PrawfsBlawg

Presidential Election Trivia

If Donald Trump wins the election in November, he will become only the second president in U.S. history to serve nonconsecutive terms. In addition to that terrifying prospect, here are a few other trivial points from presidential history.

If Kamala Harris wins in November, Trump will become the fifth major-party two-time (or more) loser. The other four are: Henry Clay, William Jennings Bryan, Thomas Dewey, and Adlai Stevenson. (Martin Van Buren could be added, if we count his Free Soil Party candidacy in 1848.)

Trump is the eighth person to run for the presidency three or more times as a major party candidate. The other seven are Thomas Jefferson, Andrew Jackson, Henry Clay, Grover Cleveland, William Jennings Bryan, Franklin D. Roosevelt, and Richard Nixon. (Again, Martin Van Buren could be added, if we count his Free Soil Party candidacy in 1848.)

Comments are open to point out errors, omissions, or elaborations.

 

Saturday Music Post - Stay a Little Longer.

"Stay a Little Longer" was Bob Wills hit in 1945. It's been covered many times, most famously by Willie Nelson, as you can see this morning at The Faculty Lounge.

 

 

A Nice Bit of Law and Political Economy-Oriented Reporting on Disability Accommodations

The Chronicle of Higher Education is at its best when it offers the occasional bit of long-form journalism, filling the gap left wide open by the long-dead, long-mourned magazine Lingua Franca. Here's an interesting piece (paywalled, alas) in that vein. It's written by a professor but clearly must be taken to be a piece of journalism rather than expert commentary--which is good, because I'm not an expert reader on the subject, but it does a good job of interviewing a variety of individuals and discussing recent studies. The headline asks, "Do Colleges Provide Too Many Disability Accommodations?" The answer is, "Most likely, yes."

My sense is that, if one takes the definitions that seem increasingly to prevail in the mine run of legal academic literature, the article, and the issue it discusses, can be thought of as a law and political economy story. (Admittedly, some scholars use more specific definitions of the term; others use definitions derived from the 200 years of law and political economy scholarship that preceded the present, somewhat amnesiac version; and still others have retooled their articles for the submission game by adding "law and political economy" to what are apparently already-existing articles, while using a highly protean definition of the term.) At its broadest level, the article can be understood as arguing that the force behind universities granting an excessive number and degree of disability accommodations is neoliberalism. (For a definition of that term, see my prior parenthetical note.) More specifically, it can be taken to argue that the reason for the phenomenon is a combination of institutional factors: 1) laziness, greed, budget cuts, fear of litigation and/or increased insurance premiums, indifference to professors' views and role in governance, and a capitalist imperative to enroll more students and adopt a more consumer-oriented attitude on the part of universities; 2) greed and market imperatives among disability testing services; 3) careerist cowardice among disability scholars; and other forces. The result, the author argues, is an exacerbation of existing inequality:

The equity problem should be clear: If accommodations help everyone, and we relax the diagnostic criteria necessary for securing them, wealthier students will experience even more of an advantage, which is precisely what we are seeing. Accommodations are disproportionately secured by the highest performing students, further increasing the achievement gap. In one study of students receiving accommodations at a selective private college, most “showed above-average cognitive abilities, average academic skills, and no evidence of impairment.” Limited resources should be going to the students who need them most, not the students who are most skilled at securing them. A more restrictive approach to diagnosing disability and granting accommodations would allow for increased focus on lower-socioeconomic status students who are dramatically underperforming compared to their peers but do not have a diagnosis (or a disability). It would also lower the disability-provider-to-student ratio, facilitating better care for students with more serious disabilities.

Given the forces the author discusses, and universities' own place in the ecosystem of late capitalism, I am dubious of the author's closing suggestion that "higher education is ideally positioned to take the lead" on addressing these issues. This seems like the kind of BS we usually see at the end of a perfectly interesting descriptive and analytical article because of individual academic market actors' inability to resist the pressure to include a set of recommendations for reform. Nevertheless, and without endorsing all its analysis, I found the article interesting, and no doubt most teachers will. Read the whole thing, if you have the economic power to do so. 

 

Eric Loomis Visits an American Grave and Sees Napoleon [UPDATED]

As of today, Eric Loomis has posted 1713 installments of his "American Grave" series on the Lawyers, Guns & Money blog. Each post features a photograph of a grave, taken by Loomis, and a biography of the deceased, who include both well-known historical figures, often from the 19th century, and obscure but interesting individuals. Loomis is a progressive labor and environmental historian at the University of Rhode Island, so his "American Grave" posts often, but not always, include political commentary, sometimes favorable and sometimes scathing, depending on the individual.

Today's subject is the despicable Theodore Bilbo, who served as governor and senator from Mississippi in the first half of the twentieth century. Bilbo, for those who do not recognize his name, was one of the very worst southern segregationists, in an era when he had lots of competition for the title. As Loomis puts it, Bilbo was an "open white supremacist" who "just race-baited his way" through his political career.

At first, he was a fairly reliable vote for the New Deal but after 1936, he became an open opponent of it and happily worked with other far-right southern Democrats and Republicans to shut down major legislation. He voted against most of the New Deal labor legislation and tried to kill the Fair Employment Practice Committee.

There are many other bad things to say about Bilbo, and virtually nothing positive. But then Loomis says this:

And let’s not beat around the bush, Bilbo was a piece of shit in other ways. He was a tiny man, only 5’2″ and he had serious Napoleon syndrome. He dressed super flashy for the time and, most terribly, constantly referred to himself in the third person.

