PrawfsBlawg

Saturday Music Post - I Am a Pilgrim

"I Am a Pilgrim" is an American hymn dating to the middle of the nineteenth century. It was first recorded in 1924 by the Norfolk Jubilee Quartet, a prominent African American gospel group (don't miss their clip at the bottom of the post). I first heard it by Doc Watson, and then by the Byrds. I can't explain it, but I just love Doc's four note base run between "not" and "made by hand." Many of the other artists have picked it up, but not all -- which is too bad in my book.

You can decide for yourself at The Faculty Lounge.

Fiduciary Parenting of Trans Youth

With Skrmetti about to be argued at the Supreme Court (on a state ban of gender-affirming care for minors), I thought I would post my draft on "first-responder" parents and their role in the constellation of care for trans youth.  The paper is here and the abstract follows:

This Article aims to evaluate whether parents of minors who identify as transgender have moral duties to help their children achieve
social or medical transition and whether they have moral permissions to take a more oppositional posture—and, if so, under what conditions. Very child-centered theories of parenting might recommend that children should get to make their own decisions without parental gate-keeping; and very parent-centered theories of parenting might recommend that parental interests or values are appropriate to guide decision-making, instead. A particular account of fiduciary parenting, the view developed and defended here, does not require that parents always accede to their children’s demands for gender transitions. However, parents have obligations stemming from their fiduciary role to evaluate their children’s demands with careful deliberation, conscientiousness, and sensitivity to dynamic change. In particular, children can require from their parents a decision procedure that properly orients parents towards children’s welfare rather than parents’ own and a decision procedure that also doesn’t center “irreversibility” as a core anchoring mechanism, an entailment of careful and conscientious deliberation. It is an essential moment—as the Supreme Court is about to take up state bans on gender-affirming care for minors—to gain more clarity about how “first-responder” parents should be managing demands from their children about their gender expressions.

60 Minutes swallows nonsense campus-speech narratives

In an absurdly fawning piece on University of Austin as the answer to cancel culture and student self-censorship (uncited, but obviously based on FIRE's statistic nonsense) and thus the only place committed to open-minded and all-sides debate (as opposed to a politically one-sided grift).

The piece reveals the stickiness of the conservative narrative of censorious liberal students attacking conservative speakers and making them "feel" unwelcome while the right commits the free-and-open exchange of ideas. t never distinguishes between government censorship and one person's First Amendment desire to disassociate from another person because the latter spews hateful ideas. And it never mentions: 1) Florida's actual laws restricting what faculty and students can say, teach, and learn on campus and seeking to eliminate tenure or 2) four university presidents (whom the piece mentions at the outset as an example of left censorship) lost their jobs because Republican legislators and wealthy donor Bill Ackman (mentioned as a UATX supporter) believed they had failed to sufficiently restrict or sanction pro-Palestinian campus speech. It thus continues the narrative that the real threat to free speech is an offended sophomore at Oberlin and not the laws of a state.

Consistency and Transparency in Assessment: The Case of Grading "Participation"

In my upper-level, seminar-type courses, I generally provide, in the syllabus, something along the lines of "X% of your final grade will be based on participation" (with the rest based on papers, etc.). The X varies, but I suppose it's generally been about 30%.  (In larger and first-year courses, I do not do this, and instead say something about the possibilities of "grade bumps".)

I have to admit/confess, though, that -- even after 25 (!) years -- I have less than complete confidence in my ability to consistently, predictably, rationally "assess" "participation" and I (still) worry about the possibility that the exercise sometimes (often?) ends up as just a gussied-up bit of intuition and impression. I wonder, have others identified good ways to avert, or at least minimize, this possibility? One idea I heard from a lawprawf was to ask each student to "assess" his or her own "participation" -- to assign him or herself a letter grade for it -- and to use that self-assessment . . . in some way. Have any readers done that? Comments are open!

Trans rights, the 2024 Election, and Trump II (Updated)

I have been tossing around ideas for this post since the election. My thoughts are not fully formed, but I wanted to get them down on paper.

• Trans and non-binary people form a vanishingly small percentage of the U.S. population. The question is what to do with that information. One narrative criticizes Republicans for obsessing and seeking to suppress a tiny group whose existence does not affect their lives--"why do you rally around hurting such a small group." A second criticizes Harris and Democrats for caring so much--"why do you care so much about (and feel the need to express support for) such a small group." Unfortunately, the latter has taken hold among Harris voters, particularly in light of evidence suggesting that Trump's anti-trans rants (the "She's for They/Them, Trump is for you" ad and Trump's stump bullshit about boys coming home from school as girls) moved meaningful numbers of votes. On the second narrative, it is not enough for Democrats to downplay support for this group--Harris should have responded by joining Trump and Republicans in piling on this group and agreeing to push them out of the polity. And the required move becomes not just declining to "promote" trans issues (whatever that means), but refraining from protecting trans people when the other side attacks. The idea seems to be that a small vulnerable group does not need protection.

• For example, see this word salad from Massachusetts Democrat Seth Moulton: 1) "There are just a number of issues where we’re out of touch;" 2) “I think that Republicans have a hateful position on trans issues;”3) Democrats still lose voters because of the party’s “attitude;” 4) “Rather than talk down to you and tell you what to believe, Democrats should “listen to hard-working Americans.”

    Let's put aside Moulton's apparent dichotomy between trans people and hard-working Americans. Moulton serves as a policymaker (or at least pretends to), so make policy of those four statements: The Republican position on trans issues is hateful. But hard-working Americans agree with (or at least are not repulsed by with that position, so Democrats are out of touch if they fail to listen to those hard-working Americans. And that leaves us where in terms of policy, Rep. Moulton?

• This is about pushing this group out of the polity, taking steps to keep them from living their lives as they see fit. Anti-trans activists and officials advertise sports and bathrooms as the key issues and the servile media transcribes it. I will come back to sports in a second. But note that the anti-trans policies on offing extend beyond those issues. Several days after the election, Trump had a social-media post enumerating anti-trans proposals he plans to pursue--stripping federal funds from hospitals that provide gender-affirming care, denying Medicaid funds for gender-affirming care, banning trans people from the military, suppressing classroom discussions of trans issues, etc. And Trump nominated as surgeon general the person who pushed and enforced many of Florida's anti-trans efforts. This is not about sports-and-bathrooms.

    Also nonsensical is the feint towards "reasonable" compromises (most recently by now-former Texas Democratic chairman Gilberto Hinojosa) by making this a pocketbook issue--let people do what they want but don't make taxpayers fund it. The amount of any taxpayer money that goes to any expenditure is infinitesimal--that is why we do not allow federal taxpayer standing. And we do not allow individual taxpayers to opt-out of particular expenditures--we do not prohibit Medicaid funds for Sickle Cell Anemia treatments to appease those who do not like Black people. Again, such efforts single out trans people for differential treatment for no reason other than some segment do not like them.

• I confess to being wrong about how central these issues will be to the new administration. I thought this was a cynical political move but that once in office Trump would focus on the things he cares about: immigrants, tax breaks for billionaires, personal enrichment, and revenge on his political enemies. The House GOP freakout over Sarah McBride and some of Trump's nominees suggests this is going to be a central feature in the coming years.

