PrawfsBlawg

Roberts to Court critics: Be nice, be truthful, and listen to what we say

Forgive the snark, but that is the best summary of the 2024 Year End Report on the Federal Judiciary. Roberts begins with the usual historical lecture, this one on judicial independence from 1761-Present. He goes from George III interfering with colonial judges through the Declaration complaining about that interference through the Convention and The Federalist establishing life tenure through Marbury and into modern times, framing judicial independence as a necessary concomitant of judicial review. He identifies four threats to judicial review: 1) Violence; 2) Intimidation; 3) Disinformation; and 4) Threats to defy judgments.

One problem is that his framing of "intimidation" is so capacious as to cover most constitutionally protected criticism of judges and judicial decisions. Intimidation includes: disappointed litigants urging online followers to send messages to the judge; disappointed litigants claiming the judge was biased against them for various reasons; doxing of judges leading to people protesting judges at home and in public; and suggesting political bias in rulings "without a credible basis for such allegations." He finishes with this: "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others." He segues into disinformation disconnected from intimidation, such as "distortion" of the factual or legal basis for a decision, which "can undermine confidence in the court system."

Criticism of the courts must be, as my title suggests, nice, polite, and truthful--otherwise it constitutes improper intimidation and a threat to judicial independence. Never mind that public debate may (and should) include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Never mind that all speech directed at all people "may" cause bad people to do bad things--that cannot be the basis for silencing criticism of public officials. Never mind that Roberts does not--and cannot--explain who decides what criticisms are accurate or inaccurate and when there is sufficient basis for a charge of political bias or when a criticism crosses into "distortion." Absent any basis for measure, the answer must be "do not criticize the courts" lest that criticism become illegitimate--and dangerous-- intimidation. As with "I believe in free speech, but . . ." the but in "you can criticize the courts, but . . ." subsumes everything before it. And gives the rhetorical game away.

Roberts also uncorks this: "Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals." This is a long-standing--and patently false--trope. In 2024 alone, Justice Alito, Judge Jones, Judge Duncan, and others showed that they enjoy many outlets and opportunities--including friendly press outlets--through which to issue rebuttals.

To his credit, Roberts frames the disobedience point in the right way. He does not target the Southern Manifesto as defiance of Brown itself. He focuses (properly) on lower courts' decisions post-Brown/based on Brown to integrate other schools, specific instances of governors defying those specific lower-court orders, and Eisenhower and Kennedy enforcing those lower-court orders.

Finally, Roberts pays single-paragraph lip service to the courts' responsibility for maintaining their own legitimacy--stay in their constitutionally assigned lanes, respect standing limits, and respect coordinate branches. He expresses "confiden[ce]" that judges will "faithfully discharge their duties." Put aside the conspicuous absence of any acknowledgement or awareness of the Court's ethical problems. And put aside the conservative realignment to loosen standing and expand the scope of the Court's lane, a realignmentn in which Roberts has played a role. It does not matter whether judges faithfully discharge their duties; for Roberts, any suggestion that any judge did not do so is improper intimidation and disinformation.

Sometimes Judges Apologize; Mostly, they do not

Good morning, everyone. My new essay for The Hill is about judges’ apologies. You’ll never guess who didn’t give one.

Here is the gist:

‘Flag-gate’ led one jurist to issue an apology, but it wasn’t Samuel Alito

by Steven Lubet, opinion contributor

Everyone makes mistakes, including judges. Sometimes they acknowledge it. Mostly, they don’t.

A commendable example of the former is senior U.S. District Judge Michael Ponsor, who published an opinion essay in the New York Times in May criticizing Supreme Court Justice Samuel Alito’s involvement in what is sometimes called “Flag-gate.” Although Ponsor’s criticism was entirely sensible, he subsequently apologized for going beyond the “proper boundaries” for commentary by a sitting judge. Alito himself has not been so forthcoming, at least in part due to the absence of a formal process for reviewing the ethics of a justice’s conduct.

The contrast with Ponsor reveals more than Alito’s thin skin. His irate reaction to the Democrats’ recusal request amounted to a partisan counterattack. In a less indignant response, Alito would have at least allowed the possibility of misinterpretation or misunderstanding — occurring before he revealed his wife’s role — with his political resentments omitted.

It would probably be too much to expect the notably combative Alito to acknowledge that waving an upside-down flag in January 2021 was at best an unfortunate coincidence, much less to apologize for creating an appearance of identification with the Capitol mob. Without a formal process, however, it is impossible even to request it.

You can read the entire piece at The Hill.

Jimmy Carter and the courts

On the death of former President Jimmy Carter, some thoughts on his judicial legacy.

• Carter famously did not appoint a SCOTUS Justice. He is the only 20th-century President and the only President since Andrew Johnson not to get an appointment (the others with none are William Henry Harrison and Zachary Taylor). I use Carter in Fed Courts to illustrate the randomness of appointments in our system--other Presidents who served one term (or less) appointed at least one Justice and in some cases many more.

