My wife and I are struggling to find space in the Jewish community, given our (to some extent) heterodox views about Israel and Israel's centrality to the Jewish faith and what it means to be Jewish, as well as our willingness to tolerate (or at least accept the reality of) antisemitic speech on and off campus and the First Amendment obligation to deal with hateful views.
I am more troubled by this silly poster than I probably should be. But so much seems wrong: The easy jokes about "kvetching." The centrality of complaining to much Jewish humor. The First Amendment. The fact that people said the same thing to Jews (perhaps including my grandparents) 100 years ago. The fact that Jewish study calls us to question (which is just another form of complaining) everything. Beyond all that, this bothers me because it accepts the MAGA framing that all who disagree with us (however mild or peaceful) should shut up or leave, which runs counter to my understanding of Judaism and democracy (which run together here).
(Assuming this is real. I found it floating around social media and commented on by a lot of people I trust. I will delete if I learn it is false).
Defenders of "Plundering, Harassing, Misery, and Agony"
Double Aspect is consistently an interesting and eloquent blog, which I have praised before and think deserves greater attention. (Its focus is on "Canadian public law and other exciting things," so I'm not sure how it wouldn't receive it.) I don't agree with everything I read there, but that's hardly a disqualification. I often learn from it.
Sitting at its top currently is a lovely post by Leonid Sirota titled "Vermeule and Verres." I won't quote the whole thing; you can click the link easily enough. The subtitle gives the gist clearly enough: "The 'common good constitutionalism' motte-and-bailey revisited, and why due process matters to the moderns as well as the ancients." One should be especially grateful for the passage from Cicero, never more important as a legal source than now.
The post was put up on March 24--splendid, and splendidly disinterested, timing in light of the weekend's exchange of faculty letters to the students of Harvard Law School, a group that I dare say seems to send and receive entirely too many letters. I'm not much of a letter-signer myself, but given my recent posts can hardly object overmuch to public statements. I admit that my primary thought about the letter signed by some 90 members of the faculty is that, although I agree with its sentiments, I do always worry that the primary effect of a letter signed by 90 members of the Harvard Law faculty will be to influence thousands of minds--regrettably, in the opposite direction. It would be more effective, I think, although admittedly more time-consuming, to quietly take 90 Republican members of Congress or 90 mid-level executive branch appointees out to dinner, to express those concerns one on one. (And to hear those concerns shared in return, based on everything those members and officials have been saying to each other everywhere but on the record.) But clearly I am in no position to deny the proposition that when faced with gross corruption, lawlessness, disregard for the rule of law, pointless cruelty, and evil, one must sometimes opt to speak rather than take a more cunning or prudent approach.
As for the Vermeule letter, aside from things that fall plainly outside the realm of soundness--to describe Rudy Giuliani as having been disbarred "for [his] representation of President Trump," and not for his having been grossly irresponsible and at times perjurious in that representation, is to do grievous violence to a perfectly innocent preposition like "for"--it seems to me only that the letter is incomplete. It cannot be evaluated on its own. To properly judge its claims and its meaning, it must be read alongside this article. Indeed, with respect--and this does seem to me to be the most and perhaps the only genuinely respectful position one can take as a reader--it seems to me that no piece of writing he has done in the past seven years, his book included, can properly be read or evaluated unless it is read alongside, and as if incorporated into, the Integration From Within article. If someone takes on the labor of a decade-long project of writing esoteric literature, and is generous enough to hand out the key for deciphering it, the least the rest of us can do is use it.
Ilya Somin argues that universities should challenge speech-based deportation of students, rather than leaving it to individual challenges (or even class actions) by the students.
Universities (especially public universities) took the lead in challenging the Muslim travel ban and other policies during Trump I. They claimed injury from not having these students as part of the community, with the associated financial and mission loss; they succeeded with various forms of third-party and association standing. The standing argument for universities now might be stronger, because they may be able to frame a form of first-party standing--the threat to their students violates universities' First Amendment rights to create an academic community and forces the university to institute certain speech policies it may not like.
Charlie Sykes interviewed Anne Applebaum and asked an interesting question: Why are institutions so hesitant to challenge Trump now compared with eight years ago. Applebaum speculated it is about January 6--everyone knows Trump has no boundaries and will resort to violence. I had a different take (although perhaps it is related): Trump did not target universities or law firms or companies. It was easy to stand-up for others (e.g., banned immigrants) when there was nothing personal on the line. Facing direct sanction, universities and firms choose to lay low and appease, hoping to get along unscathed. The fallout affects the firms as well as the people they might represent.
Before returning to the details of the Bayh Subcommittee proposal on the Electoral College, I want to lay out one potential theme for my project. The Subcommittee was a leading forum for discussing how the Constitution should be changed in response to the Cold War.
Start with the 25th Amendment. The concern about a disabled President was not new in 1963. (Think Garfield or Wilson). But the stakes for having a disabled President or no Vice-President were seen as much higher in a nuclear world with superpower rivalry.
The pro-democracy initiatives can also be viewed this way (26th Amendment, Direct Presidential Election, and DC representation). Americans were keen to argue that democracy was superior to communism. The argument that DC was the only democratic world capital without full electoral representation, for example, was seen as something of an embarrassment for that argument. Same for the possibility of a president who had lost the popular vote.
A possible implication of this claim is that the end of the Cold War removed much of the impetus for constitutional reform. Indeed, no constitutional amendments have been sent to the states by Congress since 1978 (though that's not a perfect fir with the Cold War's end).
Three of the four head coaches in the Men's Final Four are Jewish--Jon Scheyer (Duke), Todd Golden (UF), and Bruce Pearl (Auburn). All are explicit and open in their Jewish identities. As an undergrad, Scheyer participated in a Duke improv video showing everything he could do in 75 seconds (as a high-schooler in suburban Chicago, he scored 21 points in 75 seconds of game time); among the things is biking to the campus Jewish center, emerging with a tallis and long beard, and spinning a dreidel. Pearl spoke about Israeli hostages following a post-game press conference. Golden played in the Maccabi Games and for two seasons in Israel. (He also has been accused of sexually harassing and stalking female students at UF, although the Title IX office found no statutory violations).
We may not be done. USC women's coach Lindsay Gottlieb is Jewish; the Women of Troy play in the Elite Eight tonight, although without superstar JuJu Watkins, who tore her ACL in the Second Round. (Update: UConn beat USC by 14. USC made them work for it even without Watkins--they cut a 19-point deficit to 5 late in the third).
Finally, on the overall theme: Nine Jewish players were on MLB Opening Day rosters, with three more players on the injured list.
This is the Trump Administration's latest undefined-and-meaningless catch phrase. It appears in the surrender agreements from Columbia, Paul Weiss, and Skadden. Marco Rubio has cited it as a central feature of American foreign policy and thus a reason to deport non-citizens who engage in certain protest activities.
But what does it mean and what does it allow?
Antisemitism has existed for one day less than Jews have existed, in many evolving forms and severity. So I do not know how Donald Trump and his minions (no pun intended) are going to eliminate it now--people are going to believe what they believe and say what they will say. And if we cannot eliminate it, I worry that Donald Trump and his minions will do what they are doing--controlling what people say and believe by arresting and deporting those who engage in wrong-think, stripping money or otherwise threatening universities who do not align campus speech (faculty and student) with the Administration's views, and coercing law firms into pursuing litigation (whatever that may look like) against those who hold or express those wrong views. That is before we get to the impossibility of defining antisemitism and controversy over the HIAS IHRA definition and the likelihood that many will consider Rumeysa Ozturk's op-ed or an academic talk about the Gaza death-toll "antisemitic." And before we get to how heads would explode if a Democratic administration declared that "combatting racism" represented U.S. policy and compelled universities to do to (purportedly) racist speakers what the current Administration is doing or threatening as to (purportedly) antisemitic speakers.
Update: As if on queue, Harvard, with the same code for "do more to restrict speech the Administration does not like," although addessed as "addressing" (rather than combatting). Yes, antisemitism "is present on our campus," as it is everywhere in the world. Also present on campus is racism, misogyny, anti-trans bigotry, anti-Nazi hatred, and a whole range of ideas that different people may like or dislike. What do these schools believe they can do without undermining any commitment to free thought, free speech, and academic freedom? Because Donald Trump does not care about those--he just wants "those people" off campus. So nothing short of that will appease him. Or too many Jewish organizations.
The Trump-Vance Theory of Presidentialism in Seven Words
As, I suppose, the opposite of a palate-cleanser--more a moment of overwhelming, emetic dysgeusia--consider this, possibly the epitome of le mot juste. It comes from Vance's stunt trip to Greenland, the current object of Trumpian cupidity. Attempting to justify the ongoing inanity, Vance said: "We can't just ignore the president's desires."
There you have it. Not only is it as good a one-sentence description of Trump's id-driven vision of presidentialism as we are likely to see on this earth; it also superbly captures the faux-manly aggressive servility that is this regime's vision of the vice presidency.
Two other pithy phrases occur to me. One is from John Locke: "The discipline of desire is the background of character." The other is from Scripture: "Jesus wept."
The Week in Corruption, Plus Two Cheers for "Corporate Media"
Another free speech post, albeit somewhat tangentially so, following on Howard's post below. (Although it's clear to me that we're living in two different bubbles. I don't see a refusal of "many," if that word is to have some value, to recognize this regime's hostility to free speech. I don't understand him to be referring to hoi polloi, to the far right, or to Trump cultists and apologists. Most others I see--most certainly including conservative writers, who are proving the most eloquent effective of Trump's critics, far better than either mainstream or lefty elected Democrats--recognize and criticize these attacks. If all he means is that despite widespread recognition of the regime's attack on free speech and press, there are some who persist, out of outrage about Hamas or anti-Semitism or on-campus behavior, in supporting the anti-speech attacks and offering weak justifications for them, well, yes: that's obviously true.)
This week has been an unusually busy one for lawlessness, corruption, incompetence, and cruelty. Just how indefensibly bad has it been? I wrote earlier this week, "The best way...to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore." Some of the most shameless and logorrheic Trump apologists have been remarkably quiet this week. So it's that bad.
