303 Creative, Exclusive Private Enforcement, and Blue State Revenge
My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.
Abstract after the jump.
Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.
Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This Article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.
This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.
Because I do not watch actual football games, I am late to the discussion of another example of Infield Fly-like rules in other sports, this time in the Eagles-Commanders game.
The Eagles had the ball about a yard from the goal line. Everyone knew they would run the "Tush Push" (three players in the backfield push the quarterback on a sneak), which has become nearly unstoppable. The Commanders tried to time the snap and get to the QB before he had the ball and the pushers had a chance to push, including by a player jumping over the top of the line. They mistimed it three times, earning an offsides penalty each time. After the third infraction, the official announced that he would, if the Commanders did not cut the crap, call a palpably unfair act, which allows an official to award a score.
This is an IFR-type situation: The Commanders engaged in conduct contrary to ordinary expectations (intentional infractions); the Eagles could not counter (they cannot stop a player from encroaching repeatedly); it secured the Commanders an overwhelming advantage (the Eagles never had a chance to snap the ball); and the Commander had the incentive to keep doing it because it incurred no risk to keep doing it and thus hoped to time it right that one time.* The palpably unfair conduct call eliminates the incentive to keep trying the play by imposing a cost--the touchdown they are trying to stop.
[*] An offside infraction is harmless with the ball inches from the goalline--the the penalty is half the distance to the goal line (Zeno's Paradox applied to football) and no new set of downs.
I addressed the palpably unfair rule as a limiting rule in the IFR book when discussing Super Bowl XLVII between the Ravens and 49ers. The Ravens had a safety kick with seconds remaining on the clock. Ravens players were recorded on the sideline saying that if the 49ers returner broke free, they should run onto the field and tackle him to keep him from scoring. Such a play would earn a palpably unfair call and likely the officials awarding the touchdown. And the Ravens' planned strategy fits the IFR elements--contrary action according an overwhelming advantage that the opponent cannot counter, with the team having every incentive to try it.
Interestingly, some have argued for a different limiting rule--ban the tush-push. This argument sees the IFR-type problem in reverse: The offense enjoys an overwhelming-and-non-c0unterable advantage (the mass of bodies and momentum is impossible to defend) and an incentive to do this every time in that short-yardage situation. Eliminating the tush-push eliminates the unfair disadvantage on the defense. And, in turn, eliminates the defense's incentive to commit palpably unfair acts.
Update: Whether the tush-push should be banned is an interesting one. Most limiting rules arise because the structure of the game creates the overwhelming imbalance--the runners in an infield fly situation are stuck and will be put out whether they run or stay; the time the offense loses running a futile play against extra defenderscannot be recovered. We can debate whether the imbalance from the tush-push is structural. On one hand, this is one team taking advantage of its bigger-and-stronger players to overwhelm the defense; we did not ban peak Earl Campbell from running through over-matched defenders (watch some old clips). And we allow multiple defenders to tackle one runner; that does not differ from a collective "runner" moving forward as a giant blob. It also is telling that only the Eagles use this move to the same degree. On the other, one could define the structure of football as one ball carrier against the defense, not an offensive collective against the defense.
Sharing for no good reason: We have been watching The Pitt, Noah Wylie's new not-ER hospital drama. In the second episode, they treat a guy who hit a car door while riding on a scooter and face-planted, suffering a LaForte Fracture, in which the top of his face comes lose from the bottom jaw (they refer to it as a "floating face"). They show (because this is not a network show) the doctors moving the top of his face back into place.
This development excited us because I suffered a similar injury in a bicycle accident a couple years ago. Mine was a LaForte II (only the upper jaw was loose), as opposed to the LaForte III on the show. Still, it took us back. (My Fed Courts students from that semester sent me a get-well card wishing me a speedy recovery from my "concrete and particularized injury." They learned something.)
I had one nitpick: They made a big point of saying that the guy was not wearing a helmet, intimating that this worsened the accident and "this is what happens when you're stupid and don't wear a helmet." This is nonsense. I was wearing a helmet. A helmet does not help when you slam face-first in the pavement.
Today is International Holocaust Remembrance Day, as designated by the United Nations in 2005. Israel and many Jews around the world commemorate the Holocaust on Yom HaShoah, the 27th of Nisan on the Hebrew calendar, which will by May 5 this year.
Here is the explanation of International Holocaust Remembrance Day from the U.S. Holocaust Memorial Museum website:
On November 1, 2005, the UN General Assembly adopted resolution 60/7 to designate January 27 as International Holocaust Remembrance Day (IHRD). The date marks the liberation of Auschwitz-Birkenau and is meant to honor the victims of Nazism. The same resolution supports the development of educational programs to remember the Holocaust and to prevent further genocide.