While there is no doubt that Bilbo was a piece of shit, what does being short have to do with it?

More to the point, why is it almost reflexive to slap "Napoleon syndrome" on short men who exercise power? What evidence is there that Bilbo's height had anything to do with his drive and ambition (evil as it was)? Do aggressive tall men have serious Peter the Great complexes?

In fact, Napoleon was about 5'6", which was average for Frenchmen at the time. Peter the Great, however, was indeed 6'8".

The myth of Napoleon's shortness as a negative character trait began as a put-down by the British cartoonist James Gillray during the Napoleonic Wars:

From then on, the future emperor was referred to only as “Little Boney” and was shown substantially smaller than all other figures, usually with oversized boots and a too-big bicorne hat. The image of Napoleon as short was firmly entrenched at that moment.

Certainly, in the English-speaking world, Gillray creates the image that runs through to this day. . . . It’s very common in England today to call someone a ‘Little Napoleon.’ The idea is you have to be little to have such great self-importance – as in a Napoleon complex.

We have mostly gotten to the point when body size and shape are no longer used derogatorily. Why is it still acceptable to use short stature as an insult tied to an imputed psychological condition?

Before anyone asks, I am 5'6" and very intense, just like many of my much taller colleagues.

[UPDATE: I did a humorous commentary about the "Napoleon Complex" for NPR's Morning Edition in 1996. I cannot find the audio on line, but the text of the piece is after the jump.]

MORNING EDITION, July 17,1996

LUBET DISCUSSES THE PLIGHT OF THE VERTICALLY CHALLENGED
 FULL TEXT

BOB EDWARDS, Host: Candidates for political office often try to emphasize how much they have in common with the public, even if voters don't always agree. Commentator Steven Lubet says he has something in common with one of this year's presidential candidates, even if it's not a political position.

STEVEN LUBET, Commentator: Listen to people talk about Ross Perot, and pretty soon someone will refer to the fact that he's short. Then someone will describe him as feisty, followed by `pint- sized' and `sawed-off' - and those are his supporters. The people who don't like him use words like `runt' or `pipsqueak.' Now, I don't have much in common with Mr. Perot - I'm about as close to being a billionaire as gefilte fish is to ham hocks - but I do resemble him in one crucial way.

I have always been short for my age, which is currently 47.

As a young child, I kept expecting to grow. Along about puberty, though, the other boys stretched out while I remained my under- sized self. By high school, it became clear that acute shortness was not a transient phenomenon. It was to be a chronic, permanent condition.

My pituitary gland failed me, just when I needed it most - which was not to say that there were no new surprises. Most girls pretty much stopped growing when I did. That meant that I could date girls who were five-four, or five-five and not feel out of place.

Of course, when it came time to meet their fathers or brothers, I was towered over, as usual. If you've never seen it, you can't really imagine the pained expression on the face of a six-two ex- linebacker as he peers down at the little guy who's shown up to court his daughter - or at least it seemed that way. From my vantage point, I couldn't completely discount the possibility that he'd just cut his forehead on a low chandelier.

There's no avoiding it, though, that little guys are not the ideal. You'll never hear someone say, delightedly, `My, how wonderfully small you've stayed.'

Of course, if you ever do assert yourself or succeed at anything - say, running for president or diverting the course of the French revolution, you just feed the stereotype of the pushy, insecure, Napoleonic shrimp. Have you ever noticed, though, that an aggressive or even belligerent big guy is never said to suffer from a Duke of Wellington complex?

Well, I've learned to cope with my `shortcomings' but there is one handicap that I can't seem to overcome. It turns out that I'm incapable of estimating people's height. To me, everyone is tall. From five-nine to six-four, they all look alike from down here.

Over six-four, and I can't see their faces.

So I sometimes find myself describing a friend or colleague as tall, only to get a blank stare. `Me? You've got to be kidding. I'm only five-eight,' comes the puzzled reply.

What can I say but, `Don't feel shortchanged, big fella.'

BOB EDWARDS: The comments of Steven Lubet who teaches at Northwestern University Law School.

Call for Nominations: Best Untenured Article

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2025 AALS Annual Meeting. 

 

The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2024 (date of actual publication deter-mines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2024), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Professor Marin Levy at Duke University School of Law ([email protected]). 

 

Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2024. Nominations will be reviewed by a prize committee comprised of Professors Payvand Ahdout (University of Virginia School of Law), Kellen Funk (Columbia Law School), Tom Lee (Fordham School of Law), Marin K. Levy (Duke University School of Law), and Richard Re (University of Virginia School of Law), with the result announced at the Federal Courts Section program at the 2025 AALS Annual Meeting.

 

Prof Leiter on "The new timetable of the law school hiring market"

Interesting insights from Prof. Leiter on the new timetable of the law school hiring market.

JOTWELL: Erbsen on stipulated secrecy

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, & Aaron Schaffer-Neitz, Secrecy by Stipulation, 74 Duke L.J. __ (forthcoming, 2024), on how party agreement prompts courts to grant protective orders without good cause, undermining public access to the courts.

