PrawfsBlawg

Do reasons for non-enforcement matter?

The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.

Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:

That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.

I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.

Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."

Saturday Music Post - Angelic Voices

"Seven Spanish Angels" was released by Willie Nelson and Ray Charles in 1984, becoming Charles's most successful hit on the Country charts. It was conceived by Troy Seals and Eddie Setser as a sort of Marty Robbins song, but Robbins had died in 1982. They offered it to Willie Nelson, who agreed to record it, but Ray Charles's producer had heard the demo and suggested it as a duet.

Brilliant idea, which you can enjoy along with many covers on The Faculty Lounge.

Information Technology Chair Search

It's a busy hiring year for my school. We are also initiating a search for a new Information Technology Chair. Again, feel free to contact me if you are interested or have questions.

A New Research Project

Senator Birch Bayh's papers are held by Indiana University. Senator Bayh was the longtime chair of the Senate Subcommittee on Constitutional Amendments (from the early 1960s until the late 1970s). That committee gave us the 25th and 26th Amendments along with the ERA. I'm planning to do a deep dive into the Subcommittee's materials to see if there might be a compelling story to tell. One thing that I see already is that the Subcommittee served as something of a real-time critique of the Warren and Burger Courts. In other words, conservatives would introduce constitutional amendments to overrule decisions that they did not like. Maybe there is more.

Health Law Chair Search

The Indiana University Robert H. McKinney School of Law is conducting a search for our chair in Health Law. The Chair would also be the Director of our Health Law Center. Please contact me if you are interested in applying.

CFP: Federalism Scholarship Roundtable

After the jump, details on a CFP for the Federalism Scholarship Roundtable, April 25, 2025.

The University of Wisconsin Law School’s State Democracy Research Initiative (SDRI) is pleased to announce a Federalism Scholarship Roundtable, to be held on April 25, 2025. The Roundtable will be co-hosted by Professors Miriam Seifter and Rob Yablon of Wisconsin Law and Professors Will Baude, Bridget Fahey, and Alison LaCroix of the University of Chicago Law School, and will be held at the University of Chicago Law School in Chicago, Illinois.   

The purpose of the Roundtable is to bring together scholars from around the country to present new academic research and works in progress on federalism, and to continue to build community in the field of state public law. We construe federalism broadly for the purpose of the event; we welcome submissions from a wide range of subfields and methodologies, as well as submissions that consider the topic from the perspective of states or subnational institutions.    

We anticipate workshopping approximately eight papers over the course of one day, with each paper introduced by a designated commentator. Scholars who have already committed to attend the event as commentators are listed below. 

Scholars interested in presenting a paper at the Roundtable should submit a one-to-two-page abstract by November 15, 2024 to SDRI’s Executive Director Bree Grossi Wilde at [email protected]. (You may also contact her with any questions.) Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Applicants will be notified by mid-December whether or not they have been selected to participate. Complete submissions will be due by early April 2025.  

All travel costs, accommodations, and meals will be provided, including a group dinner the night of April 24, 2025.  In addition, participants will receive a $1,000 honorarium. 

Confirmed Commentators to Date: 

• Greg Ablavsky, Stanford Law School 

• Will Baude, University of Chicago Law School 

• Jessica Bulman-Pozen, Columbia Law School 

• Bridget Fahey, University of Chicago Law School 

• Alison LaCroix, University of Chicago Law School 

• Jamila Michener, Cornell University 

• Nicole Stelle Garnett, Notre Dame Law School 

• Miriam Seifter, Wisconsin Law School  

• The Honorable Diane Wood, University of Chicago Law School 

• Rob Yablon, Wisconsin Law School 

Handball

Like many people every four years, I love team handball. Denmark won the men's Gold and Norway the women's Gold (with Denmark taking the bronze).*

[*] My non-sports-fan niece did a semester in Copenhagen. One day she and some friends encountered a massive crowd celebrating on the streets--turned out they were celebrating some big win by one of the teams. They had no idea why the crowd was out there but they joined the celebration anyway.

I do not understand why handball is not bigger in the United States, at least as a college sport. It fits the U.S. sports mentality--high-scoring, fast-paced, lots of running and jumping, and physical, although without the concussion risks of football and other tackling sports. (For example, it is a penalty and "suspension" to hit the goalie in the face with a shot, even accidentally). It combines elements of sports Americans already play and watch--basketball, soccer, lacrosse, baseball. It could attract good athletes from these sports with the promise of teaching the skills. For comparison, lacrosse (men's and women's) has developed a high profile at the collegiate level, including a fair number of nationally televised games. Many top programs (especially as the women's game developed) began with coaches seeking out good athletes and taking care of the rest. It seems to me the same could and should happen with handball, which involves skills (dribbling, throwing, running, jumping) that players already possess and do not require them to learn to handle a new piece of equipment.

As the host nation for the 2028 Olympics, the U.S. team automatically qualifies for the tournament. The U.S. is nowhere near ready to compete against the best international teams. But maybe a good showing will spark interest in the sport at lower domestic levels. In fact, that was USA Team Handball's plan in the mid-aughts when Chicago vied for the 2016 Games--get a team into the tournament and create interest and passion for a cool game. Maybe it can happen 12 years late.

University of San Diego School of Law - We are Hiring!

Happy FAR Form Week from The University of San Diego School of Law! We are looking for three to four new colleagues (both entry-level and lateral)  to join our active and engaged faculty.  We are always looking for excellent scholars in any field - and I think you will find a great intellectual home with us. So please send your materials our way.

We have a specific interest this year in Criminal Law, Criminal Procedure, Evidence, Civil Procedure, and Immigration. But again, open to all fields. 

Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move! And always happy to personally discuss the school, the process, the academic job market. good luck to all!

Saturday Music Post - With a Little Help from My Friends

"With a Little Help from My Friends" was the second track on the Beatles' 1967 album Sgt. Peppers Lonely Hearts Club Band. The vocal was by Ringo Star, in the persona of the band's lead singer, The One and Only Billy Shears. It was not released as a single at the time, but Joe Cocker did release it as a single in 1968, reaching number one on the British charts but only 68 on the U.S. Hot 100. Nonetheless, Cocker's performance of it at Woodstock was legendary (see bottom of the post, right after the audio from Sgt. Pepper), and many probably remember his version more than the Beatles'. Interestingly, the Beatles's version was reissued as a single in 1978 (I am not sure how that was authorized), but it went nowhere. "With a Little Help from My Friends" was never performed live by the Beatles, but Ringo has included it in his live sets, often with guest stars as a duet.

All of that can be seen and heard at The Faculty Lounge.

 

 

Governor Hochul’s Lawless Vetocracy over Congestion Pricing: Why Undermining the Independence of Public Authorities Destroys Political Accountability

David Siffert and I have just filed an amicus brief (available here) on behalf of four state legislators in the litigation over Governor Hochul’s purported “pausing” of congestion pricing. I have already posted an item explaining why I believe that Governor Hochul’s assertion of power is lawless. In brief, the plain text of New York’s Traffic Mobility Act (“TMA”) gives the Metropolitan Transportation Authority’s Board power to design, implement, and operate the statutorily required congestion pricing system, to the exclusion of the governor. The statutory command could not be clearer: Vehicle & Traffic Law section 1704(b) specifies that the Board “shall…plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.”(This textual argument is cogently laid out by the brief filed by Emery Celli on behalf of City Club of New York and two other petitioners).

Our amicus brief supplements this textual argument with an argument about legislators’ intent. The simple point of our brief is that the legislators (four of whom are our clients) understood the MTA Board to be an independent public authority not subject to being bossed by the Governor. On pages 4-6 of our brief, we summarize and cite to legislators’ statements that they understood the MTA, not the governor, to be in charge. (Kudos to our outstanding RAs for listening to hours of YouTube videos of hearings to find this stuff!) Beyond statements from legislators, we quoted multiple statements by Governor Andrew Cuomo, the person who proposed congestion pricing in 2017, declaring that he was not in charge of the MTA and could not control its actions. (For a good example, see this 2018 CBS story).

We would be delighted if Justice Engoron concluded that the statutory text so plainly excludes gubernatorial power over congestion pricing that any reference to this legislative history is unnecessary. That legislative history, however, usefully reveals how judicially inferring unwritten gubernatorial powers to veto or “pause” the MTA Board erodes political accountability by complicating responsibility for the tolling program. Mayors and governors like to invoke the MTA’s “independent” status to avoid taking blame for poor subway service. That’s already confusing to voters. Adding an unwritten, essentially hidden gubernatorial “pause” power to the mix makes the entire system utterly unintelligible: It creates the ultimate covert vetocracy (to use Fukuyama’s term) in which governors have the power to say “no” but no responsibility to provide good subway service.

1. The 1920s Progressives’ Compromised Ideal of an Independent Public Authority Insulated From Partisan Politics

As our brief notes, the MTA, like other public authorities in New York, was self-consciously designed to be independent from control by elected officials. Julius Henry Cohen, the Progressive Era lawyer who played a major role in designing public authorities, pushed for institutions that were a hybrid between governmental agencies and private corporations. His ideal authority was a sort of non-profit organization free from both partisan pressure as well as private profiteering.

That ideal, of course, was never really achieved, either because politicians insisted on retaining some sort of oversight role or because the unelected officials in charge of the authorities became tyrants eager to accrue power rather than benefit the public.