Resolution 60/7 not only establishes January 27 as “International Day of Commemoration in memory of the victims of the Holocaust,” it also rejects any form of Holocaust denial. The resolution encourages member states of the UN to actively preserve sites that the Nazis used during the "Final Solution" (for example, killing centers, concentration camps, and prisons.) Drawing from the Universal Declaration of Human Rights, the resolution condemns all forms of “religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief” throughout the world.
I do not know the politics behind the U.N. decision to select a day other than Yom HaShoah, or the date of the Warsaw Ghetto Uprising, also commemorated in Israel, which began on the 17th of Nisan.
Westerfield Fellowship - Loyola New Orleans College of Law - 2025
From Loyola University New Orleans:
Loyola University New Orleans College of Law is accepting applications for a Westerfield Fellow to begin August 1, 2025. This position is designed for individuals pursuing a career in law teaching. Applicants should have strong academic credentials and excellent communication skills. Fellows are responsible for teaching two sections of a three-credit writing course each semester, and Fellows teach this course with the support of an experienced director and professors in a program in which the director and professors coordinate the content and pace of the classes. Fellows also have the opportunity to create and teach a seminar on a topic of interest in the second year. Fellows have a student teaching assistant and faculty mentor in addition to other professors in the program. One-year contracts may be renewed, and typical fellowships are two years. Westerfield Fellows have been successful in obtaining tenure track positions at ABA-accredited law schools.
All applications must be submitted through the following webpage:
Republicans in the Idaho legislature are pursuing a resolution urging SCOTUS to overrule Obergefell. The exercise is performative bullshit. SCOTUS resolves lawsuits, not requests from random people to do things. The article quotes Tobais Wolff (Penn) as saying "the Supreme Court will no more respond to a letter from the Idaho Legislature than they would a letter from me." It also quotes one legislator emphasizing the need to make a statement about protecting rights.
The clueless part is that the legislators could make a statement that would have actual legal effect: Pass a law limiting marriage to one man and one woman (presumably a new version would specify cis-man and cis-woman) and set up a lawsuit by a couple denied a license; then they can marshall their legal brilliance to argue to the Court why it should overrule its precedent. They cannot claim a belief in judicial supremacy; the proposed resolution begins "[s]ince court rulings are not laws and only legislatures elected by the people may pass laws." Such a view of the balance between the judicial and legislative powers suggests the legislature can (and should) pass a law reflecting the views of the people of Idaho and let the legal controversy play out.
The answer is the cowardly part. They do not want the political blowback to enacting a law contradicting SCOTUS precedent. They likely fear being lumped with Massive Resistance and the authors of the Southern Manifesto--who, to their (limited) credit, offered a procedurally and substantively coherent vision of constitutional judicial review. They also likely fear the hundreds of thousands of dollars in attorney's fees they will pay for litigating two guaranteed losses in the lower courts and a likely loss in SCOTUS (which I do not believe is so anxious to overrule Obergefell, as opposed to limiting its application). But these people will not put their money or their power where their mouths are.
And so we get the craven part--a legally, procedurally, and practically meaningless performative gesture.
"I Fall to Pieces" was written by the team Hank Cochran and Harlan Howard and first offered to Brenda Lee, who turned it down. It was then offered to Patsy Cline in 1961. She initially had misgivings about it as insufficiently country, but her producer prevailed (with the incentive of backup vocals by the Jordanaires), and it became the beginning of her crossover success. The clips are at The Faculty Lounge.
I have no real use for the ADL and less for Jonathan Greenblatt. I have long believed they see antisemitism lurking around every corner, often in a way the conflicts with my views on First Amendment protection for hate speech. So I am not the group's target audience. And October 7 produced a genuine uptick in antisemitic speech and incidents, so I began to see a bit of the group's point.
But Greenblatt and the group's response to Elon Musk's adventures destroys any credibility. First, it was a Nazi salute; it did not just "appear to be," as so many outlets (including The Forward) described it. And it was made on stage at an inaugural even by a person with an office in the West Wing and the ear of the new President. Minimizing it as "an awkward gesture in a moment of enthusiasm" is absurd. Greenblatt exacerbated the problem by condescendingly telling everyone who disagrees with him (those who are "on edge") to chill out by "giv[ing] one another a bit of grace, perhaps even the benefit of the doubt, and take a breath" and "hop[ing] for healing and work[ing] toward unity in the months and years ahead." As if Musk and the president he supports are not expressly targeting those they do no like. Demanding that one side give the benefit of the doubt and work toward unity--while the other runs roughshod--is offensive nonsense.
Greenblatt made himself look worse by chastising Musk over bad puns about Nazi leaders, taking umbrage about the Holocaust as a unique event that should never be joked about. (Maybe have a word with Mel Brooks?). One might see this as attempted compensation--chastising the joke to overcome the criticism for his response to the salute. But I think Greenblatt sincerely sees the latter as worse than the former. And that reflects bizarre priorities--an online joke deserves strident condemnation but a political speech celebrating a president set to pursue some problematic policies is no big deal. Of course, it is consistent with the view that the pro-Palestinian shouts of an Oberlin student represent an existential threat to Jews but government policy that harms Jewish interests is no big deal.