In addition to my work obligations, I find I am pushed further behind in noting the regime's evils by the sheer pace of wreckage, trolling, and contempt for law, truth, and decency. And the hitskeepcoming! (Still on tap: something on the Trump DOJ speech, which deserves to remembered alongside the greatest hits of Nuremberg; something on the Trumpian logic of deporting Canadian conservatives; and something on the doctrines the Supreme Court will need to revive to address the regime's dishonesty and vengefulness. The bad news is the stories that motivated those pending posts are fading further into the past. The badder news is that new instances of the same things keep occurring.)
Here's one salient new story. It involves something that has been going on since the inauguration but whose pace picked up remarkably this week: Donald Trump--he ought to legally change his name to "Danegeld Trump"--has been pardoning convictions or commuting sentences of financial criminals frequently enough to exhaust the most tireless autopen. When he's not doing that, he has been ordering his law enforcement officials corruptly to drop charges and investigations. Things got off to a rousing start with the pause of the civil fraud case against Justin Sun; you may know him from such canny investments as the $75 million he put into the Trumpcoin grift. That one got a good deal of attention, but was just the tip of the iceberg. This week, Trump offered a new flurry of announcements. In keeping with the regime's preferredstyle, in which brazenness and contempt for reason are not accidental but deliberate, he did so not quietly but with full publicity. This week's list includes a gallery of rogues: former Nikola CEO Trevor Milton, Ozy Media founder Carlos Watson, three co-founders and a high-level employee of BitMEX, and--a fitting tribute to Trump's status as Vulgarian-in-Chief--financial wunderkind "Hawk Tuah Girl."
It will not surprise you that Milton, at least, has given generously to the Trump campaign and to the MAHA Alliance, a PAC that champions the policies of our nation's new leading cause of illness, RFK Jr. But corruption is the damnedest thing. It's not always done in a clear, transparent, easy-to-detect way. It's the kind of thing that needs dedicated resources--money, skilled and experienced detectives, and time--to uncover, and equally good resources to tell people about it. And it helps if the research and publicity are carried out by reasonably trustworthy people. It's not a job for David Brock or the DNC or a lone, partisan Substacker.
This is why, for all their faults, and for all the trimming of sails that will continue to occur as long as people like Brendan Carr dishonor their offices, I can't go along with popular, cliched, inflated criticisms of "corporate and billionaire-owned" media and paeans to "independent" media. It is bad that Jeff Bezos crippled his editorial page, although it's also fully his right. (In any event, I found that far less worrisome than the outright payment of protection money via Amazon and its Melania "documentary" deal.) But editorial pages are, in their very essence, basically useless. The primary alternative to the "corporate media" turns out not to involve real journalism at all. Instead, it consists of a flood of freestanding op-eds, run by non-"corporate" individuals or entities subject to their own capture problems--in their case, capture by a subscriber-based financial model and the orthodoxy and crowd-pleasing it demands. Like a Winger album, it's all very loud but pointless.
We are drowning in "opinion and cultural commentary." We don't need it. What we need is financial reporters, investigative reporters, beat reporters, data-set reporters, and every other kind of reporter (and editor!)--preferably boring as hell, detailed as hell, dogged as hell, largely indifferent to their readers, and at least somewhat freed from the pressures of the hot take and the social-media-paced publication schedule. That costs real money. It's why the corporate-owned Wall Street Journal has become utterly indispensable for those who want to follow the crimes and follies of the Trump regime in a way that the Free Press or the Contrarian could never be. If you hope to discover going forward whether money has changed hands in this flurry of financial-crime anti-law-enforcement, and how much, and how, and (God help us) what the nature of the Hawk Tuah Girl's quid pro quo was, find a newspaper with a large company or a billionaire behind it; scrutinize its owner constantly; but thank the good Lord that it still exists.
The Bayh Subcommittee was prompted to examine the Electoral College by the prospect of a contingent election. Since 1948, Southern Democrats had either run third-party candidates or undeclared slates of electors to fight civil rights. Thus, Electoral College reform was an extension and defense of the Warren Court. Plus, nobody liked the idea of the House of Representatives picking the President with the one-state, one-vote rule, especially since that could lead to a deadlock with an interim President. This concern disappeared (perhaps because George Wallace was badly wounded in a 1972 assassination attempt) and partly explains why the high water mark for reform was in 1969.
Here was the actual proposal, which passed the House by more than the necessary two-thirds vote:
SECTION 1. The people of the several States and the District constituting the seat of government of the United States shall elect the President and Vice President. Each elector shall cast a single vote for two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President. No candidate shall consent to the joinder of his name with that of more than one other person.
SEC. 2. The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications.
SEC. 3. The pair of persons having the greatest number of votes for President and Vice President shall be elected, if such number be at least 40 per centum of the whole number of votes cast for such offices. If no pair of persons has such number, a runoff election shall be held in which the choice of President and Vice President shall be made from the two pairs of persons who received the highest numbers of votes.
SEC. 4. The times, places, and manner of holding suchelections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The days for such elections shall be determined by Congress and shall be uniform throughout the United States. The Congress shall prescribe by law the time, place, and manner in which the results of such elections shall be ascertained and declared.
SEC. 5. The Congress may by law provide for the case of the death or withdrawal of any candidate for President or Vice President before a President and Vice Presi-dent have been elected, and for the case of the death of both the President-elect and Vice-President-elect.
SEC. 6. The Congress shall have power to enforce this article by appropriate legislation.
SEC. 7. This article shall take effect one year after the 21st day of January following ratification.
The Brothers of the Heart are Bradley Walker, Jimmy Fortune, Ben Isaacs, and Mike Rogers. Fortune is probably best known, having been one of the Statler Brothers for many years, but the other members are also highly accomplished. The Isaacs Family -- Ben, along with his mother and sisters -- plays regularly at the Grand Ole Opry. Mike Rogers also plays with Ricky Skaggs's band, Kentucky Thunder. Brothers of the Heart is no doubt the only group featuring both someone who sings from a wheelchair due to muscular dystrophy (Walker) and the grandson of Holocaust survivors (Isaacs). The clips are at The Faculty Lounge.
Random stuff, connected by the Administration's assault on free speech and the refusal of many to recognize or acknowledge it for what it is.
1) Good statement from J Street criticizing the Trump Administration for using "fighting antisemitism" as pretext for attacks on immigrants and universities and on constitutional protections, especially free speech. It echoes the not in our name theme that many in the Jewish community have pushed.
2) I see a telling disconnect between how people (especially Jews) view the detention of Rumeysa Ozturk and the detention of Mahmud Khalil. Many people see Ozturk as a free speech problem--agents seized her for core First Amendment activity of writing an anodyne newspaper op-ed. But they view Khalil as purely a due process problem--seizing and deporting him is fine, so long as they give him process prior to deporting; no one acknowledges that the government seized him for core First Amendment activity of protesting. (This was the ADL position--give him process, but thank you for protecting delicate students from pro-Palestine speech). Even if you accept that Khalil violated some campus rules in those protests, the government does not revoke green cards for minor property violations; the special attention to him arises from the message underlying those violations. One cannot distinguish the underlying speech problem from these cases, at least under U.S. free speech law.
3) NYU canceled a speech by Johanne Liu, former president of Doctors Without Borders, apparently fearing her talk would be perceived as anti-Trump and antisemitic. The last decade has been filled with people insisting that the greatest to free speech comes from a university canceling or disinviting speakers (it is a key metric in FIRE's free speech report card) or otherwise interfering with their ability to speak and be heard without interruption. Those who do not like what the speaker says should sit quietly and politely listen, perhaps asking a challenging (but polite) question in Q&A. Apparently that applies when the objecting person is a queer sophomore wanting to avoid feeling othered by the speaker--not when the objecting person is the President of the United States supported by masked ICE agents. I pick on FIRE a lot, but I want to hear what they have to say on this.
The most famous failure of the Bayh Subcommittee was the defeat of its Direct Presidential Election proposal, which passed the House but failed in the Senate. The proposal was complicated, as I'll discuss another time. But one point of agreement was that the election of a president who had lost the popular vote would be a disaster. Richard Nixon said as much in 1968, along with many others.
Why, then, did the country accept two such outcomes in 2000 and 2016? Were the leaders in the 1960s just wrong on this point? Not necessarily. They faced a country engaged in massive protests against government policies. Those policies, though, were implemented by people who won the most votes in their election. Imagine how that would have played out if Nixon had, say, lost the popular vote to Hubert Humphrey but won the electoral vote. You can see why that would have seemed like an impossible situation then.
Another factor was that during the Cold War America cared a lot about being a democratic model. This was a motivation for abolishing the Electoral College, expanding the right to vote, and giving DC full congressional representation. But that goal also kept leaders up at night about the prospects of a minority-vote President. Today there are no concerns about serving as a model for much of anything.
Alternate Headline: Law Scholars Launch Actual, Normal, Non-Silly, Scholarly Journal
Noted with interest: "a number of law professors from top schools are working together to start a new publication—the Independent Law Journal. All articles published in the Journal will be peer-approved by a faculty board, but student staff will still handle most of the Journal's operations and will collaborate with faculty in initial article selection....[T]he ILJ is...a non-partisan [journal] committed to publishing equally from left, right, and center. Nobody benefits from groupthink, and the Journal will work hard to prevent itself from becoming an echo chamber."
Kudos. Law faculty should take notice and steer their submissions thusward. And hiring and P&T committees, barring the qualitative review they are obliged to undertake, should presumptively view publication in such a journal as a stronger mark of quality than publication in a student-run journal, regardless of the prestige or ostensible selectivity of the latter. A few things to note:
1) I trust that the "from top schools" language is mostly for purposes of identification. It's not a bad thing,of course! But it's also not a necessity as such (nor are all the leading scholars at the top law schools), and a demand for "top law school" professorial involvement shouldn't be the bottleneck that holds up an increase in the number of peer-reviewed professional legal academic journals.
2) Of course students should handle most of the operations and of course they will, in doing so, pick up the skills that law review in its usual current form is supposed to teach (although its real value to students likes mostly in its proxy function for employers, of course). But I hope the journal will offer further detail about student involvement in "initial article selection." If that means going through the slush pile with some easily applied criteria in hand, it's reasonable. If it means something more, the editors ought to explain further.