The 1921 legislation that created the Port Authority is a good example of politicians’ vetoes’ being baked into law. Initially drafted by Cohen to make the Authority’s board independent from gubernatorial power, the bill was amended to authorize the New York and New Jersey legislatures to give their respective governors a veto over the decisions of each governors’ appointees to the Port Authority’s board. Remarkably, the legislatures did not confer any such veto on their governors until 1927, when New York’s Gov. Al Smith got in a tussle with New Jersey’s Gov. Harry Moore over whether the Port Authority’s engineer should be allowed to ban wire cable as a suspension mechanism, thereby excluding N.J. firm from bidding on the George Washington bridge. Since 1927, therefore, the Port Authority has been subject to dual vetoes from those two governors, provoking complaints from an expert panel that the Authority has “devolve[d] into a patronage mill and a piggy bank for pet projects.” (Remember Chris Christie’s “Bridgegate” scandal? That was a product of that 1927 legislation)

Robert Moses’ Triborough Bridge & Tunnel Authority is, of course, the most famous example of the opposite problem —- insulation from electoral checks so effective that it creates a tyrannical authority that can bulldoze communities at the whim of the Authority’s executive. Moses is hardly the only authority boss who has aroused fears of unaccountable power: As a 2019 state senate investigative report noted, public authorities have persistently provoked worries about corruption, abuse of power, and mismanagement.

In short, there is no magical formula by which to manage revenue-producing infrastructure like bridges, tunnels, subways, and ports. Cohen was naive to think that insulation from electoral oversight would magically create efficient, honest public service. But electoral oversight is hardly a panacea, because voters unsurprisingly do not pay close attention to the boring minutiae of infrastructure finance, leading to opportunities for patronage and outright graft. The legislature has repeatedly tried to strike a balance, using a variety of checks contained in multiple statutes, including from reporting requirements, fiduciary duties, and elected officials’ vetoes, to achieve good service delivery.

Unlike the “pausing power” asserted by Governor Hochul, however, these checks on public authorities’ independence are written into statutory text. The legislature, in short, knows how to give elected officials supervisory power over public authorities, and they did not do so in the TMA.

2. The Legislature’s Complex Insulation of the NYC Subway System From Electoral Controls

When it comes to the NYC subway system, indeed, the New York legislature has historically opted for a governance model tilted towards insulation from control by elected officials. Between 1940 and 1953, the subway system was effectively under the NYC mayor’s control after the City acquired two private transit companies’ assets. Those mayors (La Guardia, O'Dwyer, and Impellitteri, however, all refused either to raise ticket prices above the sacred 5-cent fare or admit that subways could not be self-financed through fares. The resulting persistent deficits led Governor Dewey to declare that the system had become “an abused and shabby political football” and to push through a statute inn 1953 placing the subway system under a new NYC Transit Authority. The NYCTA was insulated from mayoral and gubernatorial control insofar as its board was appointed by both the governor and mayor but could not be fired by either until the expiration of a fixed term of years.

The MTA took over the Triborough Bridge & Tunnel Authority, the NYCTA, and a bunch of failing railroads, but its Board maintained this insulated status: Its members, are appointed by the governor, NYC’s mayor, and seven different county executives and serve six-year terms from which they cannot be fired except on proof of misbehavior or incompetence. There is no doubt that the state legislature really intended this unwieldy body to be independent from elected officials: A 2009 statute unequivocally declares that, although such authorities “may take into consideration the views and policies of any elected official or body, or other person,” they must “ultimately apply independent judgment in the best interest of the authority, its mission and the public.” Everything about the MTA’s history, in sum, indicates that the legislature has never wanted to give elected officials any free-floating veto over the MTA’s decisions.

This complex insulation from any single elected boss has some disadvantages. Political scientists have long observed that politicians use complex delegation structures to avoid blame from voters for bad outcomes. The MTA Board’s mix of appointees makes it notoriously difficult for voters to know whom to blame for bad subway service — a difficulty that politicians both decry and exploit. As Andrew Cuomo complained in 2018, "Who's in charge? Who knows! Maybe the county executive, maybe the president, maybe the governor, maybe the mayor." Both Mario and Andrew Cuomo unsuccessfully pushed for legislation giving them a majority of the Board. Others complain that, despite appearances, the MTA Board really was Cuomo’s sock puppet, given his power to influence funding and his control over six out of 14 votes. The MTA’s absence of any clear boss, however, was also a feature that elected officials could exploit to escape blame for the subway’s poor performance, as when Cuomo and Blasio feuded over who was to blame for bad subway service.

3. Judicially Conferring A Gubernatorial “Pause Power” Further Muddies Political Accountability With a Vetocracy

Given how confusing control over NYC’s transit system already is, how could judicial approval of Governor Hochul’s power play make things worse?

The problem is that the power claimed by Hochul is not a power to manage the subway system;It is just a power to throw a wrench on the tracks when the MTA Board tries to manage that system. There is a decent case to be made that the subways ought to be managed by a single, highly visible, elected executive like a mayor or governor. Governor Hochul, however, does not (and, given the TMA’s text, cannot) claim to be some sort of latter-day Robert Moses. She does not purport to exercise any broad managerial power to design and implement solutions for jammed-up bridges and delayed trains. Instead, she claims only a power to say “no” when the MTA tries to solve these problems. In a system already paralyzed by gridlock, she is asking Justice Engoron to give her yet one more roadblock to jam up the MTA’s decision-making process.

The vetocratic character of Hochul’s “pause” is epitomized by her offer to introduce a new congestion pricing statute to the New York legislature by year’s end. One can only admire the brazen chutzpah of Hochul’s proposal to enact a new statute to replace the old one that she refuses to obey. The legislature already spent two years debating and eventually enacting a congestion-pricing statute initially proposed by Governor Cuomo — a statute that Hochul is now using extra-legal powers to stymie. Enacting that statute was a Herculean effort, requiring legislators to cast controversial votes over which different categories of commuters and city residents bitterly disagreed. Precisely because the question of who should pay and how much is so divisive, the legislature turned the details over to the MTA Board and its advisory body, the Traffic Mobility Review Board chaired by Carl Weisbrod, a veteran NYC policy-maker and public servant. Weisbrod’s TMRB made a recommendation to the MTA Board after hundreds of hours of hearings. Thousands of public comments and thousands of pages of environmental assessment later, the Feds approved an Environmental Assessment.

Why would the state legislature take up Hochul’s invitation to repeat this arduous process, once more casting controversial votes for a new law that Hochul could ignore just as easily as she ignored the old one? How could the legislature write a new statute that more clearly mandated congestion fees than the TMA? Put in a “this time, we really mean it” clause?

Hochul’s purported “pausing power” is, in short, a recipe for endless vetocracy, because it overturns a delicate and complex statutory compromise(1) without putting anything else in its place while (2) practically asserting a power to derail any future legislative compromise. This is not a power to govern: It is a power to induce government paralysis.

Fortunately, Justice Engoron does not need to engage in any judicial fancy-footwork to reject such a power. He need merely read the TA’s plain text. That text flatly commands the MTA Board, not the governor, to “plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.” The MTA Board is far from a perfect vehicle with which to manage NYC’s transit system, but at least it is a single decision-maker visibly charged with making a particular decision. Complicating this relatively plain delegation with some unwritten, judge-made gubernatorial veto would not only be lawless but would also make responsibility for the tolling program even more unintelligible to frustrated commuters and taxpayers.

Petition Opposing Academic Boycotts [UPDATED]

UPDATE: Over 3000 signatories as of 10:00 AM ET 8/22

Please consider signing this petition opposing the AAUP’s recent endorsement of academic boycotts. As you may know, the AAUP has just reversed its two-decades long opposition to academic boycotts, effectively abandoning a core principle of academic freedom.

The AAUP’s new position is wrong-headed and dangerous. The normalization of academic boycotts poses a profound threat to academic freedom. As the AAUP itself stated in 2005:

“We reject proposals that curtail the freedom of teachers and researchers to engage in work with academic colleagues, and we reaffirm the paramount importance of the freest possible international movement of scholars and ideas.” 

Recent events have not diminished the importance of this principle. However directed, academic boycotts inevitably undermine scholarly exchanges, joint research programs, and instructional collaborations, thereby violating individual scholars’ and students’ academic freedom.

You can read the entire petition here. You can sign it here.

Please note: the petition does not extend to economic boycotts, sanctions, or weapons embargoes. Its sole objective is to endorse the broadest possible freedom of academic study, exchange, and publication.

Also, I am an AAUP member, but the petition is open to all academics, whether members or not.

Number of FAR Forms in First Distribution Over Time - 2024

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328; 2022: 272; 2023: 348; 2024: 352.

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please contact me and I will update accordingly.)

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2024-2025

A spreadsheet for tracking law school hiring interviews and offers for the 2024-2025 hiring cycle is now available. In the spreadsheet, you can enter information regarding screeners, callbacks, offers, and so forth. You can also write more general comments.

The tab on the spreadsheet marked "Q&A" will, I hope, serve as a substitute for the comment thread on Prawfs, as the commenting function on Typepad is in serious technical trouble. If people have questions about the teaching market or process, please post them on that tab, and everyone -- including current professors -- please chime in and answer!

Anyone can edit the spreadsheet; I will not be generally editing it or monitoring it. 