Saturday Music Post - William Tell Overture

The "William Tell Overture"is most famous as the theme song to The Lone Ranger, on radio, television, and film. But of course it is a serious classical composition, the four-part introduction to Gioachino Rossini's opera of the same name, which premiered in 1829. William Tell was a legendary (or perhaps mythic) crossbow marksman, who led Swiss resistance to Austrian tyranny in the early Fourteenth Century, paving the way for the independence of the Swiss Federation. If Tell was actually a real person -- which seems unlikely -- he might or might not have shot an apple off of his son's head, a feat said to have saved both of them from execution.

In addition to The Lone Ranger, the fourth part of the "Overture," called "The March of the Swiss Soldiers," was also the theme to a British series The Adventures of William Tell. 

Part Four of the "Overture" has been transcribed for individual musicians from Franz Liszt to Glen Campbell (with occasional parodies), many of which are posted at The Faculty Lounge.

Mike DeWine Defends Springfield, but Why Didn't He Publish It in the Wall Street Journal?

Ohio Gov. Mike DeWine has an essay in today's New York Times powerfully defending Springfield, and its Haitian community, from the lies spread by Donald Trump and JD Vance. He writes,

Springfield is having a resurgence in manufacturing and job creation. Some of that is thanks to the dramatic influx of Haitian migrants who have arrived in the city over the past three years to fill jobs.

They are there legally. They are there to work.

It is disappointing to me that Springfield has become the epicenter of vitriol over America’s immigration policy, because it has long been a community of great diversity. 

"Disappointing" is putting it mildly, but it is still encouraging to see a Republican contradicting his party's nominees. Alas, that is as far as he is willing to go:

As a supporter of former President Donald Trump and Senator JD Vance, I am saddened by how they and others continue to repeat claims that lack evidence and disparage the legal migrants living in Springfield. This rhetoric hurts the city and its people, and it hurts those who have spent their lives there.

What? Saddened? How can he remain a supporter of the candidates whose falsehoods -- "lack of evidence" is a polite way of saying it -- have caused so much damage to a community in his state:

Bomb threats — all hoaxes — continue and temporarily closed at least two schools, put the hospital on lockdown and shuttered City Hall. The two local colleges have gone remote. I have posted Ohio Highway Patrol troopers in each school building in Springfield so the schools can remain open, teachers and children can feel safe and students can continue to learn.

DeWine was born in Springfield. He and his wife have lived within 10 miles their entire lives, yet he is only saddened and disappointed by racist lies being told about people whom he recognizes as important contributors to the revival of Springfield's economy.

And so the question: Why didn't DeWine publish this in the Wall Street Journal, where it might have some impact on Republican voters? Was he simply virtue signaling, knowing that the Trump faithful dismiss everything in the Times? Or did he first offer it to the Journal, only to have it refused?

Fifth Circuit makes a Heck-of-a-mess

I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).

At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.

Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.

Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.

But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.

I cannot believe the Court will not take this case. Lord knows how badly they will botch it.

Tinker and universities

The Sixth Circuit reversed a 12(b)(6) dismissal of a lawsuit by a then-pharmaceutical student who was investigated and dismissed (although the dismissal was reversed) for social-media posts that violated "professionalism" standards. The court found her speech protected and that the right of a university student not to be punished for protected speech clearly established (despite on-point precedent involving a pharmaceutical student and social-media posts about sex and fashion). It also handles some fun Civ Pro stuff about what evidentiary materials a court can use on a 12(b)(6) without converting to summary judgment.

This should be an easy case, at least at 12(b)(6). Her speech was online and off-campus; unrelated to the school, her activities as a student, and her future career as a pharmacist; and violates professional norms only if those norms are unacceptably content- and viewpoint-based.

One problem: The court relied on the "disruption" test developed in high-school speech cases (Mahanoy and Tinker). Circuit precedent requires it, although recognizing that what disrupts a university should be different than what disrupts a high school. Still, the prospect that a university can restrict speech under the quasi-heckler's-veto that prevails in high schools is dangerous. In essence, that is what the school tried here. And I would have preferred a more rousing defense of an adult's free-speech rights.

Procedure Matters, Episode LIX

Kind of a weird one but it illustrates how the rules operate and interact in confusing ways.

Plaintiff brings False Claims Act qui tam action; defendant answers but does not raise the constitutional invalidity of qui tam actions as an affirmative defense; defendant moves for judgment on the pleadings based on constitutional invalidity (qui tam actions violate Article II). The court denied the motion because defendant did not raise the affirmative defense in the answer, so it is not part of the pleadings for FRCP 12(c) purposes. Defendant had to amend its Answer to add the constitutional defense, which might be tricky since the court had set a scheduling order (which heightens requirements for amending).

This is a plausible outcome. But I think the court errs (or at least fails to perform proper analysis) in two respects. Both go to the court's failure to actually decide whether qui tam actions violate the Constitution.

First, the constitutional defense should be a built-in defense--the constitutional validity of the law sued upon should be built into the complaint's allegations of a violation of that law. Defendant could have responded to the complaint with a 12(b)(6) motion raising the constitutional defense, which would have forced the court to decide whether the Constitution permits qui tam actions. If so, a defendant should be able to raise a built-in defense on a 12(c); even if not pleaded in the answer, the affirmative defense is built into a complaint that mentions and includes allegations about the FCA. For comparison, a defendant can raise the statute of limitations on a 12(b)(6) if the complaint includes dates showing the claim is untimely; if the defendant answers without an SL defense and moves under 12(c), the court can still look at the complaint, see that the complaint is untimely, and grant the motion, even if the defendant did not plead SL.