To be clear, both of Musk's actions warrant condemnation. And both are constitutionally protected, so nothing (besides cementing my negative opinion about him) should befall Musk. Greenblatt's disparate treatment reflects more about the ADL than it does on Musk's character. That is sad.
Update:From Jodi Rudoren at the Forward. She makes a point I considered after posting--the subsequent jokes should lend some "context" to the salute, strengthening the view that it carried an antisemitic message. Also, Greenblatt's quotations are moronic--"we don't know anything, but I can say it was not a Nazi salute."
Review of "Interrogating Ethnography" by Andrew Gelman
Andrew Gelman is a highly regarded statistics and political science professor at Columbia, and the force behind the widely-read "Statistical Modeling, Causal Inference, and Social Science" blog. I was delighted to see that he has posted a short review of my book Interrogating Ethnography. It is a little unusual to have a book noticed over six years since publication, but a positive review from Gelman is welcome any time. He has given me permission to reproduce it below:
I came across this book from 2018, Interrogating Ethnography: Why Evidence Matters, by law professor Steven Lubet. It’s a crisp (137 pages) and fascinating discussion of the role of evidence in qualitative social science, and I think it should be of interest to many of you, as it parallels so many discussions we’ve had over the years regarding the role of evidence in quantitative research.
Sometimes I’ve had negative reactions to writings by law professors on social science, but in this case Lubet’s expertise is relevant, as so many legal cases turn on evidence.
Lubet discusses several examples, focusing on sociologist Alice Goffman’s controversial 2015 book On the Run. As we discussed a few years ago, it’s a problem of trust. Goffman offers no documentation for her extraordinary claims and thus must rely on her readers and colleagues to trust her statements and treat them as fact. In this case, trust is brittle, and once the trust is gone, not much remains.
One reason Lubet’s book is interesting is that he gets into the details and presents things very carefully. Just for example, from page 131:
It is unfortunate that ethnographers have so seldom essayed revisits to others’ research sites. Despite the obvious difficulties, there are cases in which the impediments can be readily overcome. It would not take long for an ethnographer to interview personnel at the hospitals in West Philadelphia where Alice Goffman claims to have seen police cordons at the entrances. Moreover, there are only six hospitals in Philadelphia with maternity services, so it would be possible, even now, to fact-check Goffman’s story of having observed the arrests of three new fathers on the same ward in a single evening.
I’m guessing that this maternity ward falls into the same category as Marc Hauser’s monkey tapes, Brian Wansink’s bottomless soup bowl and his 80-pound rock, Diederik Stapel’s survey forms, Mary Rosh’s survey forms, Michael Bellesiles’s probate inventories, Matthew Walker’s National Geographic video, the Surgisphere dataset, and Dan Ariely’s paper shredder. But all things are possible.
The other thing notable about Lubet’s book is its even tone. Some of the stories in the book are funny, others are kinda shocking, and Lubet manages to convey all this without himself ever expressing amusement or outrage. There’s nothing wrong with expressing amusement or outrage—I do it all the time!—; it’s just impressive to me how he wrote this entire book with a straight face. I recommend it.
There are also 12 comments on his post, which can be read here.
In Support of the American Historical Association's Executive Council Veto of Gaza "Scholasticide" Resolution
On January 6, the annual business meeting of the American Historical Association passed a resolution condemning Israel's so-called "scholasticide" in Gaza. The AHA Executive Council, however, exercised its authority to veto the resolution because it contravened the association's bylaws. Members of the Executive Council and staff have since been subjected to harassment and abuse for their principled decision. In support of their principled action, I am posting the explanation here:
Update as of January 17, 2025: The AHA Council deplores any intentional destruction of Palestinian educational institutions, libraries, universities, and archives in Gaza. The Council considers the “Resolution to Oppose Scholasticide in Gaza,” however, to contravene the Association’s Constitution and Bylaws, because it lies outside the scope of the Association’s mission and purpose, defined in its Constitution as “the promotion of historical studies through the encouragement of research, teaching, and publication; the collection and preservation of historical documents and artifacts; the dissemination of historical records and information; the broadening of historical knowledge among the general public; and the pursuit of kindred activities in the interest of history.” After careful deliberation and consideration, the AHA Council vetoes the resolution. The AHA Council appreciates the work of Historians for Peace and Democracy and recognizes the diversity of perspectives, concerns, and commitments among AHA members.
Update as of January 6, 2025: The “Resolution to Oppose Scholasticide in Gaza” was passed by members attending the business meeting. As per the AHA’s Constitution, article 7(3–5), all measures passed by the business meeting shall come before the AHA Council for acceptance, nonconcurrence, or veto. The AHA Council has begun a thoughtful and vigorous conversation and will make a decision at its next meeting, which will take place within the month.
The vote on the Executive Council was 11-4 with one abstention. New York Times coverage is here.