You may want to take a look at the many questions and answers in the threads from 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021, 2021-2022, 2022-2023, 2023-2024. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Not just federal judges

There seems to be problem with judges acting out some skewed version of Scared Straight with people who do not meet their standards of decorum. Lacking life tenure, this guy may suffer consequences--he has been suspended, although only pending "sensitivity training."

Interestingly, the judicial immunity question may be more favorable to the girl, should she pursue a § 1983 action. I described why Judge Benitez was on the line. But as I read this story, Judge King was not presiding or conducting any proceeding when this happened. It was in court and the judge was in his robe, but he was conducting an educational program for a youth group, which should not be a judicial function (the group had watched a trial, but the trial had ended).

Running for Two Offices At the Same Time

Some states have statutes that say a person cannot run for two offices in the same election. This makes sense with respect to state or local offices. But what if someone wants to run on the national ticket and for another office in the same election? Can a state bar that?

This issue comes up now and then. LBJ got Texas law changed for the 1960 election so that he could run for Vice President and reelection to the Senate. The same law allowed Lloyd Bentsen to do the same in 1988. Delaware law allowed Joe Biden to run for Vice President and the Senate in 2008.

Suppose, though, that a state did not let someone run for two national offices simultaneously. Would that be constitutional under Thornton? Probably not. The state could be seen as adding a qualification for national offices that is not in the Constitution. 

Maybe this is different if the person is running for Governor and, say, Vice President. A state can impose additional qualifications on candidates for state office. I'm not sure that the Constitution requires the freedom to double-dip for national and state office--maybe you just have to choose not to run for state reelection. 

We Blew It in 1968

My new essay in The Hill is a cautionary tale for this week’s protests at the DNC. Here is the gist:

The 1968 DNC protests gave us Nixon. We don’t need a 2024 repeat. 

Almost exactly 56 years ago, I was at the 1968 Democratic National Convention in Chicago, along with tens of thousands of other angry protesters against the war in Vietnam.

We blew it in 1968, undermining Humphrey, who strongly supported civil rights and the labor movement, even when he belatedly distanced himself from Johnson and called for an end to bombing North Vietnam. 

We got Nixon, the worst criminal ever to occupy the White House up until that point.

This year’s pro-Palestine demonstrators would do well to be wiser and more strategically savvy. They can make their point without enabling another criminal presidency. 

You can read the full essay at The Hill

Why randomize assignments?

I guess I should have considered this when I answered Gerard's first question, but here goes: What would be the point of randomized assignments? Of all the things Congress can try to bring the Court to heel, why would it want to do this? Is the idea that analysis and precedential effect (if not outcome in this case) might change if Justice Barrett wrote a particular opinion rather than Justice Thomas? Assuming agreement on basic principles and given the collective nature of the writing process, would the final opinion be so different?

And might there be unintended consequences? Unable to get everything he wants, Justice Alito leaves the opinion in a 5-4 and writes separately, eliminating the majority and, to the extent Marks matters, giving more power to his individual opinion without him having to do the work of maintaining a majority. Do we lose something if there is no Justice who becomes the go-to person on some issues (e.g., Ginsburg on procedure or Gorsuch on Indian law).

If it does not do much as a stand-alone change, it might be a cute addition to Sherry's plan--random assignment of that single, unsigned, unenumerated opinion. This creates further distance between individual Justices and case outcomes.

Saturday Music Post - You've Really Got a Hold on Me

"You've Really Got a Hold on Me" was written by Smokey Robinson in 1962. Said to have been influenced by Sam Cooke's "Bring It on Home to Me," it was a million-seller for the Miracles. The most famous cover was by the Beatles, and there have been plenty of others (often under the slightly less grammatical title, "You Really Got a Hold on Me").

The clips are at The Faculty Lounge.

Well, Here's One Answer

[A] Justice cannot speak on behalf of the Court for, say. an entire Term. The Justice can still sit and write separately. . . .  I ask because this is the only sanction that strikes me as lawful and somewhat significant.

Even if constitutional, it would be impossible to prevent the other majority justices from joining the sanctioned justice's opinion.

But a more effective sanction might be eliminating a clerkship for a term, which has the additional benefit of being enforceable by Congress's appropriation (that is, non-appropriation) without relying on cooperation from the Court.

OK, Then Here's The Next Question

Suppose that Congress regulates the assignment power as the stick in a Supreme Court ethics reform bill. In other words, the sanction for doing something unethical (whatever that is and determined by whomever) is that a Justice cannot speak on behalf of the Court for, say. an entire Term. The Justice can still sit and write separately.

Is this a good idea? I ask because this is the only sanction that strikes me as lawful and somewhat significant. 

It should be constitutional

In answer to Gerard's question: Suzanna Sherry proposed a system in which the Court issues one per curiam majority opinion, without names or counts. She defends constitutionality by arguing, in essence, that Congress cannot dictate or influence resolution of a case but can control how the Court communicates its decision. I think her argument would support the choice of who communicates the decision for the Court as well as how the Court presents that decision.

Changing the Assignment Power

Suppose Congress enacted a law that removed the Chief Justice's assignment power and said something like: "Each opinion for the Court shall be assigned randomly to a member of the majority." Would that be constitutional? The Chief Justice's assignment power is, of course, just a custom that has evolved over time. 

Faculty Hiring

Collegiality for collegiality's sake

Steve Vladeck's latest Substack (paywalled) discusses Justice Kagan's remarks at the Ninth Circuit Conference. With respect to collegiality, Steve quotes Kagan and writes the following:

Third, and in a similar vein, in responses to questions about how the justices are getting along internally, Justice Kagan pivoted to a response about why the answer shouldn’t matter that much to the public—not because collegiality is unimportant, but because the issue isn’t whether the justices are friendly; it’s whether their relationships influence their colleagues. As she put it:

“I can’t imagine why the public should care if we go to the opera together, or we can talk about baseball together. What the public should care about is … if the collegiality brings about a certain kind of decision-making process. In other words, if it leads to people listening to each other in talking about the law and in talking about cases and making decisions. If it leads to people being able to step into each other’s shoes and see the world through another person’s eyes or see certain legal issues through a different perspective.

Again, I think there’s some nuance here. The point is not, as some accounts reported it, that the justices’ collegiality is unimportant; it’s that it’s important as means to an end—with a subtle insinuation that there isn’t enough of that kind of camaraderie on the Court today.

I made a similar point years ago when people complained that President Obama and Speaker John Boehner could not sit down and have a beer, comparing them unfavorably with the Scalia/Ginsburg safaris and opera trips. I pointed out that this friendship rarely convinced either person to switch a position or compromise--which is what everyone wanted from Obama and Boehner. We do not want collegiality on multi-member bodies for its own sake, but as a means to a better-functioning multi-member body. (With Kagan pushing the ideal of empathy that Obama proposed but never defended). Media coverage of politics and the Court (stuck in a Sorkin-esque vortex of wanting everyone to get along and agree with one another) cannot see past the former.

The Political Economy of, inter alia, Law and Political Economy

From this recent (and paywalled) piece in New York Magazine by Jonathan Chait:

Six months after Obama left office, Larry Kramer, a law professor and president of the William and Flora Hewlett Foundation, convened a meeting at the ‘21’ club in Manhattan. The group included an array of leading philanthropists, think-tank heads, donors, progressive writers, and academics. As Michael Tomasky, one of the participants, later reported, the group continued its discussions the following day at the Ford Foundation, where its members began to envision themselves as the founders of a new intellectual paradigm that would move beyond the failed neoliberalism of the Obama era....

[A]nti-neoliberalism had some key advantages that made it irresistible to its progressive audience. It supplied an explanation for Trump’s victory that did not require progressives to compromise on their political values in order to allow Democrats to regain power. To the contrary, this theory allowed — nay, demanded — the fulfillment of every progressive wish. A Green New Deal, a jobs guarantee, higher minimum wage, Medicare for All — these proposals were not only possible but politically necessary to defeat Trump.

The plan devised by Kramer and his allies explained how anti-neoliberal thought would be disseminated. “It makes sense to begin with the academy and think tanks — though we will not want to confine ourselves exclusively to these even in the beginning — and to work out from there in subsequent stages,” a Hewlett strategy document explained. Hewlett poured $140 million into grants to writers, magazines (The Atlantic, Washington Monthly, and The American Prospect, among many others), conferences, podcasts, academic centers (at universities like Harvard, Columbia, and Georgetown), and think tanks. The Roosevelt Institute’s budget more than tripled. The massive upsurge in demand for essays, columns, and lectures assailing neoliberalism was met rapidly with a booming supply....

Devotees of the anti-neoliberal movement gained special access. Jennifer Harris, who had been running a Hewlett Foundation grant program called the Economy and Society Initiative, which sought to counter neoliberal thinking, joined the administration and became, as the Times put it in a flattering profile, “the Queen Bee of Bidenomics,” who “had a hand in everything from making the case for industrial policy to designing a new framework for trade.” Twenty-five grantees from Harris’s project, as well as two fellow Hewlett employees, joined her in the administration.