Second, before deciding the defense must be in the answer, the court waves away the constitutional analysis. The court says this (and this is all it says):

Under the present state of the law, Defendants’ separation-of-powers challenge to the qui tam provisions of the False Claims Act is insufficient on its own to demonstrate that Relators’ complaint is implausible. Further, even if “[t]he FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,”and even if it is time to revisit the matter, it is equally true that “lower federal courts should not ‘pass on questions of constitutionality . . . unless such adjudication is unavoidable’ . . . .”

That is a cop-out. If qui tam actions are constitutionally invalid, they do render the complaint implausible--no reasonable inference from the facts taken as true shows plaintiff can recover, given the constitutional defects in the FCA. But the court must decide the open constitutional question to make that plausibility determination. It cannot stop with pointing out that other (non-binding) precedent has gone the other way and thus does not outright preclude the claim or make the claim frivolous.

‘Sotomayor Rule’ exposes the Supreme Court’s porous ethics code

My new essay for The Hill uses the Supreme Court justices’ book sales to illustrate the porousness of their unenforceable code of conduct. Here is the gist: 

‘Sotomayor Rule’ exposes the Supreme Court’s porous ethics code

In July 2023, the Associated Press reported that Sotomayor’s “tax-funded court staff” had been pushing book sales at her speaking engagements. 

When the Supreme Court issued its code of conduct, just a few months after the Associated Press expose, it included an entirely novel provision in Canon 4A, that is found in no other court’s code. The “Sotomayor Rule,” as it might be called, states that “a justice may attend and speak at an event where the justice’s books are available for purchase.”  

But that’s not all. A few paragraphs down the page, Canon 4G greatly expands the rule by authorizing justices to use their staff and chambers to “materially support…activities permitted under these Canons,” which uniquely includes making books “available for purchase.” 

This provision is directly contrary to the lower courts’ code, which expressly prohibits the substantial use of chambers or staff for “extrajudicial activities,” including those otherwise permitted.

Thus, the justices have invented a right to put their staffs to private use — including, by the terms of Canon 4D, the management of investments — which is appropriately denied to all other U.S. judges.

You can read the entire essay at The Hill.

Saturday Music Post - I Hear You Knockin’ on Wood

In 1966, Eddie Floyd and Steve Cropper wrote "Knock on Wood" on a stormy night in Memphis at the Lorraine Motel, about two years before Martin Luther King would be assassinated in the same location. At the time, the Lorraine was one of the few places in Memphis where Black and white people could meet together, or where Black people could stay in modern commercial accommodations. Over the years, virtually all of the great Stax acts stayed there, including Ray Charles, Aretha Franklin, Wilson Pickett, the Staple Singers, Otis Redding, and others. According to Steve Cropper, the thunderstorm gave them the idea for the refrain, "like thunder, lightning, the way you love me is frightening." The song was a hit for Eddie Floyd and has been covered many times over fifty years. Other "knockin'" songs on today's post include Fats Domino's "I Hear You Knocking" and Little Richard's "Keep a' Knocking" (covering an earlier recording by Lil Hardin).

 The clips can all be enjoyed at The Faculty Lounge.

Right Metaphor, Wrong Lesson

Donald Trump says he obviously won his debate with Kamala Harris because she wants to debate him again:

“In the World of Boxing or UFC, when a Fighter gets beaten or knocked out, they get up and scream, ‘I DEMAND A REMATCH, I DEMAND A REMATCH!’ Well, it’s no different with a Debate."

The reality is that Harris, like any good fighter, has her opponent on the ropes and she plans to keep punching.

Academic Boycotts Cannot Become the New Normal

The University of Minnesota's Ronald Krebs has an excellent essay in Inside Higher Education, explaining how "the new AAUP statement on academic boycotts undermines scholarly values and opens the door to further politicization of the academy." Krebs identifies and sharply refutes the three major arguments in favor of legitimizing academic boycotts. 

Here are some excerpts (though I highly recommend reading the full piece):

Why do the old, serious arguments against academic boycotts get short shrift from defenders of the new AAUP policy? I suspect their silence masks, or rather reveals, deeper, unspoken disagreements over the nature of the scholarly enterprise and the purpose of the university.

 Society grants the academy special prerogatives, encapsulated in codes of academic freedom, because it recognizes the larger good the scholarly enterprise serves. Society has little reason to grant the academy those special prerogatives when the faculty collective behaves in ways that no longer advance that public good. When faculty vote for academic boycotts that violate colleagues’ academic freedom and that curb the circulation of ideas, they lose the right to autonomous democratic self-governance.

Defenses of the AAUP statement traffic, bluntly, in Orwellian doublespeak. Proponents of academic boycotts are, they claim, the true defenders of academic freedom. Those calling for unfettered scholarly exchange are, they argue, the enemies of academic freedom. Boycotting colleagues because of one’s politics, they contend, is a courageous ethical stance. Holding the line against punishing colleagues for crimes they did not commit is, they aver, pure politics. Backing the legitimacy of academic boycotts is, they maintain, the only neutral stance.

The AAUP’s new statement on academic boycotts has further delegitimized a once-august institution. It has further opened the door to the university’s already-blooming politicization and polarization. The AAUP has lost sight of the academy’s purpose.

You can read the entire essay in Inside Higher Education.

 

Why Is the New York Times Legitimizing a Holocaust Denier?