[Guest Post]: Markey call to extend Tik Tok deadline, annotated
This document is from my FIU colleague Hannibal Travis; he annotated Ed Markey's speech. The annotations are for law students, legal journalists, scholars, and members of the public.
Random trivia: Today marks the second time that a presidential inauguration has fallen on MLK Day. Bill Clinton's Second Inauguration in 1997, eleven years after it became a holiday, was the first time. It will next happen in 2081. So maybe today is also the last time they coincide.
Posted by Gerard Magliocca on January 18, 2025 at 09:06 PM | Permalink
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Settlement and New York Times v. Sullivan
It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.
[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.
Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**
[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.
We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.
Before he became a movie idol and Las Vegas headliner, Elvis Presley was heavily influenced by African American blues artists, who are the subjects of a great new book: Before Elvis: The African American Musicians Who Made the King, by Preston Lauterbach. Big Mama Thornton is the most well-known, having recorded "Hound Dog" in 1953, three years before Elvis. It was written by Jerry Leiber and Mike Stoller, who were teenagers at the time, at the request of Johnny Otis. Today's post at The Faculty Lounge has some tracks (mostly audio) by a few of those classic performers.
This is the third post in the series from Chad Oldfather on his book, Judges, Judging, and Judgment.
In my last post I outlined the diagnostic portions of Judges, Judging, and Judgment (use code JJJ2024 for a discount). The problem, as I see it, is not just polarization, but that many of the mechanisms that have traditionally served to channel judicial behavior toward adherence to law (again, however we might conceive of that) have weakened. The result is more space for the operation of the sorts of influences—usually imagined as raw politics--that we’d prefer to shield against.
So what do we do about it?
One answer is methodological. Proponents of textualism and originalism claim that both have the virtue of pointing judges toward a fixed target, and that by deeming certain sorts of evidence and arguments to be presumptively out of bounds they can prevent judges from, as the claim is often formulated, doing whatever they want. (There are other arguments as well, but I’ll pass over those here.)
But of course, language can never fully specify how it applies in all situations. Original understanding, even when it can be discerned, will likewise be incomplete. Usually figuring out what the text means, or what the original understanding was, involves the application of professional judgment. There’s an additional step—which also entails the exercise of judgment—required to get from whatever it is that the text or the original understanding might yield to a conclusion about how that should be applied in each case. Sophisticated proponents of these methodologies acknowledge this.
There are at least two problems. One is that the larger discourse about judicial methodology glosses over the need for judgment. Adherents present the process as algorithmic. “We” are constrained; “they” are just making it all up. This feeds into a dominant cultural taste for the tangible and quantifiable. Ours is a world that craves metrics and distrusts expertise. “I know it when I see it” is an epithet, and our culture sweeps aside notions such as Michael Polanyi’s “we know more than we can tell,” Wittgenstein’s “imponderable evidence,” and Karl Llewllyn’s “situation sense.” Yet I think we all, in our daily lives, have experience to the contrary. Over the course of my half-century plus on this planet I’ve met people whose instincts, judgment, and situational feel I rate very highly, and those for whom the opposite holds. My sense is that those assessments are not unique to me, and that my peers in the relevant context would generally agree on who it is they’d consult in difficult situations. The correlation of these assesments with raw intellectual power, the possession of abstract knowledge, or the holding of any sort of political views is well short of perfect.
The second problem is that, as Richard Fallon among others (including me) has demonstrated, courts’ use of these methodologies is often opportunistic. This could be a product of pure ideological motivation, though I tend not to believe that that’s what judges or justices understand themselves to be doing. More likely it’s a manifestation of bounded rationality and the fact that motivated reasoning is a powerful drug. Perhaps the judges and justices would say that in their best judgment the ordinary tools of originalism, say, weren’t the best tools for this specific job. Judgment, as I emphasize throughout Judges, Judging, and Judgment, is inescapable, and judicial behavior, if not judicial rhetoric, demonstrates as much.
What we need, then, is to prioritize and praise the exercise of good judgment. Saying that, of course, leads me straight into the sorts of objections one can expect in a world that privileges the tangible and quantifiable. If I can’t precisely define it, if it can’t be measured, it must not be real. “This person has good judgment” will become just another way of saying “this person is likely to reach conclusions I prefer.”
That’s a risk, no doubt. But I don’t think it’s impossible for us to reach consensus on characteristics we want judges to exhibit. I’d suggest that dispassion is a component of good judgment, and that whatever the rule of law means it certainly means that my side doesn’t always win, even in the most difficult and most politically charged cases. There are others where we might disagree. In my view good judgment involves—and in this respect my book might as well be called Son of The Lost Lawyer—the exercise of practical wisdom, including at its core recognition of the idea that the law exists to serve multiple and often-conflicting social ends rather than to seek perfect compliance with some abstract, theoretical ideal. It also involves, for something that early experience suggests is a tough sell amongst the law professor community, the cultivation and exercise of intellectual humility. But here I stand with Cardinal Lawrence, Ralph Fiennes’s character in the movie Conclave: “the one sin I have come to fear more than any other is certainty. Certainty is the great enemy of unity. Certainty is the deadly enemy of tolerance.” Much better, in my view, to constantly ask ourselves the question “what if I’m wrong”?