Carter was a victim of bad timing with respect to the Court. Nixon/Ford made five appointments in eight years from 1969-77, replacing the old-and-long-serving liberals (Warren, Black, Douglas, as well as Harlan) with younger members who obviously were not ready to resign. In 1980 (the final year Carter could have made an appointment), Thurgood Marshall (72) had been on the Court for 13 years; Byron White (63) for 18 years; and William Brennan (74) for 24 years.* (Potter Stewart was 65 and had served for 22 years, but he was a Republican and not inclined to give a Democrat the seat--he retired in 1981, allowing Reagan to appoint Sandra Day O'Connor). Perhaps if Abe Fortas had not been forced to resign he would have been ready to resign at age 70 after 15 years. Or, for a deeper counter-factual, perhaps if Arthur Goldberg had not resigned in favor of Fortas, he would have been ready to resign at age 72 after 18 years (and perhaps a decade as Chief). The point is that from 1977-81, no Justice happened to die or get sick and no one was of the age, tenure, or inclination to retire, strategically or otherwise. Carter was stuck.

[*] When Josh Barro argued that Justice Sotomayor should resign to give Biden the appointment--an argument I criticized--he compared Marshall's failure to resign in 1980, which lead to to Justice Thomas. Yet Brennan was two years older, had served almost twice as long, and also did not last the 13 years until the next Democratic President.

• Carter appointed an extraordinary number of lower-court judges, thanks in part to a 1978 law that created 152 new judgeships, which he filled during the final half of his term. Carter was the first president to meaningfully diversify the federal bench in terms of gender and race, filling judgeships with leaders of the Civil Rights and women's rights movements. I clerked for one of those judges--James T. Giles, who served for almost 20 years (1979-2008) on the Eastern District of Pennsylvania, including six years as Chief. Although not part of the movement, Giles worked at the EEOC and the NLRB right out of law school prior to private practice and taking the bench at the age of 36.

• My 2021 study of Academic Feeder Judges found that Carter appointees led the way in producing academics. Of the top 102 lower-court judges, 26 were Carter appointees; of the top 51 district judges, 18 were Carter appointees.

Saturday Music Post - Girl from the North Country

"Girl from the North Country" is on Bob Dylan's second album, The Freewheelin' Bob Dylan, released in 1963. Unlike his eponymous debut album, Freewheelin' featured mostly original tracks, including "Blowin' in the Wind" and "Don't Think Twice, It's Alright." It was the album that really brought him to national attention -- Bob Dylan had sold relatively poorly -- charting at number 22.

There is evidently some ongoing debate about the identity of the north country girl. Some say it was one of his Minnesota sweethearts, others that it was Suze Rotolo, who is holding his arm on the album cover. (I wouldn't call New York the north country, but she is wearing a "coat so warm.") I'm guessing it was no one in particular, given that the introductory line -- "Remember me to one who lives there/for she was once a true love of mine" -- was lifted from the traditional English ballad "Scarborough Fair" (no, Paul Simon didn't write it).

Either way, it became one of Dylan's memorable collaborations with Johnny Cash, which you can see at The Faculty Lounge.

(I've always been drawn to this song about the north country because of my ancestral ties to Winnipeg, which is about 325 miles northwest of Hibbing, and 450 miles from the Twin Cities. I originally had it queued up for mid-June, but we saw A Complete Unknown yesterday, which I recommend, and I decided to rearrange the schedule.)

Realigning Standing with Substantive Due Process

Conservatives and liberals are quickly changing positions on a host of issues, now that there is a secure conservative majority at the Supreme Court. Examples include standing, textualism, agency deference, positivism, and more. 

I have been beating this drum for some time, but most of my arguments (like related arguments by other scholars) have been inferential. In other words, the ongoing realignment is rapid and dramatic, but largely undeclared. People, groups, and movements are repositioning, yet they have not come right out and said so. Nor have the repositioning actors pointed out that their discrete pivots are interrelated, yielding a realignment across domains. 

Lately, however, there are signs that some justices are self-consciously declaring a systemic change in outlook.

The best example is Parents Protecting Our Children v. Eau Claire Area School District, a much-discussed denial of certiorari over three dissenting votes. Parents of children enrolled in public school challenged policies surrounding “Gender Identity Support.” The parents argued in part that they have a right to know if their children are undergoing or considering gender transition at school. 

A unanimous Seventh Circuit panel, containing both Democratic and Republican-appointed jurists, rejected the claim for want of standing. The Supreme Court denied certiorari earlier this month. Justice Alito, joined by Justice Thomas, wrote a dissent from the denial, and Justice Kavanaugh separately noted that he would have granted the petition. 

Alito’s opinion reflects two major and interconnected pivots. The first involves standing. 

In 2013, Alito authored Clapper v. Amnesty International, a 5–4 ruling imposing stringent standing requirements. (Indeed, too stringent, in my view.) In brief, Clapper suggested that claimants could challenge alleged surveillance only if they could show that they were targeted by the surveillance—something very hard to do, given the surveillance’ secrecy. Under similar logic, the parents in PPOC would have standing only if their own children were actually affected by the school program being challenged. To quote the Seventh Circuit, mere “worry and concern do not suffice.”