• On sports--this is a real issue but also a straw man that does not justify the broader policy proposals. The science is out on how much advantage male puberty provides once a trans woman undergoes hormone therapy; while the "fairness-and-safety" argument is important, it cannot end the conversation. Even if the science is there,  anti-trans policy (barring all participation in all sports at all levels) is (stop me if you heard this one before), over-inclusive: It applies to sports (e.g., swimming) without safety issues; it applies to sports (archery, bowling, shooting) without sex-based advantage and thus no fairness issues; it applies to trans men playing men's sports (where biological advantage runs the other way); it applies to all ages and levels of competition (drawing no distinction between grade-school, high school j.v. and the Olympics). Policies target people who never went through male puberty so never received the supposed advantages.* And some of the cases that have drawn legal responses have targeted individual players who are not very good at their sports or certainly not so superior in their sports as to create an unfair playing field.**

[*] Or worse, work in tandem with bans on gender-affirming care for minors. So trans girls cannot play girls sports because they have  an advantage from male puberty, but we are going to force them to go through male puberty.

[**] Bey0nd the inherent genetic unfairness that defines sports. Michael Phelps is a genetic anomaly--no one complained that he had unfair biological advantages.

The longer I have worked on this, the angrier I have become. I apologize if this is more of a jeremiad than I expected when I started.

[Update]: I may owe Rep. Moulton some sort of apology. According to this interview with Rolling Stone, the Times quoted him out of context and slapped a headline on the story that made him sound more opposed to trans rights than he intended to suggest. Post hoc CYA or genuine? You decide.

Independent Agency or Codependent Agency?

As I watch for various aspects of "realignment" that render dated a great deal of commentary that relies on "left vs. right" or "conservative vs. liberal" classifications, I was struck by one passing example of this, from Senator Elizabeth Warren:

Information and discourse from That Place (where That Place equals any social media platform) are to be treated skeptically if not contemptuously, and it is always worth remembering that many or most of the statements from public figures and elected officials on such sites come from the minds of smart, earnest young creatures whose instructions are imperfect and who lack fully developed prefrontal cortices. And I have no reason to doubt this prediction from Senator Warren, or at least (assuming someone else wrote the tweet) "Senator Warren" in a more corporate sense. I have the general sense that she maintains a strong interest in the agency. Strictly speaking, though, shouldn't we consider it odd for a member of the legislative branch to pledge in advance the support of an independent executive-branch agency, as if this single senator can speak confidently for it? Could she not at least instruct her staff writers to maintain the niceties of form?   

Saturday Music Post - I Can't Turn You Loose

"I Can't Turn You Loose" was written and recorded by Otis Redding in 1965. It was originally released as the B-side of "Just One More Day," a song that I cannot remember and may never have even heard. Just goes to show that nobody can really predict hits.

Don't miss Steve Cropper's interview at the bottom of today's post at The Faculty Lounge.

Norberg on the InfoWars/Onion Bankruptcy Controversy

I asked my colleague Scott Norberg, a bankruptcy expert and a member of the BK Rules Advisory Committee, for his thoughts on the InfoWars/Onion Bankruptcy controversy. (TL:DR -- The Onion bought InfoWars in the bankruptcy auction in a bid supported by the Newtown-parent creditors; InfoWars, the State of Texas, and a bunch of right-wing people are objecting in typically performative terms). Scott's comments after the jump.

The Onion’s bid is the best one for the estate, superior to First Union’s.  The trustee’s job is to maximize the proceeds from the sale of assets for the benefit of the unsecured creditors and he’s the expert in doing that.  (Indeed, his payment in the case is based on a percentage of the monies generated by the sale of assets.)  Further, the fact that the major creditors support the Onion bid validates the trustee’s assessment of the competing bids.  After all, he is liquidating the estate on their behalf.  I see the bankruptcy judge’s expressed concern about transparency, but the potential for some creativity in the bid packages was probably inherent in the secret written bid procedures and the fact that the sale of assets was not conducted by live auction.  Jones’s and First United’s allegations of collusion seem way overblown if not desperate.  Jones’s history of playing fast and loose with the legal system leaves him with little credibility.  That said, you know what they say about keeping of with the Joneses. . . . Ultimately, the bankruptcy judge’s decision regarding the better bid is subject to an abuse of discretion standard of review.  The appearance by the Texas Comptroller seems heavy-handed and political.  It will be interesting to see what they have to say at the hearing, or if they are even permitted to speak – not sure that they would be considered a party in interest.

JOTWELL: Levy on Bayefsky on judicial institutionalism

The new Courts Law essay comes from Marin Levy (Duke) reviewing Rachel Bayefsky, Judicial Institutionalism, ___ Cornell L. Rev. ___ (forthcoming 2024), on the role and need for institutionalist judges and judging.

Steve Vladeck's Admirable Response to Judge Edith Jones

Steve Vladeck has given me permission to reprint in full his response -- originally posted at One First -- to Judge Edith Jones's unseemly attack on him at the recent Federalist Society national convention. The Federalist Society almost always includes liberals on it panels -- including me, several times -- and they have typically been received politely. Unfortunately, that was not the case last week when Jones and Vladek appeared on panel on "The Continued Independence of the Judiciary." As far as I can tell, Jones believes that judicial independence means: (1) freedom from criticism; and (2) a license to be rude; because (3) life tenure is evidently not enough.

Steve's post is long, but it is worth reading (or worth watching; the video is embedded below):

109. Things Fall Apart

Some reflections on my disheartening exchange with Judge Jones at last Thursday's Federalist Society convention—and its ominous implications for the future of legal debate

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

I thought I’d use today’s issue instead to reflect on what happened at last Thursday’s Federalist Society national convention—in particular, my exchanges with Fifth Circuit Judge Edith Jones on the topic of “judge shopping” (or, more specifically, her sustained personal attack against me for my criticisms of that behavior, including her allegation that I am directly responsible for death threats she claims Judge Matthew Kacsmaryk, the Amarillo-based federal district judge who has been a frequent favorite of judge-shoppers, has received).

There is quite a lot to unpack here (and I’ll take a stab at much of it), but to skip to the punchline, my two big takeaways are that (1) the inability of people who should know better to distinguish between principled criticisms of judicial behavior and personal attacks on judges is a serious problem for our discourse; and (2) given the period of unified Republican control of the federal government into which we’re heading, without real effort on the part of judges to publicly acknowledge both the existence of this distinction and the importance of principled debate over judicial behavior, we’re going to exacerbate—perhaps past the breaking point—the (already) intensely partisan divide over how much power unelected federal judges should have in the first place. In both of these respects, what happened Thursday was both a sad reflection of where we are and an ominous warning of where we may be going.

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I. What Happened

Not only are eyewitness recollections themselves suspect, but I am quite obviously an interested party in relaying the details of Thursday’s events. So before even doing that, let me note that there is a public video of the entire panel—which folks can watch for themselves. My remarks begin at 41:30; Judge Jones begins at 50:23; and things ran off whatever rails were remaining around 1:03:30:

The video really speaks for itself. But in case you don’t have time to watch, or you’d like additional context, here’s how things went down from my perspective:

On September 30, I received an invitation from Dean Reuter, Senior VP and General Counsel of the Federalist Society, to participate in Thursday’s panel. Dean didn’t tell me who else would be on the panel (and, in fairness, I didn’t ask). But given my own writings (especially in this newsletter) on the relationship between court- (and Court-)reform discussions and judicial independence, it seemed to me that mine might be a perspective not otherwise represented on such a panel. (I’ll have more to say about the ongoing debate over whether people like me should ever participate in Fed Soc events below.)

I found out roughly two weeks later that the rest of the panel would feature Judge Jim Ho (as “moderator,” more on that in a moment); Wash. U. law professor Dan Epps; Judge Jones; and Paul Weiss partner (and noted Supreme Court advocate) Kannon Shanmugam. I’ll note that I was a bit surprised that a sitting circuit judge would be on the panel, and not just moderating it, but c’est la vie.