My new essay at The Bulwark responds to the New York Times’s egregious euphemism for Holocaust denial. Here is the gist: 

Why Is the New York Times Legitimizing a Holocaust Denier? 

IT WAS SHOCKING, although not surprising, to see Tucker Carlson praise the prominent Holocaust denier Darryl Cooper, who said Adolph Hitler was a peacemaker and called Winston Churchill the “chief villain” of World War II. But it was even more shocking—as well as dismaying and disheartening— when the New York Times conferred some credibility on Cooper by repeatedly describing him as merely a “Holocaust revisionist” rather than an outright denier.

The New York Times reported two stories on the Cooper-Carlson connection, both with misleadingly anodyne headlines: “Tucker Carlson Sharply Criticized for Hosting Holocaust Revisionist,” and “Vance Declines to Denounce Carlson After Interview With Holocaust Revisionist.”

I INITIALLY ASSUMED that the Times’s “Holocaust revisionist” headlines had been written in haste by an uninformed editor and would therefore be quickly corrected, given that the articles themselves correctly refer to Cooper’s “false claims.”

I wrote to the two reporters and received this reply: “It's an interesting question and one we wrestled with. Classic Holocaust deniers say either the Holocaust didn’t happen or was greatly exaggerated. Cooper conceded that millions of Jews died. He is questioning the motives and methods.”

This is a meaningless, and credulous, distinction.

The Times headlines normalize Cooper’s pretension to legitimacy. They ignore the vast gulf between unintended starvation, which Cooper falsely claims, and premeditated mass murder, which is what actually happened.

You can read the full essay at The Bulwark.

People will come, Ray

In memory of James Earl Jones, who died Monday. I used a piece of his monologue as an epigram my first piece on fan speech.

 

COSELL 2024 - this Friday and Saturday - full program!

So excited to be co-hosting COSELL 2024. The 19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL). 

here is the full rich program:

COSELL 2024 Schedule

FRIDAY SEPTEMBER 13 – USD Joan B. Kroc Institute for Peace and Justice

8:00: BREAKFAST – Room AB

8:25: Welcome

•   Dean Robert Schapiro (University of San Diego School Law)
•   Dean Sean Scott (California Western School of Law)
•   Professor Orly Lobel (University of San Diego School of Law)
•   Professor Susan Bisom-Rapp (California Western School of Law)

8:45 – 10:15 a.m. GROUP 1

PANEL A: Room C

Moderator – Orly Lobel

Ruben Garcia, Hostile Environments

Seema Patel, Whistle While You Work? The Fatal Problem with Whistleblower Regulations in Low-Wage Work Industries

Daiquiri Steele, Whistleblowing Parity

PANEL B: Room D

Moderator – Susan Bisom-Rapp

Tanya Hernández, The Role of DEI Training in Employment Discrimination Law

Diana Reddy, Discrimination as Exploitation

Michael Selmi, DEI and the Private Workplace

PANEL C: Room G

Moderator – Rick Bales

Michael Oswalt, New Independent Union Organizing Campaigns at Starbucks, Amazon, Trader Joe’s, etc.

Gali Racabi, Expressive Employers, Silent Workers

Alvin Velazquez, The Death of Labor Law and the Rebirth of the Labor Movement

10:15 - 10:30 a.m. BREAK

10:30 a.m. – 12:00 p.m.  GROUP 2

PANEL A: Room C

Moderator - Ariana Levinson

Rachel Arnow-Richman & J.H. (Rip) Verkerke, Defusing Disclaimers

Jonathan Harris, Neo-Lochnerism Meets Neo-Taylorism: Attacks on Worker Mobility

Orly Lobel, Between Fuzzy Doctrine and Void Contracts: How Trade Secrecy Law Shapes the Breadth of Non-Competes

PANEL B: Room D

Moderator – Marcia McCormick

Stephanie Bornstein, Impact Arbitration 

Liz Tippett, “Severe or Pervasive”: Evidence that Courts Dismiss Harassment Cases that Juries Would Find Meritorious

Deborah Widiss, The Sexual Harassment Silo

PANEL C: Room G

Moderator – Gali Racabi

Samuel Estreicher, The Perils of Political Unionism

Joel Heller, Voting at Work

Jeff Hirsch, Labor Regulation of AI

12:00 - 1:00 p.m. Lunch will be served in Room AB

1:00 - 2:30 p.m. GROUP 3

PANEL A: Room C

Moderator – Michael Oswalt

Susan Bisom-Rapp & Urwana Coiquaud, The State’s Role in (De)Standardizing Work: A Government-Focused Approach to Regulatory Capture in the Platform Economy

Doron Dorfman, Work Law for Volunteers

César Rosado Marzán, Alt-Labor’s Laws in Chicago and a Dignity Gap

PANEL B: Room D 

Moderator – Tristin Green

Marcia McCormick, Judicial Jujitsu in Anti-Discrimination Law after Bostock

Helen Norton, How the Antidiscrimination Law of Commercial Transactions Really Works

Vicki Schultz, How the DOJ Civil Rights Division Helped Desegregate the American Workforce in the 1960s and 70s

PANEL C: Room G 

Moderator – Branden Butler

Michael Green, Responding to Efforts to Eradicate Workplace Law Agencies

Stefan McDaniel, Rearticulating Labor Rights

Courtlyn Roser-Jones, The General Counsel’s Labor Agenda

2:30 - 2:45 p.m. BREAK

2:45 - 4:15 p.m. GROUP 4

PANEL A: Room C

Moderator – Rick Bales

Deepa Das Acevedo, They Said- They Said: Narratives and Counter-Narratives in Tenured Faculty Terminations

