congestion pricing process at the last minute is a case in point. Hochul claims the authority to overturn a program that the New York State legislature, the MTA, the City of New York, and the thousands of individuals in and out of government have spent years designing. It took decades — dating back to the Lindsay Administration — for the various stakeholders in New York to build the consensus in favor of the program. That consensus-building process included multiple trips to Albany for statutory authority finally resulting in the 2019 statute signed by Cuomo. It also included years-long environmental review resulting in a four-thousand-page Environmental Assessment. A state-chartered citizen panel chaired by Carl Weisbrod, one of NYC’s most reputable policy-makers who has served in multiple mayoral administrations, devised fees based on input from dozens of interest groups.

Hochul claims that she knows better than all these people what will serve the interests of commuters and New York City. Who gave her this final say? No one. Not the FHWA, which has never considered the question. Not Congress, which is silent on who speaks for the state. Not the state legislature, which deliberately sidelined the office of the governor. Citing exactly zero delegations of power beyond a signature line on the bottom of a bureaucratic form, Hochul trashes a hard-built consensus with justifications so ridiculous—working-class drivers need to enter Manhattan free of fees so that they can patronize diners and hardware stores, as if there are none such in New Jersey — that they invited parody (by, for instance, Jeff Maurer, who ridiculed Hochul’s claim that “car loads full of plain ol’ blue collar folk” will be deterred from driving into Manhattan by a $15 fee to “enjoy a $35 seared tuna nicoise paired with an $18 glass of rioja crianza” at the Pershing Square “diner”).

It seems pretty plain, therefore, neither state nor federal law gives Governor Hochul the power to shut down the congestion pricing program by withholding her signature. What, then, should the remedy be? If the FHWA refuses to proceed without the signature of the NY Department of Transportation commissioner’s signature on a tolling agreement, then a state court ought to command the commissioner to sign that document. Ordinarily, courts cannot order executive officials to take affirmative actions unless those actions are “ministerial” (meaning precisely defined by law). The signing of a document, however, is about as precisely defined as an action can be. If the commissioner’s duties under state law are truly clerical in nature because all substantive policy-making has been reserved for MTA and NYC, then a writ of mandamus commanding the required signature would seem to be an appropriate judicial order. (Alternatively, Polly Trottenberg, Deputy Secretary of USDOT, could save everyone a lot of trouble just by sending a tolling agreement with only three signature lines — one each for the MTA, the City of New York, and the FHWA).

III. Can NYSDOT refuse to sign an agreement with the FHWA without giving some sort of intelligible reason for changing its mind?

Suppose, however, that you do not agree with my reading of the federal and state statutes and constitutional principle. Suppose you still somehow believe that federal law, for some mysterious reason, wants to confer power on Hochul even against the wishes of the New York state legislature. Even so, the federal government normally assumes that state institutions are governed by various procedures defined by state law. One such procedure is Article 78 of New York’s Civil Practice Law & Rules Procedure. That Article is roughly analogous to section 706 of the federal Administrative Procedure Act: It gives jurisdiction to state courts to review decisions by state agencies to ensure that they are not arbitrary, capricious, or otherwise not in accordance with law. To satisfy this provision, state agencies are expected to give reasons for their decisions. Judicial review of those reasons is extremely deferential, but such deference has its limits. As noted in Matter of Charles A. Field Delivery Service, 66 NY2d 516, 525 (1985), if an agency were make a decision that contradicted its own earlier position while offering zero justification for the change, then this switch would ordinarily be regarded as arbitrary and capricious.

It is hard to regard Governor Hochul’s weirdly sudden, almost manic, switch as anything but such an arbitrary — indeed, erratic and impulsive — change of mind. Only months earlier, Hochul touted the congestion pricing program as essential to save NYC’s downtown. Now somehow, the same program is a threat to the downtown’s economy. The first position was part of Hochul’s own comprehensive plan for a “New New York.” The second position was a sudden about-face, explicable only by Hochul’s sudden epiphany that commuters do not like paying tolls. Her claim that working stiffs drive into Manhattan to shop at hardware stores and eat at diners was not only comical but inconsistent with all available data on who drives privately owned cars into New York City’s Central Business District. It hardly seems likely that cutting $15 billion from the subway system to reduce the costs of driving private cars into Manhattan will benefit working-class commuters. (For USDOT’s summary of who pays the most for congestion pricing, see this report).

