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Thursday, October 31, 2024
The Inconspicuous DHS
Apropos of Paul's post, I would recommend Chad Oldfather's The Inconspicuous DHS, written several months before RBG died.
Posted by Howard Wasserman on October 31, 2024 at 03:06 PM in Howard Wasserman | Permalink | Comments (0)
Wednesday, October 30, 2024
"The great ones..."
Reporters naturally use the best quotes from their interviewees and give them good placement. So one may be tempted to overread Georgetown Law professor Brad Snyder's quote in this story about Supreme Court justices and retirement, which makes the third graf:
“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”
Since the second part of the quote is as apt to describe hubris as greatness, and is untrue besides, it seems clear Snyder does not mean "great" in the sense of qualitative greatness. A later quote from Snyder in the story appears to confirm that: "'They are trying to keep power, and they are trying to stay relevant.'"
It is still worth lingering on the word "great" for a second even if Snyder is cleared of any charges here. "Great" seems accurate in some ways: Many of the most famous and influential justices have indeed served long terms and declined to leave early or even on time. John Marshall was the fourth-longest-serving justice and longest-serving Chief; Holmes, Thomas, and Ginsburg have all been celebrated, admittedly at various times and in varied circles, and all stayed past the point at which honor and fitness suggested they should step down. (Thomas is still serving.)
This is not a coincidence. I refer readers to the June 1995 issue of the NYU Law Review, which contains an excellent symposium on judicial biography. Of particular note is a pair of articles--by G. Edward White and Sarah Barringer Gordon--about the historiography of judicial reputation and the canonization of judges as "great." As befits a great symposium, the writers are not all in agreement on all points. But they are widely agreed that justices like Holmes and Brandeis were not held up as "great" because there could be no doubt on the question; whether they would be held up as great, how that greatness would be described, and so on were all contingent questions.
I would add (as various commentators in the symposium do) that you need folks around to do the holding-up: a claque of former clerks, influential friends or followers, writers pursuing some ideological project, and others who become "invested," to quote White, in building and burnishing those justices' reputations (and, often, their own, or at least the reputation of the project they wish to advance) and defending them against critics. Longevity doesn't guarantee that you'll accumulate such a cadre of supporters, or that they will have the eloquence or status to push forward your canonization successfully. But it sure don't hurt any. The shorter your term of service, the fewer followers you'll have and the fewer opinions for people (preferably people with the right bylines) tp become attached to and lionize for political and ideological reasons as well as reputational ones. As former Justice David Souter observes in the story, "For most of us, the very best work that we do sinks into the stream very quickly."
Obviously, beyond the question of PR-and-politics, what constitutes judicial "greatness" is contestable, since it's a word--like "courage"--that's protean, a bucket that can be filled with many things and often has been filled in advance with a crude checklist of substantive results, rendering the epithet almost useless. So I'll just cast my own vote and note that the greatest justice discussed in the piece is in fact Souter, precisely because he provided a reasonable term of service and then left quietly--and, one might add, has further blessed us with a null set of post-tenure books, neither a weak-soup memoir nor a pamphlet scolding his or her replacements. ("Dies at __; Published No Books" will one day be a wonderful tribute of a headline to an obituary for a Supreme Court Justice.) It's in the graceful willingness to sink into the stream that the greatness lies. May we honor and forget such judges more often.
Posted by Paul Horwitz on October 30, 2024 at 04:28 PM in Paul Horwitz | Permalink | Comments (0)
Bernie Sanders on Gaza and the Election
Posted by Steve Lubet on October 30, 2024 at 03:59 PM | Permalink | Comments (0)
Tulane Forrester Fellowship and VAP Positions - 2024
From Tulane Law School:
Tulane Law School invites applications for its Forrester Fellowship and Visiting Assistant Professor positions, both of which are designed for promising scholars who plan to apply for tenure-track law school positions. Both positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support and mentorship, a professional travel budget, and opportunities to present works-in-progress in faculty workshops.
Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. If you have any questions about this position, please contact Erin Donelon at [email protected].
Tulane’s visiting assistant professor position is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation). If you have any questions about this position, please contact Adam Feibelman at [email protected].
Tulane is an equal opportunity employer and candidates who will enhance the diversity of the law faculty are especially invited to apply. Please apply through interfolio: http://apply.interfolio.com/156399
Updated 8 November 2024 to fix link to Interfolio application.
Posted by Sarah Lawsky on October 30, 2024 at 05:04 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Tuesday, October 29, 2024
Be Very Afraid
Posted by Steve Lubet on October 29, 2024 at 02:02 PM | Permalink | Comments (0)
Monday, October 28, 2024
The Supreme Court's Recusal Rules May Have Fatal Consequences
My new essay for The Hill explains the impact of the Supreme Court’s recusal rules on Richard Glossip’s capital case. Here is the gist:
Justice Gorsuch’s recusal may have doomed a man to death
by Steven Lubet
[Richard] Glossip’s case is now before the U.S. Supreme Court, where his fate may actually be determined by the incoherence of the court’s recusal rules.
Only eight justices were on the Supreme Court bench when Glossip’s case was called on Oct. 9. Justice Neil Gorsuch had recused himself months earlier before the Supreme Court granted Glossip’s petition for review.
Gorsuch is among the court’s most conservative members, but his absence may nonetheless doom Glossip’s appeal.
It takes five justices, however, to reverse a conviction; a 4-4 tie would leave the death sentence in force. Thus, Gorsuch’s recusal has the same effect as a negative vote. Even a small chance of winning his vote would have been a conceivable advantage for Glossip’s case.
Under Canon 3B(3), “the rule of necessity may override the rule of disqualification.”
How could the rule of necessity ever apply, if not in Glossip’s case? Can there be a worse result than the affirmance of the death penalty by an equally divided court?
You can read the full piece at The Hill.
Posted by Steve Lubet on October 28, 2024 at 12:03 PM | Permalink | Comments (0)
Saturday, October 26, 2024
Saturday Music Post - Norwegian Wood
"Norwegian Wood (This Bird Has Flown)" was released by The Beatles on the 1965 album Rubber Soul. The album itself was transitional, signaling the Beatles move away from simpler rock songs. "Norwegian Wood" was the first time that George Harrison (or anyone, I believe) played the sitar in British or American popular music. There is some dispute about the authorship. It is attributed Lennon-McCartney on the album, but John later claimed to have written it himself, with only minimum input from Paul. After Lennon's death, however, McCartney insisted that it was a fully joint composition. According to Wikipedia, the song is about one of Lennon's extramarital affairs, but who knows?