We had a planning call for the panel on November 4—on which Judge Ho said he was “only” going to moderate the panel; and Kannon, Dan, and I each described in broad strokes what we were planning to discuss (in ways that closely mirrored what we actually said on Thursday). Judge Jones mentioned that she was planning to talk about the “problem” of courts responding to political pressure, and flagged the Judicial Conference’s March 2024 proposal to curb judge-shopping (in response to which she had already been quoted in several media accounts) as one of the examples. Suffice it to say, putting me in the spotlight was … not discussed.

Fast-forward to the panel. After Judge Ho gave his own five-minute opening statement (on the prep call, he had said that he was planning only to introduce us), Kannon, Dan, and I each delivered a version of the opening remarks that we’d described on the pre-call (my remarks largely paralleled what I wrote about in last Thursday’s bonus issue). And then it was Judge Jones’s turn.

In fairness, Judge Jones did make the main point she had outlined in advance—that judicial independence is threatened when courts respond to public criticisms, mixed in with a complaint that part of the problem is that the academy and the bar aren’t doing enough to “stand up” to these criticisms—and that that’s why she was taking this opportunity to “speak up.” If that’s where things had ended, I would’ve thought that most of what Judge Jones had said was, at least, an intellectually defensible view—even if it’s one with which I disagreed.

But along the way, Judge Jones made it very personal—and about me, specifically. It started by putting words into my mouth (claiming that I’ve accused litigants and judges of “close-to unethical” behavior—which I never have) and accusing me of hypocrisy in criticizing the practice of litigants steering cases to single-judge divisions in Texas in order to ensure that a specific judge is assigned to hear their case (a practice in which the State of Texas has publicly admitted it is engaging). As Jones pointed out, I never accused the (liberal) Judge William Wayne Justice of similar behavior (never mind that Judge Justice was appointed to the federal bench 11 years before I was born). The basic argument she seemed to be making was that this behavior doesn’t just happen with Republican-appointed district judges in Texas—although it’s not clear to me why, even if that’s true, it’s a defense of the practice, as such.

In all, by the end of her opening remarks, Judge Jones’s central evidence for her claim that the Judicial Conference had responded to unfair and unfounded attacks on judge-shopping was that I’m a hypocrite. Several of her factual claims in support of that assertion were just wrong. For instance, she went out of her way to claim that the Department of Justice hasn’t sought to change venue in any of the cases filed against the Biden administration in single-judge divisions in Texas—which, in her view, showed why my critiques aren’t even shared by the parties on the receiving end of this behavior. In fact, DOJ most certainly did move to transfer at least three cases (their motion to transfer in one of the Amarillo cases provoked another clumsy shot at me—by Judge Kacsmaryk himself). But what these errors really underscore is how much she wasn’t using me as a foil for one side of the “debate”; I was her primary target, as such.

At that point, each of the panelists was given a chance to respond. Kannon went first and offered some modest responses to Dan and me. When it was my turn, I briefly responded to Kannon before turning to Judge Jones. The crux of my response was to discuss the example of judge-shopping in patent cases—where there was broad consensus from across the political spectrum that it made the legal system look pretty bad when 23% of patent cases nationwide were being filed in Texas’s 23rd-largest city. (This was basically a shortened version of my written response to a speech by Judge Reed O’Connor.) If folks like Senator Thom Tillis (R-N.C.) and Chief Justice John Roberts (and the Western District of Texas, which changed its case-assignment rules in response) could agree that judge-shopping was a problem in that context, I suggested, that sure seems to support the conclusion that it’s a problem unrelated to the partisan / ideological affiliations of the parties and the judges. And I specifically disclaimed that I had personally attacked any of the judges to whom cases are being shopped.

Then it got (even more) awkward. Judge Jones didn’t respond at all to my patent example—even though it seems to provide rather powerful evidence that the debate over judge-shopping is not a partisan one. Instead, apparently having been waiting for me to disavow such attacks, Judge Jones pulled out a manila folder that she claimed was full of my blog posts, tweets, amicus briefs, and other writings on the subject (honestly, given how much work I’ve done in the field, it seemed pretty thin). And she proceeded to read out individual tweets (that one of her law clerk presumably found, printed out, and highlighted—I leave to others whether that’s an appropriate use of federal judicial resources) as evidence of how I have been “personally attacking” the judges in these cases, and had engaged in a series of “ad hominems,” with the purpose, she claimed, of intimidating these judges. This wasn’t off the cuff; it was a set-up.

Leaving aside how bizarre (and, it should be said, non-responsive) this maneuver was, it was also, in my view, hilariously ineffective; each of the examples Judge Jones read of my supposedly “unsavory” attacks were … not? Instead, they were anodyne descriptions of either litigants’ behavior; the factual results of filing in those divisions; or, in what appears to have been my worst sin, descriptions of some of these judges as being “right-of-center” (or, in one of her examples, further to the right than many of the Democratic appointees on the Northern District of California are to the left).1 Over and over again, Judge Jones attempted to portray my own words as casting aspersions on these judges—saying, at one point, “if that’s not a personal attack, I don’t know what is.” Indeed.

In perhaps the most ominous moment of the session, she then insisted that I was directly responsible for death threats that she claims Judge Kacsmaryk (and his family) has received. If Judge Kacsmaryk has indeed received such threats, that is gravely concerning (and illegal, if within the scope of the true threats doctrine). But it ought not to be a controversial view that federal judges should not be publicly blaming individual critics for provoking those threats without even attempting to connect the dots from the critics’ arguments to such threatening behavior.

Readers can and should judge for themselves from the video; I thought that I did a pretty good job of not taking the bait and of maintaining a pretty even keel throughout the exchange.2 At one point, I suggested that Judge Jones and I ought to grab a beer and hash out our differences. At another, I suggested that perhaps Judge Jones and I simply have a different understanding of what a “personal attack” actually is (and that I doubted that she would count her own remarks as one). Finally, I expressed my disappointment that, rather than having a substantive debate about judicial independence (which was supposed to be our topic), or even about judge-shopping, specifically (Judge Jones’s focus), we were doing … whatever that was. I said something to the effect of “This isn’t the kind of debate that I thought the Federalist Society was interested in sponsoring and I’m disappointed in the conversation that we’ve had today.” Judge Jones responded by asserting that “this is not an ad hominem . . .,” and then proceeded to go after me (and my motives) again.

Ironically, on the judicial independence point, Judge Jones’s behavior, if anything, helped to reinforce one of the central claims I tried to advance in my prepared remarks: that the more judges equate judicial independence with insulation from any reforms or criticisms, the more they’re losing sight of why the Constitution enshrines judicial independence—not as an end unto itself, but to ensure that courts can serve their role in our system of checks and balances. We didn’t trade tyrannies of the majority for a tyranny of unelected judges; the interbranch dialogue, debates, and compromises are supposed to matter. Insofar as Judge Jones’s argument was that my criticisms are a threat to judicial independence, I fear that she only helped to make my point.

As if all of that wasn’t weird/sad enough, when we turned to audience Q&A, the panel ended with a (clearly staged) spectacle—in which 97-year-old Federal Circuit Judge Pauline Newman, who Judge Jones had told Judge Ho to call upon before she had even stood up, described her plight (she has been suspended from hearing new cases by her colleagues over claims of age-related judicial disability—for which she is currently suing them), and asked what it portends for judicial independence. If I’d had a chance to respond, I might have noted that the whole point of the procedures created by the Judicial Conduct and Disability Act of 1980 is that Congress has left it to Judge Newman’s fellow independent judges to resolve her fate. There are definitely issues that can arise from judges policing themselves, but judicial independence … isn’t one of them. I didn’t get the chance to say anything, though; Judge Jones had a canned (and sympathetic) answer at the ready.

Like the contents of Judge Jones’s manila folder, we were just props.