Hochul is entitled to take political realities of angry car commuters into account when making policy. At the very least, however, she must provide a rationale of why the congestion toll’s impacts on auto commuters and businesses that may depend on them are somehow weightier than the impacts of blowing an unexpected $15 billion hole in MTA’s transit budget while also leaving endemic New York-area congestion unabated. The fact that car commuters would have to pay tolls was not, after all, some weirdly unpredictable fact about congestion pricing that Hochul suddenly discovered: The whole point of congestion pricing is to reduce congestion by deterring a number of drivers from using bridges, highways, and tunnels into the congestion zone. To say that the fees’ reducing traffic is a bug rather than a feature is not just bad policy: It is incoherent policy, akin to arguing against stop lights because they induce cars to stop.

The remedy for an arbitrary and capricious decision is presumably to reverse that decision. For a decision to withhold a signature, the remedy, then, is to require the NYSDOT to sign the agreement proffered by the FHWA. Again, writs of mandamus ordinarily can be used by judges to require only “ministerial” (meaning unambiguously defined) actions from agencies. But the signing of a document for which an agency has no good reason not to sign seems pretty “ministerial.” By definition, agencies lack discretion to abuse their discretion by acting capriciously. Put another way, the judge can require the NYSDOT to provide some minimally sufficient reason justifying the agency’s change of mind. The judge does not have to agree with the reason: The judge merely has to regard that reason as supplying a rational basis for the switch. If no such reason is forthcoming, then NYSDOT has to provide the signature that cannot be non-capriciously withheld.

IV. Federally derived gubernatorial powers are just more vetoes in an already gridlocked federal system

Put to one side rational policy-making, constitutional principle, and statutory text. Even if you care nothing about legalities, consider how conferring federal statutory powers on officials like Hochul threatens to mire our political system in yet more red tape. As a number of scholars and public intellectuals have noted, from Nick Bagley to Ezra Klein and Howell & Moe, our political system has become so incapable of doing anything that it increasingly is discrediting democracy. Laden with procedural mandates like environmental assessment, endless hearings, judicial requirements for ever-more articulated reason-giving, our system of democracy has become a “vetocracy” in which everyone can say “no” but no one can say “yes.”

Giving governors like Hochul one more federally derived veto just makes this problem worse. Governors who claim federal statutory powers to override state law do not assert any general power to make things happen, because federal statutes generally do not delegate any such powers to governors. Instead, these governors are using obscure little snippets of power hidden in the recesses of interminable federal statutes and bureaucratic guidance documents, using those snippets to stall action that state law requires the governor to take.

Again, consider how Hochul’s power play in New York is just another example of the vetocracy plaguing our system. It took years of divisive, difficult debate for New Yorkers finally to reach consensus about the need to toll roads. After this herculean effort to overcome the gridlock inherent in a democracy governing a heterogenous and quarrelsome constituency, Hochul has swept in at the last minute, and, apparently panicking over the electoral threat from angry commuters, stalled the program one more time. Those commuters and their allies have had multiple opportunities to have their voices heard in a process that has lasted (depending on how you count) decades. The extra little power that Hochul discovered in the obscure recesses of a federal statute nevertheless is akin to toppling a bicycle by thrusting a stick into the spokes.

Even if you do not care about statutory text or constitutional principle, you should still worry about this use of a document-signing power of uncertain legal provenance to upend New York democracy. Hochul’s use of this alleged power — a power to withhold a signature from a document that has already been approved by every statutorily specified stakeholder and that no written law says is even legally necessary—is just more democracy-killing vetocracy at its intergovernmental worst. Intergovernmental relations are sometimes described with the metaphor of a marble cake, with each level permeating the others. A marble cake of endless mutual vetoes, however, is just a lot of empty, flavorless calories. One can only hope that some courageous judge will stop Governor Hochul from making us swallow this concoction that she cooked up.