In 2024, however, Alito doubts the Seventh Circuit’s “questionable” application of Clapper. The parents may well have standing, Alito argues, because they are kept “in the dark” about what is happening at school. The “fear” of being directly affected by the challenged program, Alito argues, is not “speculative.” These points parallel the failed arguments in Clapper. Those claimants, too, felt “fear” because they had been left “in the dark.”

So Alito’s dissenting opinion circa 2024 sounds a lot like the Court’s four liberal dissenters circa 2014. As if to underscore this shift, Alito concludes by quoting a 1976 opinion by Justice Brennan—thereby reaching back to a time before Justice Scalia led the conservative charge against lax jurisdictional rules. 

The standing realignment remains incomplete and in progress, as evidenced by the fact that Alito’s opinion is a dissent. The other justices didn’t stake out positions but simply declined certiorari. In cases like Biden v. Nebraska (2023), by contrast, the ideological repositioning appears more complete.

This first change has garnered some commentary, including on the Divided Argument podcast with Will Baude and Dan Epps. That commentary reflects the fact that our ongoing standing “realignment”—so recently unobserved or jarring—is rapidly becoming more like conventional wisdom. But this change, while important, must be understood in combination with a less salient but comparably significant development.

This second, related pivot has to do with substantive due process. 

For many years, legal conservatives have railed against substantive due process rights, which have been associated with Roe v. Wade (1973). Yet, in PPOC, Alito champions a claim rooted in substantive due process. 

At the start of his opinion, Alito emphasizes the importance of “parents’ ‘fundamental constitutional right to make decisions concerning the rearing of’ their children.” The internal quotation there is drawn from Justice O’Connor’s plurality opinion in Troxel v. Granville (2000), which rested on substantive due process. Alito seems to take both the existence and the judicial enforceability of unwritten parental rights for granted. 

Yet in Troxel itself, Justice Scalia refused to recognize that this sort of implicit right could be judicially enforced. Here is a taste: “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.” Scalia’s skepticism was consistent with conservatives’ general antipathy to unenumerated or substantive due process rights, like the one recognized in Roe. Meanwhile, Justice Thomas concurred in Troxel’s judgment, noting that precedents recognizing the relevant rights had not been directly challenged. 

In stark contrast, Alito now argues for loosening standing doctrine based on the need for vigorous judicial enforcement of implicit parental rights. As he puts it, linking substance and procedure: “I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions.”

So, back in 2000, two strong conservatives either resisted or questioned the enforcement of a parental right that was unenumerated or rooted in substantive due process. Now, almost a quarter century later, two leading conservatives not only accept the right but want to expand it—and not only that, they also want to loosen jurisdictional principles in order to enforce and expand the right.

In this sense, standing and substantive due process are being realigned together. Seemingly discrete pivots are synchronized. 

The most straightforward explanation is that conservatives are increasingly viewing both capacious principles of standing and substantive due process as assets, rather than liabilities. With Roe and its legacy now receding into legal memory, the time has come for a growth of conservative-approved unenumerated rights, with vigorous judicial support. This changed appetite among conservative judges dovetails with broader intellectual trends, as conservative thinkers increasingly support what are effectively unenumerated rights, particularly under the Privileges or Immunities Clause (see, eg, scholars here and here; cf. McDonald v. City of Chicago (2010)).

All of this should sound familiar. Substantive due process was a conservative weapon when wielded by the justices of the Lochner era roughly a century ago. Liberals like Felix Frankfurter accordingly inveighed against unenumerated rights while insisting on strict jurisdictional limits, and that general combination of views eventually proved triumphant. But, after a while, liberals secure in their control of the courts began to look differently on substantive due process. Cases like Griswold v. Connecticut (1965) and Roe were the result. Scalia then took up Frankfurter’s mantle, as evidenced in cases like Troxel. 

If this narrative plays out, then Alito would fill the role of Justice Douglas: a transitional figure who early on supported judicial restraint before pivoting to a new posture of activism. (That comparison is not intended as a slight: Douglas had many fans in his day, and even now there are those who carry a torch for his jurisprudence.) But who will be the new Frankfurter or, to similar effect, the new Scalia? Justice Kagan, so far, seems to be the heir apparent.

So things are changing. But those changes are occurring within the context of larger, somewhat consistent patterns.

The above is cross-posted from Re's Judicata. 

Saturday Music Post - What Do These Songs Have in Common?

Today's music post is a perennial (or is it an evergreen?), first posted in 2021. You can find the answer at The Faculty Lounge.

 

 

Stop Sanewashing RFK, Jr.

The nomination of Robert F. Kennedy, Jr. to lead the Department of Health and Human Services is an impending disaster that has not been taken sufficiently seriously. Dr. Steven Novella, a Yale clinical neurologist, explains it succinctly in a post at the always interesting Science Based Medicine site:

It is also frustrating to watch many in the media try to sanewash his opinions, and don’t seem to appreciate the underlying problem. Such reports often takes the form of – well, he may be nutty, but he has a point regarding this issue. But actually he doesn’t have a point – being sort-of right from a certain angle but for an entirely wrong reason is simply not good enough when it comes to the health of our country.