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II. The Reaction in the Room

In retrospect, the thing that strikes me the most about how things went down was the reaction in the room. Judge Ho (who, remember, was the “moderator”) intervened at one point only to make an awkward attempt at a joke about why I’d left Texas.3 To Dan’s significant credit, he objected to, and was quite critical of, the personal tenor of the conversation (more on his central point below). Meanwhile, the visible/audible audience reaction was decidedly to the contrary. Not only did folks loudly applaud Judge Jones, but even when I appealed to the Federalist Society’s purported commitment to principled debate, the best I got was a smattering of applause—and a handful of boos. Some commitment.

To be sure, a bunch of people came up to me afterwards (and even more e-mailed, texted, or DM’d me later as the news and the video began to spread) with words of encouragement and support. And I’m grateful for that—and for them. But it’s worth thinking about what would’ve happened and what message would have been sent if Judge Ho (who, last I checked, also has an Article III commission protecting him), or any of the folks who came to the microphone during the Q&A, had stood up for me—or even for the idea that we should be debating the underlying topic on substantive terms. Whether or not silence in these circumstances is complicity, applause surely is.

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III. Personal Attacks vs. Substantive Criticisms

More fundamentally, my broader reaction to Thursday is how much we’ve lost the thread on the difference between personal attacks and substantive criticisms, especially where judges/courts are concerned. To be sure, I claim no special expertise about where the line between those two things is, and I recognize that different people may draw it in different places. But it seems to me that there are some general principles that ought to be uncontroversial:

First, and this was Dan’s central point toward the end of the panel, whether or not a critic is making a personal attack has no bearing on the accuracy of their critique (this is the “Ad Hominem Fallacy”). People will have different motives for why they do/say things; the question is whether there is truth to what they are saying. Perhaps you’ll be less inclined to believe someone whose motives you suspect, but that only matters if their claim is in any way tied to their subjective beliefs. If someone who you distrust provides you with incontrovertible data that speak to a specific conclusion, then that conclusion is valid regardless of why the person has offered it. Thus, even if Judge Jones had pulled out of her manila folder actual evidence of me personally attacking judges,4 it wouldn’t have proven anything about whether judge-shopping (1) is a problem; or (2) raises questions about public faith in the integrity of the judiciary—the only way I could envision even trying to tie that topic to the putative theme of Thursday’s panel. Personal attacks are unfortunate (for reasons amply demonstrated by Thursday’s events), but they’re also counterproductive because, even when they succeed, they don’t per se establish any substantive points about the underlying topic of debate.

Second, and to that point, especially in this day and age, describing a judge by reference to the President who appointed them and/or their rough orientation relative to our contemporary political/ideological spectrum should just not be viewed as a “personal attack.” Consider this sentence:

“Judge Smith is a Democratic appointee who was named to the bench by President Whitmore, and whose rulings in ideologically charged cases have tended to favor left-leaning parties.”

My own view is that nothing in this statement is a personal attack—even if the claim about Judge Smith’s rulings is actually incorrect. People can be wrong in their criticisms of judges without being personal. And making a claim about a pattern in a judge’s rulings is, quite pointedly, not imputing a nefarious motive to the judge; it’s suggesting that, for whatever reason, their rulings are following a particular pattern. (Indeed, this is why, for the umpteenth time, it’s so important that judges explain their rulings—to provide the basis for a response to claims such as those.) Whether or not judges (and justices) in general ought to have thicker skin, they should at least understand the difference between a critique that argues that a ruling of theirs is substantively wrong and one that accuses them of ruling that way for non-judicial reasons or otherwise impugns their integrity. Plenty of judges with integrity get things wrong; one doesn’t follow from the other.

Third, and finally, in a world in which personal attacks are (rightly) disfavored, the inability of prominent public figures to meaningfully distinguish between them and substantive criticisms poses serious risks of both ignoring problems raised by those with whom you tend to disagree; and chilling folks from speaking out out of fear that they, too, will be attacked for crossing the substantive/personal line. To be sure, the latter concern isn’t one that I experience personally. In addition to the thick skin that comes from having grown up between two brilliant, assertive sisters, I’m a highly visible, tenured, white male professor at a private university in a very blue jurisdiction; I’m about as safe from professional retribution as anyone (other than Article III judges, anyway) can be. But for folks who don’t have the same formal and practical protections that I do, this latter concern is (and ought to be) a serious one. Folks like Judge Jones should be encouraging principled disagreement, not using forums like Thursday’s to seek to silence, embarrass, or otherwise cow into submission those who were invited to provide it. That it failed in this case doesn’t mean it won’t succeed next time.

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IV. Progressive Academics and the Federalist Society

Other than the (to my count, five) public comments I’ve seen in defense of Judge Jones (two of which, it should be noted, are from former clerks), just about all of the reactions I’ve received or seen online have been rather in line with mine—with one big exception: There’s been at least some criticism of me for agreeing to participate in Thursday’s event in the first place—dovetailing with the broader, ongoing debate over whether left-of-center academics should have any relationship with the Federalist Society. Judge Jones wouldn’t have been able to attack me, the logic goes, if I hadn’t agreed to participate.

I’ve had deeply conflicted views about this debate since its inception. On one hand, I totally understand the concern that, when folks like me choose to participate in these kinds of conversations, it gives them some additional legitimacy and/or visibility that they might not have without us. In what he might have thought was supposed to be an apology at the beginning of Friday’s plenary session, Reuter—the Fed Soc Senior VP and General Counsel—touched on this when, according to media reports, he gave “particular thanks” and “gratitude” to speakers he didn’t name, noting that “[w]e’re only able to have debate and discussion if we can get people of divergent views to join our convention,” and that “[w]e couldn’t stay true to our form without them.” Indeed, you can’t have a debating society without debaters.

On the other hand, there were quite a lot of people in the room (and, thanks entirely to Judge Jones’s behavior, who have now watched the video) who may now have different views not just about the specific topic at hand (judge-shopping), but also about the relative seriousness, or lack thereof, of various of the participants. Indeed, some of the messages I’ve received since Thursday have been to this exact effect. If part of my goal is to get folks who aren’t inclined to agree with me to nevertheless take seriously some of the substantive points I’m trying to make, that couldn’t and wouldn’t have happened Thursday without my being there. Judge Jones’s behavior, ironically, only helped in that regard.

What worries me is less what happened in the room on Thursday than what hasn’t happened since: Reuter’s elliptical and milquetoast comments Friday morning are the only public acknowledgment by the Federalist Society that anything even happened (and you’d be hard-pressed to know what if you didn’t have the context); and, without revealing the substance of our private correspondence (he’s free to do so if he wants), I’ll just say that neither he nor anyone else from the organization has been any more contrite over e-mail. I’ve written before about how oftentimes, the reaction to an episode is more revealing than the episode itself. So too, here.

I can’t (and wouldn’t deign to) tell anyone else what they should do. But for me, I think this puts a thumb on the scale against participating in national Federalist Society events for the near future—at least until and unless the Society wants to acknowledge that Judge Jones’s behavior was flatly inconsistent with the dialogue that the Society claims it intends to foster. You can say that you’re committed to the respectful exchange of competing viewpoints, but when that principle is quite loudly and publicly tested, it’s hard to believe you if you’re not going to to back it up. Four days later, that hasn’t happened here. The Federalist Society may be a “they,” rather than an “it,” but as an organization, it either thinks the respectful exchange of ideas is worth speaking out for or it doesn’t. Put another way, the Society invites people like me either because it wants its audiences to hear what we have to say or because it just wants to be able to say that it invited us. If we’re just going to be props, then it seems like we should pass.