You can draw your own conclusions from the clips at The Faculty Lounge.
Posted by Steve Lubet on October 26, 2024 at 06:23 AM | Permalink | Comments (0)
Friday, October 25, 2024
Phil Lesh, Bassist Who Anchored the Grateful Dead, Dies at 84 [UPDATED]
New York Times obituary here.
Most enigmatic passage:
In the wake of the band’s disillusion, Mr. Lesh formed the Other Ones along with other key members of the Dead in 1988.
Typo or commentary?
UPDATE: Both typos have been corrected to read "In the wake of the band’s dissolution, Mr. Lesh formed the Other Ones along with Mr. Weir and Mr. Hart in 1998."
Posted by Steve Lubet on October 25, 2024 at 04:56 PM | Permalink | Comments (0)
Trump’s and Blaine’s Use of Federalism as an Artful Dodge on Abortion (2024) and Booze (1884)
With less than ten days left before Election Day 2024, it seems like a good time to discuss James Blaine versus Grover Cleveland, 1884. In particular, I am interested in whether Trump’s use of federalism to dodge the issue of abortion in 2024 will work better than Blaine’s similar effort on the issue of prohibiting alcoholic beverages one hundred and forty years ago.
Quick refresher for those of you who are not obsessed with Gilded Age politics. Blaine was the Republican nominee, Cleveland, the Democratic one. Back in 1884, the dominant culture war issue was alcohol: Evangelical reformers wanted to ban it and formed their own political party, the Prohibition Party, to push for such a ban at both the state and federal levels. Because evangelicals were disproportionately Republicans, Blaine was pressed to take a position on the question of Prohibition. To his great annoyance, the Reverend Samuel Burchard tried to nudge Blaine and the GOP towards Prohibition with his famous speech denouncing Democrats as the Party of “Rum, Romanism, and Rebellion.”
Despite Burchard’s exhortation, it was political suicide for Blaine to endorse a ban on liquor and alienate millions of Lutheran German and Irish Catholic voters in New York and the Midwest, so Blaine evaded the Prohibition question by embracing federalism. The control of alcohol, Blaine argued, was a matter for the states to decide. As a candidate for national office, therefore, he could take no position on the question — not even to reveal how he, a citizen of Maine, planned to vote on an 1884 state referendum banning alcohol. (He claimed that he wouldn’t vote at all on the ballot measure).
Did federalism work for Blaine as a way to avoid taking a stance on a controversial issue? Well, Blaine obviously lost. More relevant, perhaps, is how Blaine was ridiculed for being an “artful dodger” because he would not take a stand on booze. (See, e.g., this cartoon by Thomas Nast).
One hundred and forty years later, Trump is now repeating Blaine’s federalism strategy on abortion, declaring that abortion regulation is a matter for the states to decide and even going so far as to promise that he would veto any federal bill that protected a fetal right to life. After the jump, some thoughts on whether (1) Trump’s use of federalism will work any better than Blaine’s did and (2) federalism should be seen as an artful dodge rather than a reasonable way to hold a polarized nation together through a principled compromise.
1. Will Trump succeed where Blaine failed by neutralizing a divisive culture war issue through invocation of federalism?
That’s a hard question to answer with direct evidence, even after we get the election results sometime after next Tuesday. But my best guess is that Trump and the GOP are failing miserably at neutralizing the abortion issue with federalism. Their invocation of states’ rights here is a dodge — but an artless one.
I admit that I have no direct survey evidence for that claim. Polls show only that abortion is an issue very important to voters and that banning abortion is extremely unpopular. I know of no polls providing evidence on voters’ views as to whether the regulation of abortion ought to be determined by Congress or the state legislatures. One likely reason is that the vast majority of voters have no beliefs whatsoever about federalism or levels of government: That’s an arcane structural issue far beyond the average voters’ very low levels of information about politics and policy.
To drive home a message that the GOP is truly opposed to the national regulation topic of abortion, therefore, Republicans would have to launch a massive public relations campaign explaining why a national guarantee of a fetal right to life would be a bad idea. Trump would have to follow Stephen Douglas’ 1860 strategy: Emphatically declare that he just “doesn’t care” about how abortion is regulated at the state level and urge that any national regulation would be unconstitutional.
Neither Trump nor the the GOP, however, has embraced such an unequivocal condemnation of national actions regarding abortion. To the contrary, the GOP’s 2024 Platform confusingly offers the following non sequitur: “…the 14th Amendment to the Constitution of the United States guarantees that no person can be denied Life or Liberty without Due Process, and that the States are, therefore, free to pass Laws protecting those Rights.” Of course, the States are free to protect rights that are not protected by the federal constitution, so the “therefore” in the sentence is nonsense. More significantly, the GOP Platform seems to invite federal as well as state regulation with that statement about the 14th Amendment. Trump, for his part, simultaneously declared in his tweet that abortion was a matter for the states to decide and also that “I FULLY SUPPORT THE THREE EXCEPTIONS FOR RAPE, INCEST, AND THE LIFE OF THE MOTHER.” This is hardly James Blaine’s assiduous silence on the question about which national law allegedly ought to be silent.
It is easy to see why Trump and the GOP cannot more artfully use federalism to dodge a divisive question: The Republicans depend on evangelical voters’ mobilizing on behalf of Trump, and the GOP’s firmly opposing any national action on abortion, Stephen Douglas-style, would risk losing such support. The anti-abortion groups seem to understand that Trump’s embrace of federalism on abortion is half-hearted. One anti-abortion leader noted, for instance, that “there are other avenues Trump could use to restrict abortion nationally, including through defunding Planned Parenthood and appointing anti-abortion officials to lead major federal departments.”
Blaine faced a similar problem of alienating a key constituency through his neutrality on prohibition of alcohol. The Prohibition Party’s running a third-party candidate for President cut into his support in an excruciatingly close election. Trump cannot afford to provoke a third-party run by an anti-abortion party, so he has to be much more mealy-mouthed about his invocation of federalism than Blaine was.