There’s much more to say, of course, including a dive into a growing body of interdisciplinary research into the nature and effects of epistemological humility, both in general and with respect to the judicial role. I’ll refer you to the book for that, and I hope you’ll check it out. I’ll be back here with a couple more posts less directly related to the book next week.
No, Katherine Franke Was Not Fired by Columbia Law School
You may have read about Prof. Katherine Franke’s “termination” from her tenured position at the Columbia University Law School, but it turns out there is more to the story. My new essay in the Chronicle of Higher Education takes a deeper dive into the case, concluding that she was not fired at all. Here is the gist:
Katherine Franke announced earlier this month that she had been forced out of her tenured position at Columbia University’s law school because of her pro-Palestine activism. The Center for Constitutional Rights, where Franke once served as board chair, called it an “egregious attack on both academic freedom and Palestinian-rights advocacy.” The president of the American Association of University Professors said Columbia’s actions were “truly shameful,” declaring that the organization “stands with “Professor Franke and against this repression of pro-Palestinian speech.”
These and otherexpressions of solidarity, however, all appear to have been based solely on Franke’s side of the story, which she posted in a two-page statement on January 10. Franke detailed what she called her “termination,” following an “unjustified finding” that her “public comments condemning attacks against student protesters violated university nondiscrimination policy.”
Franke’s statement is, at best, misleading. It contains substantial omissions. She was not terminated by Columbia, although she was found responsible for harassing Israeli students on the basis of national origin.
You can read the entire piece in the Chronicle of Higher Education. (Paywalled, but most university libraries have subscriptions.)
This is the second installment of Chad Oldfather's series of posts on his new book, Judges, Judging, and Judgment.
As I mentioned in my first post, Judges, Judging, and Judgment (out today!) arose generally out work I’ve been doing for the entirety of my time in legal academia, and more directly out of materials I developed and continually refined for the Judging and the Judicial Process course I’ve consistently taught for over fifteen years. What resulted is thus very much a work of synthesis, a weaving together of strands of in law, philosophy, political science, and psychology in an effort to tease out what ails us.
It’s plain that we live in a polarized world. It’s nearly as plain that polarization has affected the workings of the judiciary. We’re all Realists now, as the saying has it, and as such are sensitized to the ways in which things other than law, however we define it, can influence decision-making. The Realists led to the Crits and the attitudinalists and in turn to the suggestion that there are Obama judges and Trump judges, all of which is nowadays mostly greeted with a shrug. Chief Justice Roberts of course resisted the suggestion, but I’ve heard federal judges openly acknowledge its truth, including as recently as last week at the AALS annual meeting. Quantitative empirical research supports the claim, and research into cognitive biases and our blindness to them, including especially motivated reasoning, describes the likely mechanism.
We’ve mostly been taught to believe these realizations are of relatively recent vintage, that until the Realists arrived everyone believed in some form of mechanical jurisprudence. Brian Tamanaha has shown that story to be inaccurate when it comes to the beliefs of those operating within the system. What’s more, the very design of the judicial system likewise suggests that our legal culture has long been mindful of the sway of non-legal influences. Features like the adversarial process, the expectation that decisions will be justified in written opinions, the doctrine of precedent, and the existence of multi-member courts all have historically served to minimize the influence of sloppy and biased thinking. There are external forces as well, things like ethics codes, selection processes, and media coverage. Perhaps most powerful of all are shared norms, tacit understandings of how things are done.
What’s often overlooked, largely because the erosion has been so gradual, is that the influence of these mechanisms, their ability to channel judicial behavior, has weakened. An earlier generation of scholars and judges decried the delegation of opinion-writing to clerks, the heavy reliance on non-precedential opinions, the vanishing trial, and the bureaucratization of judging. Today they’re largely accepted as just the way things are. Media coverage of the courts once devoted space to description of the competing arguments but tends now almost exclusively to rely on reductionist characterizations of judges as liberal or conservative. Judicial selection has become an overtly partisan affair, and ethical norms appear to hold little sway over the justices on the highest court in the land.
Meanwhile the profession, reflecting society more generally, has become polarized. To my mind one of the more important books of the last quarter-century is Neil Devins and Larry Baum’s The Company They Keep: How Partisan Divisions Came to the Supreme Court. Their central point is that the justices, like people generally, are significantly influenced by their salient personal audiences. We shape our behavior to meet the expectations of those whose approval we value. For judges, or at least many of them, the salient personal audience is no longer “the legal profession,” but rather an ideologically inflected subset of it. Shared norms serve as a form of dark matter, with a gravitational pull that invisibly influences behavior. When those norms are no longer shared, or when their violation is overlooked in service of expediency, that source of discipline also erodes. Criticism from those on “the other side” can be dismissed as just another partisan gripe.