I offer all of this in a fairly value-neutral way, descriptive way. At most, the value added here is just good plain caution. I am not endorsing or disagreeing with the rest of Chait's article. I definitely don't intend this as a criticism of law and political economy as a scholarly endeavor. (I understand that some members of the law and political economy movement who currently reside in the academy may also understand LPE as a political project and either move, or see themselves moving, between the academy and other, non-intellectual spaces, such as think tanks, foundations, congressional staff, and the executive branch. I don't intend this as a judgment of that branch, either, but to the extent that those individuals are engaged in extra-academic matters that involve seeking and exercising power and status, of course they deserve careful scrutiny, journalistic investigation, and, where warranted, criticism. If you're in the arena, you're in the arena.) To the contrary, I find the best of the law and political economy work excellent and provocative, although I remain perplexed that so much of it says so little about the prior 250 years of work in political economy. (To be sure, a certain number of articles are creeping into the law reviews that bear the words "political economy of" in their titles but say nothing for which any grounding in political economy, old or new, is required. But that is pretty standard in the period when a new entrant into the "law and" field becomes sexy. The best work should not be blamed for the inevitable coattail-riding. Only the authors of that work, and law review editors, and the legal academy for relying on law review editors, should bear the blame.)  

At most, I offer it to suggest the following: 1) As Jesus said, if I recall correctly, the rich are always with us. That most definitely includes academics, philanthropists, and "progressive writers" who hang out at the 21 Club or the Ford Foundation building. 2) As I suggested the other day, journalism lost a lot when the era of mass and diffuse funding from large and small businesses through advertising faded. Targeted funding from ideologically committed groups for specific projects is dangerous as hell, and one should distrust the magazines, radio networks, and other media organs that take that money, with or without disclosure. 3) Mocking the number of people and projects that are in a symbiotic relationship with and draw sustenance from the teat of foundations, billionaires, establishment types, and so on is pretty low-hanging fruit. It should be plucked at every opportunity. 4) More to the point, it should be observed. For every political economy-draped narrative that involves political movements, funded by shadowy figures with connections to vast reserves of money, engaged in ideological projects and seeking to extend their power and influence, there is almost certainly a counter-narrative about the money, foundations, shadowy figures, and unmentioned motives behind the effort to frame, publicize, and exploit that narrative. As long as things like foundations, funders, and project meetings are involved, there is a political economy story--one that generally involves competition for power, status, influence, employment, funding, and prestige within both the elite academic ecosystem and the foundation/think-tank/rich-philanthropist-heir ecosystem. It's a competition for money, power, and status all the way down.

Personally, I always find both sides of the game--both the shadowy networks that are written about and the shadowy networks that write about them--interesting and worth investigating. It's only when we pretend only one side exists that we fail in our intellectual duties and risk being suckered.     

 

Survey of Law Fellowships and VAPs

The following is a guest post from Nikita Aggarwal:

Fellowships and VAPs have become an important credential for entry-level positions in the U.S. legal academy. Jobseekers face a high level of informational opacity and asymmetry about the quality of fellowships and VAPs, i.e., the extent to which these programs help candidates prepare for, and succeed in, the entry-level job market. To help alleviate these informational constraints and improve the functioning of the fellowship and VAP market, I am carrying out a survey of former fellows and VAPs. To ensure the currency of the data, the survey is limited to those who completed fellowships in the last two academic years only (AY 2022-23 or AY 2023-24). If you completed a law fellowship or VAP program in the last  two years (AY 2022-23 or AY 2023-24), please consider filling out the Google form available at this link. Your responses will be aggregated, anonymized, and published in a searchable database, along with publicly available information about fellowship and VAP programs. Your name and email address will be collected to confirm your identity and mitigate fraudulent responses. But all personal identifiers, including your name and email address, will be removed before publication.  

Please feel free to email me with any queries or to share additional information: [email protected].

Updated 8/15/24 to add sentence regarding currency of the data.

Upcoming Symposium: Mass Torts Inferno: New Battle Lines in the Resolution Debate

Cornell Law Review will host its 2024 Symposium, Mass Torts Inferno: New Battle Lines in the Resolution Debate, on September 20, 2024 in Ithaca, New York. Modern mass torts involve hundreds of thousands of victims affected by various types of tortious conduct ranging from sexual abuse and asbestos exposure to opioid trafficking. This symposium brings together diverse scholars to address the new, non-class aggregate litigation strategy that is reshaping the field. It also seeks to create a dialogue among scholars and practitioners of tort law, bankruptcy law, civil procedure, and constitutional law. The law review is proud to partner with Andrew Bradt, Sergio Campos, Zachary Clopton, Alexandra Lahav, and Samir Parikh to present this event. 

For those interested in attending, please contact Griffin Perrault at [email protected].

Changes to Criminal Law course (advice welcome!)

This Fall will be (I think) the 17th time I've taught the first-year Criminal Law course.  (At Notre Dame, the class is sometimes in the Fall, and sometimes in the Spring. For what it's worth, I strongly prefer the Fall.) The course and assignments have evolved over the years (for example, for the first few years, I didn't teach any of the sexual-assault materials) but, at the same time, I cannot pretend to have made any dramatic overhauls for a while.

This year, I've made a few changes to the Download Criminal Law Syllabus (Fall 2024), though, and I'd welcome feedback about them. In particular, I added coverage, in the actual-crimes section, of theft (larceny) and possession (drugs and guns) to criminal homicide and sexual assault (and cut down on necessity and duress). And (with regret), I dropped a requirement I have often used that students read a scholarly monograph on criminal-law-related policy/reform (in addition to the casebook stuff). In the past, I've used books by Rachel Barkow, Stephanos Bibas, John Pfaff, and others. But, I decided this year that this requirement was possibly introducing excessive varation (and workload differences) among our three sections.  Sigh. 

Ineligible Presidential Electors

The Constitution imposes some qualifications for presidential electors. They cannot be sitting members of Congress. They cannot hold "an Office of Trust or Profit under the United States." And they cannot have violated Section Three of the Fourteenth Amendment.

Suppose that an elector is challenged on one of these grounds. Who decides if the elector is ineligible? While this question was raised in some past presidential elections, no clear answer was ever given. Maybe the Joint Session of Congress is the judge. Maybe it's the other electors from the state in question. Or maybe it's state law as applied by state courts. All three of these alternatives were proposed.

Let's hope this issue is not presented in the coming months. 

A Reply to Howard on the Press

I appreciate Howard's courteous reply. I hope it is clear that my rather tartly worded post is aimed not at Howard but at a particular group of press critics. For me, Nichols is not terribly important. (I think this is also how I would characterize his writing in general these days; I've admired some of his work but I think he's imbibed too much Internet fame and become too much the Atlantic contributor, both of which are intellectually harmful.) Rosen and Sullivan, on the other hand, are indeed, in my view, very bad press critics; they were bad even before Trump announced his first candidacy and, like many, got far worse after that.

I appreciate Howard's further elaborations in his post below. (And note the earlier post that elicited my sharp words about Rosen and Sullivan.) In attempting to think more specifically about his views, as opposed to those of the critics I was warning against, I imagine that, as is often the case, there are vast fields of agreement, and that identifying the precise points of disagreement is more valuable and difficult than anything that follows from that. 

As far as that goes, I also deplore inaccuracy and imbalance; who doesn't? But I do disagree with his add-on reference to inaccuracy and imbalance "in the name of objectivity." This, too, is a popular view and, lest there be any mistake about it, was oft-heard back when Howard and I were in journalism school. But I take the view that 1) if the word "objectivity" became a cliche in journalism-talk, "there is no such thing as objectivity" (a phrase Howard did not utter, to be clear) has long since attained the same status; and 2) for journalists, writing in the heat of the moment, often unburdened by knowledge and increasingly unaided by good editors, shooting for objectivity is much better than discarding it because it is incapable of perfect attainment. I'm happy to agree to disagree about this or, as I said, to figure out exactly where and how much we disagree. I would simply point readers to Marty Baron's arguments on this point (there is a critical response from Wesley Lowery, who I would put generally in Rosen and Sullivan's company) and a related argument from Kwame Anthony Appiah about neutrality. Of course, used this way "objectivity" becomes more of a placeholder for a set of institutional goals and practices, and I would be fine with it if we used the term "professionalism," or "kumquats" for that matter, instead. I do not think rejecting objectivity does a better job than shooting for it when it comes to avoiding "narratives," both because they're in the nature of the game in journalism and more broadly because we all engage in narrative framing all the time. Nor does it do a better job of avoiding partisan narratives in particular.

I don't think the press is especially or uniquely susceptible to narratives pushed by Republicans as opposed to narratives pushed by Democrats, a phenomenon which happens with equal frequency because both parties are lousy with professional narrative-pushers. We did not live through two weeks of repetitive commentary about childless cat ladies because the press was independently pursuing an issue without worrying about accusations of bias. The chances that the quote was unearthed and pushed by someone other than a Democratic opposition researcher asymptotically approach zero, and the press ate it up. The press did not go all in on Biden's age because it was buying into a Republican-concocted narrative. It did so because 1) there was an actual issue there, 2) it was a hell of a story, 3) the debate gave the press, which knew it had done less reporting on that issue than it should have until recently, the hook to write about it, at which point it compensated or overcompensated for its prior quietude, and 4) Democrats who wanted Biden out of the race then pushed the story hard, and pushback, also from Democrats, created the sense of conflict that generates news coverage. Republicans may have been gleeful spectators, but that's all they were. (The press should refocus on Trump's age and fitness. But one should remember in fairness that it ran a slew of those stories between 2019 and 2021, often more poorly sourced and speculative than the Biden age stories.) And they wrote about Trump showing grit in the moments after being shot not because Republicans encouraged them to do so but because it was also a hell of a story. (They wrote a lot of nonsense after that, but I think most of the nonsense was self-generated, as well as being drawn from the press's current, poisonous, bottomless well of a reporting resource: Twitter.)