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

Alito, Recusal, and Court Expansion

My new essay at The Hill explains why Supreme Court expansion is the only way to fix the justices’ broken recusal practice, building on Justice Alito's upside-down flag display and his explanation of non-recusal. Here is the gist:

The Supreme Court is broken. More justices can fix it.

by Steven Lubet, opinion contributor - 06/10/24 11:30 AM ET

Alito declared, no reasonable person would doubt his impartiality, unless “motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.”

But Alito himself evidently realized that the flag created an appearance of impropriety. Otherwise, why persist in asking his wife to take it down over a period of days?

But no matter. Under Supreme Court practice, Alito himself served as the subject, key witness and exclusive judge of his own impartiality, secure from all further inquiry or review.

There is not much reason to expect the current justices to reform their solipsistic recusal practice, which they jointly reaffirmed just last year.

There are sincere arguments for and against court expansion, which I will not repeat here. 

One nonpartisan benefit, however, is that adding four justices in a relatively short time might enable the newcomers, with no commitment to the recusal status quo, to initiate a review of Supreme Court disqualification practices.

Perhaps that is too much to hope for. But Alito has demonstrated that the Supreme Court’s recusal process is broken beyond repair, and it may take a radical personnel change to address it.

You can read the full essay at The Hill.

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

Saturday Music Post - Before the Next Teardrop Falls

"Before the Next Teardrop Falls" was written by Vivian Keith and Ben Peters in 1967 and was recorded a couple of dozen times by various artists over the next six or seven years. It charted briefly twice, without much notice. Then along came Baldemar Garza Huerta, better known as Freddy Fender, in 1975. Fender had been performing under various names and nicknames -- including El Bebop Kid and Eddie con los Shades -- since the late '50s, with some success, including a hit with "Wasted Days and Wasted Nights," but he'd spent three years in a Louisiana prison on drug charges, leaving his career in doubt. (He was pardoned by Gov. Jimmie Davis, who was also a musician most famous for the first recording of "You Are My Sunshine" in 1940.)

It proved to be one of the great intersections of artist, song, and timing. Fender's release reached number one on the country chart, and then number one on Billboard's Hot 100. His recording included a verse in Spanish, and he later recorded an entire cut in Spanish.

The clips are at The Faculty Lounge.

The Missing Ingredient

I would suggest, in response to Gerard's post below, that if we ask why those actions succeeded with Nixon and failed with Trump, the missing ingredient is: an Establishment. A good, old-fashioned Establishment, a dominant elite that is enmeshed, to quote Henry Fairlie, in both "the centres of official power" and "the whole matrix of official and social relations within which power is exercised." It mattered that the Post, a well-connected newspaper in a well-connected city, opened the door to Watergate reporting and that the Times and other mainline papers and TV networks (remember them?) quickly followed suit. They had influence in large measure because those institutions were part of or important to the Establishment and taken seriously as such. It mattered when someone like Walter Cronkite spoke to a huge chunk of the nation at the same time. It mattered, too, that the other figures and institutions he mentions were part of that Establishment. Although in our popular histories and memories of the event we sometimes dramatize folks like Woodward and Bernstein and the young lawyers working for congressional committees as young rebels or outsiders, they were for the most part consummately inside, or worked for institutions that were taken seriously as Establishment organs: they were inside the barricades, not outside--and stayed there, sometimes pursuing power and sometimes wealth, for decades. It certainly mattered that Mark Felt was a member of the Establishment. It probably even mattered, despite his inexcusable conduct, that Nixon was a member of the Establishment. 

At best, we have two establishments now, but I doubt even that is an accurate description. In any event, once there are multiple establishments, and multiple avenues to success and notoriety outside any establishment, their power to include or exclude or enforce norms is greatly weakened if not wholly evaporated. Both Donald Trump and President Biden, in their ongoing willingness and ability to ignore, bypass, or freeze out the legacy papers, demonstrate that they no longer have the power they once did, however seriously some of their staff may take themselves. Nor does anyone take select committees or federal district court judges seriously anymore--and for good reason, often enough.