The first two-thirds or so of Judges, Judging, and Judgment, the diagnostic portion, explores all of this. It attempts to survey the landscape in a manner that is both comprehensive and concise (and suitable for use in the classroom!). The last third attempts, much more tentatively, to tackle what we might do about it. More on that tomorrow.
Greetings, all. I’m delighted to be reappearing at Prawfs after more than a decade away. Last time I was here I still imagined myself as young, perhaps even up-and-coming. That’s a harder story to sell these days, but sometimes the person in the mirror still buys it. Yet the years have unquestionably passed, and since it’s been so long a brief (re)introduction seems in order.
I’m currently in the second semester of my twentieth year on the faculty at Marquette. My primarily scholarly focus over that time has been what I’ve usually referred to as “the judicial process,” by which I mean pretty much anything that has to do with how judges decide, including the doctrines, procedures, and institutional arrangements that govern the judiciary, as well as insights into judgment and decision-making more generally. Over that time I’ve been teaching a class called “Judging and the Judicial Process,” which I blogged about here back in 2008. Its goal is to think about judging from start to finish, and from as many perspectives as we can fit, from both within and outside law. I posted an early version of the course materials on SSRN around the same time I blogged about the class, and along the way maintained vague notions of using them as the basis for some sort of book.
Those notions didn’t become a plan until 2022. Curricular need, in the form of a sabbatical-driven shortage in offerings of the “Perspectives” courses our students are required to take, meant that I’d be teaching Judicial Process twice in the same calendar year. It also meant I wouldn’t need to devote a portion of my summer to developing materials for the other course (state constitutional law) that I had anticipated I’d be teaching. Meanwhile some thoughts had matured, crystallized, and whatever else it is that thoughts do. I drafted a proposal, received helpful feedback from several people, and, as I am wont to do, tinkered.
The tinkering turned into a final push on Friday, June 24, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health. Dobbs was, obviously, a significant decision in ways that were both immediately apparent and that remain to be seen. It also provided me with a vehicle to underscore the timeliness and significance of the book I was proposing to write.
Here's why: Toward the end of their joint dissent in Dobbs, Justices Breyer, Sotomayor, and Kagan pay tribute to the joint opinion of Justices Kennedy, O’Connor, and Souter in Planned Parenthood v. Casey. “[T]hey were judges of wisdom,” the joint dissenters claim. “They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”
Whether they realized it or not, the joint dissenters’ observation echoed a characterization of the Casey joint opinion offered nearly three decades earlier, in its immediate wake. In the opening pages of 1993’s The Lost Lawyer: Failing Ideals of the Legal Profession, Anthony Kronman characterized the joint opinion as “judicious” and as involving “wise balancing of principle and precedent.” “[I]t was judgment, not expertise, that counted.”
Both the Dobbs dissent and The Lost Lawyer invoke a version of the punchline toward which my book proposed to work. The features of the legal system that have historically served to channel judicial behavior no longer function as well as they once did. Growing polarization in society and within the profession has increased the risk of motivated reasoning. Purported methodological solutions lack the constraining force their proponents claim for them. How judges judge matters, to be sure, as do the processes and features of the institutions in which they do so. But who judges, and whether they are wise and the sort of person who has good judgment, matters at least as much, and perhaps more. (That we can identify good judgment is its own tough sell these days, which is part of the problem.)
I sent the proposal to five presses the following Monday. Things moved quickly. The first response came an hour-and-a-half later: “Not a good match for our list.” Fine, not the first time Yale has passed on something I’ve sent its way, and undoubtedly not the last. The second arrived in very on-brand fashion early that evening, as I stood in line at a Taco Bell in the vicinity of O’Hare airport. (I had just picked up one of my daughters.) Cambridge was interested. That interest turned into a contract. I thought I had the research mostly done and that I could have a manuscript completed in about a year. As so often happens, the writing process revealed that I did not have the research mostly done. But somehow I managed, even while chairing our appointments committee during the home stretch, to get the manuscript in almost on time.
It's not a perfect book. Its closing sentence is: “But I could, of course, be wrong.” I’m already aware of one additional line of research I wish I had pursued. But still, I think it’s a pretty good book (as a native Minnesotan I have to fight the urge to call it “not too bad a book”), and I hope an interesting and perhaps even provocative book, and I’m proud to have my name on it. It’s called Judges, Judging, and Judgment: Character, Wisdom, and Humility in a Polarized World. It’s out tomorrow. (You can order it here, and if you use the code JJJ2024 you’ll get 20 percent off.)
Federal Judges Shouldn’t Renege on Their Retirements
Should federal judges rescind their retirements in the wake of a presidential election? The question is posed by several federal judges who have recently done so.