I also do not think that the approach pushed by critics of the old-fashioned press approach makes for more accuracy. I anything, I think it is even more likely to result in blatant partiality. (For some, the idea is that at least the partiality will be more visible in the reporting. Whether that's so or not, my concern is that the reporting will simply be worse--that it will result in some stories being poorly done and others being missed altogether.)  

Finally, I see no evidence that the press's move, both a conscious one and a symptom of generational change, away from "objectivity" and toward something else after 2016, encouraged by folks such as Lowery, had much effect at all on the Trump presidency, the 2020 election, public opinion, or anything else. And in the long run, I doubt that the current sweetheart coverage it is now giving Harris, or the later negative narratives it will run with for some period of time as it overcompensates for its current puffery, or the more critical reporting it will devote to Trump and Vance to please subscribers (it turns out that big corporate advertisers did more to benefit journalism than to harm it; the subscriber model will kill journalism in the act of trying to save it) and out of "fear of accusations of bias," will have much effect either. The press, like the president who was at a standstill in the polls and leaking support in every direction, has done plenty of pushing of the "accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order" between 2016 and today. I tend to find many of the facts underlying that argument--although we should use the correct label: it's not an argument; it is, in fact, another narrative--largely accurate and newsworthy and therefore worthy of reporting. But simply trumpeting it, as critics like Sullivan thought and think we should at every opportunity, turns out to be an essentially empty exercise if the assumption is that simply repeating the phrase frequently will somehow change things. When Trump, or any candidate or public official, lies, the press should report that fact clearly. When he says something authoritarian, the press should likewise report it. But the idea that it makes a difference, to either change in the world or better journalism, whether its headline uses the word "authoritarian" or not, is a fallacy. Again, this is not what Howard wrote. But I think it's a fair characterization of what Rosen and Sullivan believe. I think they genuinely believe that putting the word in the headline will ward off authoritarianism, and that every time they are proved wrong they take this as evidence that the press should put the word in the headline even more often. In their Escher-like views and enthusiasm, they are impervious to refutation. 

And, perhaps somewhat contra Howard, I think that belief, and the associated belief that the press must adopt a new approach, does indeed lead not to more accurate reporting but to ignoring or suppressing genuine news--it encourages "not reporting" as well as "accurately reporting." The press did adopt a new approach after 2016--not to the extent that Rosen or Sullivan wanted, and certainly not as much as Democratic operatives wanted, but the changes, and the pressure to do so from within and without, were obvious. The result was some missed or underplayed stories, some unforced errors, a momentary increase in subscribers, and nothing else. It turns out that the way to fight authoritarianism is to get out there and fight authoritarians in one's capacity as a citizen, not to change journalism (or art, or academic writing, or any other specialized, professional, or avocational activity). 

Of course all of these things can be debated and much of the debate will turn on perspective. People who mistakenly think the press is, more or less literally, a wholly owned subsidiary of the Democratic Party will evaluate the evidence one way, and people who think (rather incredibly) that Maggie Haberman personally loves Donald Trump will evaluate it another way. I suspect, but not with complete certainty, that my disagreement with Howard can be put down to three things. 1) I think the critics he cites are awful. 2) I think we have different views of the role and value of "objectivity" in professional journalism. 3) I think we probably have different views about whether an "emergency" is a sound reason for changing fundamental practices in journalism or not. I may be wrong. And even if I'm right that leaves a lot of room for agreement on particular issues, as well as disagreement about how to characterize particular moves on the part of the press. But I think that's the core of where we part ways. 

I should add that I think Howard's views are more popular than mine, and in many cases more popular within the press itself. I just think they are wrong, if not in every particular then in the general tendency. Our main social and political crisis is an institutional crisis. It does not demand wholesale change to, or abandonment of, those institutions. It demands a firm re-commitment to them, and to their standard practices. Although I see this as demand as requiring activity and energy, my position may also seem to put me on the side of staidness, conventionality, and quietism. I'm pretty content with that. In my view, the changes we have seen in the profession in the past few years, that a new generation of "journalists" (many of whom do more commentary than actual reporting) have demanded, and that critics like Rosen and Sullivan and others are urging, will do little to combat authoritarianism. I fear that instead, those changes will ultimately result in a further drop in public trust in journalism, a decrease in the quality of the work done by that institution, and the further and perhaps final financial collapse of the institutional press. I doubt all my fears will be realized. But I think the best way to forestall those eventualities is for the press to refocus on doing its job in a fairly conventional, old-fashioned, and admittedly imperfect and aspirational way.  

Not reporting v. accurately reporting

In citing Jay Rosen and Tom Nichols in this post, I expressed concern for the media's hyper-focus on certain narratives (Hillary's emails in 2016, Biden's age and mental acuity until a few weeks ago) to the exclusion of others. I have never advocated for not reporting what Trump says (and Nichols has been a big "show Trump in all his insanity" advocate) or for withholding negative stories about Biden, Harris, and other Democrats.

I have different criticisms of the media; Paul may disagree with these, as well, but they are different than what Rosen and Sullivan seem to have been pushing. I criticize inaccuracy and imbalance in the name of objectivity (and fear of accusations of bias). I criticize the media being worked. I criticize media  ignoring or cleaning up Trump's incoherent ramblings. I criticize the media allowing a narrative to take hold--usually the one Republicans have pushed--and allowing that narrative to color what they publish and how they present it.

"...disinclined to listen to media professors...."

I tend not to see eye to eye with my friend and co-blogger Howard on press issues, perhaps because we went to competing journalism schools, both of which, as journalism programs go, are very fine. (Mine was better. At least it used to be. Now that it offers master's degrees and doctorates instead of overpriced but excellent meat-and-potatoes training, it may be much worse.) That's okay! Marketplace of ideas and all that. But because he recently cited Jay Rosen, a non-journalist press critic who has had the misfortune to become a popular online commentator (online popularity being a recipe for ego and hubris), I thought I would share this recent Substack piece, by Mike Pesca, an actual journalist. Examining recent events, the piece quite rightly argues that Rosen is--once again--wrong in his position on how the press should cover the election and specifically former president Trump's candidacy, and likely to remain wrong by retaining and repeating the same mistaken position, no matter the evidence and without much sign of the capacity to acknowledge errors or reexamine his positions. Pesca also notes the endless wrongness of Margaret Sullivan, formerly a high-ranking journalist before becoming the last and worst of the New York Times's public editors; she has since enjoyed sinecures at the Washington Post and the Guardian and also, alas, teaches at my alma mater journalism school. 

Press criticism can be a valuable and necessary thing. (Among other things, it is useful in contextualizing the increasingly negative view the Supreme Court may hold of the press and why there may be actual reasons that its members, along with large numbers of the public, are more likely today than in past years to view it "in a negative light.") On the other hand, as Thor would say, as press critics Rosen and Sullivan are just the worst. (Tom Nichols, also mentioned by Wasserman, has been an interesting writer from time to time but is not much better.) As Pesca notes, most sensible working journalists will simply ignore them--Rosen because he's wrong and not a journalist and Sullivan because, well, because she's awful. This is an excellent approach for non-journalists as well. 

Presidential Elector Math

Here's a question that I've been pondering. Suppose that two presidential electors turn out to be ineligible under the rules of Article II but this fact is unknown until after they vote. Would the winner then require only 269 votes or 270? In other words, do you calculate the majority based on the total number of electors or the total number of eligible electors? There is no relevant precedent, though the issue almost came up in 1876.

The text of the Twelfth Amendment says that the winner is the person who receives "a majority of the whole number of Electors appointed." That probably means that it doesn't matter if the people appointed are eligible to be appointed. But you could say that the appointment of an ineligible person is void if the person is not replaced prior to voting. (If an elector died right before the electors vote, an alternate presumably must be picked for a state to receive its full share of votes.)

Jordan Chiles and the Jurisprudence of Sport

Jamie Fox (Stetson) offers an interesting Twitter thread on the brouhaha over the bronze medal in the women's floor exercise illustrating  the jurisprudence of sport--the conflict (without a clear correct answer) among finality, substantive fairness, procedural fairness, formalism, justice, etc. He offers the thread to incoming law students to give them a sense of what they are about to encounter (and that it is not necessarily over the day's great moral dilemmas).

As things stand, the USOC plans to appeal the  Court of Arbitration for Sport ruling, although it is not clear what higher court would hear such an appeal--whether  Switzerland's highest court or the European Court of Human Rights. And why should the ECHR care or have anything to say about the judging in a gymnastics competition?

One remedial piece to this, according to this report: In its appeal, Romania asked that the IOC award multiple medals--to give Ana Barbosu what she earned in the competition without humiliating Chiles by making her return the medal. This is an attempt at equity. But the case is complicated and I can see why, given its rules, IOC and FIG rejected it (not agreeing--just understanding). FIG sets its rules to avoid multiple medals, except as a last resort;  judges use the execution score and then the difficulty score as tie-breakers. They award multiple medals only in the (unlikely) event of deadlock in all three scores. Barbosu and Romanian teammate Sabrina Maneca-Voinea had identical total scores, but Barbosu initially won bronze on the execution tiebreak. Moreover, this is not a simple case of flipping third and fourth. Chiles finished fifth in the initial scoring, below Barbosu and Maneca-Voinea--the judges' inquiry giving her an additional .1 point jumped her into third andvacating that decision removed that .1 and dropped her back to fifth. To give Barbosu a medal and allow Chiles to keep her initial medal requires that Maneca-Voinea also receive a medal. Romanian proposed doing that, likely because the additional medal would go to a Romanian. But I can see FIG not wanting to award three bronzes.