RFK Jr has a flawed process, and all of his conclusions are tainted by these flaws. He does not seem to understand how science works, the nature of risk-vs-benefit in medicine, nor the difference between hazard and risk. He also tends to look at all health issues through the same ideological lens – it’s always about toxins in the environment, toxins in our food, and toxins in our medicines. Because actual experts don’t agree with his nonsense, he then concludes that they are the problem (not him) and therefore they are part of a dark conspiracy.

He said the obesity epidemic is cause by “poisoned food” (because it’s always about toxins and poison, right?). He then goes further to say that GMOs are the problem – GMOs are “nutrient barren” while non-GMO produce used to be nutrient rich.

This is simply not true. If you make the wrong diagnosis it’s very unlikely that you will prescribe the correct treatment. GMO crops are not less nutritious than non-GMO crops.

RFK Jr’s process is fatally flawed, and his conclusions are nonsensical and incoherent. Sure, if you squint you may see bits and pieces that are related to the actual answer, but even then he gets the diagnosis wrong.

Read the entire post here (and I recommend checking out SBM every day).

 

 

The Further Decline of the AAUP

My new essay for The Hill describes the further decline of the AAUP, once a champion of academic freedom and now approving political restrictions of its own. Here is the gist:

The fall of academic freedom with a DEI twist

In August, the AAUP rescinded its longstanding opposition to academic boycotts, adopted in 2006. The new policy — clearly aimed at Israeli universities in response to the brutally destructive Gaza war — now holds that such boycotts “can legitimately seek to protect and advance … academic freedom and fundamental rights.”  

In October, the AAUP’s Committee on Academic Freedom issued a statement [endorsing] the use of statements that “require faculty members to address their skills, competencies and achievements regarding DEI [diversity, equity, inclusion]” as factors for “appointment, reappointment, tenure and promotion.” 

A faculty vote, of course, can reflect a collective political orthodoxy, which job seekers challenge at their own risk.

Earlier this month, Cornell University’s AAUP chapter berated Interim President Michael Kotlikoff, for an “egregious threat to bedrock principles of academic freedom” that could “degrade the quality of education” at Cornell.

In fact, Kotlikoff had simply responded to an email from adjunct law professor, who had complained about the approval of a course titled “Gaza, Indigeneity and Resistance.” 

It certainly appears that none of the AAUP professors read through Kotlikoff’s entire email before chastising him, because they somehow missed the key passage. 

Kotlikoff actually wrote that “Cornell’s Bylaws specify that faculty of the colleges, not central administration, are responsible for the curriculum” and approval of the course in question was “rooted” in academic freedom, which allows the professor “to choose the subject matter and method of presentation.” 

These three episodes typify what one critic has called “the fall of the AAUP,” sadly progressing from the abandonment of an admirable principle, to the endorsement of intellectual discrimination, and arriving at a near parody of snowflake academics who rail at imaginary dangers.  

You can read the entire essay at The Hill.

Saturday Music Post - Hey Jude

"Hey Jude," a 1968 non-album single, was the first cut released on the Beatles' Apple label. The original working title was "Hey Jules," written by Paul McCartney to comfort Lennon's son Julian, after John left his wife for Yoko Ono. It reached number one in the U.S., UK, Australia, and Canada. The promotional clip for the David Frost show was filmed in the middle of the recording sessions for the White Album. The clowning ends and the music begins at around 0:48 -- but the clowning is worth watching, as you can see at The Faculty Lounge.

 

Hypocrisy and question-begging on standing

A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.

Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.

CFP: Civil Procedure Workshop X, June 2-3, Richmond Law

We are excited to announce that the 10^th Annual Civil Procedure Workshop will be hosted by the University of Richmond School of Law on June 2-June 3, 2025.

Overview

CPW X will give emerging and established civil-procedure scholars an opportunity to present their work in plenary and breakout sessions. Senior scholars will moderate the sessions and lead the commentary. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Call for Papers

We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a 1-2 page abstract by March 3, 2025. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. Papers at all stages of completion, including those likely to still be substantially incomplete at the time of the conference, are eligible.

Please submit your abstract online here.

Further Details

CPW X will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

If you have any questions, please feel free to contact Luke Norris ([email protected]) or Riley Keenan ([email protected]).

Additional information will be made available at this link.

Law school applications are way up! Let's wait on the parade

[republished from my Substack. Subscribers welcome!]

Let the bells ring out during this holiday season . . . for American law schools. Especially those schools who fret about enrolling a sufficient number of students and, further, students whose hard and soft measures promise that they will have a good chance of succeeding. Applications are up thus far, way up, and signs point to an abundance of riches for law schools more or less across the board. Moreover, concerns about minority student enrollment, concerns turbocharged by the Supreme Court’s decision restricting the use of racial preferences, are ameliorated by the evidence (at least thus far) that minority applications are up by a considerable margin.