3) One assumes, given its ambition to "foster high-quality publishing and free and robust debate in legal academia," that the ILJ will avoid like the plague some of the bad practices that have taken a foothold among student-run law journals: e.g., "whole person review," mechanical obsessions with "firstness," editor- and volume-specific mission statements or secret selection criteria, anonymity that isn't, peer review processes that consist of an editorial board soliciting and ignoring peer reviews, and so on.
4) It's good that the journal doesn't want to be an echo chamber, but perhaps less good that it is committed to "publishing equally from left, right, and center." It should not let the tail wag the dog. For the most part, it should simply evaluate the quality of submissions and publish what is best, while watching the outcomes and running, as it were, diagnostics to make sure that skews in the results are not the result of bias.
5) I would cabin that point a little by suggesting that law review editors, despite our living in an age in which everything is seen as part of a larger database instead of as a tangible, discrete object in itself, ought always to think about the shape of individual issues. They should select and organize the pieces they select for some degree of variety and readability for each issue, complete with what magazine editors call a "front of the book" and a "back of the book." The desire to have actual journal issues that are a pleasure to behold and to read would itself contribute to the desire for greater attention to political and other forms of diversity. That would include subject diversity--more private law, etc. (it goes without saying that there should be more admiralty law pieces)--and diversity of length and format.
6) In line with that, and because of simple need, I hope the editors will make special efforts to solicit, and give extra weight to, short submissions--under 30 pages, say, of the sort that Cass Sunstein has been churning out of late--as well as essays and, especially, book reviews. We always need more book reviews and review essays.
7) What the editors are proposing is, of course, just a normal scholarly journal, in line with the standards of the academic calling. Other than journals that run only student pieces, all law journals should be faculty-run and involve peer review of anonymous submissions. As legions of academics have pointed out ad nauseam.
In response to Reynolds v. Sims, a constitutional amendment was proposed by Senator Everett Dirksen, the Republican Minority Leader. The proposal said:
The right and power to determine the composition of the legislature of a State and the apportionment of the membership thereof shall remain in the people of that State. Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population, or from giving reasonable weight to factors other than population in apportioning a unicameral legislature, if, in either case, such apportionment has been submitted to a vote of the people in accordance with law and with the provisions of this Constitution and has been approved by a majority of those voting on that issue.
This one stands out for a couple of reasons. First, there was still a limited role for judicial review, as the state apportionment method for unicameral legislatures such as Nebraska's included a reasonableness requirement. Second, the proposal required a state referendum on any apportionment that was not one-person, one-vote, even in states that (I suppose) did not provide for referenda. The majority of a state could decide to base representation on a minoritarian basis, in a sense.
Of course, this was just an initial proposal. It might well have been changed. And there were other proposals besides this one. But this gives a good feeling for the ideas of the Warren Court's critics at the time.
Trump's Jenner & Block Executive Order Is the Worst One Yet
Trump is out to destroy or neutralize any institution that can effectively challenge him. Here is the first paragraph of the Jenner & Block EO, which is clearly intended to intimdate all of BigLaw:
My Administration is committed to addressing the significant risks associated with law firms, particularly so-called “Big Law” firms, that engage in conduct detrimental to critical American interests. Many firms take actions that threaten public safety and national security, limit constitutional freedoms, degrade the quality of American elections, or undermine bedrock American principles. Moreover, law firms regularly conduct this harmful activity through their powerful pro bono practices, earmarking hundreds of millions of their clients’ dollars for destructive causes, that often directly or indirectly harm their own clients. Lawyers and law firms that engage in such egregious conduct should not have access to our Nation’s secrets, nor should such conduct be subsidized by Federal taxpayer funds or contracts.
And this,
Within 30 days of the date of this order, agencies shall submit to the Director of the Office of Management and Budget an assessment of contracts with Jenner or with entities that do business with Jenner effective as of the date of this order and any actions taken with respect to those contracts in accordance with this order.
One of the many interesting hearings held by Senator Bayh's Subcommittee concerned the following proposal made in 1975:
JOINT RESOLUTION -Proposing modification of the twenty-fifth amendment of the Constitution of the United States.
SECTION 1. If an individual takes the office of Vice President under section 2 of the twenty- fifth article of amendment and subsequently becomes President under section 1 of that article at a time when more than twelve months remain in the term of the President, then-
(a ) there shall be a special election for the offices of President and Vice President,
(b) section 2 of the twenty- fifth article of amendment shall not apply to the vacancy in the office of the Vice President caused by such individual becoming President,
(c) such individual shall serve as President only until a President elected in such special election takes the oath of office of President,
(d) the Speaker of the House of Representatives, shall in addition to his duties as Speaker, act as Vice President, and perform the duties of that office with one exception that the President pro tempore of the Senate shall serve as President of the Senate with voting privileges, until a Vice President elected in such special election takes the oath of office, and
(e ) in the event the Senate shall be equally divided, the Secretary of State may cast a vote to break the tie.
SEC. 2. The provisions of this Constitution relating to the appointment of electors for President and Vice President shall apply in the case of special elections required by section 1 ( a ) . The Congress shall by law prescribe the date for such elections and such other matters relating to such elections as may be necessary to effectuate the purpose of this article.
SEC . 3. The individuals elected as President and Vice President in a special election required by section 1 ( a ) shall become President and Vice President upon taking their respective oaths of office. Nothing contained in this article shall affect the terms of the President and Vice President as prescribed by section 1 of the twentieth article of amendment.
One concern here was that we should not an unelected Administration for a significant length of time. The Ford Administration, of course, was completely unelected for over two years. The proposal also provided for a temporary Vice President when there was a vacancy under some circumstances, though with the questionable idea that the Speaker would serve simultaneously as Vice President until the special election was held. Complicating things further, the Senate tie-breaking function would temporarily go to the Secretary of State. Under current law, there can be no temporary Vice President and the tie-breaking function cannot be delegated.
You can see this as a sort of parliamentary modification to the Constitution. Special (or early) elections are often part of a parliamentary system. Likewise, the mix of legislative and executive roles is par for the course there.
Antonin Scalia, representing the Ford Administration, testified against the proposal. He pointed out (1) this would create a caretaker President who would be, in practical terms, rather weak; (2) any special election would have to be held relatively quickly, which created its own problems; (3) this would increase the frequency of those elections, which was a drawback; and (4) the mixing of executive and legislative roles was undesirable. That said, Scalia did support some changes in the 25th Amendment to deal with contingencies such as what happens if there is a double vacancy with a vice-presidential nomination pending. Can the Speaker of the House (now the President) withdraw that nomination or must that nomination go forward?
Amid failures of universities to speak as one voice against the attacks on academic and of law schools to speak as one voice against attacks on law firms and the legal profession, critics complain about institutional neutrality and the Chicago Principles--the supposed view that institutions should not take corporate positions on matters of public concern.
As I wrote a few days after the election, the Chicago Principles do not require institutional silence. The Kalven Report said:
[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.
The Administration threatens the university mission by cutting funding and seizing control over hiring and curriculum; Kalven would say a university can (must) defend its interests and values. That universities and law schools have failed to do so reflects not institutional neutrality but cowardice.
Another subtext in the work of the Senate Subcommittee on Constitutional Amendments was violence. The 25th Amendment would not have been ratified but for JFK's assassination. That evil concentrated attention on the dangers of having a disabled President. Likewise, the 26th Amendment was connected to the Vietnam War. The argument there was that eighteen-year-old men should be eligible to vote since they were eligible for the draft.
But that's not all. Hearings by the Subcommittee in 1969 and 1970 were replete with concerns that constitutional reform was required to reduce domestic political bloodshed. 1968 produced assassinations, riots, and violent protests at the Democratic National Convention. There were also violent student demonstrations (think Kent State) and fringe groups undertaking bombings. The argument was that expanding democracy and equality (through youth voting, abolishing the Electoral College, and the ERA) would channel these grievances in a peaceful direction.
A broader claim can be made that constitutional reform is very difficult to undertake during peacetime. The Civil War Amendments probably required the Civil War. The Constitution itself was an outgrowth of the Revolutionary War. And so on.
My new column for The Hill addresses Pres. Trump’s recent attacks on law firms, using Shakespeare’s Henry VI, Part Two as a backdrop. Everyone knows that Dick the Butcher wanted to “kill all the lawyers,” and most people know that it was part of a plot to bring tyranny to England. But it was actually worse, and more Trumpian, than that. The Butcher’s boss, Jack Cade, declared, in creepily familiar terms, “When I am king . . . my mouth shall be the parliament of England,” and my subjects will “worship me their lord.”
But first, they had to get lawyers out of the way.
That’s the introduction. Here is the gist:
Dick the Butcher never got a chance to knock off England’s lawyers, but Trump’s retribution campaign is well underway, with the potential to destroy the firms that displease him.
Business clients have solid economic reasons to avoid attorneys on the president’s hit list, especially when their own government contracts may be jeopardized by hiring the wrong firm.
The danger extends beyond the embattled law firms. Attorneys play a crucial role in protecting individual rights and democracy itself. If lawyers are too intimidated to challenge authority, personal liberty will inevitably suffer. Nobody can rely on the rule of law if lawyers are punished for defending it.
Even if every law firm wins every case, few lawyers can afford to risk provoking Trump’s wrath. The “in terrorem” effect will be unavoidable, as the fear of losing clients threatens to compromise every decision lawyers make.
Trump’s own butcherish henchman left no doubt about the consequences of resistance. “He’s going to put those law firms out of business,” said Steve Bannon. “What we are trying to do is put you out of business and bankrupt you.”
As the late Justice John Paul Stevens once observed, “disposing of lawyers is a step in the direction of a totalitarian form of government.”
You can read the full essay, including my discussion of the Paul Weiss agreement, at The Hill.
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.
The spreadsheet includes some information that I pulled from public sources, such as X, BlueSky, or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.
If you have information to add to the sheet, please email me at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. You cannot edit the spreadsheet yourself.
Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
Clarifications:
The list does not include someone who was a full-time non-tenure track clinician at a school that does not provide tenure to clinicians, and then moves as a clinician to a school that does provide tenure to clinicians, with credit for their prior work experience as a full-time faculty member. This person does not seem to be an entry-level hire. However, someone who was a full-time professor (clinical or otherwise) at one school, and then moved to an entry-level position (clinical or otherwise) with a tenure track or promotional clock that started fresh, would be an entry-level hire.
The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)
Other links:
This report follows in the tradition of Larry Solum's excellent work over many years.
2024 initial post, 2024 spreadsheet, 2024 report (with graphs).
2023 initial post, 2023 spreadsheet, 2023 report (with graphs).
2022 initial post, 2022 spreadsheet, 2022 report (with graphs)
2021 initial post, 2021 spreadsheet, 2021 report (with graphs)
2020 initial post, 2020 spreadsheet, 2020 report (with graphs)
2019 initial post, 2019 spreadsheet, 2019 report (with graphs).
2018 initial post, 2018 spreadsheet, 2018 report (with graphs).
2017 initial post, 2017 spreadsheet, 2017 report (with graphs).
2016 initial post, 2016 spreadsheet, 2016 report (with graphs).
2015 initial post, 2015 spreadsheet, 2015 report (with graphs).
2014 initial post, 2014 spreadsheet, 2014 report (with graphs).
2013 initial post, 2013 spreadsheet, 2013 report (with graphs).
2012 initial post, 2012 spreadsheet, 2012 report (with graphs).
2011 initial post, 2011 spreadsheet, 2011 report (with graphs).
All PrawfsBlawg entry level hiring report tagged posts.
Genevieve Lakier's guest post at Balkinization criticizes the Fourth Circuit stay of an injunction barring enforcement of Trump's anti-DEI executive order. She argues that the Fourth Circuit treated the EO as government speech, a broad statement of government policy, ignoring its legal force and immediacy. Demanding that challenges wait until agencies enact regulations implementing the EO prolongs its chilling effect.
Trump's penchant for EOs creates some puzzles for constitutional litigation.
1) When is something sufficiently enforceable as to allow litigation? Had Trump urged--at the State of the Union or in a letter to congressional leadership or some other public message--Congress to enact identical anti-DEI legislation, no one can bring suit until Congress enacts (and Trump signs) the legislation. Had Trump given a speech--but no signed EO--ordering executive agencies to enact identical anti-DEI policies, no one can challenge anything until the agencies act. So what is it about the EO that makes it different and challengeable when neither of the other two do not? Is it the president's signature?
2) Jack Goldsmith argues that courts issue more universal injunctions against Trump actions than against actions by Democratic presidents. Sam Bray counters that Goldsmith relies on studies that do not count universal vacaturs of regulations under the APA. That exclusion skews the numbers--"The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations."
3) It also makes convenient Ohio S.G. Elliot Glaser's argument that universal vacatur is permissible but universal injunctions are not. So courts can universally stop the common mechanism through which Democratic Presidents act but not universally stop the common mechanism through which Republican Presidents (especially Trump, who sees EOs as reflecting his power as a man of action) act.
4) I wonder if the in-between nature of EOs warrants courts issuing DJs but not injunctions. An injunction is less necessary or appropriate when there is no enforceable policy to enjoin. But--accepting Lakier's argument that the EO is sufficiently imminent and chilling--a declaration that the policies commanded in the EO might be a sufficient fallback. Lakier seems open to this. And it satisfies what Steffel suggests to be the purpose of DJs--so one need not act at one's peril to determine their rights.
This piece by Jonathan V. Last is the best argument against the simplistic "fairness" argument related to trans girls playing girls sports. Sports are inherently unfair--athletes at all levels possess different levels of ability that creates an imbalanced playing field. Male puberty (tempered by hormone therapy) could offer some further benefits and imbalances in some situations, but it is not uniform or even predominant. In any event, none of it matters until something real is on the line (money, college scholarships, etc.). Last comes at it as a former high-school and college athlete, youth-sports coach, and parent of a D-I-quality athlete, who has competed for much of his life at a level above his peers (he did not surrender a hit in three years of little league).
My article on "The Untold Story of Robert H. Jackson's Youngstown Concurrence" is now published in the Journal of Supreme Court History. (I can't link to the article yet.) In that article, I discuss how Justice Jackson borrowed from a secret 1937 Justice Department memo by Assistant Solicitor General Golden W. Bell. Readers of this blog will remember prior posts about this discovery.
I would be interested to know if Bell has any living descendants who could tell me more about him. He died in 1966, and I know little aside from his work at the Justice Department in the 1930s and his stint as a legal advisor in the Philippines before World War II.
Saturday Music Post - Blue Eyes Crying in the Rain
"Blue Eyes Crying in the Rain" was written in 1946 by the great Fred Rose. It was released by Roy Acuff in 1947, and later covered by Hank Williams, Charlie Pride, Elvis Presley, and pretty much everyone in country music. People today are probably most familiar with Willie Nelson's version. Fred Rose was Roy Acuff's partner in Acuff-Rose Music, which was the first Nashville-based music publisher. In addition to Acuff, some of its writers included Hank Williams, Roy Orbison, Phil and Don Everly, Marty Robbins, and Doug Kershaw. (The Acuff-Rose catalog is now owned by Sony). Be sure to check out the duets at the bottom of the post -- as always, at The Faculty Lounge -- including Roy Acuff on the ukulele.
My research so far leads me to think that there is a connection between the Warren Court and Birch Bayh's Senate Subcommittee on Constitutional Amendments. The link goes unnoticed for two reasons. First, law professors pay a lot more attention to the Supreme Court (especially the Warren Court). Second, you have to look at everything that the Bayh Subcommittee considered, not just on what they passed. They passed five proposed amendments. It's a small sample. But they held hearings on more than two dozen. And in those areas you see obvious links to the Warren Court's landmark cases (either supportive or not).
Another way of thinking about this is that people were just more open to constitutional change in the 1960s due to the Civil Rights Movement. This was true for abolishing the Electoral College, which was viewed by many a civil rights issue (more on that another time), as well as doctrine. That's the happy story. The unhappy part, which I'll talk about next week, is the role that violence played in the desire for constitutional change at that time.
Illustratively Pointless Lies: One Millionth of a Series
I still have not gotten around to the post I promised last time, about why the Trump regime should--at least by its lights--start forcibly deporting the politically conservative Canadians hiding among us. For one thing, Donald Trump prefers dealing with thugs over democracies, so I assume his focus will remain with his pals in Moscow and San Salvador. For another, every morning brings three fresh hells to absorb. (The best way, incidentally, to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore.)
Today's item is relatively minor but quite illustrative. It has to do with Trump's ruination of the Kennedy Center, a hobby that nicely combines his pathologically childish ego with his bred-in-the-bone vulgarity. Speaking to the clown's-car-full of board members he appointed, Trump boasted of his childhood aptitude for music. It may be so. But it wasn't enough. Asked to comment later, his communications director, Steven Cheung, had to gild the lily. Cheung said that the Don "is a virtuoso and his musical choices represent a brilliant palette of vibrant colors when others often paint in pale pastels."
Of course this is a lie, and of course it's a trivial lie. That is rather the point. It's the very triviality of the lie that fascinates and repels me. In his eagerness to be liked by anyone he spoke to, Joe Biden famously, frequently exaggerated and lied about his own biography. Donald Trump, of course, lies about everything, but most of all he lies about himself--not to be liked or to find points of sympathy with others, but to exalt himself. (I would say he is the spitting image of Commodus, but Commodus came from a family of warriors and Trump...does not.) What is new here, and entirely in keeping with the norms and, no doubt, job-keeping imperatives of the regime, is that in more or less normal past administrations, press secretaries' sad role in such cases would be to ignore or make excuses for a presidential lie. (One could have set a watch by the last administration's invocations of the childhood stutter.) In this administration, the instinctive response for someone like Cheung is to lie more. It is to lie more fulsomely, more floridly, more brazenly, more pointlessly, more eagerly--after all, this was a thoroughly unnecessary, volunteered lie--and with an active indifference to the concept of the truth and an equally active contempt for the very idea of honesty.
A popular, although I think inaccurate, adage about the actions of the first Trump administration and the present regime is that "the cruelty is the point." (I would have thought that the ego was the point, and that ill-gotten gains would nose out cruelty as a motivation.) If I had to come up with a different decoder-ring for this regime, it would be online culture. The dominant attitude of the Trumpian political culture is the degraded-Clausewitzian view that politics is the continuation of Twitter by other means.
If we were to imagine social attitudes toward the online world over time, we might start with the early view, in which the online world was either seen as amusing or viewed with a utopian spirit. Then we might proceed to a period in which it was agreed that online culture is brutish, ugly, mean, and ignorant, but this was minimized by viewing it as a separate reality, something not "in real life." Yes, one might say, people are awful online; but that's just online, not the real world. Among finer people with more self-restraint than I have, it was responded to more stringently, by choosing to live as much as possible away from devices.
The Trump regime view, as far as I can see--and, looking as far as I can see, it pervades every aspect of the regime--is that the ugliness, dishonesty, self-centeredness, and mean-spiritedness of online culture is normative. It ought to be that way; it ought to be how people live and speak. And not just online. Far from being a separate and distinct thing, its ugliness, incoherence, illiteracy, and casual disregard for truth should be normative in every aspect of life.
The grift, the scam, the indifferent lie and the deliberate one, the vulgarity, the love of bullshit, the online distance from reality that makes getting "likes" from Putin or some fraudulent. on-the-make pseudo-scientist more palpable and important than the deaths of Ukrainian children or the spread of tuberculosis: These are baked into everything that Trump and his administration do. This is what the world looks like to them and what they want the world to look like. Only Cheung's relative literacy distinguishes his slavish lie from the hundred other lies and crudities that his boss and his boss's underlings utter every day. (For illiteracy, we must go straight to the top, or to people like the interim U.S. Attorney for D.C., whose innate mediocrity and lickspittle nature lead him perforce to parrot his boss's own mangling of the English language.)