Saturday Music Post - Subterranean Homesick Blues

Released in 1965, "Subterranean Homesick Blues" was Bob Dylan's first top-40 hit. It was also the lead cut on his fifth album, "Bringing It All Back Home," which featured electric tracks on one side and folk-acoustic cuts on the other side. I was a 16-year old high school senior at the time, writing my honors English term paper on Dylan's lyrics -- for which I had to get the teacher's special permission because such a thing had never been done -- and the fifth album really caused me a problem. Not only was it half-electric, it had no political protest songs, other than the implicit rebellion against the bourgeois world. I cannot remember if I recognized the similarity to Chuck Berry's "Too Much Monkey Business," which Dylan acknowledged decades later, but nobody thought anything about borrowing tunes back then.  I am pretty sure that I mentioned the obvious Kerouac influence.

Don't miss Allen Ginsberg in a tallit and the Ginsberg-inflected clips at the bottom of the post.

Dylan also pioneered the music video with the first clip on today's post at The Faculty Lounge.

You Can't Read That in Utah

As recently reported by PEN America, Utah's State Board of Education has just released a list of 13 books that must be removed from school libraries statewide. As the PEN America press release explains, Utah's unique law requires all schools to "dispose" of any book that has been banned by at least three districts. Thus, all of Utah's 42 districts, with over 600,000 students, must comply with the literary prejudices of the three most conservative districts, which may have fewer than 300 students. In fact, the three smallest districts in Utah enroll a total of only about 650 students, whose parents are now in a position to dictate reading lists for the entire state. (The three largest districts enroll a total of about 190,000 students.)

Of the 13 banned books, 12 were written by women, including Sarah Maas, Judy Blume, Margaret Atwood, and Rupi Kaur. 

Making things worse, the banned books cannot be set aside and saved for a more enlightened time, or even donated to public libraries. The statute evidently requires the "disposal" of the books, stipulating that they “may not be sold or distributed.”

Nor will it end with just these 13 books. The list will continue to be updated as more and more books are banned by right-wing school boards in conservative locales.

Here is PEN America's statement: 

“It is a dark day for the freedom to read in Utah,” said Kasey Meehan, Freedom to Read program director at PEN America. “The state’s No-Read List will impose a dystopian censorship regime across public schools and, in many cases, will directly contravene local preferences. Allowing just a handful of districts to make decisions for the whole state is antidemocratic, and we are concerned that implementation of the law will result in less diverse library shelves for all Utahns.”

Here is the list of banned books:

• “A Court of Thorns and Roses” by Sarah J. Maas 
• “A Court of Frost and Starlight” by Sarah J. Maas 
• “A Court of Mist and Fury” by Sarah J. Maas
• “A Court of Silver Flames” by Sarah J. Maas
• “A Court of Wings and Ruin” by Sarah J. Maas
• “Empire of Storms” by Sarah J. Maas
• “What Girls are Made of” by Elana K. Arnold 
• “Milk and Honey” by Rupi Kaur
• “Forever” by Judy Blume
• “Tilt” by Ellen Hopkins
• “Fallout (Crank, Book 3)” by Ellen Hopkins
• “Oryx and Crake” by Margaret Atwood
• “Blankets” by Craig Thompson

One more thing. PEN America has done enormous good by bringing the Utah law to public attention. This service to democracy, and others like it, would be lost if the left-wing protesters were to succeed in destroying PEN America because of its perceived failure to sufficiently condemn Israel. As I explained earlier this year at The Hill, the writers demonizing PEN America are "burning down their own house."

"I'd Give it a...."

It is possible I've offered a complaint about quotes by law professors awarding low hypothetical "grades" to various opinions and statements before. But it's an evergreen topic and, every now and then, several examples will catch my eye. Law professors, who purport to hate and groan through the grading process, nevertheless seem to have a strong attachment to handing out "grades" to judges and their opinions. I mostly avoid Twitter nowadays, but my recollection is that there are some noteworthy law professors there who have handed out thousands grades in their teaching careers, and almost as many hypothetical grades. I have never entirely understood the lure of this habit; as I say, my understanding was that professors hate grading. But it must stop. 

One oddity of these "grades" is that the opinions they are awarded to are substantially worked on by law clerks. These clerks have already, ex hypothesi, received As like candy on Halloween, and were praised by their mentors to anyone who asked as the smartest young lawyer since Brandeis. And they are working on team-production opinions with other law clerks and with their judges in a period where, at least on the Supreme Court, the number of decided cases is low and the length and technical detail of the opinions high. I may disagree--and in the case of, say, many of the writings of individual Fifth Circuit judges, violently disagree--with some or many of those opinions. But as a "grader," I am inclined to say that the quality of modern judicial opinions is very high. In technical respects, it is higher than the quality of opinions written during the periods when some of the graders were clerking. The low grades that are suddenly so freely handed out to former A students are silly. (That's a judgment of quality along certain lines, I should add. As a reader, and for other reasons, I would gladly trade completeness and sheer technical skill for brevity and sharpness of thought and language, along Holmesian lines. But there was only one Holmes, and in any event that is not the prevailing style. I would add that while I think the quality of lower court opinions is also high, in part because the clerk selection process has become such a big affair, there are lower court judges for whom the opportunity to score points or use cute Internet-ish language trumps, so to speak, quality in writing. Again, the Fifth Circuit springs to mind.) 

 

Another is that judges on apex courts (and on lower courts, sometimes because they have no choice and sometimes because they're eager to do so) don't simply stand still; they move the law. This is a rough fit for grading by law professors, many of whom want students not only to regurgitate the law as they were taught it, but to repeat and flatter the views of the grading professor. (I try not to be one of those professors. I'm pretty sure I succeed. But, on information and belief, they're out there.) Professors who grade opinions of this sort, which is many of them, and who grade in the manner that they do, are especially liable to be affected by their priors. An opinion that moves or manipulates existing law is, I would guess, more likely to be excoriated as, heaven forfend, a "C" effort when the movement and manipulation is, in the professor's view, running in the wrong direction. 

 

More important still are two other factors. First, at least based on what I have seen of grading at six different law schools, it takes hard, hard work to get a genuinely low grade. Of course it does happen, including to some of my students, and some of them a) have good reasons and b) become great lawyers. But genuinely low grades are nevertheless far from the norm. Some law schools—I generally think of them as opportunity schools, and have taught at one--​ demand a given number of lower grades, so that they can identify and remove some of the low-performing students they took a chance on, and whose first-year tuition payments they were happy to cash. But most law schools and all first-tier schools dislike low grades. At those schools, it's very hard to get in and even harder to get out--that is, even harder to manage not to graduate. They have a generous curve, tending to a B+ median or, somehow, higher. Given the difficulty of writing something coherent in three hours while artificially highlighting the points the professor wants to see, and given general declines in writing skill, even a B+ exam can be less than impressive as a reading experience. (I'm not sure I'd like to go back and reread even some of my A exams.) And for some types of class, the curve is either higher still or nonexistent. If the exam or paper was written for a small-enrollment class that doesn't require a curve, most professors, both because they like awarding high grades and because they know the effects of low grades in seminars on future enrollment in that class, are as generous as they can manage without hearing from the associate dean or registrar. Grade inflation is alive and well at most law schools and, despite occasional efforts to address it, thriving like a tropical jungle at the elite schools.

 

Second is the sheer hubris involved. That hubris embraces the hypothetical grade awarded, the grading skills of the person awarding the hypothetical grade, and the grader's confidence in him- or herself, his or her position, and the shimmer of authority, expertise, correctness, finality of judgment, gatekeeping, influence, etc. that surrounds the very idea of handing out a "grade." Academic expertise and its importance are real. So is the self-love of the academic expert, the overestimation of the scope of that expertise, its misapplication, and the expert's belief that his or her public bouquets and brickbats matter. 

 

One option is simply to say things like, "I think it's a bad opinion" or "I think the judge's view is wrong." It's not very quotable, but it is a sensible approach. But if we are going to insist on continuing to hand out hypothetical grades, I'd like to see us be more honest about our grading practices and more humble about the thing we are "grading." A sound and probably accurate statement would run more like this: "If this opinion were one of my students' exams, I'd give it--let's face it, I'd give it an A, or at worst an A-. I hate it anyway."     

Pete Rose, Shoeless Joe, and the Hall of Fame

Charlie Hustle & the Matter of Pete Rose is a four-part HBO Max documentary telling three stories at once--Rose's playing career, Rose's ban and the years that followed, and his current life. Daniel Fienberg offers a lukewarm review. The central issue, as with everything Rose, is whether he should be enshrined in the Hall of Fame. While writing this post, I came across Backstory: Banned for Life, a 2020 ESPN program (paywalled--need an ESPN+ subscription) about Rose and Shoeless Joe Jackson and their status on the permanent ineligible list.

There are many pieces to the "Rose in the Hall" question, which Charlie Hustle describes but does not fully unpack.