There are certainly still elites. I'm fond of observing and writing about them--their dreams, projects, and illusions, their games and their self-image, and their never-ending struggle with cognitive dissonance. And there are certainly still elite institutions; if Toward Nakba as a Legal Concept had been published and de-published by the Podunk Law Review, we would not have spilled so much ink about it. But the Establishment itself is now, for the most part, like Gertrude Stein's Oakland: there is no longer any there there. I would add that it's crucially important that Establishment mingling, in circumstances in which things can be hashed out by all hands on what passed in the Establishment for all sides, is neither possible nor especially welcome. 

An "Establishment" is also exclusionary, cozy and clubby, self-selecting and self-dealing, and so on. There are lots of reasons to oppose or question it and its structure. I certainly have, especially when it comes to what I think of as the Canadian mandarinate but also here. It's more than a little ridiculous that anyone ever treated any single figure like Cronkite as "the most trusted man in the nation." But the value of reposing trust, and having something in which to repose it, is not so absurd. Back when people thought the Internet was a good thing, they (I include myself) would talk, sometimes rhapsodically, about the democratizing power of moving from a "one-to-many" model of communication to a "many-to-many" model. (It's interesting to look back and think about how much that particular vintage of Internet still revolved around a relatively small number of both traditional and new speech institutions that were effectively Establishment publications. That was, in retrospect, really an era of "more-than-one to many" communication. It's long dead. Something like The Atlantic [est. 1857] exists largely vestigially, can be read or ignored quite safely and easily, and farms engagement like everyone else.) But a one-to-many model, and the social structure that undergirds it, has its benefits too, and any change in governing models has its costs.

Absent an Establishment, I am unsurprised that the Watergate model is ineffective. How can you be cast out of, or by, a social and political power elite that doesn't exist anymore? And I'm rather doubtful, for the same reasons, that the prosecution model will be effective either.      

The Repudiation of Watergate

One way of thinking about the Trump era in a more panoramic way is that we are witnessing the repudiation of the Watergate precedents. When people think about how institutions responded to Watergate, they probably come up with the following list: (1) intense press scrutiny from the likes of Woodward & Bernstein; (2) intense scrutiny from a District Court (Judge John Sirica); (3) a select congressional committee; (4) a special prosecutor; (5) an impeachment inquiry; and (6) Supreme Court action. The one missing tool was a criminal trial of Richard Nixon, due to President Ford's pardon.

To respond to President Trump's misconduct, all six options listed above were pursued. Up to now, though, they have all failed or, at least, cannot claim success. The only one that might is the criminal conviction of Trump (pending appeal). Thus, the takeaway might be that this should be the go-to choice in the future because it's the only effective remedy. I hope that's not the case, but we are on that path.

A Second and, Deo Volente, Last Post on the CLR Mishegoss

I won't try to follow and comment on every twist and turn (It's up! It's down! It's up! It's...whatever. I just want to know when the April issue of the Michigan Law Review will come along.). But new information came in not long after I put up my post the other day, and there has been some further news coverage since. I found this Inside Higher Ed piece useful, as well as this Times article (though points were deducted for the appearance of the phrase "speaking [one's] truth"). The Intercept has a second piece, and although I commend it for its work, that work continues to be tilted in its sourcing and to fail to provide links that might allow a reader to judge for himself. That includes not giving a link to the board's letter, which one can find here, if you'll pardon the X-ness of the source. I also found Mike Dorf's commentary useful, although I don't see eye to eye with him on everything. (I do agree with him on a lot of bottom-line stuff.) The new reporting and commentary occasions a couple of observations--few in number if, as always, excessive in length. 

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject--it super-charged it.   

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. (The tit-for-tat behavior includes the media coverage, of course; I don't blame the editors for taking to the press, but it should be understood as another strategic move in the game.)

The argument that there was no irregularity on the editors' part seems to be that a) the article was thoroughly edited and b) it's never the case that every editor on its overstuffed staff is involved in editing a given article. I have no reason to doubt either proposition. But the same editors make clear that they did act in an unusual fashion in various ways. One I count as minor, albeit perilous. That is that the selection process was unusual: seeking to "use the Columbia Law Review as a platform to discuss" some current event, as opposed to selecting articles from the pile while using the journal's online supplement to deal with shorter-fuse issues, is not the normal process, although it most certainly happens and I suspect it is becoming more common. As I wrote last time, I think it's not a bad thing in principle: the relative speed with which this piece went through a still-rigorous process suggests that law journals could be timelier than they are in selecting new and interesting issues. On the other hand, I don't trust editors to make those choices well (in fairness, I don't trust them to make any choices well), and I suspect that, absent better processes, it's an invitation to factionalism, politicking, and power plays on journal editorial boards.  