Federalism, in short, is very difficult to use as an artful dodge of the Culture Wars, unless one’s supporters are truly willing to embrace a federal compromise not merely as an election tactic but as a principled stance. If anti-abortion groups were willing to forswear all national measures on abortion — not merely legislation but also agency actions regarding mifepristone—-then the federalism playbook might possibly work to reduce voters’ anxiety about a GOP victory. But anti-abortion groups are not at all willing to drop their demands for national actions protecting fetal life, so Trump and the GOP must tread lightly in endorsing federalism as a resolution of the abortion question.
2. Should federalism be used to defuse divisive culture war issues, or is it just an artful or artless dodge?
I confess that I am disappointed that federalism is so unsuccessful in defusing divisive issues. I am on record as supporting the use of decentralization to lower the stakes of polarizing issues. Federalism is a kind of liberalism in defense of pluralism (I call it “Westphalian Liberalism” after the settlement of the 30 Years’ War through decentralization of religious questions). Credibly decentralizing some of the most polarizing questions might go a long way towards reducing the stakes of politics in a nation so bitterly divided that it has become ungovernable.
In particular, supporters of abortion rights ought to be relatively sanguine about decentralizing the regulation of abortion, because, as I have argued here, interstate mobility is likely to favor deregulation.
But I admit that decentralizing divisive issues is difficult in an age of polarization until everyone is exhausted by the endless vitriolic gridlock. Issues are divisive precisely because each side believes passionately in the rightness of their position. Tolerating subnational regulatory regimes that one is certain are immoral is emotionally difficult, unless one is risk-averse about losing at the national level and believes that one might lose.
If our political elites had a better emotional grasp of reality, they might embrace federalism as a compromise superior to paralyzed national government. In reality, after all, we are in an era of close elections not unlike the 1880s: Like WWI trench warfare, the lines of our politics just do not budge all that much, despite all of the intense artillery bombardments and charges over the top.
Yet our political elites still believe that “the people” are on their side and that they can somehow win a knockout blow for the One True Theory of Rights. Until they are disabused of this belief, federalism will never look like anything but an artful or artless dodge: No one seeks a modus vivendi with opponents against whom one is confident can be utterly routed.
Posted by Rick Hills on October 25, 2024 at 03:15 PM | Permalink | Comments (8)
Morality and why politics is not sport
This by Josh Chafetz captures the problems with "it's just politics and not worth destroying family and friendships" (most recently by J.D. Vance during a campaign event). Josh's key insight is that politics is not a hobby; it is a means to the ends of how we live. And one reasonably can (and perhaps should) have a line at which another person's views and desires of how we should live outweigh friendship. The debate is about where people draw the line, not about whether people should draw the line.
This is bound up with the sportification of politics. Politics is sport--games we watch for fun without real-world consequences. So if I can marry an Orioles fan or talk college sports at Thanksgiving with my uncle who went to the rival college or be friends with a White Sox fan, I can do the same with a person whose political preferences, if enacted into law, would strip my child of basic rights.
Posted by Howard Wasserman on October 25, 2024 at 10:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Florida Resignation Question
Regarding attorney John Wilson's resignation from Florida Gov. Ron DeSantis's Department of Health, Howard asks:
What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?
The best answer is from Justice Felix Frankfurter's 1949 dissent in Henslee v. Union Planters National Bank: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."
Posted by Steve Lubet on October 25, 2024 at 06:56 AM | Permalink | Comments (0)
Thursday, October 24, 2024
Shabbat and high-leverage World Series games
I am not sure I understand the point of this article about how the switch to the World Series beginning Friday night uniquely adversely affects the large Orthodox communities in New York and Los Angeles. Historically, the World Series played on Tuesday and Wednesday; Friday, Saturday, Sunday; then Tuesday and Wednesday (if necessary). Now it goes Friday and Saturday; Monday, Tuesday, Wednesday; then Friday and Saturday (if necessary).
So there always have been games Friday and Saturday, including when the Yankees and Dodgers played in 1977, 1978, and 1981. In fact, it was worse back then because they played Game Four on Saturday afternoon, meaning Orthodox fans missed all or most of two games.
The article seems to argue that the difference is that now Orthodox Jews miss significant or high-leverage games. Opening game has unique majesty and pageantry. And according to a 2014 SABR study, the team that wins Game One wins the Series about 64 % of the time. And Game Six will now be on Friday night, so they cannot watch the clincher of a close-but-not-to-the-wire Series. This contrasts with the past scheme, in which they missed a non-clinching Game Three and the clincher of a sweep.
The article's premise that this is a new problem seems a stretch, although I am not Orthodox. My only concern is that the National League team win, a far cry from my childhood when I lived and died with the Yankees.
Posted by Howard Wasserman on October 24, 2024 at 03:11 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Tuesday, October 22, 2024
Attorney courage and state interference
More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.
As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.
As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?
Posted by Howard Wasserman on October 22, 2024 at 10:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, October 21, 2024
Annals of Irony
Joan Wallach Scott has a new article in Daedalus (reprinted in the Journal of Free Speech Law) titled “Academic Freedom & The Politics of the University,” in which the introduction notes: “In one of those inversions of meaning so adroitly practiced by the right, censorship is being enacted in the name of free speech and/or academic freedom.”
Scott, of course, is one of the leading voices promoting academic boycotts in the name of academic freedom – especially in support of the AAUP’s reversal of position – just the sort of inversion that her essay claims to abhor. Perhaps needless to say, Scott’s Daedalus piece mentions this discrepancy not at all. Her sole reference to Jews or Israel is to the asserted confusion of ‘political disagreement with discrimination, as when Zionist students, protesting a teacher’s presentation of material that calls into question Israel’s official story of itself, claim they do not feel ‘safe’ in the face of what they deem anti-Semitism.”
Unlike other situations, there is no citation for this claimed confusion, much any mention of explicit antisemitism on campuses. Scott’s accompanying example of anti-Muslim prejudice, with citation to the events at Hamline University, concludes that the “student grievances had to do with structural issues that were not being addressed,” even though the specific “safety” complaint was unfounded. Jewish students, it seems, are unable to raise “structural issues.”