The judges in question are Court of Appeals Judge James Wynn, as well as District Court Judges Max Cogburn and Algenon Marbley. Both Wynn and Cogburn were appointed to the federal bench by President Barack Obama and Marbley by President Bill Clinton.
All these judges announced their intention to become senior judges during President Joe Biden’s term. But then Donald Trump won the presidential election, and Biden failed to install the judges’ successors. With Trump suddenly poised to nominate their replacements, the judges purported to rescind their retirements. They now intend to remain in active service.
These actions call to mind the summer of 1968, when Chief Justice Earl Warren added to the hubbub of a presidential election year by announcing his own retirement. Warren knew that he was reaching an age when he would want to retire. He also expected—or hoped—that President Lyndon Johnson would appoint his successor.
But Warren’s plan went wrong. After Johnson nominated Justice Abe Fortas to the Chief Justiceship, Fortas faced stiff political opposition that prevented his confirmation. Richard Nixon won the presidency that fall.
Warren could have tried to rescind his resignation. Yet he did not. Some historians suggest that Warren, long a target of political controversy, did not want to admit so bluntly that his retirement calculus was partisan. Or perhaps he felt that rescinding a retirement after an election would be worse than timing a retirement based on political prognostication.
Either way, Warren stayed the course, and President Nixon nominated his successor, thereby inaugurating the Burger Court.
In the decades since Warren’s fateful decision, federal judges have largely followed his example. True, jurists have often become ill or passed away at politically inconvenient times. (Just think of Justices Antonin Scalia and Ruth Bader Ginsburg.) But many other judges have arranged their retirements so that a favored president would nominate their successor. This pattern is especially visible in the lower federal courts, where retirees can continue hearing cases as “senior” judges.
At the same time, federal judges generally have not rescinded their retirements based on disaffection for their potential replacements. The main exceptionsoccurredduring the last several years, when a few judges attempted to influence the selection of their successors for idiosyncratic reasons, such as to favor their former clerks. In earlier eras, judges occasionally changed their minds about retiring for other reasons, such as new medical advice, and the Office of Legal Counsel has at least sometimes affirmed their power to do so.
Many observers have been untroubled by the prospect of federal judges rescinding their retirements after elections. If judges regularly initiate retirement with an eye to political considerations, is reneging on similar grounds really any worse?
Yet Chief Justice Warren drew a meaningful, principled line. Rescissions after election day are undeniably partisan. By abruptly changing course, reneging jurists effectively isolate politics as their reason for decision. In addition, decisions to renege follow initial retirement decisions that presumably had a sound foundation. A judge who admittedly had good reason to step down, such as because of declining health, should do so—politics notwithstanding.
By comparison, decisions to initiate retirement generally are not so clearly political, and they do not raise the same worries regarding declining ability. For example, reporting indicates that Justice Anthony Kennedy stepped down during the first Trump presidency because of health concerns. In that respect, Kennedy followed the lead of Justice John Paul Stevens, who several years earlier had stepped down during President Obama’s tenure due to a decline in his own health. So, even if overall trends in partisan retirements are evident, the motivations behind a particular judge’s retirement decision are often more obscure or complex.
Retirement rescissions are also distinctive because they express a focused negative judgment regarding a presidential administration—even though they arise in the context of continued service as a jurist. This means that the recently reneging jurists may soon hear cases involving the very presidential administration that they have exhibited antipathy toward.
Chief Justice William Rehnquist once argued that judges contemplating retirement may consider politics because retirements are not judicial actions. By comparison, rescinding a resignation could be viewed as a choice to hear cases and exert the judicial power—making both the reality and the appearance of non-partisanship more essential.
Critics of the federal courts may celebrate recent events. If federal judges are implicitly political, then what harm can come from explicitly revealing that fact? Yet there is a difference between allowing politics a limited, quiet role and trumpeting it both openly and notoriously. Federal judicial norms around retirement and nonpartisanship are changing—some might say deteriorating—and what practices remain are under intense pressure. A judiciary of openly partisan retirements would be ripe for still greater partisanship.
Even so, the courts’ critics have something right: even timing one’s retirement on political grounds is indeed in tension with the judicial role. And we are now entering a new, more troubling world of judicial politics. Ethical challenges are multiplying, longstanding norms are decaying, and political actors are eager to exploit even innocent lapses for their own purposes. These new challenges call for new rules capable of garnering bipartisan support.
A straightforward if incomplete solution wouldrender judicial retirements binding and irrevocable. Yet that approach would still allow for dealmaking and partisan strategy around the initial decision to retire in the first place. And the regime would have to be entrenched in a way to prevent it from being waived away when politically convenient. Still, this kind of reform would be valuable and may be all that can realistically be achieved.
A grander reform would eliminate the ability to undertake politically timed retirements altogether. Judicial term limits would fit the bill, and I have argued that judicial retirements themselves might help. If judges committed to step down on a schedule and a statute rendered those commitments legally binding, judicial term limits would result—without having to undertake the onerous process of constitutional amendment.