Of course, the online disease is not unique to Trump, to his inferiors, and to his cult. We live in a rude, vulgar, degraded culture and online-ness is its name. In politics, virtually every misstep and gross error of the last administration was connected to Biden's decision (or, perhaps more accurately, the decision of that administration's active decision-makers) to follow the views of those individuals and groups whose goals, focus, and rhetoric derived heavily from online debate. What was the tenor of the campus movement of the last year, and of a few years ago, if not Twitter made manifest? Having surrendered or never even entertained the notion of governing, every rising star in the GOP on Capitol Hill for the past several years, and a good many off the Hill--judges certainly included--has been someone who either lives only online or lives only as if online. Much of journalism and all of journalistic success have become subsidiaries of social media. This is our world, alas. We are a nation of trolls.
But the Trump regime is not only the natural consequence and culmination of this culture; it is its apotheosis. And unlike normal politics or culture, it comes to us without the sense of hypocrisy, embarrassment, and shame that remind us to hope for something more from ourselves and others and to occasionally curb our worst tendencies. The regime wants this culture. It delights in it. It thinks people who expect better and hope for more are, like fallen soldiers, "suckers" and "losers." Its apologists think trolling is fun, that presidents who troll are most fun of all, and that "he's just trolling" is an actual excuse for presidential misconduct, lying, and hostility to democratic allies and one's own citizens. Their efforts to defend the indefensible inevitably resort to phrases like "stripped of the hyperbole" or "despite the crassness." But even more than cruelty, even more than greed, much more than partisanship, and leagues beyond anything like policy, the hyperbole and crassness are the point, are the whole thing. To strip Trump, or underlings like Cheung, of hyperbole, boasting, lies, and vulgarity is to misstate and mistake everything they do; it is to strip them past imperial nakedness and into non-existence.
Cheung's analingual lie about Trump's musical genius, trivial as it is, is as good an indication of the heart of this regime as anything else, in large measure because it is so trivial. Take a press spokesman who views lying as a regrettable and generally counter-productive necessity of the job and replace him with one who lies for the lulz. Take a more or less decent--or even gravely flawed--culture, one that is occasionally richly conservative and tradition-laden, put a landmine under it, and replace it with "Cats" and "the home-decorating taste of a third-world dictator." Take the idea that politics is the art of attempting to find a stable, predictable, and, if one is lucky, boring approach to governing social and economic relations, leaving some open space for private life, and replace it with randomness, whim, fealty, corruption, bullying, and naked vengeance. Take a dull but incrementally successful effort to make government more efficient and replace it with a Ketamine rush. Take the worst of online culture--the vulgarity, ignorance, and dishonesty, the crank amateurishness and mob rule, the ceaseless, more-than-half-sincere trolling, the "nothingburger defense" and the misquote of Lincoln, the active or activelytoleratedJew-hating and misogyny and racism and idolatrous, corrupted religion--and make it your normative vision of America. That is as good a heuristic as I can imagine for predicting what the Trump regime will do later today, tomorrow, next week, and every other chance it gets. Not because it lacks wisdom, decency, judgment, taste, and imagination. (Although it does.) But because that is its fundamental understanding of the world.
Slowly--Christopher Eisgruber (Princeton); Danielle Holley (Mount Holyoke); MichaelRoth (Wesleyan); Lee Bollinger (formerly Michigan and Columbia). Should we draw anything from three of this group being law professors? University pushback may be wrapped in the (perceived) hierarchy of higher education. Wesleyan and Mount Holyoke are elite institutions. But they are not THE elite institutions, because of their size and their missions. Many university leaders must respond. But the responding group must include the elite-of-the-elite. Eisgruber is a start. Who from Harvard, Yale, Stanford, et al. will follow? Penn is down for the count--it reportedly working to cede to the Administration's demands around the $ 400 million in funding, including "doing more" about antisemitism (read: sanctioning students who express otherwise-protected views about Israel and Jews), empowering campus police,* centralizing university discipline, and placing academic departments in receivership.**
[*] My future colleague Vanessa Miller writes about the rise and regulation of campus police departments. She picked a good time to write about these things.
[**] And, like clockwork, Penn learns how appeasement works when the Administration comes after for allowing a trans-woman to compete on its women's swim team--three years ago.
In the midst of the protests and encampments in Spring 2024, my temple hosted a panel discussion on campus antisemitism; panelists included Julio Frenk, then-University of Miami president and now-UCLA chancellor. Frenk argued that the Nazis destroyed German universities by driving out Jewish faculty and students and that they never recovered--no German universities are among the top universities in the world. His point was that American universities will destroy themselves if they do not get campus antisemitism under control.
It is ironic that the Trump Administration is attempting (and may succeed) in destroying American universities by defunding research, destroying academic freedom, and detaining faculty and students who hold distasteful view--all in the name of stopping antisemitism. I doubt Frenk and others cheering the Administration's efforts around antisemitism (which may include the powers-that-be in my temple) recognize that irony.
"in such inferior Courts as the Congress may from time to time ordain and establish"
I expect flacks for an authoritarian administration to denigrate the power of trial courts or the administration's obligation to obey. I expect better from the head of the opposition party (who has a J.D.), but maybe I shouldn't, because the lesson of the past week is that Chuck Schumer sucks at his job--generally and in the current moment.
But for those in the cheap seats:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Inferior-court judges wield as much of the judicial power as SCOTUS and enjoy the same structural independence as SCOTUS, subject to hierarchical review within the judicial system. Impeaching lower-court judges for their decisions is as problematic as impeaching justices for their decisions. Ignoring unstayed-and-unappealed lower-court orders is as problematic as ignoring a final SCOTUS opinion (which really triggers a final district court order).
SCOTUS has original jurisidiction in an unextendable universe of four cases--"affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." That means cases must pass through lower courts--including single-judge district courts; if they do not, they never reach SCOTUS. So to reduce the threat to the judiciary to that last stage--and to say we are in crisis only if the Administration disobeys the last stage--willfully misunderstands the process.
In some ways, the current conversation follows from the common misunderstanding of Cooper. Everyone views the case as the Court demanding that everyone follow its precedent, Brown. In fact, Cooper arose from Arkansas efforts to avoid a district court judgment in the unique litigation over desegregating Little Rock schools. This might be clearer had SCOTUS written that opinion to less emphasize judicial supremacy and more to emphasis the judicial process. Instead, Cooper makes SCOTUS the center of it all--allowing Schumer stupidly and Leaviit intentionally to treat lower-court judges as unimportant and powerless.
Before I get into the substantive work of the Senate Subcommittee on Constitutional Amendments under Birch Bayh, I want to start by making a point about the style and format on those hearings.
A congressional hearing typically involves members asking witnesses questions. The witnesses are experts or advocates on the relevant topic. While the Bayh Subcommittee did this sometimes, in many cases the witnesses were other Senators. They were either presenting or commenting on a proposed amendment. This meant that Senators were asking questions to and, in effect, debating other Senators. But this was unlike a stereotypical debate on the Senate floor. There was more detail and more nuance. I'm unsure what conclusion to draw from this, but the quality of these constitutional discussions was extremely high.
Another observation is that the non-Senate witnesses were a Who's Who of American law and politics in that era. Some were already famous, such as Richard Nixon, Richard J. Daley, or Gloria Steinem. Others were up-and-comers like William Rehnquist, Antonin Scalia, and RBG. There is so much to explore
An interesting remedial angle to the attempts to litigate against the ongoing constitutional crash.
It demonstrates the limits on declaratory and injunctive relief in the face of large-scale government wrongdoing. Injunctions take time, with stays and immediate review. Some enforcement takes place in the meantime, even if it might prove invalid. That enforcement chills others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. Those who have to wait it out suffer harm--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but soft liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it. And that is before we get to DOJ's litigation misconduct. Judge Boasberg's actions show that courts will take small, measured steps and build a careful record before dropping the contempt or sanctions hammer on government attorneys. That creates more delays and more opportunities for the government to stall, with the attendant harms to rights-holders.
Damages should fill this gap, imposing liability and providing a remedy for past injuries caused by misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that interstitial unlawful behavior. This reflects the consequence of the more-or-less-death of Bivens and how difficult (if not impossible) it is to obtain damages against federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees, because they can get injunctive relief. But the lag creates its own harms. Of course, Bivens is not the only problem. Even if Congress enacted a federal equivalent to § 1983, qualified immunity would defeat most damages claim. I doubt any court would say it was clearly established on March 15 that the government could not remove people from the country under the Alien Enemies Act or that it could not detain a Green Card-holder for his expressive activities--because no Administration had previously tried.
Constitutional litigation has long flipped the remedial hierarchy, preferring equitable remedies (injunctions) to legal remedies (damages). Current events reveal some unique problems with that flip.
The Scope of the Bayh Subcommittee on Constitutional Amendments
My next book project is on the Senate Subcommittee that produced the 25th Amendment, the 26th Amendment, the ERA, and other constitutional proposals in the 1960s and 1970s. Before putting that institution into context, I want to start by highlighting some of the lesser-known reforms that the Subcommittee explored.
In 1966, LBJ proposed in his State of the Union that the Constitution be amended to change House terms to 4 years. A hearing was held on this proposal. Did the idea get any traction? No. Was the hearing interesting to read? Definitely.
Critics of the Warren and Burger Courts proposed constitutional amendments to overturn Reynolds v. Sims, Engel v. Vitale, and Roe v. Wade. Did those proposals get out of committee? No. Did they offer powerful insights into the relevant arguments? Certainly.
Other hearing topics included: (1) a single six-year term for the President: (2) a federal initiative procedure; (3) legislation on organizing any future Article V constitutional convention; (4) changing the tenure of Article III judges to eight years before requiring Senate reconfirmation; (5) a Balanced Budget Amendment; (6) abolishing the Electoral College; and (7) giving DC full congressional representation. More on this tomorrow.
Response to Corey Robin re Gov. Hochul's Interference at Hunter College
I had this letter last week in the Chronicle of Higher Education:
Exaggerating Governor Hochul’s Meddling at CUNY
March 13, 2025
To the Editor:
In his essay “Kafka Comes to CUNY” (The Chronicle Review, March 4), Corey Robin is right, of course, that New York Gov. Kathy Hochul never should have ordered the removal of a job posting for two professors of Palestine Studies at Hunter College, which is part of the City University of New York. Political interference in curricular matters, even at publicly funded schools, is an unacceptable violation of academic freedom.