1) The Hall and MLB--independent entities making independent decisions--play an interesting game of hot potato as to who is responsible for keeping Rose out. MLB placed Rose on the permanent ineligible list in 1989 (with eligibility to seek reinstatement). The Hall two years later enacted a rule that those on MLB's ineligible list are ineligible for Hall induction; the change largely responded to Rose's looming Hall eligibility (1992 would have been his first year on the BBWAA ballot). It has become known as the "Pete Rose Rule," although it came amidst a groundswell for putting Jackson  in the Hall following the movies Field of Dreams in 1989 and Eight Men Out in 1988. Charlie Hustle then includes a clip of a  MLB Commissioner Rob Manfred kicking the can back to the Hall, stating that nothing requires the Hall to retain its rule linking Hall eligibility to MLB eligibility; in other words, those who want Rose in the Hall should take the case to the Hall, not to him.

According to ESPN, in 2020 MLB announced that it interprets its ineligible list to limit employment and other involvement with MLB and its team; ineligible status ends when the person dies and he can have no further involvement in the game. The Hall responded by interpreting its rule to apply to anyone on the ineligible list, living or dead. This creates a genuine catch-22 with respect to a dead player. The Hall says the player remains ineligible unless MLB takes affirmative steps to remove the person from the list; MLB says it cannot do anything once the person dies and the effects of ineligibility end.

2) Both shows discusses the Steroid Era and Houston Astros sign-stealing, showing that MLB never punished any of the involved players, to say nothing of punishing them as severely as it punished Rose (or Jackson). But this misses the key point. Gambling on baseball remains the game's cardinal sin, a prohibition (and punishment) posted on every clubhouse and antithetical to baseball operating as a legitimate competitive enterprise and not professional wrestling. PED use and sign-stealing are milder violations that many within the game regard as part of a longstanding search for competitive advantage. Moreover, the BBWAA has served as MLB's enforcer--Roger Clemens, Barry Bonds, and other steroid-linked players never received more than 65 % support and nowhere close to the necessary 75 % on writers' ballots.*

[*] This reflects another way in which Selig failed as MLB commissioner.

3) Rose may not be the BBWAA's call, which Charlie Hustle discusses. Players can appear on the writer's ballot up to ten years after first eligibility (a player falls off the ballot if he received less than 5 % the prior year); after that, the Veterans' Committee (comprised of Hall members, executives, and historians) considers these players. So if Rose becomes eligible for the ballot (whether through actions of MLB, the Hall, or both), does he begin on the writers' ballots, since he has never appeared on the ballot and thus the ten-year clock has not begun? (Bob Costas suggests this). Or does he jump to the veterans, since it has been more than ten years since Rose would have appeared on the ballot? Given how the writers approached players with steroid connections, I cannot imagine Rose getting to 75 %, although it would be interesting to see whether his support would grow (as happened with Clemens, Bonds, et al), who reached mid-60s by their final years. In Charlie Hustle, one journalist says he voted for Clemens and Bonds every year and would vote for Rose if his name appeared on the ballot. On the other hand, Rose's strategy has been to cultivate support from Hall members (Charlie Hustle features Hall members Tony Perez, Mike Schmidt, and Reggie Jackson expressing support). This affects the goal of getting Rose into the Hall while he is alive (he is 81); chances drop if he has to go through the motions of up to a decade before the writers.

4) Someone (I think long-time Reds announcer Marty Brennaman) says it would be a tragedy for Rose to be inducted posthumously. I wonder. Rose supporters argue that the Hall is a museum that should record the history of the game and its players; Rose deserves a spot because the story of baseball (and certainly not the story of baseball in the 1970s and early '80s) includes Rose. But it also is a shrine, a way to honor, grant a title ("Hall-of-Famer" or "First-Ballot Hall-of-Famer"), and bestow unique privileges to certain players. Perhaps posthumous induction offers the right compromise: Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize**--being a living Hall Member.

[**] Which has been at least part of the ick factor with Rose over the years, although he defends his need to make a living.

5) Charlie Hustle never mentions Shoeless Joe, other than to explain the Black Sox (and the irony that they threw the 1919 World Series to the Reds, Rose's team) and the origins of the gambling prohibition. In particular, it does not address how arguments about Rose affect Jackson. (It includes the segment, described above, comparing non-punishment of steroid use and sign-stealing, but does not mention the genuinely comparable gambling case). This is a problematic omission, because you can discuss Rose' induction without discussing Jackson's--if Rose can be forgiven and allowed into the Hall, why should Jackson not be forgiven and allowed in? Some (including Rose in Banned) distinguish the cases because Rose apparently never bet against the Reds. But that argument misunderstands three points of the gambling rules. First, gambling affects games over a season, those bet on and not bet on. Second, the gambling rule reflects the ideal of the player seeking to win for the team that pays him and for the competition, not for some outside gains. Third, and most important, the gambling rule is prophylactic. It seeks to avoid any hint or risk that gambling might affect outcomes, play, or decisionmaking in games; it avoids the scent of gambling's effects, irrespective of actual effects. The rule therefore cannot distinguish betting on one's team from betting against one's team from taking money to tank becauseall cause the harms--the risk of the appearance of impropriety--MLB seeks to prevent.*

[*] On Banned, the host too readily concedes to Rose that what Jackson did is worse, ignoring the underlying rationales for barring gambling.

Banned shows that the links between Rose and Jackson are more extensive than I realized:

    • In early 1989, the South Carolina legislature petitioned MLB Commissioner Bart Giamatti to consider reinstating Jackson, part of a broader groundswell of renewed support for Jackson following his sympathetic portrayal in the two movies. Giamatti asked former federal prosecutor John Dowd to make the case for Jackson, which he did (TL;DR: Jackson played well in the Series and received no due process prior to his suspension). Giamatti was considering it--then stopped when the Rose case blew up a few months later; he could not reinstate (or even consider reinstating) Jackson while also investigating and potentially punishing Rose for similar misconduct. Giamatti also hired Dowd to conduct the investigation into the Rose allegati0ns. Dowd sits for interviews; he does not like Rose.

    • The Hall's 1991 rule change affected Jackson, short-circuiting some momentum among Hall members and the public following the movies. This can lead to two conclusions: 1) Despite its name, it did not target Rose but reached two similarly situated players or 2) Rose screwed Jackson, because the immediacy of dealing with Rose imposed unintended consequences on Jackson.

    • Former MLB Commissioner Fay Vincent (who worked with Giamatti, became commissioner when Giamatti died, and served until Bud Selig and the owners shanked him to set-up the 1994-95 strike) relays a conversation with Ted Williams in which Williams expressed support for Jackson. Vincent said if they let Jackson back in, Rose comes with him; Williams bascially said "no, fuck that guy," views supposesly held by Hall of Famers of Williams' era.

Interesting stuff. I remain in the no-Hall camp. But I am coming around to the idea of posthumous induction for both, with plaques detailing their bans in addition to their accomplishments.

Term Limits Aren't Enough

My new essay at The Hill expands on the arguments for expanding the Supreme Court, including this reappraisal of FDR’s failed 1937 legislation:

The pejorative term “court-packing” dates back to President Franklin D. Roosevelt’s 1937 plan to expand the Supreme Court. Frustrated by the court’s invalidation of crucial New Deal programs, he proposed a bill that would have expanded the court to a maximum of 15 by adding one seat for every justice over the age of 70. 

Although it has not fared well in historical memory, Roosevelt’s plan was actually quite thoughtful. It addressed the problem of an aging and out-of-step judiciary by adding seats one at a time, without imposing retirement on the sitting justices due to age or term limits.  

Roosevelt’s political motivation was obvious, of course, but the legislation’s long-run effect would have been nonpartisan. Everyone gets older, after all, and both Democratic and Republican presidents would have been able to add seats to the court. 

Of the nine justices appointed by Roosevelt, including one chief justice, five served beyond the age of 70. Three of the additional nominations would have been made by Republican President Dwight Eisenhower. 

You can read the full piece here.

12(b)(6), summary judgment, and conflicting video

I think the Fourth Circuit reaches  the right place--further proceedings required. A trial court can consider a video on a 12(b)(6) if "(1) the video is 'integral' to the complaint and its authenticity is not challenged, but (2) only to the extent that the video 'clearly depicts a set of facts contrary to those alleged in the complaint,' or 'blatantly contradicts' the plaintiff’s allegations, rendering the plaintiff’s allegations implausible." The district court should have denied dismissal because the video did not blatantly contradict the allegations in the complaint.

But I think it gets there via two mistakes, sounding in the general problem of conflating 12(b)(6) and summary judgment, especially in civil rights actions: 1) Expanding what the court can look at on 12(b)(6) and 2) conflating 12(b)(6) and summary judgment when dealing with conflicting information.

1) A court on a 12(b)(6) is limited to the allegations within the four corners of the complaint plus documents attached as exhibits. FRCP 10(c), 12(d). Courts have extended that plus to include documents that the complaint mentions or relies on, which makes sense on a rule of completeness--if the complaint refers to something (e.g., a contract or a magazine article), a rule of completeness dictates that the court treat the entire thing as part of the complaint. Otherwise a plaintiff could selectively and inaccurately quote pieces of a broader thing to create a false impression. Courts have further extended this to videos.

The 4th Circuit does not explain what "integral" to the claim means--whether it includes complaints that identify the video as a source or otherwise expressly rely on the video or whether it includes any set of facts describing events for which publicly available video may be found. If video cases are not to subsume 12(b)(6), it should not extend as far as the latter. That is, if the complaint includes factual allegations X, Y, and Z and there happens to be video evidence of those facts that the complaint does not mention, discuss, or rely upon, the video should not be treated as part of the complaint.