That wasn't the only departure (not counting the rush to publish online once the board got involved). The editors defending the piece emphasize how many people were involved in the approval and editing process, focusing one's eyes on the numerator. But they are also clear that they deliberately limited participation in at least the editing process, and just as deliberately kept the project under wraps. Thus, the normal number of editors worked on the article but, unlike with most articles, any news about it--apparently including its existence--was effectively firewalled. I say "apparently" because I'm really not sure, but it's certainly suggested by the fact that the editor in chief felt it necessary to alert her own staff to the existence and imminent publication of the article.

I also speculated in my post that there was likely another departure from normal processes--one involving editors opposed to the article. And so it seems, if the Inside Higher Ed story is accurate. That article says that one of those editors, once he or she discovered the existence and imminent publication of the piece, contacted the board, at which point we were off to the races. One wonders whether the initial secrecy was worth it; would any complaints have gotten anywhere, let alone to this extreme, if things had been aired more widely and the process had gone according to Hoyle in the first place? I can't say, but this would not be the first time that secrecy was either pointless or counter-productive. Clandestine maneuvering is, perhaps, cool more often than it's effective.

Despite disagreeing with the board's actions and having criticized it twice now, I think it makes a reasonable case in its letter that the editors' actions ran contrary to "norms of respect, trust, and collegiality." I can imagine a few reasons it might have acted in a more secretive fashion, and I am sympathetic to one of them. That is the fear of having to run a gauntlet of more or less industrialized quasi-doxing and harassment. Interestingly, that concern is not mentioned in those terms in the stories. Rather, the editors quoted make clear that their concern was that early drafts might be leaked. Of course the two can overlap considerably, and insofar as they were worried about leaks because they would result in harassment and pressure to cancel the article, I am again sympathetic. Insofar as such leaks would have ultimately originated with editors on the journal--perhaps junior editors with no role in article selection--I can only say again that journals work best when all their members act regularly, and leaking articles because you want to capsize them is irregular--and reprehensible. I should add that it might have been possible to let everyone on the journal staff know that the article had been chosen and would run, while limiting access to drafts to the team editing the article. If the editors were only concerned about the leak of drafts--and this is the only thing they cite consistently as a concern in the news coverage--this would have addressed that problem without introducing an even larger degree of unusual secrecy and exclusion to the journal's usual operations. Oddly, this option does not seem to be mentioned anywhere in the news coverage.   

Even if I find some room for sympathy when it comes to acting with more confidentiality than usual, all this behavior also suggests the possibility of a kind of built-in distrust on the part of some editors of their own colleagues in the enterprise of putting out legal scholarship. That distrust is perhaps most likely to arise when editors on either side of the dispute mistake and melodramatize their function (melodrama, in particular, being a chronic ailment among American elites), seeing themselves as engaged in something of a crusade or mission rather than the workaday enterprise of shepherding a learned disciplinary journal for a year with a reasonable measure of seriousness and continuity. (The quotes from some of the editors in the Intercept pieces have an air of taking the more melodramatic, mission-driven perspective; in fairness, one has to imagine that some of those who contacted the board might have an equally melodramatic view and offer similar quotes.) Since editors on a general-purpose law journal are going to have a variety of views about both politics and scholarship, a more mission-driven perspective, along with an inflated view of what law reviews do, will naturally not command unanimity on the staff and just as naturally will encourage an equal and opposite reaction. While I still think the board was wrong in its actions, I am not inclined to dismiss its letter's concerns about "the atmosphere on the Review" or about some students "feeling excluded and unwelcome" on their own journal.

I would be happy to dispense with the therapeutic language of that quote and just say that if a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice. 

Virtual CLE Panel--Section 2 of the Fourteenth Amendment

At Noon today, I'll be part of an Indianapolis Bar Association panel on voting rights and Section 2 of the Fourteenth Amendment. You can register here.