He should have stopped there. The rest of his essay, about the presumably dreadful consequences of Hochul’s interference, stacks argument fallacies upon invented harms.
Robin, a professor of political science at Brooklyn College, begins by asserting that Hochul’s objection was to even “mentioning [the] historical phenomena” of settler colonialism, genocide, and apartheid in the job ad. Maybe so. But it is at least equally plausible, as I recently explained in The Hill, that the problem with the job post was its single-minded focus on Israel’s purported crimes, to the exclusion of any other aspect of Palestine Studies.
The Hunter College post included no references to Islamism, Marxism, terrorism, or even armed struggle, all of which have played significant roles in Palestinian life and history. Moreover, the recruitment of “candidates interested in pubic-facing work” makes it clear that anti-Israel activism was a requirement for the job. None of that would justify Hochul’s intervention, but it does blunt Robin’s claim that there could be no valid concerns about the ad.
Even if Robin is right about Hochul’s objection, however, he makes the unwarranted conclusion that perhaps “a scholar studying or even mentioning these historical phenomena cannot be hired at CUNY,” and it may not “be long before a course examining them cannot be taught at CUNY.”
There was nothing in Hochul’s statement that would constrain teaching about the violence and dispossession endured by Palestinians. My initial internet search found at least nine courses at CUNY, including two at Hunter College, that cover those subjects, none of which were challenged by Hochul.
Robin finishes with a two-step. First, he invokes his wife’s grandparents, who fled Nazi Germany in the 1930s, bringing with them an impressive library of Jewish books. One volume, now in possession of Robin’s family, is A Palestine Picture Book, featuring stunning photographs from the Jewish Yishuv in British Mandate Palestine.
“Virtually every page,” Robin tells us, includes references to “colonies, colonists, settlers, or settlements.” Thus, he maintains, even Jews once admitted that their presence in Palestine constituted settler-colonialism, meaning that there couldn’t possibly be a valid objection to using the term in a job ad.
Robin is wrong. The early Jewish “colonies” in Palestine had no relationship to imperialism or colonialism. Indeed, they were often established in defiance of, or noncompliance with, the Ottoman and British Empires.
In the late-19th and early-20th centuries, the term “colony” often described a purposeful or cooperative community, or place of refuge, as in artists’ colony, religious colony, or even leper colony.
In 1856, for example, the “Amana Colonies” were founded in Iowa by Amish pietists escaping persecution in Europe. Ohio’s “Oberlin Colony,” the site of the eponymous college, was established in 1833 by Presbyterians as home for a utopian community of “consecrated souls.” According to Wikipedia, there have been at least 65 “Arts Colonies” in the U.S. since 1907, the first having been the MacDowell Colony in Vermont. Enslaved people who escaped to Canada founded the “Refugees’ Home Colony” in 1851.
Robin’s second step argues that Hochul’s rejection of the Hunter College job posting “could prohibit the teaching of a Jewish text — written by Jews, published by Jews, featuring photographs taken by Jews for the Jewish National Fund — once owned by two Jewish refugees from Nazi Germany, now owned by a Jewish woman in Brooklyn.”
Whether or not Robin meant to be taken seriously, litigators will recognize this as a “parade of horribles.” It is a rhetorical fallacy that predicts a series of increasingly undesirable consequences ranging from improbable to absurd.
Higher education in New York would be better off if Hochul had stayed out of the Hunter College faculty search, but it is not helpful to exaggerate the impact of her intrusion.
Some links and brief comments as litigation swirls around the Trump Administration's various abuses of power.
1) Sam Bray on DOJ's too-clever-by-half insistence that it did not violate the injunction barring removal of gang members under the Enemy Aliens Act because the plane had left US airspace. Bray explains that equity applies to the person, not the place.
I argued against the term "nationwide injunction" (and in favor of universal or non-particularized) because it allows this geographic point to leak in. An injunction applies to the defendant everywhere the protected person goes. So an injunction issued in the District of Columbia prohibiting enforcement of a law against the plaintiff protects the plaintiff and prohibits enforcement against him wherever he goes. A term such as "nationwide" allows DOJ to argue--however disingenuously--that the injunction does not go beyond the nation.
2) Competing takes--one from Sam, one from Steve Vladeck--on DOJ's emergency petition in the birthright citizenship case, which seeks a stay to pare back the injunction's universality.
3) A procedural question off Trump's new nonsense that the pardons of January 6 Committee members are invalid because done with an autopen: Does Liz Cheney or another person have standing to bring an EpY challenge to any prosecution or is such challenge ripe? Ordinarily the answer would be no because the prosecution and the constitutional issues are too speculative. But: 1) Trump has made it clear that he is coming for them (and under the unitary executive we need not wait for DOJ) and 2) the constitutional issue--the validity of the pardon--is obvious and present, regardless of what charges they bring.
By the way, Sam's posts appear on the new Divided Argument blog, a group blog by a group of top Fed Courts types, including Richard Re, who will be blogging there rather than here in the future. Subscribe and bookmark.
In January 1944, the Secretary of War announced that Japanese-American men would be subject to the draft. Prior to that, they were eligible only to volunteer. Later that year, the Court decided Korematsu and said nothing about this point, which would seem to cut against the Court's holding. Let's think through the issue a little.
How could the government impose serious restrictions on Japanese-American male citizens and subject them to the draft at the same time? Some of these draftees refused to serve on this ground and were prosecuted. One Federal District Court (in U.S. v. Kuwabara) quashed such a prosecution, stating:
"It is shocking to the conscience that an American citizen be confined on the ground of disloyalty, and then, while so under duress and restraint, be compelled to serve in the armed forces, or be prosecuted for not yielding to such compulsion."
Other District Courts disagreed. Their rationale was that being drafted meant that these men were no longer under special restrictions. They were now being treated just like all other male citizens who were drafted. (And you could not be a conscientious objector on the ground that you were mistreated for being of Japanese ancestry). President Truman later pardoned these Japanese-American draft resistors.
Another point (covered well in Eric Muller's scholarship on this era) is that Japanese-American groups pushed hard to make their men draft eligible so they could show their valor in combat. Thus, they did not argue in Korematsu that the liberty restrictions were unlawful after January 1944. And none of the Justices noted the issue. I'm working on an article about the constitutional issues surrounding the draft and hope to flesh this out further.
The Young Rascals (later, just The Rascals) had a number one hit with "Good Lovin'" in 1966, but they were actually the fifth group to record the song, which was written a year earlier by Rudy Clark and Arthur Resnick. The earlier recordings were by Limme Snell (as Lemme B. Good), the Olympics, the Tremeloes (in the UK), and the Who (not released as a single). According to Wikipedia, Felix Cavalieri heard the Olympics' cut on the radio and recorded it with virtually the same arrangement, which almost everyone has used ever since.
A few different arrangements, including Snell's original, are at the bottom of the post at The Faculty Lounge.
The tradition of vice-presidential inaugural statements ended with John Nance Garner in 1933. But in 1973 the speech returned in the special case of a 25th Amendment Vice President. Gerald Ford's inauguration got the full treatment. He was sworn in by the Chief Justice. The ceremony happened in the House before a Joint Session of Congress. And Ford then gave a speech. Nelson Rockefeller's inauguration a year later was similar, except his ceremony was held in the Senate.
Ford's inaugural speech was unique in that the audience knew that he could well be President soon. It was December 1973 and Nixon was in deep trouble. Reading between the lines, Ford was clear enough on this by saying things like: “Our great Republic stands solid and strong upon the bedrock of the Constitution” and “I pledge to as you, as I did the day I was first admitted to the bar, my dedication to the rule of law.”
Anyway, the full paper on vice-presidential inaugurals will be published later this year in Green Bag. I'll get it up on SSRN when I can.
Next week, I'm going to start a series of posts on my next book project, which will be about Birch Bayh's Senate Subcommittee on Constitutional Amendments. Part of what I did during my blogging sabbatical was read thousands of pages of Senate hearings so that you don't have to.
The Trump Regime Continues its Retrospective Celebration of 1798
I'm working on a longer post, but may I just note the news that the Trump regime is apparently preparing to invoke the Alien Enemies Act of 1798 in service of swifter and more draconian deportation of illegal immigrants, relying on tendentious assertions about "invasion." This cannot be wholly a surprise. And I will not find it a great surprise if and when the regime closes the loop and relies on the whole armament of the Alien and Sedition Acts and their descendants, to punish speech as well as status and to attack citizens as well as non-citizens. I wrote a week or two ago about Ed Warren, the gormless still-Interim U.S. Attorney for the District of Columbia, that his threats against members of Congress and others for engaging in constitutionally protected speech should not be treated merely as a gross misreading of true threat doctrine. Rather, they should be seen as
a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.
The regime can be relied upon to supply its own "emergency," of course. And a properly cowed and subjugated Secretary of State can be relied upon to offer whatever verbal formula is required.
If there is any comfort to be taken, I find it in two or three things: 1) The regime can be counted on to offer five or six justifications for its actions on any given day, even if they contradict each other and render the justifications incoherent and untrustworthy, and to careen wildly between enforcement and non-enforcement. 2) The more lawyers it fires, or who resign after being told to make bad or improper arguments that would violate their oaths, consciences, or law licenses, the worse things will go for it in the courts.* Opting for "loyalty" over competence and integrity is a costly choice. 3) The more it does, the more it says, the more pretextual or inconsistent or incoherent its arguments become, the more likely it is that at some point the courts--including the Supreme Court--will rethink any general presumption of deference to the executive branch, and reconsider any general or trending reluctance to scrutinize and second-guess the executive's motives, in both separation of powers cases and rights cases.