Posted by Steve Lubet on October 21, 2024 at 07:18 AM | Permalink | Comments (0)
Saturday, October 19, 2024
Saturday Music Post - Breaking up Is Hard to Do
First released in 1962, "Breaking Up Is Hard to Do" became Neil Sedaka's signature song. Co-written with Howard Greenfield, his frequent composing partner, the original had a teenage pop tempo, introduced by nonsense lyrics and backed by The Cookies. Lenny Welch released it as a torch balled in 1970, also arranged by Sedaka and Greenfield, with a very different intro. Sedaka himself released the slow tempo version in 1975. It was only the second time an artist had two Billboard top-ten hits -- number 1 for the original and number 8 for the second release -- with two different renditions of the same song.
Born in Brooklyn to a Sephardic family -- his last name is a slight transliteration of tzedaka, which means charity in Hebrew -- Sedaka was classically trained at the Julliard prep division, but he gave it up, breaking his mother's heart, to pitch songs at the Brill Building. He was the original lead singer of The Tokens, but he quit before they recorded The Lion Sleeps Tonight. His first solo hit was "Oh Carol," named after Carol King, whom he had dated in high school. King released a less successful answer song, "Oh Neil," written with her then-husband Gerry Goffin, who was in on the joke.
There are two surprises and a question at the bottom of today's post on The Faculty Lounge.
Posted by Steve Lubet on October 19, 2024 at 04:54 AM | Permalink | Comments (0)
Friday, October 18, 2024
More free speech in Free Florida
Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.
Some thoughts on the suit and the decision:
• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.
• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.
Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.
I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without
• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."
The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.
• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."
Posted by Howard Wasserman on October 18, 2024 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, October 17, 2024
Limits of private enforcement in a mixed scheme
In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.
And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's
A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.
So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.
We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.
Posted by Howard Wasserman on October 17, 2024 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, October 16, 2024
NCAA adopts too-many-men limiting rule
The NCAA adopted a limiting rule in response to the too-many-players penalty in the Oregon-The Ohio State game. It creates a unique penalty for too many players "actively participat[ing] in a down," giving the offense five yards and the option of having the game clock reset to the time at the snap.
This differs from the NFL's solution. This is is not a dead-ball infraction; the teams must run the play against the extra defenders. But the clock reset leaves the teams in the same place, eliminating the perverse incentive for the defense by eliminating any benefit on the play.
Posted by Howard Wasserman on October 16, 2024 at 10:30 PM in Howard Wasserman, Sports | Permalink | Comments (0)
A Question for the AAUP and FIRE [UPDATED]
What if a hypothetical professor were to write (paraphrasing Muhlenberg College's Prof. Finkelstein),
Palestinians are an ethnic group, but Palestinian nationalism is a political ideology. Palestinian nationalists must be shamed and their presence must not be normalized in our space.
Would that be a defensible expression of academic freedom, or would it be evidence of unfitness to teach "social justice" courses?
I think we know the answer. Feel free to substitute the political view of your choice.
(Note: I doubt and hope no professor would ever make such a statement. Students of all groups and political views have always been welcome and respected in my classes.)
UPDATE: I unintentionally left comments open when I posted this. In fairness, I will leave them open until 5:00 CDT, but will monitor for relevance and civility.
Posted by Steve Lubet on October 16, 2024 at 07:52 AM | Permalink | Comments (5)
Tuesday, October 15, 2024
The AAUP's Continuing Failure to Recognize Antisemitism
In its investigation of Maura Finkelstein's dismissal by Muhlenberg College, the AAUP has taken it upon itself to determine "whether expressions of opposition to Zionism or the government of Israel can be tantamount to antisemitism." Note the phrasing. It isn't whether Finkelstein's anti-Zionism was in fact tantamount to antisemitism, which would be a legitimate subject of investigation (although ultimately irrelevant to her discipline, in my opinion). Rather, the AAUP asks whether anti-Zionism can be tantamount to antisemitism, as though that is an open question. Would any reasonable person argue the opposite proposition, that anti-Zionism cannot be tantamount to antisemitism?
As if there were any need to establish the connection, the following arrived in my inbox shortly after my recent essay was posted in The Hill:
It boggles my mind how Jews think they should be protected from prejudice when one only has to read the English-language Jewish press and watch rabbis on YouTube to view some of the most virulent hate toward the majority of humanity, because they are NOT Jewish. You can't spew hate, and not expect it to come back to you. All Zionist have to do if they want people NOT to attack them is leave humanity alone, there is enough here for all of us! Humanity is not here to be the slaves of Jews as far too many modern rabbis claim. Zionists have made themselves the enemy of humanity by working behind the scenes to create a super state of Israel for a minimum of five hundred years! (Boldface original.)
It would be great if the AAUP would actually investigate the extent to which anti-Zionism is tantamount to antisemitism, but I don't think they would like what they find.
Finkelstein, as I explained in The Hill, has endorsed shaming Zionist students and not normalizing Zionists "taking up space," presumably in her classes, which she justifies by saying "Judaism is a religion" and "Zionism is a political ideology." But even if her contested distinction is correct, the shaming of Zionist students would still be political discrimination, which is misconduct for a college professor.
The AAUP letter, of course, says nothing at all about anti-Zionism as political discrimination. Perhaps the actual investigation will do better.
(And before anyone rationalizes the AAUP letter as just poorly drafted, let's say (1) it was written by university professors who presumably know how to write, and (2) the drafting reveals their underlying assumptions, if nothing else.
Posted by Steve Lubet on October 15, 2024 at 04:25 AM | Permalink | Comments (0)
Monday, October 14, 2024
No, Muhlenberg College Did Not Fire a Professor Simply for Pro-Palestinian Speech
My new essay just posted at The Hill, explaining that Prof. Maura Finkelstein’s advocacy of shaming and excluding “Zionists” from her “space” was professional misconduct for a college professor. (Dismissal still seems overly harsh, unless there is more to the story than we know so far.)
Here is the gist:
Zionists are students too: University professors should take heed
by Steven Lubet
Muhlenberg College Professor Maura Finkelstein drew national attention when she claimed to have been fired from her tenured position for “pro-Palestinian speech.”