I continue to feel differently about student-run Federalist Society events. Part of that is because I have pedagogical and other obligations to (all of) my students that I don’t have to others—both to those who are active in the organization and to those who attend its events. Part of that is because it wouldn’t be fair to hold against 2Ls and 3Ls decisions that national folks have made. And part of it is because I continue to think that, even if the Federalist Society isn’t going to back up its commitment to high-minded debate, there’s value in trying to model what it looks like—that isn’t as outweighed in the student-event context as it is for national events. It’s still ridiculous that the national organization will pay an honorarium to the conservative who I debate at student-run events but not to me (this is how many, if not most, student-run Fed Soc events work), but again, that’s not the students’ fault. And although there are some people who I won’t debate, that’s because of who they are, not because my students chose to invite them.

Of course, others may draw these lines differently, and that’s as it should be. All I can say is that this is what feels right to me.

---

V. Why All of this Matters

I wanted to write all of this not because I’m interested in the airing of grievances; my snarky asides … aside, I don’t think any of what I’ve said above has suggested anything about Judge Jones other than that she made a series of clumsy and not-factually-supported attacks against me.

Rather, I think that what happened Thursday is important because it is both (1) not unique; and (2) an alarming portent of what public debates over our government institutions may increasingly resemble in the coming years. With one party holding the reins of both elected branches of government and with justices appointed by presidents of that party holding a 6-3 majority on the Supreme Court, there will be an obvious temptation to dismiss any discussion of institutional reform in the coming years as partisan attacks designed to weaken Republicans and strengthen Democrats. (Indeed, this has been a frustrating feature of Supreme Court reform discussions for some time.)

This is why it is especially incumbent upon judges to not just resist perpetuating that view, but to actually lead the charge in defense of the principled exchange of opposing viewpoints—the epitome of what the practice of law is supposed to reflect. The point is not that judges are supposed to be emotionless automatons; it is that they are supposed to set an example for ensuring that serious arguments are taken seriously—even, if not especially, when they are rejected. To ignore those arguments in favor of efforts to attack and delegitimize those making them because of who they are is to reinforce charges that, to the judges acting that way, the law doesn’t actually matter; all that matters is who gets to wield the judicial power.

I wrote last week about Justice Robert Jackson’s view of the role of courts in checking the other institutions of government on the far side of his time as lead U.S. prosecutor at Nuremberg. It seems fitting to close this week with his view on the dangers of this kind of demonization of dissent—which he articulated in the middle of World War II in the celebrated opinion for the Court in West Virginia State Board of Education v. Barnette: “As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

 

UVA - Karsh Center for Law and Democracy Fellow 2025-2026

From the University of Virginia School of Law:

The University of Virginia School of Law seeks a Research Assistant Professor of Law to serve as the Karsh Center for Law and Democracy Fellow (“Karsh Fellow”). This non-tenure-track Academic General Faculty position will start near the beginning of the 2025-26 academic year and have a fixed-term appointment of two years. The position offers compensation of $70,000 plus benefits.

The Karsh Center is a nonpartisan legal institute at the Law School. The Center’s mission is to promote understanding and appreciation of the principles and practices necessary for a well- functioning, pluralistic democracy. These include civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law. The Center supports these essential features of our democratic life through rigorous and cutting-edge legal and interdisciplinary scholarship, curricular offerings, and academic programs such as conferences and workshops. The Center’s aim is to advance the values of law and democracy within the academy and in public discourse.

The Karsh Fellow will conduct research and refine their scholarly portfolio with the goal of obtaining a tenure-line faculty position at a law school. The Karsh Fellow will be mentored by Law School faculty, be able to attend and participate in faculty workshops, and have the opportunity to teach a course. The Karsh Fellow will also have the opportunity to network with other democracy-related programs and scholars at the University of Virginia.

The Karsh Fellow will work under the direction of and closely with the Karsh Center’s faculty directors, Professor Bertrall Ross and Professor Micah Schwartzman. While the Fellow will dedicate significant time to pursuing their proposed research projects, the Fellow will also provide administrative support to the Center, and assist with programming, maintain the Center’s website and related publications, and manage the Center’s budget. The Fellow may also be called on to help design and implement new Center initiatives.

Qualifications

Candidates must have a J.D. degree from an ABA accredited law school or foreign equivalent degree. Experience in legal practice or a judicial clerkship strongly preferred. Candidates must have strong potential for success on the legal academic market, as evidenced by an outstanding academic record, a clear research agenda, and recommendations from legal scholars. Strong interpersonal skills, including the ability to communicate effectively and professionally in writing and orally, and strong managerial and organizational skills are also required.

Application Instructions

To apply for this position please follow http://apply.interfolio.com/158957

Please submit a cover letter, your C.V., an academic agenda, and contact information for three references (name, email address, telephone number, and address). Note: the form will ask for one contact reference - please list all three references on one form.

Law School Admissions Agonistes

For the past several years, the Council of the ABA Section on Legal Education & Admissions to the Bar (legal education’s accreditor) has toiled to develop a quite consequential, maybe even radical, reformation of the rules governing “input” requirements, that is, admissions policy. Long out of step with other professional and higher-ed accrediting bodies, none of which require a formal test for admissions to academic programs, the Council has developed, put out for public comment, and eventually proposed a change to the existing rule that requires a “valid and reliable” admissions test, a change that would simply omit this “input” requirement. (Details here). The new status quo would not be completely laissez faire, as law schools would still need to satisfy the ABA that they are admitting students who have a likelihood of success. Moreover, the ABA would maintain “output” standards, focused principally on bar exam performance. The most homely way to think about this change is to see the proposed new normal as this: “Law schools, you can decide as you wish on the criteria for admission of your students, but please know that you should use criteria that is tied in ways that can be fairly evaluated to student success in law school and, furthermore, you should use criteria that doesn’t risk a situation in which students fail and ultimately cannot be admitted to practice.” This proposed standard leaves experimentation and innovation to the law schools, albeit under an accreditor spotlight. It points to a future in which law schools may experiment with alternative tests, multiple measures of “merit,” or something entirely different.

The big ABA, which acts through its House of Delegates in considering whether to “acquiesce” in Council-proposed standards, has been unwilling to give its blessing to the revisions of the standards. The Council has twice sought formal acquiescence but has been outfoxed at every turn by LSAC — the provider of the LSAT — when the new policy has been brought before the House of Delegates. At the core of LSAC and their allies core concern is that the removal of an input requirement would risk law schools chasing revenues at the expense of demonstrated student ability. In short, law schools cannot be trusted to do the right thing. A command-and-control standard is therefore necessary, as LSAC sees the picture.

In this stalemate between the ABA Council on the one hand and the House of Delegates, has come an ingenious solution, albeit one that any informed observer can see through from miles away. Rather than change the standard and run into the political buzzsaw of big ABA/LSAC, the Council has come forth with the idea that law schools could seek a “variance” from the Council to admit up to 100% of its class by criteria that do not require a “valid and reliable” admissions test. Mission accomplished! Regulation kept in place, but regulation made teethless by the expressed willingness of the Council to give a free pass to any law school that requests one.