Editorial Choice Is Not Censorship

I have only a little to add to Paul's excellent post on the Columbia Law Review situation. It seems certain that Rabea Eghbariah's article "Toward Nakba as a Legal Concept" will be published one way or another, so it makes little sense to shut down the website, which will only draw more attention to the piece (which is not itself a bad thing). 

On the other hand, the apparently secretive process for soliciting and editing the article was wrong and manipulative in the first instance. It is a clear example of the politicization of scholarship, which should not be used to circumvent previously agreed upon editorial processes. The justification for it, which has been repeated by Prof. Katherine Franke, is nonsense. Here is the description from the New York Times:

The editors on the Review did use a “somewhat irregular process” in editing the piece, “Toward Nakba as a Legal Concept,” because they were concerned about censorship, Professor Franke said. Students involved in the editing said that among the roughly 100 people involved with the journal, they had created a smaller committee to solicit and select the piece, a procedure the Review does not always use.

Editorial choice is not censorship. It just isn't, which law students and professors should all understand. If the regular editorial process would have nixed the article, well, that's how journals work. 

This is not an argument against publishing the Eghbariah article. It is not an argument in favor of intervention by the faculty and alumni board. It is only an argument against making unsupported and overstated claims, especially by those who should know better.

Again With the Law Review Nonsense

Having followed the last round of controversy concerning lawyer and writer Rabea Eghbariah and his scholarship on what he is free to call "Nakba,"* I am trying to keep abreast of the latest round, which concerns the publication of a longer version of that project in the Columbia Law Review, and the publication and de-publication of that article online (along with every other article, since the entire website, when I last looked at it this morning, just reads "under maintenance").

One should take early and partisan coverage with a very large, even kosher-sized grain of salt. For instance, the main story on the subject at the moment, in The Intercept, is one-sided in its sourcing and checking, and it shows. For example, it repeats credulously an editor's statement that "I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence"--possibly true, but misleading, insofar as the word has appeared some 30 times in the journal's existence (not including case names), including 15 in the last 20 years or so. Not a capital crime, to be sure; but it's the kind of thing that's easily checked, and that, perhaps deliberately, leaves readers with a mistaken impression of the journal's past and present alike. (Perhaps the problem is that the Columbia Law Review's website, like many law review websites, is just not very good. If it's any comfort, others are even worse. Just off hand, the Texas, UCLA, and California law reviews all seem to require a hacker's skills if one simply wants to find out what has been published issue by issue.) 

It is difficult to pronounce on the facts under such circumstances. And absent a proper command of the facts it's even difficult to deliver some kind of principled statement. That said, just as I disagreed with the HLR editors' decision in November, I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception. Whatever the full facts and sequence of events, the journal ended up in an embarrassing place. Since it is unlikely the whole piece will be pulled, the board should have left the article up even if its hand was forced.  

If I am reading the available information and some of the tea leaves correctly, I would say that the following things seem true, or quite possible, about both the Columbia and Harvard incidents: 1) The leadership of each law review deviated from the usual practices, for more or less timid reasons. Note that the "leadership" is very different in each case: the student editors in the Harvard case, and the faculty/alumni board of directors in the Columbia case. 2) So did some smaller or larger group of editors who were more directly involved in or supportive of the article, for more or less ideological reasons. 3) So too, possibly, did another small group of editors who opposed the article, again for more or less ideological reasons. 4) Once there is a departure from normal standards, further departures are encouraged across the board. If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all.  

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. Its editors--and editorial board--should do only that, and disregard pressures to publish or not publish other for any other reasons. The more consistently they do that, treating all else as irrelevant, the easier it will be to ignore either breathless and most likely unwarranted praise or inappropriate threats. Just vet and publish good articles--a serious and conventional, even boring, job and the only one you have.

I would add that although departures from normal processes are noteworthy, not all of them are equal. It's somewhat unusual that the CLR decided to solicit a piece on a particular topic, and somewhat unusual that it then solicited the piece from a particular author (although one understands the likely reason here), when most non-symposium articles go, at least ostensibly (leaving aside pressure to publish tenure pieces, pressure to publish particular articles from faculty members, and other abuses), through the same calendared over-the-transom process. But perhaps there should be more of that sort of thing. I don't particularly trust law review editors to do this. On the other hand, their standard selection process is not especially trustworthy either, and at least this would result in the publication of timelier pieces more often. Other departures are more questionable.