Law should not be remade for every new administration, and there are good general reasons for judicial deference to the political branches. But I'm reminded of a quote from Harry Kalven: "The Court thus has a hybrid role; and the arresting thing is that were its role to be purified in either direction--by having it become more simply a court and nothing more, or by having it become, bluntly, a political agency and nothing more--it would lose its power and its purpose. The special burden of the Court...is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining concerned, realistic, and alert as to the political significance of what it is doing." Even as a highly judicial body, the Court is not obliged to remain blind to the nature of this regime and its approach to the executive branch--both in its organization and in its exercise of power. Its reluctance to look behind presidential actions depended on its assumption of the existence of an "impersonal, thoroughly institutional presidency," sufficiently bureaucratized and staffed by capable individuals who provide internal constraints that its actions and good faith could be given some presumptive credence. But the Court exists in a dynamic relationship with the presidency and Congress. The faster, harder, and further the regime runs from a professionalized institutional model, the more likely it will be that the Court adjusts its assumptions and presumptions accordingly.* As it should.
* Perhaps, in thinking about the legal presumptions of good faith that should or shouldn't apply and the necessity for a hard judicial second look at motives, the Justices and lower court judges will keep in mind the intersection between Trump's desire for an executive branch staffed only by personal loyalists and the blindly obedient, shorn of more independent-minded oath-keepers, and Elon Musk's typically off-putting vision of just who carries out historical atrocities, given that carrying out orders without questioning them appears to be exactly what this presidency wants from its servants:
Andrew Johnson gave one of the few memorable vice-presidential inaugural speeches. What made it memorable?
First, he was drunk. Words were slurred and repeated in a way that the official version cleaned up. At one point, he asked: "Who is the Secretary of the Navy?" The actual Secretary of the Navy wrote afterwards about Johnson's "rambling and strange harangue" that “was listened to with pain and mortification by all his friends." the outgoing Vice President, Hannibal Hamlin, had to tell Johnson that he needed to wrap up because it was past Noon and Lincoln needed to be sworn in.
Second, Johnson declared that his home state of Tennessee should be immediately readmitted to Congress. "It is the doctrine of the Federal Constitution that no State can go out of this Union; and moreover, Congress cannot eject a State from the Union. Thank God.” Thus, her “Senators and Representatives will soon mingle with those of her sister States; and who shall gainsay it, for the Constitution requires that to every State shall be guaranteed a republican form of government?” This, of course, teed up one of sharpest issues during Reconstruction; namely, could the ex-Confederate States be excluded and, if so, for how long?
Maybe the tradition of vice-presidential inaugurals wasn't so great. But next time I'll talk about how the custom was revived in 1973.
Seventh Circuit holds that UIC Law Prof Jason Kilborn adequately pleaded a First Amendment retaliation claim where the school sanctioned him in response to student objections to tests and discussions of some race-related issues in class and to how he spoke about the subsequent controversy. (I wrote about the early days of the case--in 2021). Some noteworthy things in the opinion:
• Garcetti does not apply to a professor's testing and classroom speech or to out-of-class conversations arising from the controversy over his classroom speech. Academic speech is presumptively (if not per se) of public concern--engaging students on policy issues, giving them a taste of real-world controversies, and addressing controversies within a public institution, such as when it is ok to refer to racial slurs in classroom materials. The court declined to do the Pickering balancing at the 12(b)(6) stage. So we go back for discovery and summary judgment, unless the school decides to cut its losses.
• No qualified immunity on Garcetti. This is interesting. Pre-Garcetti, Connick/Pickering offered "qualified protection" for academic freedom . Garcetti left open (in a footnote and a Souter concurrence) whether it applied to academics and no Seventh Circuit precedent applied Garcetti to university classroom speech. Thus, "[b]ecause our pre-Garcetti cases clearly establish a right to academic freedom in this con- text, and neither Garcetti nor our more recent case law undermines that right," the right to classroom speech Kilborn alleges was beyond debate--pre-Garcetti precedent told UIC administrators they could not punish Kilborn for this speech and Garcetti did not suggest any differently.
This is a good result in the eye of someone (me) who hates qualified immunity. But it seems to flip the presumption--absent new law telling the university speech is unprotected, it should have understood that it was protected and thus not sanctionable. Implicitly, university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech in the absence of contrary precedent. But QI usually goes the other way--the officer can act absent clear precedent that he cannot act. I think this case will make an interesting puzzle in the next edition of the § 1983 treatise.
• Defendants have QI on Kilborn's compelled-speech claim (based on having to go through diversity training). Barnette clearly establishes a right to be protected against compelled speech by the government as sovereign; it does not speak to government as employer. And whatever Janus said about compelled subsidies for unions does not resolve employers compelling employees to speak. In an essay a few years ago (part of a symposium FIU hosted on Barnette's 75th anniversary), I suggested that Garcetti could undermine or limit Barnette in the employment context, particularly in light of Janus. This opinion at least suggests that is an unresolved question in a damages action.
Again, note the inconsistency, which turns on different defaults. UIC was protected in reading Barnette and Janus narrowly and acting on the view that it could compel employee speech absent precedent saying otherwise; it was not protected in reading Garcetti broadly and acting on the view that it could stop classroom speech absent precedent saying otherwise.
• If it carries the day elsewhere, the court's free speech analysis protects university professors against state and federal efforts to stop DEI and other "woke" classroom speech. If the First Amendment protects a prof whose classroom speech (in the school's warped view) makes certain students feel bad or uncomfortable, it protects her when she (in the state's warped view) makes those students feel good or comfortable.
How is this suit by a Maine legislator alleging she was stripped of her voting rights in retaliation for her anti-trans statements not barred by legislative immunity? She wants an injunction prohibiting the legislature from denying her vote or from ignoring her vote. This just seems obvious; what am I missing?
Vice President Charles Dawes Makes A Monkey of Himself
Charles Dawes was an impressive public servant. He was one of the few Americans to win a Nobel Peace Prize. He was the first director of what we now call the OMB. He was also Calvin Coolidge's Vice President. In his 1925 inaugural address, Dawes decided to speak truth to power and call for the end of the filibuster. The New York Times reported that Dawes wagged his finger at the Senate with a headline that included "Thumps Desk Vigorously." Here are some choice quotes:
1. The filibuster was “subversive of the fundamental principles of free government” and “places in the hands of one or of a minority of Senators a greater power than the veto power exercised under the Constitution by the President of the United States.”
2. “Were this the first session of the Senate and its present system of rules, unchanged, should be presented seriously for adoption, the impact of outraged public opinion, reflected in the attitudes of the Senators themselves, would crush the proposal like an egg shell.”
3. “To evade or ignore an issue between right and wrong methods is in itself a wrong.”
Needless to say, this didn't go over well in the room. Chief Justice Taft wrote his son that Dawes "made a monkey of himself." And the filibuster lived on.
Vice President Charles Dawes Makes A Monkey of Himself
Charles Dawes was an impressive public servant. He was one of the few Americans to win a Nobel Peace Prize. He was the first director of what we now call the OMB. He was also Calvin Coolidge's Vice President. In his 1925 inaugural address, Dawes decided to speak truth to power and call for the end of the filibuster. The New York Times reported that Dawes wagged his finger at the Senate with a headline that included "Thumps Desk Vigorously." Here are some choice quotes:
1. The filibuster was “subversive of the fundamental principles of free government” and “places in the hands of one or of a minority of Senators a greater power than the veto power exercised under the Constitution by the President of the United States.”
2. “Were this the first session of the Senate and its present system of rules, unchanged, should be presented seriously for adoption, the impact of outraged public opinion, reflected in the attitudes of the Senators themselves, would crush the proposal like an egg shell.”
3. “To evade or ignore an issue between right and wrong methods is in itself a wrong.”
Needless to say, this didn't go over well in the room. Chief Justice Taft wrote his son that Dawes "made a monkey of himself." And the filibuster lived on.
I cannot agree with something that Howard writes below. Among my extraordinary range of talents is the ability to walk and chew gum at the same time, while recognizing that of the two walking is probably more important. (It depends on the flavor of the gum.) So I'm not sure I get his point about "no one noticing" the enormous chilling effect on speech this administration is having "because people have been screaming about woke college students for so long."
For one thing: People notice! Most certainly including the same people Howard seems to suggest are benighted. They are fully capable of engaging in some version of "screaming about woke college students" while also believing--and saying--that the the use of state power generally is more worrisome than the threat of some moron in a North Face balaclava shouting "Go back to Poland" or blocking a public thoroughfare. Indeed, even in the interregnum between the first Trump administration and the present Trump kakistocracy, some individuals who were concerned about unhealthy exercises of private and mob power in public discourse not only charged that Donald Trump and other "forces of illiberalism" pose "a real threat to democracy," but warned that extreme or illiberal tactics on the part of those "woke college students" would be easily exploited by "right-wing demagogues." (Not that it took a genius to predict this. But then, it hardly took a genius to work harder to forestall it. And despite the obviousness of the point, any number of people, some of them college students, along with one or two candidates for president, spent most of either or both of 2020 and 2024 either not seeing it, or demonstrating by word and deed that they didn't care.)
The same people are not only capable of believing that abuses of state power can be and generally are worse than abuses of private power. They are also capable of believing, and saying, that the particular uses this regime is making of state power are more worrisome than the average speech-chilling abuse of state power by the average Democratic or Republican administration, because they are more widespread, more lawless, more corrupt, more political, administered by more servile and incompetent hacks, less interested in paying lip service to existing law, and so on. It's not a question of "real" and, one supposes, "fake" chilling effects, but of bad and bad-plus-dangerous. It is possible to believe that both private actions and state actions can damage public discourse, but that state action doing so is more worrisome. Indeed, unless one wants to use state power to regulate those private actions, "screaming" about private behavior that chills speech or distorts discourse is precisely what one is supposed to do; in the case of state action, one screams--but one also sues and votes and lobbies.