While this is not the space to throw cold water on what is good news for law schools in their business objectives, I urge a pause to at least warn the collective us in legal education not to fall into the too-familiar trap of seeing the currently bullish market as an excuse of complacency, as an opportunity to eschew innovation because business-as-usual apparently is meeting the tenor of the times. Let’s be clear that a run up in applications doesn’t make any serious headway in addressing persistent problems, including:

• Sticky and mainly ignored is the traditional financial aid models of law school, models that invest greatly in merit-based aid for high flyer applicants on the idea that such students will be subsidized by below-median score students who will pay full freight. More applicants might mean larger classes, greater revenue, and therefore some incentive to ameliorate the equity effects of this common form of financial aid engineering. Yet, experience tells us that law schools do not ordinarily expand meaningfully the size of their classes in order to accomplish these goals. And nowhere should this comment be read as urging law schools to necessarily do so. Size matters, and the objectives of law schools to keep their educational program sensibly organized around a certain size so as to improve faculty-student ratio and job prospects for students in a legal marketplace that, while not unpromising these days, is still basically flat at best, should be maintained to the extent possible. However, the challenge is how to address the brute inequities of a system that incentivizes these familiar cross-subsidies from the “bottom” to the “top.” Increasing law school applications shouldn’t blind law schools to the fact that current financial aid problems raise problems to be solved, not excused by the claim that “all schools basically do the same thing” and such;

• Efficiencies and innovation in pedagogy should be important goals, in both rainy and sunny times. Law school curricula continues to remain largely static. The rise of clinical education was, to be sure, an extraordinary development in legal education. But that development is a half century old and the traditional model that puts experiential education as an important complement to, but never really a substitute for, classic doctrinal instruction persists. Perhaps that is how it should be, for innovation doesn’t necessarily mean scrapping the status quo for something altogether different. Disruptive innovation isn’t measured by how many plates are broken immediately; rather, it begins with serious, intentional scrutiny — that is ideologically eclectic and evidence based — of current educational programs and structures, taking account of the rapidly changing demands of the legal marketplace. Such scrutiny should be ongoing; and it is a misnomer to put it into the bucket of episodic curricular “reform.” Reform follows assessment, and deep and broad assessment should be a core element of the ceaseless strategic planning that law schools and universities of which most are a part ought to do — not occasionally, but always. This is as true when application patterns are rosy, as when they are dire. True, big innovations in law school curricula are less necessary as part of advertising campaigns to recruit students from “boring” competitors when the applicant pool is nicely robust. But, after all, public relations is not the primary reason for reassessment and reform; the reason is that law schools aspire to be the best possible engines of coherent, socially and economically relevant, progressive, and efficient legal education. The centrality of this goal ought not to turn on one or two-year revenue projections;

• Viewed overall, law schools should not make the mistake of tying applicant eagerness (is it the Trump bump? is it economic opportunity? is law now a “hot” profession? Who knows!) to agnosticism about what they are getting from their law schools, in terms of curriculum, services, career support, ambition, etc. Two things can be true at once: More young people are motivated to apply and attend law school and, second, these same young people have high expectations and of the law schools they hope to attend. There is at least some ambient evidence that students of the present and near-future are demanding more of their educational institutions. An innovation-minded law school may not viewed best as a school that merely caters to a limited set of student expectations, but, rather, as a school that deeply considers how to create educational schemes and structures that are designed to educate in holistic, pluralistic, and pragmatic ways students who will leave and take roles and positions in the legal marketplace broadly defined, and who will, we should hope, will be attentive to the outsized influence of lawyers in the world. They will be protectors of the rule of law, instruments of justice in the trenches as well as in the meta-design of institutions and constitutional guardrails. Moreover, they should learn well in our law schools about the persistent access to justice crisis that inflicts the U.S. and should think about creative ways in their own careers to address the A2J crisis;

• All of these goals (and others that could be listed) must be considered and hopefully achieved in an ecosystem made up of individual law schools which are relentlessly innovation-minded. A temporary applicant boom should not be an excuse to take the pedal off the metal. On the contrary, while this welcome increase helps shine a spotlight on the state of law schools and, in the minds of deans and others, enables these schools to shine more brightly at least for a while, this is a golden opportunity to consider our predicaments and our promise. An innovation mindset is what is required at the very least.

AALS session on ways to contribute to the work of the Uniform Law Commission

The Uniform Law Commission, the nation's premier organization involved in statutory law reform, is very much on the lookout for promising ideas by legal scholars on uniform statutes.  One commissioner put it to me this way:  "Law review articles come to at the end a conclusion that 'there oughta be a law!' and there is nice avenue for bringing cool ideas to the ULC for study and maybe implementation."  And so the ULC is at the ready to bring your good proposals to the real world.

At this year's AALS, folks from ULC and others will be gathering with any and all interested to talk about the work of ULC, to answer questions, and to brainstorm about the synergies between academic scholarship and practical law reform.  Stewart Schwab (the former dean of Cornell Law) and I have been involved over the last several months in promoting these connections and we encourage you to learn more about ways you might get involved in the good work of ULC.