Ryan Nelson, Work Law’s Domain

Yiran Zhang, Workification

PANEL B: Room D

Moderator – Jessica Fink

Saru Matambanadzo, Interrogating Accommodation

Nicole Porter, Troubling Trends: ADA Definition in Disability Cases 2019-2023 

D’Andra Shu, Remote Work Disability Accommodations Since COVID

 

PANEL C: Room G

Moderator - César Rosado Marzan

Liz Ford, The (Un)Common Law of Police Collective Bargaining

Ariana Levinson, How Union Negotiations in Worker-Owned Co-ops Compare to More Traditional Negotiations 

Noah Zatz, Varieties of Democratization: Labor Law and the Co-op Problem

 4:15 - 4:30 p.m. BREAK

4:30 - 6:00 P.M. GROUP 5

 PANEL A: Room C

Moderator - Ryan Nelson

Rick Bales, Using AI to Teach LEL and ADR

Aneil Kovvali, Labor Market Competition and Collaboration

Pascal McDougall, Labor Struggle, Law, and the Theory of Competition 

Shefali Milczarek-Desai, Is There Hope for Workers’ Rights?

PANEL B: Room D

Moderator - Doron Dorfman

Heidi Liu, Age Discrimination and the Role of Norms

Ben Pyle, Ban the Box: Fair Chance Hiring, Hiring Discrimination Enforcement, and Local Labor Markets

Naomi Schoenbaum, Information Regulation as Antidiscrimination: The Central Provision of the Law of Workplace Equality

PANEL C: Room G

Moderator - Liz Tippett

Jessica Fink, The Benefits and Pitfalls of Backdating #MeToo

Catherine Fisk, Speech @ Work

Tristin Green, Beyond Personal Offense in Antidiscrimination Law: Muldrow’s Return to Work

 SATURDAY, SEPTEMBER 14 – California Western School of Law, 350 Cedar Street, San Diego

8:30 - 9:15: BREAKFAST: 1st Floor Lobby

9:15 - 10:45 a.m. GROUP 6

PANEL A: Room LH1

Moderator - Susan Bisom-Rapp

Blair Bullock, The State Takeover of Employment Law

Marcy Karin, Menstrual Bargaining

Alexi Pfeffer-Gillett, The Inconvenience Doctrine

PANEL B: Room LH2

Moderator – Deborah Widiss

Dallan Flake, Religious Sincerity After Groff

Jarod Gonzalez, Private Contractors, Security Clearance Determinations, and Employment Discrimination Law

Madeleine Gyory, The Reasonable Pregnant Worker

Tolu Odunsi-Nelson, Redefining the Scope of Anti-Discrimination Law: Illuminating Colorism Claims as a Basis for Race Discrimination Claims by Black Entertainers

PANEL C: Room 2B

Moderator – Orly Lobel

Louis Cholden-Brown, Lassiter at Work: The Status of Qualified Rights to Counsel

Sofia Cornejo, From Neutral to Integral: A Feminist Analysis of Domestic Violence as a World of Work Issue

Andrea Johnson, Accusations of Racism in the Workplace

Robert Mantell, Two Different Strike Zones: Inconsistent Rules Applied in Winning and Losing Discrimination Cases

 

Saturday Music Post - Unrelated Cochrans

Eddie Cochran was one of the early rockers, with a rebellious image that was later perfected by Elvis Presley and Bob Dylan. Wayne Cochran was called the White Knight of Soul, and was well known for his friendship with fellow Georgians James Brown and Otis Redding (he played bass on Redding's early recordings). Hank Cochran was less famous than the other two, but was extremely influential in country music, writing hits for Patsy Cline, Eddy Arnold and others. Anita Cochran recorded "Fight Like a Girl" (at the bottom of the post) following her breast cancer diagnosis.

You can see them all at The Faculty Lounge.

There Are No Holocaust "Revisionists"

Two recent headlines in the New York Times referred to a "Holocaust Revisionist":

Tucker Carlson Sharply Criticized for Hosting Holocaust Revisionist

Vance Declines to Denounce Carlson After Interview With Holocaust Revisionist

No, no, no, no, no. The so-called "revisionist" in question is Darryl Cooper, who in fact is a flat-out H0locaust denier. As the Times explains several paragraphs into the article:

Mr. Cooper, who has a podcast and newsletter called “Martyr Made,” proceeded to make a variety of false claims about the Holocaust and World War II, including that millions of people in concentration camps “ended up dead” merely because the Nazis did not have enough resources to care for them, rather than as a result of the intentional genocide that it was.

The White House got it right, which wasn't difficult:

“Giving a microphone to a Holocaust denier who spreads Nazi propaganda is a disgusting and sadistic insult to all Americans, to the memory of the over six million Jews who were genocidally murdered by Adolf Hitler, to the service of the millions of Americans who fought to defeat Nazism and to every subsequent victim of antisemitism.”

Holocaust deniers routinely call themselves "revisionists" to give their "moral rot" (as the White House put it) a veneer of respectability. One of their main organizations, for example, is called the Institute for Historical Review.

But the truth is that they are antisemitic deniers with no intellectual legitimacy, as Deborah Lipstadt proved in London almost 30 years ago.