The court does not explain which side the case falls. The complaint alleged a bunch of facts; defendant's 12(b)(6) introduced the video, emphasizing that it was "publicly available" and "integral to" and "apparently relied on" in the complaint. Publicly available should not matter (unless it is part of a public record and a subject of judicial notice). And I do not know how the complaint "apparently relie[s]" on the video--either it does or does not. Unfortunately, plaintiff did not object to the court considering the video and used the video to argue it meaning in opposing the motion, effectively waiving the 12(d) argument. The court therefore did not resolve the "not entirely clear" question of whether the video qualifies as integral to this complaint.

2) If the video is part of the complaint, I do not think the "blatantly contradicted" standard should apply. Blatant contradiction comes from Scott v. Harris, where the Court disregarded the plaintiff's deposition testimony of what happened during a high-speed chase (specifically whether he was a threat to persons and property) by watching video of the chase and concluding that the video was capable of one reasonable interpretation. The Court therefore need not accept plaintiff's version of events or draw reasonable inferences for the non-movant plaintiff ("I was driving fast but safely") when his evidence was "blatantly contradicted" by the video whose one true meaning ("he was a threat'") the Court can divine by watching.

Putting aside the correctness of Scott and the idea that the video shows one obvious thing rather than being subject to interpretation, the approach makes some sense on summary judgment. Opposing parties offering competing evidence, stories, and versions of events; the court decides whether the evidence each offers sufficiently conflicts as to show a factual dispute requiring jury resolution. "Blatant contradiction" gets us to the place of the defendant offering the video, the plaintiff offering no evidence (as is his burden of production), leaving no disputed facts requiring jury resolution. I do not agree with the standard, but it is consistent with the inquiry on summary judgment.

But 12(b)(6) is supposed to be different. The court hears one side--what the plaintiff offers; it hears no facts or evidence from the defendant. The court takes everything the plaintiff alleges as true and considers whether the plaintiff can win if everything he says is true. Where the complaint contains adverse allegations or facts, the court can consider those and rule against the plaintiff--we say plaintiff has pleaded herself out of court. Where the complaint includes contradictory allegations, the court need not resolve that conflict or decide which is true; it accepts everything true and decides if the plaintiff loses under either of those sets of facts. Consider Craig v. Rich Township High School. A fired school counsleor alleged that he published his book (the speech for which he was fired) outside of work , but the book (which he attached to the complaint) included content connecting to his counselor job. The court could consider that fact in the Pickering balance on a 12(b)(6) because the facts showing connectedness were in the complaint. The court did not disregard contrary facts; it took all facts as true, some of which showed why the plaintiff lost under controlling law. Or imagine a hypo I use in class--a Black non-attorney brings a race-discrimination claim against the law firm that denied him a job, with allegations that he was told he was not hired because he is not an attorney and because he is Black. The court would not unpack or reconcile the facts; it would take both allegations as true, with one fact (not hired because not an attorney) defeating the claim.

So how should this case have come out? Where (as it seems to have been in this case) there is ambiguity whether the complaint relies on the video, the court should treat it as not having relied and not treat the video as part of the complaint. The court therefore should have either refused to look at the video and denied the 12(b)(6) or converted  to summary judgment; the latter moves allows the court to consider whether the plaintiff's testimony is "blatantly contradicted" by the video as a competing piece of evidence. But if the video is clearly part of the complaint, then the court should review the video and decide if it plausibly shows a violation, without regard to other allegations in the complaint. If the video defeats the claim, we would say the plaintiff pleaded herself out of court by including adverse facts for the court to take as true. Blatant contradiction never comes up, because the plaintiff is on the hook for the effects of all the facts she includes in the complaint.

The Mainstream Media--1871 Edition

The New York Herald. January 14, 1871:

Saturday Music Post - Then He Kissed Me

"Then He Kissed Me" was written by Ellie Greenwich, Jeff Barry, and a despicable person whom I will not name. Omitting his many songs, as author or producer, would suppress the artistry of many who have done no wrong, including the Crystals, whose 1963 arrangement was by Jack Nitzsche with accompaniment by the Wrecking Crew. It was 493 on Rolling Stone's 2004 list of the greatest songs of all time, and number 8 on Billboard's 2017 list of the greatest girl group songs of all time. The Beach Boys later covered it as "Then I Kissed Her."

The clips are at The Faculty Lounge.

A Summertime Letter to the Editor of the Travel Section

In the days of print media, the Sunday New York Times featured letters to the editor of the travel section, which typically recounted the writer's personal reflection on a recent article. In summer 2007, the Times oped page published my own take on such letters, under the title "Welcome to Obidas":

CHICAGO — The enchanting town of Obidas was one of the highlights of our summer driving tour, although I cannot remember why.

Still, I am certain that the story would hold great interest for readers, since it no doubt involves either some witty observation on quirky foreign ways, or a charming encounter with a horse (or dog). Then again, it might have been where my good wife had her pocketbook stolen, in which case I could impart some helpful advice about avoiding theft like, "Never hand your pocketbook to a man on a motor scooter who wants to see whether it is made of real canvas."

I am reasonably certain that Obidas is not where we enjoyed the famous yogurt. That was probably Omylas, where I now suspect that the surprisingly sweet taste was achieved simply by adding honey, though I have not shared that suspicion with my wife, who continues to refer to Omylas as the place with the sticky yogurt.

In any event, Obidas is well worth a detour on the popular day trip to Arrialos, even though it is several hours in the opposite direction and will therefore require an overnight stay. This can be taken in the picturesque seaside village of Lulash, a mere 200 or so kilometers farther north. In Lulash, one can dine on a classic dish containing some sort of fish (or perhaps shellfish, or mollusks, or maybe boiled eggs) in a thick brown sauce.

Alas, offshore pollution has caused the specialty - which I now think might be called Ribateja (unless that is the name of a remote border province notable either for its hot springs or roving bandits) to all but disappear. Still, you will see it listed on the menus of the better restaurants, which can be readily identified by their street-side mâitres d' (or "louts," in the regional vernacular) who playfully grab you by the shoulders and use mock brutality to escort you inside to a table.

Within a few short hours you will be happily enjoying the feast of a lifetime. Be sure to pay careful attention as the waiter ceremoniously performs the tableside ritual of skimming the cloudy sediment from the surface of your meal, which is served tepid according to local custom. Do not be put off by the unusually sharp, some might say fetid, aroma and taste. Legend has it that the seasonings were developed so that fishermen would not grow homesick during their months at sea.

Next, steal an unobtrusive glance at the other diners, many of whom will be chuckling and giggling as though to share, if only vicariously, in your gastronomic delight. You will realize why they are smiling when you see your waiter artfully signal to them by quickly rubbing his thumb across the tips of his first two fingers, a gesture that is widely understood to mean "fortunate tourist."

From Lulash it is an easy, 19-hour journey onward to the Amaroga wine country, where a determined œnophile can seek out rare vintages, recognized by the seepage of dense yellow sludge around the cork.

While the best wines are seldom for sale, having been handed down from generation to generation, you will be surprised by the number of vintners who have anticipated your arrival by setting aside one special bottle "just for you."

And of course, the understated hospitality for which the Amarogans are justifiably famous cannot help but remind you of the many pleasures of Obidas, whatever they might have been.

The Shapiro Question

The New York Times reports that various so-called progressive groups have been attempting to prevent Vice President Kamala Harris from naming Pennsylvania Governor Josh Shapiro as her running mate. Often referring to him as "Genocide Josh," their nominal objection is that:

The 51-year-old governor has stood by Israel’s right to self-defense and has condemned overt displays of antisemitism amid pro-Palestinian protests. He has been unapologetic in his love for Israel; he has visited often and even proposed to his wife there.

As it happens, Shapiro's position on the Middle East is virtually indistinguishable from Harris's, or from the other likely vice presidential candidates, including Arizona Senator Mark Kelly and Minnesota Governor Tim Walz. Nonetheless, only Shapiro has drawn organized opposition from the left. The Atlantic's Yair Rosenberg thinks he knows why:

And yet, activists have not organized in force to discredit any of the non-Jewish contenders for vice president on these grounds. There are no viral memes against “Killer Kelly” or “War-Crimes Walz.” Either the activists involved are extraordinarily lazy and never thought to investigate the other VP possibilities, or they think that Jews are uniquely untrustworthy. Seen in context, the “Genocide Josh” campaign and its tendentious reading of Shapiro’s record look less like a legitimate political critique than a rigged litmus test imposed on the Jewish lawmaker alone.

In fact, Shapiro might actually provide Harris with a "Nixon to China" opportunity. She has already signaled some distance from Pres. Joe Biden's nearly unqualified support for the Gaza operations. Shapiro himself has called Prime Minister Benjamin Netanyahu “one of the worst leaders of all time." That could be the beginning of a more nuanced policy for mainstream Democrats -- support for Israel and condemnation of Netanyahu and his thuggish coalition partners.

Former Pres. Donald Trump has called Harris's husband, Doug Emhoff, a "horrible Jew," and he regularly disparages Jews who vote Democratic. "If you’re Jewish, if you vote for a Democrat you’re a fool. An absolute fool.”

Josh Shapiro, who keeps kosher and celebrates Shabbat, could be just the person to prove him wrong.