Here are the details:

January 9, 2025

8:00 am – 9:30 am

Session Type: AALS Arc of Career Programs

Room: Room 202

Floor: Level Two South

This will be a roundtable discussion about how to turn ideas for laws into state legislation. The speakers will discuss how the Uniform Law Commission (ULC) chooses projects, as well as the study and drafting process for projects. The speakers include two appointed Uniform Law Commissioners, one of whom is the current chair of the Scope and Program Committee, a reporter for a drafting committee, and the research director for a ULC standing committee who also served as an observer/adviser to the drafting committee for the 2022 Uniform Commercial Code amendments.

It is organized by Juliet Moringiello of Widener (and a ULC Commissioner).  Speakers include: Steve Willborn (Nebraska), Laura Napoli Coordes (Arizona State), Carla Reyes of SMU.  

 

Tell me what a heckler's veto looks like, this is what a heckler's veto looks like

Prattville, AL removed Prattville Pride's float from the annual Christmas parade after Prattville Pride notified the city about vague threats (to throw eggs and water at the float) and asked for additional security and police presence. The mayor said the city would "not put the rights of parade participants ahead of the safety of tits (sic) citizens." Judge Huffaker of the Middle District of Alabama was having none of it, enjoining the city from keeping Prattville Pride out of the parade and ordering the city to provide police protection for the float and to enforce criminal laws as appropriate.

The court recognized that "the heckler’s veto is what the Court has before it today." That term has been abused of late, used (including by free-speech proponents) to cover loud-and-obtrusive counter-speech that makes life difficult for one set of speaker-and-willing-listener. The "preferred first speaker problem" (in which the first speaker is deemed a speaker and opposing speakers a form of censorship) reflects this over-expansion of the concept. This is what the concept means--one group threatens unlawful activity because it dislikes a speaker and the government's solution to potential crime is to silence the speaker.

Also, kudos to Judge Huffaker for FN 3: "During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that."

Saturday Music Post - Got My Mojo Working

"Got My Mojo Working" is closely identified with Muddy Waters, but it was actually written for Ann Cole by Preston "Red" Foster in 1956. Cole was a moderately successful R&B artist who recorded for Sol Rabinowitz's Baton label. She opened for Muddy on a national tour in 1957 and made the mistake of including "Mo-Jo" (as she called it) in her set. Muddy heard it, loved it, and decided to record it for Chess Records when he got back to Chicago. Cole's recording and Waters's ended up being released in the same week, and of course his was by far more famous. He also claimed the copyright, though his changes were minimal; litigation followed, with royalties eventually being paid to Foster and his family.

Muddy Waters's mainstream breakthrough was a Newport in 1960. The harp player was James Cotton, with Otis Spann on piano, both of whom also led their own important bands. You can see them in the first clip at The Faculty Lounge. Ann Cole's recording is the second clip. If you keep scrolling through them, there is some historical commentary.

ADL new experimental study on discrimination against Jewish job candidates

The Antidefamation league released this week a new study that uses the longstanding design of identical resumes varying only names and signals of identity - such as participation in ethnic sports leagues or associations. The experiment includes a good number of observations, 3K emails: across many the United States the results, statistically significant and quite robust, were that Jewish sounding names got fewer callbacks than Western European names, and Israeli sounding names received even fewer.

A few observations: this was specifically for administrative jobs – would be interesting to replicate in other sectors and types of jobs  and specifically in lower skilled versus higher skilled jobs like high tech / programming / engineering / medicine / law. Second, all the (fictional) applicants were female – one could hypothesize that discrimination may be even more pronounced for Israeli male applicants given the past year and how protests have become violent in certain places, like in Los Angeles where the study seems to show some of the bigger gaps between applications. It is interesting that in only two cities – NY and Philly – there was no such finding of discrimination – which may be consistent with a high percentage demographically of Jewish employers.

Finally, I will underscore that indeed it is difficult to detect discrimination at the hiring stage [as opposed to firing/promotion when the employee has more info) so these studies are valuable; both federal and state laws protect against discrimination on basis of race, religion and ethnicity but discrimination in employment remains pervasive. I actually wrote about this longstanding method of resume studies in my book The Equality Machine - here is a snippet of that section:

Would an Algorithm Hire Lakisha Washington?

We worry that algorithms are black boxes—in other words, opaque and difficult to understand (which they often are). But what about the black box of the human mind? Human decision-making in the hiring realm involves dozens of recruiters, interviewers, co-workers, clients, and supervisors, each a small black box of their own. By contrast, using technology, we can check our intuition and innate human bias by employing machines to help us quantify and analyze information. We need to strive to integrate the best of both worlds—human and machine decision-making.

Two decades ago, a group of psychologists began running résumé experiments. They sent more than 5,000 identical fictitious résumés differing only in the applicants’ names to 1,300 employers in response to job ads posted in Boston and Chicago newspapers. The pretend applicants were named Greg Baker, Jamal Jones, Emily Walsh, and Lakisha Washington. The results were telling: “white-sounding” names received 50 percent more callbacks for interviews. That study was so illuminating that researchers all over the world began replicating it, manipulating other protected identities in the fictitious résumés. These studies have consistently found gender, race, age, and sexual orientation discrimination in hiring using résumé manipulation.