[I]t is seriously misleading to assert that she was dismissed for pro-Palestinian speech.
Finkelstein’s words . . . show that she actually engaged in professional misconduct involving profound disregard for the educational rights of many Muhlenberg students.
“Do not cower to Zionists. . . . Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide-loving fascists be treated any different than any other flat-out racist. Don’t normalize Zionism. Don’t normalize Zionists taking up space.”
Coming from a professor of cultural anthropology, even as a repost, it urges the belittlement and exclusion of most of her Jewish students, a significant majority of whom would be described as Zionists according to recent surveys.
“Judaism is a religion,” she said, but “Zionism is a political ideology,” which is not a legally “protected class.”
Political ideology discrimination may not violate Title VI of the Civil Rights Act, but it is nonetheless misconduct for a college professor.
Under the American Association of University Professors widely followed Statement of Principles on Academic Freedom and Tenure, “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.”
Is a professor fit to teach undergraduates, some of whom are “Zionists,” if she has inveighed against “normalizing” their presence in her space, which presumably would include her classroom?
You can read the entire piece at The Hill.
Posted by Steve Lubet on October 14, 2024 at 10:08 AM | Permalink | Comments (0)
Vagaries of public enforcement
As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.
Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).
The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.
In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.
Posted by Howard Wasserman on October 14, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Sunday, October 13, 2024
Intentional too-many on the field on OU-TOSU
Oregon beat The Ohio State 32-31 Saturday night. The game was marked by a fortuitous or intentional late-game Oregon penalty.
Oregon lead by 1 with 10 seconds left and Ohio State with the ball on the Oregon 43 yard-line. Following a timeout, Oregon took the field with an additional deep safety (thus blocking any deep passes). The defense broke-up a short pass and ran four seconds off the clock, although it incurred a five-yard too-many-players penalty. But those five yards did not move TOSU into field-goal range, while the four seconds lapsed left time to run only one Hail-Mary. No one knows whether Oregon did this intentionally and Coach Dan Lenning did not say.
I wrote about this strategy in my Infield Fly Rule book, identifying it as a play requiring a limiting rule a la the IFR. The Giants unintentionally achieved the same effect at the end of Super Bowl XLVI, incurring a penalty when a twelfth defender was unable to leave the field (although he was not involved in the play) but gaining a time advantage that kept the Patriots from scoring the winning touchdown. Buddy Ryan designed this as "Polish Goal Line Defense," featuring three extra defenders to stop a goal-line play. I argue in the book that cost-benefit exchange on this play is not entirely one-sided (as with the IFR)--the disadvantaged team gains the benefit of five yards and the infringing team gains the benefit of lapsed time. But in this game situation, the former benefit is meaningless while the latter is overwhelming, effectively creating a one-sided exchange.
The NFL addressed this about a decade ago (following SB XLVI), introducing a dead-ball infraction for having too many players in formation (that is, ready to be involved in the play); the play is whistled dead and no time runs off the clock when officials identify the extra defender. This removes the incentive to intentionally incur the penalty by removing the time benefit. College football does not have this infraction, so the refs could not call the penalty until after the play. See if the NCAA makes this change after the season.
Posted by Howard Wasserman on October 13, 2024 at 01:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Saturday, October 12, 2024
Saturday Music Post - As Time Goes By
"As Time Goes By" is immediately recognizable from Dooley Wilson's 1942 performance in Casablanca, but Herman Hupfeld actually wrote it in 1931 for the forgettable Broadway musical Everybody's Welcome. It was first recorded by Rudy Vallee in 1931, and of course covered many times since then. The American Film Institute voted it the number two movie song of the twentieth century ("Over the Rainbow" was first).
You can see those clips and others at The Faculty Lounge.
Posted by Steve Lubet on October 12, 2024 at 07:27 PM | Permalink | Comments (3)
Friday, October 11, 2024
ABA proposes constructive change to law school diversity mandate
The ABA Section on Legal Education and Admissions to the Board (abbreviated for the rest of this post as simply the ABA) is proposing a revision of its diversity mandate to something that speaks of “access to legal education and the profession.” Karen Sloan gives a crisp overview in Reuters here. This is both more and less than meets the eye. “More,” in that it disavows the longstanding, and not uncontroversial, mandates of diversity requirements in faculty and student body composition. Even though on its own terms this did not describe a diversity quota in any quantitative terms, counting the number of faculty and students from diverse racial and ethnic backgrounds has become a de facto requirement under interpretations of the rule. And so the practice for teams evaluating law schools and submitting reports to the accreditation bodies of the ABA, not to mention specific questions on the ABA’s omnibus questionnaire, have focused squarely on numbers. In sum, law schools were expected to have a suitably diverse student body and faculty and evaluation of numbers. If, upon initial review, results were inadequate, there would be sustained interrogation into reasons for the diversity deficit, along with clear explanations of how they might improve on these quantitative dimensions. The revised standard makes it much harder to continue to implement these numbers-based goals, and we can only speculate about how, if at all, the ABA accreditors could and would operationalize the objectives of “access.” So it would seem that the new protocol, if adopted, would reflect a meaningful change. There is, too, “less” than meets the eye, insofar as the ABA continues to require meaningful action by law schools. The continuing insistence that law schools provide access and opportunity reveals that the SFAA v. Harvard, et al decision does not drive the ABA from imposing standards on law schools that speak to the need for ensuring that individuals of traditionally disadvantaged groups can access legal education and, further, that law schools have a responsibility to the profession to ensure that there is sufficient access and opportunity.
A critical mass of law school deans currently read this proposed change as a major retrenchment in its equality commitments. Forty-four deans, from a fairly wide cross-section of law school, have penned a letter objecting to this change. They object to what they see as a crabbed reading of the Supreme Court’s recent affirmative action decision and view the ABA as succumbing to an interpretation that would in effect withdraw the depth and breadth of scrutiny that this accrediting body had given to law schools who failed to achieve adequate diversity goals (read numbers). To quote from the letter: “The current version of ABA Standard 206 is right in expressing a commitment to diversity, which is integral to the education of all of our students and in preparing them to be lawyers. The ABA thus should continue to insist that law schools take steps to ensure a diverse student body and a diverse faculty, consistent with the Constitution.”