With respect to the universities, there is one sense in which the two unequal things--the use of "woke student" power and the corrupt exercises of state power--are connected: the cowardice of universities in the face of both. Despite the many university administrators who did in fact support or give a pass to illiberal conduct for ideological reasons, I tend to believe that at the very top, the determining factor was cowardice far more than ideology. Universities treaded too lightly too long in the face of frankly illiberal conduct, often unlawful and generally disruptive of universities' ability to carry out their core missions, not because they were all in for Hamas or whatever the cause of the moment was (and the cause was more sympathetic in 2020), nor because they were trying to bend over backwards to protect First Amendment rights. Rather, they did it because universities are corporate enterprises that deal with both internal forces and external competition. They generally prefer not to rock the boat. They worried about blowback from faculty and other on-campus constituencies, and about alienating a small but select slice of the current or prospective student body, in a market that is always competing for students, rankings, and reputation. Privately, or so my experience suggests, university officials could be scathing about the student organizers they were dealing with, as well as those off campus who often used them as stalking horses. But they worried that any firm early steps would just lead to escalation. And they worried too about the calls and headlines they would get if they started suspending or expelling students, not to mention the ones they would get if--as is sometimes fully consistent with a university's duty, especially when some of the individuals impeding the university's operations are non-students and others are students who mask themselves to avoid being identified and disciplined --they called in the police to make arrests.
They were right to be nervous. Students wreaked havoc when their fellows were expelled. Students and faculty complained when students who were disciplined for disrupting university events realized that multiple suspensions might actually affect their visa status. Being students and faculty, they complained about everything. And although I lack sympathy for the students, one can see why they were surprised. Having first timorously underenforced their own rules, both in 2020 and 2024, the universities, after coming under pressure from various external forces including Congress, ramped up enforcement drastically and sometimes unevenly in a very short time. From my perspective, both the laxity and, when it finally came, the more draconian enforcement were equally motivated by fear. One understands that large institutions should act prudently. But to call all this "prudence" is an undue compliment.
It thus can't be surprising that the universities are now offering statements in response to the current regime's law-adjacent crackdown that are milquetoast at best and at worst servile. (Servility, the status of a mere "subject," and "ritual self-abasement" being the things this regime desires above everything but money, from its Manchurian Cabinet all the way down to we poor suckers who just live here.) It certainly helps that the regime will punish universities without any clear goals, limits, instructions, guidelines, or guardrails, and that it is more than willing to take revenge on anyone who questions it. And it helps that the universities, along with every other institution in American life, have come to rely on the infusion of massive amounts of federal money and taken for granted the significant strings that are attached. It's not true that Columbia doesn't care about civil liberties. But, like other universities, it cares even more about being decimated.
Beyond that, though, one important reason why universities have offered a cowardly response is that they have been trained for it. A university that has spent years afraid to utter simple, fully free-speech-respecting phrases like "pack up your stuff after 5 p.m.; you're not sleeping on the lawn" or "stop occupying this office or I'm calling the cops"--both things it should be saying as a matter of course--is hardly going to be habituated to telling a vindictive, force-wielding, semi-arbitrary political/law enforcement regime to go to hell, or that its job is to maintain order on campus, not to get rid of people with lousy ideas.
For Howard, the current moment demonstrates the folly of ever having treated private threats to a well-functioning free speech regime as serious. To me, it demonstrates that institutions that fall out of the habit of standing up for themselves in response to smaller problems are unlikely to find the backbone to deal with graver ones.
A recurring theme in vice-presidential inaugural addresses was "impartiality" in handling Senate business. One compared his role to a Supreme Court Justice, in holding that both should be free from partisanship. Another said that the Vice President was a symbol, almost like King Charles III, who stands above politics.
So obviously this is not how vice presidents are seen now. In part, this is because vice presidents exercise influence in the Executive Branch in a way that was not true for much of our history. (George Washington, for example, rarely consulted his vice president, John Adams.) Vice Presidents also spent more time presiding over the Senate in the past and thus did function more like the modern Senate parliamentarian.
Does this mean that all vice-presidential inaugurals were boring? Not the ones by Charles Dawes and Andrew Johnson. More later.
AG Bondi has indicated in no uncertain terms that the ABA’s accreditation authority is in peril so long as it maintains what she describes as its DEI requirement. The long-standing diversity requirement has been under serious scrutiny over the past several months, driven by the Supreme Court’s recent affirmative action case and, one might speculate, the tenor of the times. In a previous post, I encouraged the Council of the ABA Section on Legal Educations and Admission the Bar (the real authority in accreditation, although often confused with the “big” ABA) to continue their initial path of reconfiguring this requirement, and in a way that would accommodate multiple interests and would, frankly, fix what had become to all honest observers, a de facto diversity faculty and student mandate — and one without the sort of mechanical head counting that was hard to implement and hard to maintain under current law. My advice went unheeded (hey, it happens) and under the pressure of many deans who encouraged the Council to vehemently resist anything they viewed as retrenchment, they retreated from their efforts and have essentially kicked the can down the road.
Now they are in a real jam. The DoJ will press hard to get the diversity mandate eliminated entirely. The room for compromise on language and structure is rapidly closing. And AG Bondi’s unmistakable threat is that the federal government will use all available authority to eliminate the ABA’s historic role as law schools’ accreditor.
Lest you think that this plunges law schools and their students into existential jeopardy, let me offer some ameliorative comments that come from the lessons of American federalism. Students are admitted to the bar by the authorities of state government. To more precise, this essentially means the authority of the state supreme courts. To be sure, the courts will typically delegate such authority to state bar officials. These officials will do the hard work of setting up criteria for admission. So far as ethical responsibilities are concerned (the operative phrase being “character and fitness”), these are defined by state law, although states have by and large converged on what it means to be an ethical lawyer. As to competence, this where the state bar exams come in. Although here too states have, under what Prof. David Engstrom and I have called “Our Bar Federalism,” the prerogative to create their own exams, the majority have more or less outsourced this function to the National Conference of Bar Examiners through their Uniform Bar Exam. There is more to say on the evolving bar exam situation, but not much more relevant to this post.
Here’s the kicker in all this: The determination of which students may sit for the bar is made by the states and the states alone. That the ABA has a role that law schools care about is entirely the result of the choice made by state authorities to rely on the ABA to determine which law schools are OK and which are not OK, or more to the point, which have graduated students who are worthy to sit for the bar and complete the other requirements necessary for admission and which aren’t. Interestingly, a handful of states, most notably by its size California, does provide a pathway to students who have not attended an ABA-accredited law school or, under some fairly elaborate conditions, students (think of our nation’s most famous would-be lawyer, Kim Kardashian) who have not attended law school at all.
You can see where I am going with this. Even if the Trump administration is completely successful with its scheme to remote the ABA as law school accreditor, this does not necessarily leave law students in the lurch. Rather, state bar authorities, whether as a stopgap measure or as a full response, could “rescue” law schools from the big punitive measures of the DoJ by deeming graduates of all law schools previously (measured by some period of time perhaps) accredited by the ABA to be qualified to sit for the bar. In other words, the ABA’s accrediting authority is only powerful to the extent that state decisionmakers give them this authority. Note that has loomed in the background of longstanding critiques of how the ABA has used its accrediting power. But my point here doesn’t rest on these critiques. Instead, it suggests that a totally defanged ABA doesn’t jeopardize the functioning of law schools except insofar as state justices and their authorities to whom they have delegated power have themselves put these law schools in jeopardy.
And let’s take this argument one step further: If state bar authorities were to believe that some commitment to diversity, expressed in the ways they believe are both sensible and legal, were important, they are free to come up these requirements and insist upon them as a condition for law schools to function as “acceptable” educators of students. In other words, they could do the hard work of accrediting law schools on their own initiative. I suppose we could imagine a world in which the federal government thought that it had appropriate legal authority to boss the states around in this arena, but I firmly believe that this would be a constitutional federalism bridge too far. And, in any event, Congress is more likely than not, even in an era of white-hot MAGA, to leave the sleeping dog of displacing state authority in lawyer and legal services regulation, lie.
We have gotten from there to here, to be sure, because states by and large trust the ABA to do the accrediting; or maybe we have gotten here in no small part because states do not want to do this hard work. But what the Bondi invective and relentless threats open up is the possibility that something different — something better? — will emerge from the ashes of the ABA’s accrediting history.
I add my caveat here at the end, rather than at the more-typical beginning; I do not in any way root for this Trump/Bondi outcome. Warts and all, the ABA Council has functioned as an honest broker so far as law school accreditation is concerned, at least on the whole. I have had my strong criticisms, often expressed publicly, with particular ABA decisions and non-decisions and so there is no space on the wall where I anticipate putting any award from that group anytime soon. However, I applaud the energetic, well-intentioned lawyers, judges, and educators who have, over many years, devoted their energies to improving the quality of legal education in the U.S. I highlight the “less than meets the eye” element of the Trump administration’s jihad against the ABA just to say that legal education and the process for the admission of lawyers can and ought to be resilient in the face of these threats. The immediate future in this space at least need not be a bleak one.
POSTSCRIPT: Someone on LinkedIn (I don't have his permission to identify him, but you can look it up on my LinkedIn post) made the good point that there is more to the ABA accreditation change than bar admission. For example, freestanding law schools who lack an approved regional accreditor may be left out in the cold. And there may be financial aid consequences to students. All of this suggests that (many) law schools should be wary of this potential change in any event.
New York Gov. Hochul Suppresses Palestine Studies Job Announcement
My new essay for The Hill addresses New York Gov. Kathy Hochul’s suppression of a Palestine Studies job announcement at Hunter College. I explain that Hochul was wrong to intervene, but that does not absolve the job posting’s blatant anti-Israel bias.
Here is the gist:
New York is walking a thin line on Palestinian Studies
Hochul had absolutely no business demanding the removal of the Hunter College job posting. Political interference in curriculum is an unwarranted violation of academic freedom.
Hochul’s intrusion aside, was the job posting as “divisive, polarizing and inappropriate” as the administration claimed?
Taken individually, the listed subjects — including settler colonialism, apartheid and genocide — can be significant areas of inquiry in Palestine Studies.
In combination, however, the list comprises a distinctly political agenda, as though the sum of Palestine Studies consists only of Israel’s purported crimes.
Lest there be any doubt, the emphasis on “public-facing” work is clearly a thinly coded call for activism.
The concatenation of accusations against Israel, and the absence of anything denoting scholarly objectivity, communicated the intended message that successful applicants will be expected to engage in anti-Israel advocacy.
Hochul was just wrong to intervene in Hunter College’s curricular decision. Period. Nonetheless, the job posting itself sent an unmistakable political signal that “public facing” hostility toward Israel was a requirement for the position.