There is no excuse for the Times to use the term "Holocaust revisionist" in 2024. I realize that the reporters don't write the headlines, but the editor who wrote this one should be reassigned.

 

 

FIU College of Law seeks tenure-track doctrinal faculty

Florida International University College of Law, South Florida’s public law school, invites applicants for multiple tenure-track positions to begin no later than the 2025-26 academic year. We seek candidates in Environmental Law, Intellectual Property/Technology, and Criminal Law and Procedure, as well as coverage in other first-year and core upper-level courses such as Administrative Law.

FIU Law features a diverse, intellectually vibrant faculty community celebrating scholarly engagement, public service, academic freedom, and transformational teaching. It ranks as the third most diverse law school nationally and graduates more Hispanic lawyers than any other law school. More than a third of FIU Law students are the first in their family to attend college. FIU Law graduates have ranked first among the 12 Florida law schools on the last nine July administrations of the Florida bar exam.  In 2023, more than 90% of FIU Law graduates secured full-time, long-term bar passage required, J.D. advantage, or professional positions.  For more information about FIU Law, visit http://law.fiu.edu/.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It ranks as a top-70 public university in U.S. News and World Report’s Best Colleges, and is the fourth-ranked public university, according to the America’s Best Colleges 2024 rankings published on WSJ.com. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”). A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as a preeminent state research university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. (or its equivalent), a strong academic record, a record (or the promise) of scholarly achievement, and zest for effective teaching. Rank based on qualifications and experience.  Competitive benefits include excellent insurance options, a defined-benefit plan, defined-contribution plans, and a deferred compensation plan.

Applicants should send a CV, cover letter, and list of references to Appointments Committee co-chairs Eloisa Rodriguez-Dod and Howard Wasserman at [email protected]. Questions about these positions can be directed to Eloisa Rodriguez-Dod ([email protected]) or Howard Wasserman ([email protected]). Review will begin August 20, 2024, and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status.

FIU College of Law seeks legal writing faculty

Florida International University College of Law, South Florida’s public law school, invites applicants for a contract position in Legal Skills and Values, to begin no later than the 2025-26 academic year.

Legal Skills and Values consists of two required courses in the first year of law school and an additional required course by the end of a student’s fourth semester. The eight-credit sequence covers essential legal skills including legal research, objective and persuasive writing, legal analysis, oral communication, client counseling, contract drafting, and negotiation.  We seek collaborative, creative teachers to join our dedicated team teaching in the first-year portions of the program.

FIU Law features a diverse, intellectually vibrant faculty community celebrating scholarly engagement, public service, academic freedom, and transformational teaching. It ranks as the third most diverse law school nationally and graduates more Hispanic lawyers than any other law school. More than a third of FIU Law students are the first in their family to attend college. FIU Law graduates have ranked first among the 12 Florida law schools on the last nine July administrations of the Florida bar exam.  In 2023, more than 90% of FIU Law graduates secured full-time, long-term bar passage required, J.D. advantage, or professional positions.  For more information about FIU Law, visit https://law.fiu.edu/.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It ranks as a top-70 public university in U.S. News and World Report’s Best Colleges, and is the fourth-ranked public university, according to the America’s Best Colleges 2024 rankings published on WSJ.com. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”). A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as preeminent state research university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. Lateral candidates should show a demonstrated record of teaching excellence. Entry-level candidates should show commitment to excellence in teaching and significant potential as law teachers. At least five years of experience in legal practice and/or judicial clerkships is preferred.

Applicants should send a CV, cover letter, and list of references to Appointments Committee co-chairs Eloisa Rodriguez-Dod and Howard Wasserman at [email protected]. Questions about these positions can be directed to Eloisa Rodriguez-Dod ([email protected]) or Howard Wasserman ([email protected]). Review will begin August 20, 2024, and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status

Blogging Sabbatical

I've been an active blogger for fifteen years. After much reflection, I've decided that it's time for an extended break. Academic sabbaticals give people time to reflect and to work on other projects. The same will be true here.

I'll be back sometime next year. In the meantime, as Edward R. Murrow used to say when signing off, "Good night, and good luck."

AI and oral assessments

Over the years, we have had many posts and conversations about oral assessments. I have written about my oral arguments in Fed Courts and Civil Rights, which now provide the sole end-of-semester assessment (everything else happens in-semester).

A thought this morning: Would oral assessments provide a solution to the Chat GPT/AI problem?

Defending Michael Roth

Not that he needs me to. I agree with Steve--and have said as much, here and elsewhere--that university's discovery of the freedom to offend and to express the idea we hate miraculously appeared only when offense began targeting Jews.

As to Roth*: My instinct is to take him at his word--he intends to apply "no right not to be offended" across the board. He said as much during the parents' convocation last week. Of course, that tells us nothing about how the administrators in the DEI office act on the ground, but I only know so much at this point.

Full disclosure: I have been a fan for many years, since long before the current campus controversies or my kid's interest in going to the school. I saw video of him (from just after the Great Recession, when the bottom dropping out of humanities began accelerating) defending liberal arts and college education being about more than getting a job; I was hooked. That he has (mostly) gotten the speech stuff right--and that my kid decided to go there--only adds to my fanboydom.

Roth said something else to parents I found interesting: That students have a right not to be harassed but no right not to be offended and that the line between them is clear and obvious in most cases. And I think most people in that room agreed--it is clear and obvious. But I expect most would disagree with me (and him) about which side any particular case fell.