The gist of the letter, that the SFAA decision does not mean essentially “equality game over,” is something about which I can enthusiastically agree with, given the strong and proud tradition of seeking and securing diversity in American law schools, and I commend these deans for pushing our accreditor to preserve that tradition as they continue to carry out their oversight function. What is problematic in the letter, however, is the element that is missing – the elephant in the room, as it were – and that is that these deans well know (or certainly should know) that the ABA has long been treating this commitment as much more than an expression of equality goals, but as a mandate for measurable diversity results. Moreover, it would strain credulity to suppose that the ABA does not understand that the realization of such goals requires some adjustment in both the admissions and faculty hiring standards that would be imposed in the absence of such mandates. This is what law schools said directly to the Court in the Grutter v. Bolinger litigation in 2003, and what undergirded similar efforts, although here unsuccessful, to move the Court in SFAA. To put the point more plainly, realizing these objectives has meant that the vast majority of law schools, as a practical matter, have had to engage in some amount of racial preferences in order to meet their diversity objectives. We can best understand the ABA’s diversity mandate as essentially saying: “Y’all got to do what you got to do, with respect to admissions and faculty hiring, and we are telling you to implement any particular method, so long as the outcomes of your processes meet the diversity mandates of this accrediting body.”
We can argue, respectfully, about the merits of such numbers-focused mandates, but I suggest that the argument for maintain the current diversity mandate needs to honestly account for two facts on the ground. The first fact, which I have labored to describe above, is that no matter how aspirational sounding the ABA is in the text of their current diversity mandates, it has long been read by the ABA and law schools alike as a numerical floor; and, further to that point, the ABA council working on accreditation and the teams assembled to review law schools know that they are asking law schools to make meaningful tradeoffs and adjustments in realizing the simultaneously important goals of meeting numerical measures in admissions (I will temporarily leave aside faculty hiring as a more complex and, for that reason, fraught process where folks quarrel about how exactly “quality” and “fit” is measured), for rankings and other purposes and the goals of ensuring that the law school is suitably diverse. No one should mistake this mandate for flexibility in assessing results; nor should we think of the ABA as fomenting a vision of American law schools as true laboratories of experimentation. That’s not the way it works; not for many decades. The other fact on the ground is more complicated, and that is the ultimate interpretation of the Court’s decision in SFAA. In their letter, the deans argue plausibly that “rather than requiring ignorance of race in admissions decisions, the majority approved race-consciousness in the context of evaluating applicants' essays. In doing so, the majority made clear that schools may continue to pursue diversity among students and faculty – and may even account for racialized experiences in admissions essays and the like– so long as they do so in a constitutionally permissible manner.” However, this begs the question of what the opinion means for a policy that is designed by the ABA to ensure that certain numerical diversity goals are met. I would suggest that if we take the first fact on the ground as true – that is, this mandate has long been viewed as a numerical requirement of sorts – then it is implausible to believe that the federal courts would assent to admissions processes that have the clear effect, if not the intent, to ensure that numerical goals are met by any means necessary. Not being a sitting dean, I have not been in the room where conversations involving deans, admissions administrators, and perhaps University lawyers are discussing how diversity goals can be realized with changes to admission policies as required by the Court’s decision and without risking further scrutiny that would put their policies at risk. I do not at all envy law school leaders making these difficult decisions. Nonetheless, to the point of this post, the reading of the Court’s decision as ultimately agnostic on the question of how precisely the ABA goes about in ensuring that law schools have a suitably diverse student body and faculty seems, as we say in our classrooms, a fairly strained reading of the contemporary legal tea leaves. As Brian Leiter persuasively summarizes the point: “[The deans reading] is a plausible, but it seems to me optimistic, reading of the import of the SFFA decision. Given the current composition of SCOTUS, I will be surprised if, when asked to clarify this import, this reading will be vindicated.”
For all that, can we something more cheerful about the ABA’s proposed revision? The focus on access and opportunity may well be designed, as the deans’ letter insists, to thread the constitutional needle constructed by SFAA. But if understood as not a retreat, as the forty-four deans maintain, but as a renewed focus on goals that are congruent with the larger and quite worthy goals of the profession, and that is that our law schools should be committed to access to their programs by all talented and committed individuals, than the ABA’s reshaping of its basic requirement is indeed quite compelling. Access to the profession supplements what is a growing emphasis in the legal profession more generally on access to justice. We need law students and faculty of diverse backgrounds and perspectives, including those from traditionally disadvantaged groups, because we want a profession that can implement as one its critical missions service to justice and to the rule of law. Diversity in our teaching and learning functions does not ensure on its own that these missions will be furthered, but it at the very least gives the public greater confidence that the legal profession is attentive to the needs, wants, and problems of ordinary Americans.
Access to legal education and the profession will be difficult to measure quantitatively and this is not necessarily a bad thing. So long as the ABA is in the accreditation mandate business, we can envision creative requirements, evidence-based and fairly administered, that enable law schools to improve access and likewise enable the ABA to evaluate progress. Overreliance on mere numbers, and, worse yet, numbers that are habitually decoupled from more nuanced considerations such as the demographics of the region, the conditions of the legal marketplace, including seemingly prosaic matters such as cost and length of the program, have proved problematic. And this is aside from potential legal obstacles reflected in the Court’s SFAA decision and its aftermath. Credit the ABA for designing a new requirement that will lead to alternative ways of measuring access and opportunity. Law schools will experiment; visiting teams will kick the tires and look under the hood; and hopefully some best practices will emerge.
There is a “gotcha” moment in the deans’ letter, wherein they claim to see through the ABA’s stated rationale for the reform and view the organization as succumbing to the “political agenda” of “opponents of racial equality.” To be sure, there are indeed such groups and they have pressed hard against diversity mandates and all the elements of what they see as the misguided DEI woke agenda. But this is hardly gotcha when we broaden our perspective to see the ABA as reexamining the merits of their manifestly numbers-focused diversity agenda in light of practical considerations (Has it worked in the ways intended? Has it created unnecessary burdens on law schools in constructing and implementing their programs under complex financial and political realities). Moreover, the effort to accommodate political realities in a deeply fractured polity can be seem as commendable rather than a capitulation to what the deans explicitly see as the baleful influence of folks who lack any commitment to redressing racial wrongs and addressing inequalities in legal education and the profession. It is notable that a large group of state attorneys general, led by my own AG in deep-blue Illinois, Kwame Raoul have publicly supported these revisions. Whether the ABA continues to impose meaningful access and opportunity requirements on law schools remain to be seen, although the prediction that it will is supported by practices over the course of many years, not to mention the resolve to do good and to do better, which, in my experience, is shared by every leader in legal education.