Twenty years of these résumé studies have been frustratingly consistent: despite social efforts and legal rules, human bias thrives. In all sectors—not least of all in the tech industry itself—despite decades of anti-discrimination laws on the books and diversity and inclusion training in place, workplaces still demonstrate bias in recruiting and hiring. To be sure, using technology to supplement or replace human decision-making carries risk and is not a panacea, but it has the potential to mitigate our innate human bias. University of Chicago professor Sendhil Mullainathan, who co-authored the original résumé study twenty years ago, argues that algorithmic bias is more readily discovered and more easily fixed than human bias. Studying what algorithms do, Mullainathan says, is “technical and rote, requiring neither stealth nor resourcefulness,” which makes discovering algorithmic discrimination more straightforward. Humans on the other hand, Mullainathan warns, are inscrutable in a way that algorithms are not. Even when the algorithms’ workings are opaque – or a blackbox – we can more systematically check the outcomes they produce to monitor for bias. When Mullainathan and his collaborators first conducted their résumé experiment—before the internet became the primary vehicle for job searching—it was a complex covert operation. They created banks of fictitious résumés, collected job opening data, faxed fake applications to prospective employers, and waited to receive job interviews or offers in order to identify the human bias that the study revealed. Nowadays, we can detect bias and imbalance in searches and screening in a much easier and more immediate way.

Technology also changes the way we can prove discrimination when disparity is detected. In my work as an expert witness in discrimination cases, I see how difficult it is to convince a judge and a jury that what happened to an employee was the result of bias. These cases have become even more difficult to prove as discrimination has become more subtle and furtive. Before Congress enacted Title VII of the Civil Rights Act in 1964, ads explicitly stating that women and minorities “need not apply” were commonplace in the job market. Now, the smoking gun of discrimination—such as the Idaho law specifying that “males must be preferred to females” in appointments for certain positions, a law that led to the landmark U.S. Supreme Court decision in Reed v. Reed—is mostly a thing of the past. Discrimination today is more subtle and more disguised. In hiring decisions, employers usually do not have formal, discernible rules on what weighs heavier among the many factors considered—experience, skill, education, personability, references, the likelihood that an applicant will accept an offer, and so on. Often, companies will just say that they are looking for the employee who is “the best fit.” Employment discrimination litigation is therefore notoriously difficult, especially when an applicant has not previously worked for an employer. And even when an employee has worked at the organization for a while, most evidence is circumstantial. Employers shift their explanations and proffer decision-making rationales that can be impenetrable to outside scrutiny.

Even more importantly, when we find that people are biased, what can we do about it? Litigation is a long, arduous, and after-the-fact process. It can financially compensate the employee who was discriminated against, but to what extent does it change hearts and minds—and most importantly, institutions? We can bring in sensitivity training and develop departments dedicated to diversity and inclusion, but it’s very hard to debias humans. Systemic, lasting change has been elusive.

Enter algorithmic decision-making. Done right, it can overcome the flaws of human decision-making. As Mullainathan says, “software on computers can be updated; the ‘wetware’ in our brains has so far proven much less pliable.” With these new pliant machines, we can expand how job opportunities are communicated; expand the applicant pool by identifying more inclusive formats and language; and employ screening measures that reject past, demonstrated human biases. We can then monitor and detect exclusions and continue to improve screening measures. As we explore each of these stages of the employment process in the following pages, we will see how, while a data point that an algorithm provides may be tainted by human bias and unequal realities, AI can continuously improve; algorithmic processes can be audited and corrected swiftly in a way that a human mind simply cannot. This malleability and adaptability vastly outclasses our current hiring practices, which rely on biases that continue to shape recruiting, mentoring, hiring, evaluation, and promotion processes.

 

 

Trans rights and social movements

I had interesting email exchanges with readers regarding my posts on trans issues. I wanted to lay out a few of the additional issues (unresolved) about social movements:

• MLK, Thurgood Marshall, and others went all-in during the '50s/'60s/'70s, which proved the right move. But would it have been wise, or successful, in the '30s/'40s. Where is the trans-rights movement now? I would have thought it was closer to the '50s after Obergefell; now it feels like March 1877.

• The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."

    The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.

• There is an interesting order-of-operations problem--does government enact restrictions when groups begin advocating or do groups advocate against existing laws. The former seems more targeted and more cruel. It seems the former is at work for trans people--new laws enacted explicitly and expressly to prevent them from doing what they sought to do or hoped to achieve under existing laws and systems. By contrast, MLK moved against existing Jim Crow laws; Southern states doubled down on defending those laws but did not enact new laws. And no one attempted to enact new express prohibitions on disabled people. On the other hand, states enacted Jim Crow in response to Reconstruction. It probably depends on the moment in history in which one looks.

• Movement strategy is historically determined. It is harder to tell Group M to bide its time (especially within our modern understanding of the harms its members suffer) when Groups A through L have already established their rights. So MLK had to bide his time in the 1940s because he had nothing to build on; trans activists have 80 years.