Senators Thom Tillis and Mitch McConnell have suggested that ethics complaints be lodged against some or all recently reneging judges. But these judges’ behavior involved a gray area created by uncertain standards. Here and elsewhere, principles of judicial ethics are in flux, making it hard to assign blame to past actions. Disciplinary action against these jurists—or attempts by the new administration not to abide by their retirement rescissions—would inflame judicial politics.
Genuine reform must set aside the desire to punish or shame specific individuals. Only new rules can curb partisanship while instilling greater faith in the courts.
The Research Division of the Federal Judicial Center is currently seeking Research Associate(s). Candidates ideally would have both a Ph.D. and a JD. The Federal Judicial Center is the research and education agency of the United States federal courts, and research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries.
Guest Blogger: Chad Oldfather on Judging, Judges, and Judgment
I am pleased to announce that Chad Oldfather (Marquette) will guest-blog on his new book, Judges, Judging, and Judgment (Cambridge University Press, forthcoming this week). His posts will begin tomorrow.
I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.
Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.
It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.
Curious to hear what others think. What's that definition of insanity everyone uses?
Pleading as press release, performative litigation, and good guys v. bad guys
I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.
I want to drill down on this because a range of ideas are floating here.
Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.
We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").
David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.
These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.
[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.
No, you cannot sue legislators who vote for Israel funding
My new essay for The Hill explains why a lawsuit against two California representatives is frivolous, no matter how much the plaintiffs abhor funding for Israel. Here is the gist:
The class-action suit against Israel’s funding defies law and logic
The appalling devastation in Gaza, much of it wrought by U.S.-supplied weapons, certainly seems to have driven many of Israel’s critics, including otherwise reasonable people, to thoughtless measures, staking out extreme and unsupportable positions that will do nothing to end the war.
One case in point is a bizarre federal class action lawsuit (Donnelly v. Thompson) recently filed in the Northern District of California, claiming that Reps. Mike Thompson (D-Calif.) and Jared Huffman (D-Calif.) had “exceeded the constitutional limitations on their tax and spend authority by voting to authorize the funding of the Israeli military.”
Their case is entirely without legal merit. Their clients lack standing to bring the case. They sued the wrong defendants. No court can grant the relief they have requested. Their claims are barred by a specific provision of the Constitution.
Attorneys are prohibited from filing cases merely to rally support or shine spotlights. A lawsuit demands more substance than a press release. There are rules against frivolous litigation, brought solely to attract attention, no matter how heartfelt the cause.
I was invited to draft a chapter about US law for a book about the use of "good faith" standards in constitutional jurisprudence worldwide. I've posted my draft on SSRN. Here is the abstract:
The language of "good faith" and "bad faith" is rarely invoked directly with a specific legal meaning within the constitutional law of the United States. But it would be a mistake to ignore the work motivational analysis and faithfulness to role and the Constitution plays more broadly within constitutional law more capaciously conceived. Many domains of constitutional law interrogate the good faith or bad faith of government actors to test their compliance with constitutional norms--and constitutional practices routinely demand fidelity to the constitutional project itself. From the law of oaths and impeachments to the law of tiered scrutiny associated with the Equal Protection Clause under the Fourteenth Amendment among others, several features of U.S. constitutional law make important demands on public officeholders. More important, perhaps, than the pockets of direct enforcement of good faith norms to U.S. constitutional law, however, is the theory of public office they evince. That so often the Constitution of the United States demands as a primary rule of conduct that public officers act faithfully tells us that there is a fiduciary conception of office pervading the law even when it is not enforced directly as a rule of decision. That brings it closer to private law implementations of good faith than has thus far been appreciated.
"Rescue Me" was written in 1965 by Raynard Miner, Carl William Smith, and Fontella Bass (although she did not get credit until much later). Released by Chess Records that same year, it was Bass's biggest hit by far, reaching number 4 on the Hot 100 and number 1 on the R&B chart. Minnie Riperton was one of the backup singers, with drums and bass by members of Earth, Wind & Fire. It was Chess's biggest hit since Chuck Berry's heyday, selling over a million copies. Bass nonetheless left Chess after a couple years, having been under-appreciated and underpaid. She finally obtained a fair share of royalties following extended litigation, but she never achieved similar recording success again. You can hear the original and some covers at The Faculty Lounge.
The new Courts Law essay comes from James Pfander (Northwestern) reviewing E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. ___ (forthcoming 2025) on how reconceptualizing constitutional rights changes the process of litigating constitutional rights. I am also thinking about how it affects disputes over offensive and defensive litigation and laws such as S.B. 8.
The Hot Sardines were "founded in 2011 by Elizabeth Bougerol and Evan Palazzo over a mutual love of Fats Waller." They got their start at underground parties in Brooklyn, and have since toured worldwide with their brand of "reinvigorated classic jazz." Some Fats Waller covers are at the bottom of today's post at The Faculty Lounge.