Beyond the interesting political struggle here (we ought not to think that LSAC will take this lying down), what ought we to make of this new normal, one that shifts the focus from law in the books (must have a test!) to law in action (except when you ask that you not have a test)? A few ruminations:

The incentives to have test-optional modes of admissions comes from various directions, and we serve the larger cause, imho, if we are maximally transparent about these motivations and circumstances. First, law schools have long fretted about the baleful influence of rankings on their programs, and on the well-being of their leaders and stakeholder groups. An LSAT score is easy to measure, and can anchor rankings. It has been a critical part of the rankings algorithm, although, notably, USNews has recently decreased its significance, simultaneously increasing the relevance of “output” (read: bar exam performance) measures. Law schools whose rankings has been meaningfully buffeted by test scores will welcome more flexibility. Second, and not unrelated to this first point, law schools fret about the racial and ethnic diversity of their classes, and we know from many years of data that admissions based principally on test scores will impede their ability of law schools to pursue simultaneously high score applicants and students of color. This predicament is not disappearing although, as I look forward to writing about at greater length in a future post, the rise of JD-Next as a novel, and evidence-based, alternative admissions test is a potential game changer, as the data thus far suggests much less difference in White and non-White scores. In any event, the ability to seek a variance for several or many or all law school applicants can potentially address these twin predicaments.

However, this comes with potential risks, and here too we should be transparent about all this. First, and perhaps foremost, neglecting to require an admissions test means that law schools must seek other predictive measures of law school success. Don’t believe the propaganda; don’t embrace the optimistic narratives. Law schools do not have anything by measure of concrete measures that approaches existing standardized tests for evaluating likely law school success. This is not to valorize admissions tests beyond the evidence, nor to elide the brute fact of racial disparities as well as wealth effects of student populations (that is, the discrepancies in the ability of students to afford expensive prep services and the like). Nor is it to say with confidence that there won’t be a someday where there might be an alternative measure for pre-law students that is at least as good or better than our current tests. The closest thing to this now is undergrad grades. But no one who does psychometric work for a living believes that grades are much better predictors than tests. Best practices say that law schools should look at tests combined with grades as part of a holistic admissions system. So, this is long way to come to the point that law schools who decide to eschew looking at tests (such as the LSAT or the GRE or JD-Next, all of which have been validated in careful studies, and in the case of the first two tests over decades and decades of scientifically rigorous analyses) run a real risk of admitting students who are unlikely to succeed.

There is a second potential risk, and it is a legal (and perhaps also political) one. Since the Supreme Court’s decision in SFAA v. Harvard, et al, law schools have been in the sights of organizations who worry that these schools will seek to avoid and evade the Court’s ruling and undertake the task of admitting racially diverse classes without practicing the forms of racial preferences which the Court ruled as illegal. Concerns about law school subterfuge have been expressed regularly. And even if these concerns are warrantless — as to many or most or even a fraction of American law schools — law schools and their lawyer advisors certainly are looking to thread a difficult needle here, that is, to obey the law and to maintain a suitably diverse class (suitably defined by reference to the law schools’ own objectives. as well as what the ABA continues to require under its own diversity regulation). If, say, a law school abandon admissions tests principally for minoritized students, in the hopes of best threading this needle, there is a decent risk that they will find themselves in litigation, litigation in which they will need to show credibly that they are not looking to move in a test optional direction for reasons tied squarely to racial diversity. Moreover, to tie the thread of these two points together, they will want also to show that they are admitting a cohort of test-less students who can show in other ways that they will succeed in law school and on the bar. And, over time, the evidence will need to support these schools’ faith.

All of this is to say that the ABA’s proposed change augurs a very interesting time for law schools working hard to figure out what best set of admissions policies meets the goals of their programs and the requirements of their accreditors. Of course, it is possible that very few law schools will seek variances under this new regime. That too will be an intriguing state of affairs under this new normal. What we can hope, to put this in an admittedly abstract way, is that law schools will take the conditions of the contemporary regulatory and political ecosystem to carefully cogitate about what the best available evidence tells us about student performance, resilience, and that ineluctable idea of professional success.

Trump's Plan to "Turbocharge" Denaturalization

My new essay for The Hill describes one of the more shameful, but little known, aspects of Trump’s deportation plan – in the hands of the disgraceful Stephen Miller.

Here is the gist:

The Trump administration’s next target: naturalized US citizens  

One initiative, smaller in scale but potentially devastating in its impact, will be aimed at immigrants who have become naturalized U.S. citizens. Stephen Miller has declared that he will revive a “turbocharged” Operation Second Look in 2025, consistent with his intention to strip as many immigrants as possible of citizenship as a prelude to deportation. 

Not every discrepancy or inconsistency is evidence of fraud, of course, so it is inevitable that some legitimate citizens, or those who made minor mistakes based on confusion, may be caught up in an overzealous investigation. 

Even worse, thousands of immigrants, naturalized as minors through a parent’s application, may have their citizenship annulled through no fault of their own.

Fortunately, denaturalization is a judicial process, with a right to trial in federal court. Unfortunately, there is no right to appointed counsel in denaturalization cases.

For the many without funds for an attorney, there is a significant chance of losing citizenship by mistake or default, which may be exactly what Stephen Miller has in mind. 

You can read the entire piece at The Hill.

Bela Karolyi (1942-2024)

This morning’s WaPo obit of Bela Karolyi has this line: “The cause and manner of death has not been specified, the AP reported.”

The “manner of death,” is a forensic term for the circumstances of the death, or the way it was inflicted, as opposed to the medical reason. There are five basic manners of death: natural causes, accident, suicide, homicide, and undetermined. For example, the cause of death might be asphyxiation, and the manner of death could range from accident to suicide.

On the witness stand, I have seen forensic pathologists testify even more explicitly, saying something like the "manner of death was suffocation with a pillow placed over the infant's face."

I don't think I've ever seen an obituary note that the “manner of death” was unstated, which suggests suspicious circumstances. But if so, why be so coy? And if not, why raise doubts.

Saturday Music Post - Let It Bleed

"Let It Bleed," written by Mick Jagger and Keith Richards, was the title track on the Stones' 1969 album of the same name. This was the last Stones' album with Brian Jones, who was fired and replaced by Mick Taylor midway through recording. He died about a month later. Neither Jones nor Taylor played on the "Let It Bleed" cut, with Keith Richards doing all the guitar work. In later concert appearances, Richards and Taylor (playing slide) traded riffs.

Not sure why Jagger plays an inaudible acoustic guitar in concert; check it out at The Faculty Lounge.

David Super on Teaching Persuasion in Law School [UPDATED with David Super's Response]

David Super has an interesting post at Balkinization, urging law faculty to respond to the Trump administration by remaining engaged in the “struggle for justice.” In particular, Super explains that “Whatever else one might say about this election, it certainly represents a monumental failure of persuasion.” Thus, law faculty should pay more attention to teaching means of persuasion, which, he says, have gotten “short shrift in law school curricula.” Thus,

I fear many students have inferred from the way many schools treat the Legal Practice/LRW course that persuasion does not require special study. 

By rethinking the way we teach persuasion, law schools can both improve the practice-readiness of our graduates and better-equip those so inclined to effectively champion nobler values than those that prevailed in the last election.  This may require rethinking how we structure and present our Legal Practice/LRW courses – and the respect we show to those that teach them.  Teaching advocacy as brief-writing and formal oral arguments ignores many of the skills that matter most in practice. 

These challenges might well merit an upper-level course.

I certainly agree with Super’s emphasis on the importance of teaching persuasion, but it is surprising, to say the least, that he does not mention clinical and simulation teaching, which specifically focus on many of the persuasive skills he identifies.

It is even more inexplicable because he teaches at Georgetown, which has one of the most extensive clinical programs in the U.S., including a Federal Legislation Clinic, as well as Graduate Clinical Teaching Fellowships, leading to an LLM in advocacy.

Clinical and advocacy course were mostly marginalized when I began teaching in the 1970s. We have made much progress since then (although Brian Leiter continues to exclude clinical professors from his reports on lateral hiring), but I guess there is more to be done.