Posted by Dan Rodriguez on October 11, 2024 at 11:50 AM in Daniel Rodriguez | Permalink | Comments (11)
Contract as Vow or Oath
Legal Theory has posted my newest paper in contract theory: "Contract as Vow or Oath."
Just in time for your ritualistic nullification of vows this evening.
Posted by Ethan Leib on October 11, 2024 at 11:14 AM | Permalink | Comments (0)
Thursday, October 10, 2024
Anti-Abortion Cases Poised for the Supreme Court
My daughter has an excellent essay in Slate today about the many extremist anti-abortion cases that may be headed to the U.S. Supreme Court. Here is just a bit of it:
There are, however, many more reproductive-freedom cases in the pipeline. A close read of some of the other cases that may be on their way to the court reveals a stunning if unsurprising theme: While the justices’ decision to overturn Roe v. Wade is literally killing women, those on the right have identified the real victims—themselves.
You can read it here.
Posted by Steve Lubet on October 10, 2024 at 06:00 PM | Permalink | Comments (0)
The AAUP Has Gone Full-Orwell
First, academic boycotts are a form of academic freedom, here.
And now, compulsory DEI statements do not violate academic freedom, even when used to “evaluate[] individual faculty members’ performance by reference to them even though they dissent," here.
What’s next, “Ignorance is strength”?
Posted by Steve Lubet on October 10, 2024 at 12:32 PM | Permalink | Comments (0)
Monday, October 07, 2024
No, the Academic Engagement Network Is Not an "Israeli Front"
I have a new essay in Real Clear Politics debunking a recent accusation by Prof. Rebecca Karl, president of the NYU AAUP chapter, published on the AAUP Academe Blog:
Echoes of McCarthyism Ring in Charges of Israeli ‘Entanglement’
By Steven Lubet
October 07, 2024
In theory, it should be possible to oppose the Israeli military actions in Gaza, and defend the rights of campus protesters, without descending into anti-Jewish tropes. In reality, not so much. Even otherwise responsible university professors have seemed unable to resist embellishing their arguments with conspiracy overtones.
Consider an essay recently posted on the American Association of University Professors’ “Academe Blog.” Written by Professor Rebecca Karl, president of the New York University AAUP chapter, the essay is a scathing response to NYU’s newly issued Guidance and Expectations on Student Conduct, adopted in reaction to the Gaza war protest encampments set up at NYU and elsewhere.
According to Karl, the NYU administration has lied about the effect of its revised policy, which, she says potentially criminalizes “speech acts, inside and outside the classroom, that critically examine Zionism as a twentieth-century European political ideology.”
And she knows just whom to blame.
NYU has “dense entanglements” with the “Israeli state propaganda machine,” Karl says, including the Academic Engagement Network, which she calls “an Israeli state front.”
The latter accusation, of nefarious foreign control of an American organization, is redolent of McCarthyism at best, and perhaps worse.
In fact, the Academic Engagement Network does not solicit or receive funding from any government entity, in the U.S. or Israel. It is primarily supported by philanthropies and foundations. It is neither Israeli nor a “state front.”
Rather, AEN is a membership organization of university faculty and administrators on over 300 campuses, whose stated mission is to “counter antisemitism, oppose the denigration of Jewish and Zionist identities, promote academic freedom, and advance education about Israel.” (Disclosure: I am a member of both AEN and the AAUP.)
The “Communist front” charge, of course, was wielded by Sen. Joe McCarthy to discredit, without evidence, any group that opposed him politically, often accompanied by anti-Jewish slurs. As a professor of intellectual history and social theory, Karl was surely aware of the term’s venomous origin and its vindictive deployment – as with denunciations of “fellow travelers” and “willing handmaidens” – in the 1950s by the House Un-American Activities Committee and the Senate Internal Security Committee. Her substitution of “Israeli state” for “Communist” leaves the innuendo intact, reviving the intended smear.
But it is worse than that. The accusation of “dual loyalty” – allegiance to a foreign country, a sinister ideology, or a hidden cabal – has been a worldwide staple of antisemitic literature for centuries. The infamous “Protocols of the Elders of Zion,” for example, a forgery concocted in Tsarist Russia in 1903, described the “secret plans” of Jews, disloyal to the nations where they lived, to control the world through, among other ploys, manipulation of the media.
In this country, the charge was leveled in Henry Ford’s pamphlet “The International Jew,” describing Jews as infiltrators, “dispersed among the nations, but never merging themselves.” These days, David Duke, Louis Farrakhan, and even some more mainstream figures, routinely accuse disloyal Jews of putting “Israel first,” as did Patrick Buchanan in the 1990s.
Karl’s essay is more temperate, but the implication is familiar. Americans who support Israel, especially certain NYU trustees, are so “entangled” with its political, “economic, and cultural interests” as to be virtual fronts for a foreign government.
Reasonable minds can no doubt differ on the merits of NYU’s new guidance for student demonstrations. Perhaps it is as bad and oppressive as Karl contends. If so, that is an argument that must stand or fall on its own, without the gratuitous assault on individual trustees and charges of compromised loyalty.
The so-called Israeli state fronts on campus are as fictional as the Communists whom McCarthy imagined under every bed.
Karl made sure to point out that she is Jewish, but that is no defense for false accusations. McCarthy’s henchman Roy Cohn was also Jewish, which was no excuse for him, either.
This essay originally appeared in Real Clear Politics.