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. It's good that some of them have introduced some measure of peer review, but that process has quickly become more of a fig leaf than a serious vetogate. The faculty of the schools that sponsor these journals are responsible for all of this; any blame attaches to the student editors only second. In the absence of a switch to the standard, everywhere else in the academy, of peer review, American law school faculty should take a more hands-on role in making sure that law reviews, at elite and non-elite schools alike, are doing their jobs properly. They should more actively oversee law reviews' selection process, demand more peer review where it is needed, and overrule editors' selection choices where appropriate, whether the students like it or not.

But they should exercise this sort of oversight at the beginning of the process, not the end, and if they are going to move to this imperfect but more professionally responsible model, they should make it a transparent and routine process, not some exceptional, struck-by-lighting thing. And the responsibility for doing so must rest with the faculty alone, since a law journal is an academic disciplinary publication. In this case, the board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish. The time had long since passed for the board to put up or shut up; its job now, at most, was to support and not undercut the editors, and controversy be damned.

I might add that one benefit of the kind of faculty involvement I envision is that it would thoroughly disrupt the whole process as it is currently conducted. If faculty were to be more involved in the selection process--as they should, albeit ideally they would do so primarily through peer review--the whole works would be gummed up and slowed down. Given the need to give qualitative and not resume-and-politics-scrutiny-style review to each piece, and given the other demands on faculty's time, law reviews would have to move away from the current single annual selection sweepstakes. Their involvement in review and selection would also disrupt the whole silly process of gaming offers from other journals. It might, indeed, lead to rules against multiple submissions. It might diminish many law students' desire to work on journals, as they slowly became mere copy-editors and cite-checkers, and reduce the value of law review membership as an employment credential. In time, American law reviews might actually become respectable disciplinary journals.

But none of this describes the process here, so far as I can tell. The article was selected and edited. It might have been selected in an unusual manner, and the last-minute stuff all looks irregular. It might be a good or bad article; certainly the fact of publication in a top U.S. journal is not currently a very strong indicator on that point. But it should have been published without any of the nonsense accompanying it. I hope at the least that the board appreciates that on these sorts of issues, there is no such thing as doing things quietly or confidentially, and that if its actions were intended to avoid controversy, they achieved the opposite result. 

*Incidentally, Eghbariah was educated at the University of Haifa and Tel Aviv University and worked at an Israeli human rights organization. Although the purported goal of conventional BDS movements is to aim at institutions and not persons, it does seem true that he honed his gifts at the sorts of institutions that many people cheering on his article would urge us to shun and weaken at all costs. One should pause for at least a moment to appreciate the juxtaposition.  

Partial Recusals

Much of the recent debate about judicial recusals (specifically, Justice Alito) has a binary quality. Either the judge recuses or does not. There is no third way. I wonder if that's part of the problem. Consider some possible alternatives:

1. Early in the Supreme Court's history, Justices who recused would sometimes issue a statement about the merits of the case. In other words, "I'm not voting on this case, but here's what I think about the issues." Is that an advisory opinion? Probably, but maybe no more so than a statement about a certiorari petition that is denied.
2. You could also imagine "I will recuse if and only if my vote matters."
3. I will only vote on the case. I will not write an opinion. 

Saturday Music Post - Cripple Creeks

The Band's Robbie Robertson wrote "Up on Cripple Creek" in 1969 for the group's second album. Released as a single, it reached number 24 on the Hot 100. As a Canadian, Robertson evidently had more familiarity with Appalachian folk music than with U.S. geography. The old-time banjo tune "Cripple Creek" (sometimes called "Goin' Up Cripple Creek") is thought to have originated in Virginia, where there is indeed a creek by that name. There is also a better-known Cripple Creek in Colorado, but there isn't one anywhere near Lake Charles, Louisiana. Of course, Levon Helm was from Arkansas, and maybe the mountain was in Colorado . . .

You can ponder it while listening to today's clips at The Faculty Lounge.