• Size matters. Trans people represent less than 1 % of the population, compared with women representing 1/2 the population and Black people 10-15 %. It is easier for the state to target such a small group (obviously), more difficult to create a critical mass to support it, and easier for voters and others to say "why do you care so much" about issues that do not affect them. It thus is rhetorically and politically important to turn the numbers issue, to place the shame on those who would bully such a tiny group.

Happy Repeal Day!

On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call.

One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc.  Someday . . . 

 

On the Biden Pardon (with Jed Shugerman)

Jed and I wrote up our views about why the Biden pardon is unconstitutional at the Boston Globe.  It is obviously is a companion piece to our WaPo column on Trump's threatened self-pardon.  If you are having trouble with the Globe paywall, here is a PDF.

Major trans rights, minor trans rights, and political expediency

Jonathan Chait argues that Democrats must distinguish "major" from "minor" trans-rights questions and take a stand on the major questions while leaving minor (and, coincidentally, unpopular) issues alone. According to Chait (for whom this is bound up with sensitivity to accusations of being anti-trans):

The major questions about trans rights are: Do some people have the chance to live a happier and more fulfilling life in a different gender identity than the one to which they were born? Do some of these people need access to medical services to facilitate their transition? Do they deserve to be treated with respect and addressed by their chosen names and pronouns? Do they deserve equal protections from discrimination in employment, housing, and military service? Must society afford them access to public accommodations so as not to assault their dignity?

* * *

Democrats mainly ran into trouble because they either supported or refused to condemn a few highly unpopular positions: allowing athletes who transitioned from male to female to participate in high-level female sports, where they often enjoy clear physical advantages; allowing adolescent and preadolescent children to medically transition without adequate diagnosis; and providing state-funded sex-change surgery for prisoners and detainees.

Some thoughts about why it is not as simple as he makes it sound:

• Republicans and MAGA do not draw these distinctions. They use the unpopularity and demagoguery of the "minor" issues to attack the major issues. And since most people do not draw Chait's distinctions, no one will notice when the policymakers sweep away the major issues in a broad attack on trans rights which they justify by the minor issues. Stated differently, the minor issues represent the camel's nose to get the major issues. Democratic surrender on the minor issues will empower, not assuage. Chait insists the evidence shows that efforts to target major issues would be unpopular. Recent state legislative efforts (likely to be copied in the Trump Administration) suggest he is wrong.

• The minor issues are straw people, grounded in false narratives, or at least debatable.

    • I discussed sports. But Chait sweeps away issues, such as defining "high-level." Professional and Olympic, obviously. What about college--is there a difference between Division I and Division III? Or between Power 5 women's basketball and Mountain West volleyball? What about high school, where a cis-girl's loss to a trans-girl in a track meet deprived the former of opportunity to run in college?

    • Doctors do not commonly prescribe or provide medical transitions without adequate diagnoses (as they do not commonly perform any procedure without adequate diagnosis); restricting this would be redundant and performative. And using the rare ambiguous story as a cudgel to suggest a broader problem demanding action (as Chait and others did) is intellectually dishonest.

    • Prisoners have an 8th Amendment right (and detainees a 5th Amendment right) to constitutionally adequate care; in a humane penal system (yes, I know), the state should surpass the constitutional floor. Beyond general opposition to trans rights, no one has offered a good reason for denying that form of medical care while providing (as constitutionally required) other medical care. Especially because the number of prisoners/detainees who would seek (and thus the public cost of) this care would be so small--contrary to MAGA demagoguery and compared with what states spend on common treatments for a larger number of prisoners.

In other words, Chait's minor issues are not so different than his major issues, other than some sense of popularity and his personal preferences.

• Chait ignores several issues (or is not explicit about them) that sit on the leading edge of the anti-trans movements. He never mentions bathrooms. And he never mentions government documents (which might fall under names and pronouns, but it is not clear).

Why California Should Not Be Admitting Teenagers to Law Practice

California has lately been admitting teenagers to the practice of law, including two siblings who each passed the bar at age 17 after graduating from an on-line law school. This is a very bad idea for everyone involved, as I explain in my new column for The Hill.

Here is the gist:

Just because teenagers can become lawyers doesn’t mean they should

Twice in the past two years, the bar examiners announced that 17-year-old applicants had passed the bar examination, to be sworn in as lawyers upon reaching 18.

I don’t doubt the brainpower and studiousness of the teenagers, a brother and sister, born a year apart, who began their law studies while still in middle school. Nonetheless, it is simply impossible for even the most book-smart 18-year-old to have acquired the life experience necessary for the competent practice of law.

At 18, they still cannot buy alcohol or tobacco, obtain an interstate commercial driving license, become an airline transport pilot, qualify as a professional fiduciary, deal blackjack in a casino or purchase handgun ammunition. 

There are true prodigies whose unique talents benefit from intense development from an early age. But law practice is not music or gymnastics. It is basically a job. It can be rewarding, fulfilling and socially productive, but apart from transient novelty, there is no advantage to starting young. 

You can read the full column at The Hill.