Posted by Steve Lubet on October 7, 2024 at 03:13 PM | Permalink | Comments (0)
Sunday, October 06, 2024
The Free State of Florida
I am getting the hang of this "Free State of Florida" thing, as well as the general Republican status as the party of free speech. It does not undermine freedom (and free speech in particular) to remove books from libraries; to control what teachers say in and out of the classroom; to control what professors write; or to require social-media companies to carry certain speakers and messages on their private sites. And now it does not violate free speech for the head of an executive agency to send a letter to a tv station warning it about legal implications, including criminal prosecution, if it runs a political ad that he insists is false.
For all the Republican talk about Tim Walz spouting fire in a crowded theatre (and I wish he would stop doing that), this line--the right to free speech "does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida"--is a long-winded way of telling the station it can be punished for doing just that.
And, of course, Oberlin sophomores shouting about a Charles Murray talk constitute the real threat to free speech.
Posted by Howard Wasserman on October 6, 2024 at 02:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, October 05, 2024
Saturday Music Post - Love Me Tender
"Love Me Tender" was a number one hit for Elvis Presley in 1956, the same year it was featured in Elvis's first movie, also called Love Me Tender. The melody was taken from the Civil War era ballad "Aura Lea" (also called "Aura Lee"), with new lyrics by Ken Darby, though attributed, for reasons never explained, to his wife Vera Matson. As performed on the Ed Sullivan show that same year, "Love Me Tender" began Presley's transition from rockabilly to pop. The choice of "Aura Lea" for the melody was appropriate for the movie, which was set in the immediate aftermath of the Civil War. Don't miss the film clip at the bottom of the post at The Faculty Lounge.
Posted by Steve Lubet on October 5, 2024 at 06:29 AM | Permalink | Comments (2)
Friday, October 04, 2024
JOTWELL: Coleman on Macfarlane on case assignment
The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Katherine A. Macfarlane, Constitutional Case Management, 102 N.C. L. Rev. 977 (2004), on the constitutional implications of local rules and practices on case assignment.
Posted by Howard Wasserman on October 4, 2024 at 10:49 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Wednesday, October 02, 2024
Students Celebrating the Terrorism of October 7
Students for Justice in Palestine, and allied groups, have announced what can only be called pro-Hamas rallies and protests for October 7, the anniversary of the worst slaughter of Jews since the Holocaust. It would be completely possible to protest Israel's actions in Gaza on any of the other 364 days of the year, so this date was obviously chosen to cause maximum harm to Jewish and Israeli students, and to interfere with mourning the victims of the Hamas atrocities.
Here is a statement from a faculty group at the University of Illinois Chicago:
UIC CELEBRATION OF TERROR
The UIC chapter of Students for Justice in Palestine (SJP) has applied for approval to hold a rally (a “quad takeover”) to express its support for and commemorate Hamas’ October 7, 2023, attacks on their one-year anniversary. In these attacks, Hamas carried out a program of murder and mass rape of civilians in Israeli towns and kibbutzim near the Gaza border. Staged on that day, this SJP event is not an abstract endorsement of political “resistance.” It sends a vicious message of hate to Jewish and Israeli students, faculty, and staff, suggesting that they are unwelcome on the UIC campus. Its celebration of the Hamas murder spree effectively calls for discrimination on the basis of national origin for Israelis and creation of a hostile environment for Jewish students, faculty and staff—all those who hold Zionism to be a central part of their personal or religious identity and their identity as a people. In the wake of an October 7th massacre that many consider a contemporary pogrom, it is clear this event will be exceptionally destructive.
Some have called for these events to be prohibited. A federal judge recently ordered the University of Maryland to allow a similar rally to proceed. I agree that viewpoint neutrality requires permitting even the most disgusting speech, but the choice of date certainly exposes the cruelty of SJP and its allies.
Posted by Steve Lubet on October 2, 2024 at 02:18 PM | Permalink | Comments (0)
Tuesday, October 01, 2024
Pete Rose, the Hall, and competing statutory interpretation
Given news that Pete Rose died Monday at age 83, I re-up this post discussing two TV documentaries (one new, one a few years old) about Rose and the Hall of Fame, specifically this point about posthumous Hall induction that has become newly relevant:
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.
But, as I mentioned in the same post, posthumous induction requires some cooperation and compromise between MLB and the Hall. Rose's name remains on MLB's ineligible list, even after death. Under MLB's interpretation of its eligibility rules, ineligibility ends at death (when a person no longer can hold any formal position within MLB or a team); it thus lacks any mechanism for removing a deceased player from the list. But the Hall interprets MLB ineligibility (and thus Hall ineligibility) to continue until MLB affirmatively removes a person from the list. Someone therefore must alter its interpretation--either MLB must create a mechanism for removing deceased players from the list (making them legally, if not practically, eligible) or the Hall must be willing to accept someone as not practically ineligible although his name remains on the list.
I feel as if there is a Chevron analogy at work here.
Posted by Howard Wasserman on October 1, 2024 at 02:58 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Keep on Punching: Why Harris Wants to Debate and Trump Doesn’t
My new essay at The Hill explains why Donald Trump is so fearful of another debate with Kamala Harris. Here is the gist:
Keep on punching: Why Harris wants to debate and Trump doesn’t
by Steven Lubet, opinion contributor - 09/30/24
Vice President Kamala Harris, eager for another opportunity to confront former President Donald Trump, readily accepted CNN’s invitation to a second debate on Oct. 23. Trump quickly declined, citing a litany of reasons for avoiding another encounter.
Trump’s main rationale for refusing another debate is that “it’s just too late” because “voting has already started.”
Events in late October always have the potential to influence elections, even after voting has begun.
Trump enjoyed the Senate’s confirmation of Justice Amy Coney Barrett on Oct. 26, 2020, only eight days before he lost the election to Joe Biden. Needless to say, neither he nor Harris will stop campaigning two weeks ahead of election day.
The reality is that Trump fears Harris as a formidable opponent with a trial lawyer’s exceptional skills. She has already beaten him once, and, as of this writing, he is unwilling to risk facing her again.
“In the World of Boxing or UFC,” he posted on Truth Social, “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.”
That was the right analogy but the wrong conclusion. Like any good fighter, Harris can tell when she has her opponent on the ropes. She just wants to keep on punching.
You can read the full piece at The Hill.
Posted by Steve Lubet on October 1, 2024 at 06:41 AM | Permalink | Comments (0)