UPDATE: David Super responds:

I completely concur that clinical legal education and simulation courses play an important role in improving our graduates' skills in persuasion.  These courses are invaluable, and clinical and simulation instructors, along with Legal Practice/LRW instructors, are likely to be among those most attuned to the practice of persuasion on most law faculties.  The broader range of advocacy modes in these courses -- from traditional criminal and civil litigation to a variety of administrative, legislative, ADR, and community-based advocacy -- is particularly praiseworthy as it can help break students out of the too-narrow view of persuasion's role that can arise in doctrinal courses.  I omitted clinical and simulation courses from my piece not because of any doubts about their value but rather because the piece was already quite long and my perception is that Legal Practice/LRW courses are marginalized, or so over-tasked as to make proper attention to persuasion difficult, in more schools than clinical programs.  I would like to see schools providing every student with a solid foundation in persuasion through a strong Legal Practice/LRW course and then make advanced instruction in persuasion available in a range of formats, including clinical, simulation, and podium courses.  

Interrogating Ethnography: Now Available in Chinese

Simplified characters (PRC)

Did Donald Trump Win the Election With “Abortion Federalism”? And Will He Really Keep His “Federalism Pledge”?

As I noted in an post written ten days before Trump won the presidency, Donald Trump invoked federalism to dodge the question of whether and how abortion ought to be regulated. In that post, I asked whether pro-choice voters would be reassured by Trump’s promise not to push for federal anti-abortion legislation but instead leave the question of a ban on abortion to the states. This promise took two forms: Trump tweeted a declaration that he “WOULD NOT SUPPORT A FEDERAL ABORTION BAN, UNDER ANY CIRCUMSTANCES, AND WOULD, IN FACT, VETO IT, BECAUSE IT IS UP TO THE STATES TO DECIDE BASED ON THE WILL OF THEIR VOTERS.” Trump also dumped the GOP’s 2016 platform plank that called for national legislation to protect fetal life, replacing it with a new abortion plank declaring that “the states…are free to protect those rights [to life].”

At least one commentator thinks that Trump’s victory on Tuesday answered my post’s question about whether federalism on abortion reassured voters. Over at the Atlantic, Elaine Godfrey argued that Trump’s success in states where pro-choice referenda were enacted by the voters suggests that Trump’s endorsing “abortion federalism” might have “neutralized” the abortion issue with pro-choice independents and Republicans.

If Godfrey is correct, then Trump’s achievement in using federalism to defuse a divisive issue is an extraordinary achievement. As I argue in a draft paper (posted on SSRN here, comments welcomed!), it is difficult to strike a compromise of bitterly contested issues through delegating that issue to state governments. My paper traces the history of the Democratic Party’s efforts to strike such compromises rooted in federalism from 1832 to 1932. I argue that most such efforts at federal compromise eventually failed. Van Buren, Stephen Douglas, and Grover Cleveland all tried to hold the Democratic Party together by sending divisive issues (banking, slavery, liquor regulation) to the states. Van Buren’s and Cleveland’s federalism formulae each succeeded for roughly three decades, but the former collapsed with the Civil War, while the latter collapsed with William Jennings Bryan’s evangelical takeover of the Democratic Party in 1896. Douglas’ “popular sovereignty” theory never even got off the ground, dying at the Democrats’ 1860 Charleston Convention

Trump’s initial success in using federalism to dodge the abortion question invites a predictive and a normative question, both of which I will discuss after the jump. First, will Trump do better than Douglas by holding the GOP together through his “federalism pledge”? Second, if Trump and the GOP actually stick with their federalism pledge and thereby reduce national conflict over abortion, then should we be reassured by a successful modus vivendi? Or is federalism just a dodge that ignores the importance of fundamental rights by allowing states to take different stances on a matter on which basic constitutional morality requires uniformity?

1. Will Trump and the GOP stick with their pledge to leave regulation of abortion to the states?

Start with the predictive question: Will Trump keep his implicit pledge to refrain from making federal policy on abortion? Note that I emphasize that Trump’s pledge was implicit, because, as I explained in that earlier post, the explicit terms of Trump’s promise were equivocal. The tweet declared only that Trump would “veto” a “federal abortion ban.” That promise says nothing about whether Trump would allow such a bill to become law by waiting ten days without vetoing it. Likewise, the tweet said nothing about instructing agency chiefs not to impede states’ pro-choice policies by (for instance) withholding mifepristone. Nevertheless, Trump’s emphatic declaration that the question of abortion “should be up to the states to decide” strongly implies that he would not covertly try to impose a one-size-fits-all abortion policy through administrative action or presidential toleration of a federal anti-abortion bill.

Will Trump really sideline his anti-abortion supporters by forcing the federal government to adopt a strictly neutral stance on abortion, leaving its regulation up to the states?

Here are two reasons to answer that question affirmatively.

First, federal neutrality on the abortion in the name of federalism seems to have achieved electoral success. Harris did worse with female voters than Biden did in 2020 even though in 2020 Dobbs had not yet mobilized pro-choice voters to oppose the guy who eventually appointed the Dobbs majority. Given the prominence with which Harris gave the abortion issue, it is hard not to think that Trump’s offering the compromise of federalism weakened the force of pro-choice objections to the GOP.

Trump likes to win, and federalism on abortion seems to be a winner. Why invite trouble in the 2026 midterms by pushing anti-abortion policies using federal power?

Second, as I argue in my paper, federalism compromises are really hard to achieve. Members of a partisan coalition do not like to settle for the half-loaf of federalism: Having joined the winning team, they want to use federal power to achieve their goals. Trump, however, has already used his clout within the GOP to force anti-abortion constituencies to accept federalism rather than a national anti-abortion bill that was promised in 2016. They were not happy about the defeat, but they had to accept it from the guy who gave them Dobbs. Will they really stay home in 2026 to protest Trump’s refusal to push anti-abortion measures short of a statutory ban? If not, then why would Trump unravel his federalism achievement by providing “semi-bans” to a constituency that has nowhere else to go?

I admit that I am not super-confident that the Trump Administration will stick to strict federal neutrality on abortion. The GOP’s 2024 Platform, after all, adamantly stuck with the 2016 position that the 14th Amendment protected the right of unborn children to life and merely recommended that the states protect this national right. It is possible that anti-abortion groups made the latter concession because they were reassured that the Trump Administration would push measures short of a federal statutory ban. 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.”

So we will have to wait and see. If Trump appoints Roger Severino to be HHS Secretary, then I will make a Bayesian update of my skepticism that Trump would sabotage his own federalism policy. Until then, I am guessing that it is 12:7 that Trump will avoid, for instance, repealing the FDA’s Mifepristone REMS Program. (Sure, Trump expressed openness to repealing the REMS Program back in August — but that was two months before his “federalism tweet”).

2. Should we welcome Trump’s embrace of federalism for abortion?

What about the normative question? Is federalism for abortion a good thing, or is it an outrageous cop-out from taking a stand on a fundamental right?

The answer, of course, is a further question: “Compared to what?” For both pro-choice and anti-abortion voters, federalism is not ideal: The former would prefer a national right to choose abortion, while the latter would prefer national protection for pre-natal human life. The problem, however, is that neither position seems to be a certain electoral winner, yet either is a distinct possibility. To the risk-averse voter, therefore, federalism has the appeal of an insurance policy the premium for which is the loss of the opportunity to nationalize one’s ideal regulatory system.

Now that the Republicans have taken over the commanding heights of the federal government, pro-choice voters should take some comfort in the partial protection for abortion provided by states that allow abortions. Trump’s anti-abortion supporters will, by contrast, predictably complain about paying the federalism premium. They have, however, been exiles from both state and national power for decades, when the pro-choice position was nationalized by Roe. They might, therefore, appreciate the benefits of federalism in anticipation of the likelihood that the Democratic Party could win in the future and send them into exile once more with a national pro-choice statute.