A Stunning Reversal on Academic Boycotts Is All about Israel

My new essay in The Hill explains how the AAUP’s new position – legitimizing academic boycotts – is a threat to the principle of academic freedom. Here is the gist:

A stunning reversal on academic boycotts is all about Israel

There was a time when the American Association of University Professors (AAUP) deserved its self-description as the “most prominent guardian of academic freedom” for faculty and students in the U.S., but not any longer. 

Last month, the organization rescinded its long-standing opposition to academic boycotts, which it had previously recognized as aiming “directly at the free exchange of ideas,” in favor of a new policy declaring that such boycotts “can legitimately seek to protect and advance . . . academic freedom and fundamental rights.” 

The turnaround is a betrayal of academic values, which ideally comprise the “freedom of teachers and researchers to engage in work with academic colleagues” and “the freest possible international movement of scholars and ideas,” without political restraints. 

You can read the entire essay in The Hill.

More on Wesleyan

Howard skeptically comments below on Wesleyan President Michael Roth's NYT op-ed, explaining that last Spring's Gaza encampment was permitted to continue because the students' "right to nonviolent protest was more important than their modest violations of the rules." In his persuasively understated way, Howard calls this a "unique take," which will of course invite greater disruptions.

I found another aspect of Roth's oped equally dubious:

I also met with pro-Israel students, mostly Jewish, some of whom felt beleaguered by what their classmates were saying. I made clear that if any of them felt harassed, I would intervene. I also said that I could ensure their ability to pursue their education, but that I could not protect them from being offended.

That would be a welcome change on many campuses, given the tendency of DEI offices to intervene whenever students claim to feel "unsafe." The question, of course, is whether Roth, or any other university administrator, will apply the "no protection from offense" policy to any groups other than Jews.

VAPs and Fellowships 2024-2025

A spreadsheet for candidates to track information about VAPs or similar fellowships (for example, the Climenko and Bigelow) 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 tabs on the spreadsheet marked "Comments" and "Q&A" will, I hope, serve as substitutes for the comment thread on Prawfs, as the commenting function on Typepad is in serious technical trouble. If people have questions about the process, please post them on the Q&A tab, and everyone -- including current professors and fellows -- please chime in and answer!

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

Here is last year's thread and last year's spreadsheet.

Hiring Committee Topics of Interest 2024-2025

As of September 2, 2024, there are 134 unique schools represented in the hiring committees sheet. (If your committee is not represented on the spreadsheet, please fill out the Google form or send me an email!) Many, though not all, of these schools expressed interest in particular subject or subjects for hiring. Of course, that a school expresses interest in a particular area does not mean that the school will hire in that area. And schools may hire in areas that they do not list. Nonetheless, to see in what areas schools expressed interest, I classified all the topics listed to general classifications, and then counted the numbers of times each general classification was mentioned (graph below; see a spreadsheet with the full list and count; you could do this one-by-one in the filtering tool if you wanted to for some reason).

A few notes about how I approached this.

• Every subject mentioned was classified to a general topic; you can see the full list of classifications, which are the same as those I use for the tool to sort and filter the spreadsheet. For example, "Business Organizations," "Corporations," and "Business/Commercial Law" are all "Business Law."
• A given topic can be classified in up to three areas. Thus "Business/Commercial Law" is classified not only as "Business Law" but also as "Commercial Law," and this would show up as two separate data points on the graph.
• If a single school mentioned 10 topics in non-overlapping areas, that would show up as 10 different data points on the graph.
• If a single school mentioned five Business Law topics, that shows up as "Business Law" just one time.
• If a school said they were interested in all areas, or did not state an area in which they were interested, that was classified as "Multiple/Undetermined." Some schools said "all" and also listed specific areas; that listing would be counted as one for "Multiple/Undetermined" and also one for each of the other topics mentioned.

The graph shows only areas where more than five schools expressed interest. "Other" captures all of the topics where five or fewer schools expressed an interest. In "Other," there was no subject in which five schools expressed interest. Four schools expressed interest in each of Civil Rights, Dispute Resolution, Finance/Accounting, and Real Estate Law. Three schools expressed interest in each of Compliance, Law and Inequality, Sports Law, and Statutes and Regulations. Two schools expressed interest in each of Academic Success, Appellate Advocacy, Comparative Law, Election Law, Entertainment Law, Experiential Learning, Privacy Law, Private Law, and Remedies. One school expressed interest in each of Animal Law, Elder Law, Gender, Law and Economics, Law and Philosophy, Law and Religion, Legal History, Library, Maritime Law, Public Law, Trial Practice, and Youth Law.

 

"Modest violations of the rules"

Wesleyan (where my son had his first class this morning) President Michael Roth published a NYT op-ed encouraging more political activity on campus this year, arguing that universities exist for the good of the individual and the good of the world, inherently political and public-leaning spaces in which to "practice democracy."

Speaking of last spring's encampments, Roth writes "[s]ince the protest was nonviolent and the students in the encampment were careful not to disrupt normal university operations, we allowed it to continue because their right to nonviolent protest was more important than their modest violations of the rules." Framing long-term encampments as "modest violations of the rules" is a unique take--certainly different from the notion that the encampments represented a sea change from small rulebreaking for a limited time to something "more aggressive, more interfering, and more permanent."

Musk suit proceeds v. Media Matters

So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.

On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.

On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).

While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.