Of course, there is no guarantee that the Trump Administration’s refusal to nationalize an anti-abortion position today will be rewarded by Democratic self-restraint tomorrow. As my paper argues, however, the credibility of a commitment to federalism can be strengthened by sticking consistently with a simple, emotionally resonant doctrine that safeguards everyone’s interests through diverse subnational policy-making. That doctrine can become a focal point around which moderate voters rally to avoid the endless acrimony of national policies where there is no national consensus. Grover Cleveland’s support for decentralization of liquor policy was reciprocated by Republicans like James Blaine who wanted to avoid the headache of pushing through a national ban on liquor and thereby alienating non-Protestant immigrant communities. Anti-abortion Republicans might wan to team up with centrist Democrats to make federalism for abortion a salient focal point defining a cross-party compromise that could win at the polls.

3. Towards a Bipartisan Modus Vivendi?

Aside from providing insurance against total defeat on important issues, federalism has another virtue: It might foster a spirit of compromise that could lower the stakes and emotional divisiveness of national politics. As I have argued elsewhere, giving each side of a deep disagreement some share of policy-making power in different subnational jurisdictions is a way for each side to show equal concern and respect for the other side. The emotional benefits of such an attitude of concern and respect might be especially important when our politics are being torn apart by affective partisan polarization — that is, hostility towards members of the other party not because of the policies that they push but because of who they are. Federalism could reduce the identity threat that breeds such polarization, by reassuring each side that their views on issues defining their identity are not viewed with contempt by people with different views but instead given some fair share of territory in which those views can be enacted as law.

Of course, there are some issues over which it is worthwhile to fight a civil war. Undoubtedly, it would have placated Southerners’ sense of honor for anti-slavery activists in the 1850s to give them equal concern and respect by allowing slavery to spread to some “fair share” of western territories. Lincoln was nevertheless right to say that national law should not be neutral on the question of slavery but instead adopt the “freedom national, slavery local” position that he defended against Stephen Douglas.

Is the right to obtain an abortion, or the right to pre-natal life free from abortions, such an issue for you? If so, then my case for a modus vivendi will rightly sound hollow, and only my prior prudential argument about insuring yourself against total defeat will ring true. For the rest of you, remember that civil wars, hot or cold, are costly things that the equal concern and respect provided by federalist compromises can avoid.

Saturday Music Post - A Rose Is a Rose

Today's post features Edith Piaf, Ben E. King, Linda Ronstadt, Patsy Cline, Neil Diamond, Gene Autry, Aretha Franklin, and more. The clips are at The Faculty Lounge.

JOTWELL: Michalski on non-adjudication

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg, No Adjudication, on how much litigation resolves without a judicial determination and without the filing of more than initial pleadings.

Trump victories and institutional statements

The Chronicle of Higher Ed (paywalled) notes the absence of statements from university leaders about the election of Donald Trump, compared with the dozens that followed the 2016 election. The story highlights new letters from the presidents of Wesleyan, American, Emerson, and Morgan State (an HBCU). It also notes that it has been two days--the big joint letter of more than 100 presidents came more than a week later.

The article speculates a bit about why. It points to the recent increase in schools adopting Chicago Principles and institutional neutrality.* I wonder if the size of Trump's victory and the nature of his expanded coalition matters. A message of "we stand with and support members of X group likely to be targets" does not fly when many members of X group voted for this. Nor can one frame a narrative of "the country does not want this and you are in office by fluke of a bizarre election mechanism"--national and EC majorities clearly do want this.

* It describes that shift as a "backlash to pointed statements from some presidents about protests over the war in Gaza." I question that framing. Many schools adopted neutrality in response to criticisms of their perceived failures to speak about October 7 and the events that followed--recognizing (for good or nefarious reasons) the bind that general political engagement had created for them and the need to escape the hurly-burly of politics.

A word on the statement from Wesleyan President Michael Roth (which we received via email yesterday). Roth opposes institutional neutrality and believes universities should take institutional positions. But a believer in institutional neutrality would be comfortable with and supportive of most of what Roth said here. Chicago principles do not require institutional silence; the Kalven Report said:

[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

Roth focuses on specific pieces of the college's mission and values that will be vulnerable in the coming political regime--recommitting to campus DEI efforts and to academic freedom. These concerns affect the college as an institution of higher ed, exactly what a president should highlight, discuss, and protect on behalf of his college. It goes beyond general politics and the generic "people throughout the country are scared, please reject hate and govern justly" that marked the 2016 joint letter. Roth includes some flowery stuff about democracy and the rule of law, but he ties it to core pieces of the higher-education endeavor.

Sports Election Predictors

My quadrennial post. As when Trump won in 2016, they failed badly:

• World Series Missed: The National League Dodgers won the World Series (as they did in 2020, when Trump lost). This is now 18 for the past 30, 13 of 20 since the end of WW II, and 5 of 7 in the milenium (with Trump victories providing both misses).

Washington NFL Team Missed: The Washington Commanders beat the Bears in the final home game before the election (on October 27) on a last-play Hail Mary (that some were calling the Harris Hail Mary). As a predictor of a party retaining the White House, this is now 17/22, although wrong on the last four.

Ending Sports Droughts Hit: This favors Republicans. The Florida Panthers won their first Stanley Cup in franchise history and the New York Liberty won their first WNBA title. Each team has existed for less than 35 years (Panthers founded in 1993, Liberty in 1997) so these are short droughts compared with the Phillies winning the World Series for the first time after 97 years (Reagan in 1980) or the Cubs winning after 108 years ( Trump 2016) or the Red Sox after 86 years (W. 2004). Still "first title in franchise history" represents a milestone and breaks a meaningful drought regardless of how long a team has existed.

Finally, unrelated to sports but running through my mind this morning amid news of Trump's gains with Latino voters: The old saying was "Jews earn like Episcopalians but vote like Puerto Ricans." It turns out many Puerto Ricans do not vote like Puerto Ricans.

Saturday Music Post - Do Right Woman, Do Right Man

"Do Right Woman, Do Right Man" was written for Aretha Franklin by Chips Morman and Dan Penn, and produced at the Atlantic Records studio in New York by Jerry Wexler. An earlier attempted recording at FAME Studio in Muscle Shoals was abandoned after an altercation between Franklin's manager (and husband) and the FAME producer. The release, with Franklin playing piano and her sisters singing backup, was listed as one of Rolling Stone's 500 greatest songs of all time.

Today's post has more audio clips than usual, because I couldn't resist. You can hear them at The Faculty Lounge.

Conference on the Scholarship of Gordon Wood--Yale Law School (Nov. 22-23)

Join Professors Akhil Reed Amar and Steven G. Calabresi in celebration of the distinguished scholarship of Gordon S. Wood, Alva O. Way University Professor and Professor of History Emeritus at Brown University.

The panel speakers include:

• Mary Sarah Bilder, Boston College Law School
• Annette Gordon-Reed, Harvard Law School
• Jack P. Greene, Colonial and Revolutionary War Era Historian
• Philip Hamburger, Columbia Law School
• John Harrison, University of Virginia School of Law
• Gerard Magliocca, Robert H. McKinney School of Law
• Jack Rakove, Stanford University
• Dean William Treanor, Georgetown Law
• Sean Wilentz, Princeton University

The panels will focus on Professor Wood’s books:

• “The Creation of the American Republic”
• “The Radicalism of the American Revolution”
• “Empire of Liberty”

Register by Nov. 15. For more information, view the Conference Agenda.

Sponsoring Organization(s)

Sponsored by The Oscar M. Ruebhausen Fund

Contact

Monika Piotrowicz

[email protected]