PrawfsBlawg

History of § 1983

Finally had a chance to read Medina v. Planned Parenthood, holding that Medicaid's free-choice-of-provider provision is not enforceable through a § 1983 action. The upshot is that Red states can block Planned Parenthood from Medicaid funds.

Justice Thomas writes a concurrence arguing that § 1983 has expanded beyond its intended use, especially given the statute's limited use in its early days (and generally pre-Monroe in 1961). Justice Jackson dissents (with Sotomayor and Kagan); she responds to the early-history point by mentioning the difficulties Black plaintiffs faced: physical threats of pursuing litigation, difficulty of finding a lawyer, racist juries, and problematic enforcement mechanisms.

It seems to me the better explanation is the state of constitutional law in the late 19th and early 20th centuries--the Constitution did not secure "rights, privileges, and immunities" to individuals, so there was no point in suing. Plessy in 1896 means most discriminatory policies were constitutionally valid. Slaughterhouse in 1873 rejected incorporation, meaning a state actor could not deprive a person of an RPI secured by the Bill of Rights. Thus, except for Lochnerian substantive due process, no one could bring constitutional claims against state officials; there was no reason to bother.

This suggests one theme of October Term 2024: Limiting public-law litigation by limiting the procedural devices through which that litigation occurs. We can situate Medina with CASA (obviously) and Lackey (preliminary injunctions do not make plaintiffs prevailing parties for attorney's fees). Some cases did go the other way, such as Gutierrez (allowing claims challenging DNA testing) and Williams (rejecting application of state-law exhaustion requirement to § 1983 claim in state court). Worth further thought.

Adversarial Litigation

Yes, the Trump Administration will oppose class certification in CASA and all the other challenges to Trump policies. That says nothing about the correctness of CASA and to treat it as such willfully disregards the nature of constitutional litigation. For better or worse, the system delegates constitutional review to courts in the course of resolving disputes between adverse parties who operate in an adversarial system. Subject to ethical constraints, DOJ attorneys represent the government's best position before the court. Dragging CASA as illegitimate for requiring further litigation in which the government can pursue its favored position is not different in kind from the administration screaming about the illegitimacy of every adverse ruling. Again, had the Court rejected universality in 2024, this hearing would have happened--with the government taking the same position.

Just overrule Bivens already

Justice Gorsuch was right in Egbert, that the Court should close the door to Bivens. But not for the reason he gave--"false hope" to plaintiffs who bring claims believing they could be the lucky one. But because the Court makes itself look ridiculous in rejecting claims. The latest is Monday's per curiam reversal in Goldey v. Fields (pp. 12-14 of Orders List). Plaintiff alleged he was subjected to excessive force while in solitary confinement. (The Court throws in a gratuitous line that "[p]rison officials monitored Fields while he was isolated," suggesting that they do not believe his factual allegations, an irrelevant point right now).

Goldey demonstrates the silliness in both prongs. The case presents a new context because the Court has recognized claims for excessive-force under the Fourth Amendment but never under the Eighth Amendment. And the Court identifies two special factors: pervasive legislation around prisoner litigation and alternative remedies. As to the first: The legislation in the area is the Prison Litigation Reform Act, which erects procedural hurdles (e.g., exhaustion of administrative remedies and sua sponte review of the complaint) around prisoner litigation. As to the second: Those same administrative schemes provide the only alternative remedial mechanism.* But the PLRA  makes sense as applied to federal prisoners only if the plaintiff has a cause of action from some place else other than the PLRA;  Congress would not have required exhaustion as a condition precedent to bringing an action if no action could be brought or if the exhaustion requirement itself provides the basis for rejecting the cause of action. It is also circularity and double-counting.

[*] The other options are habeas and injunctive relief. Claims arising from physical abuse while incarcerated challenge conditions (as opposed to fact) of confinement, which is not cognizable through habeas. And I doubt a plaintiff can establish standing to obtain an injunction against future excessive force (what someone called a "'please don't beat me' injunction"), at least absent some showing of an official policy of placing him in solitary and beating prisoners in solitary.

We can look at this a slightly different way. Congress in the PLRA imposed limitations but not an express cause of action because it presumed the Bivens cause of action existed. The law sought to narrow existing law--Bivens creates a right action (just as § 1983 does) and the PLRA limits that. Congress saw no reason to include a right of action that it would then limit.

No one dissented, suggesting no one regards it as worth the candle.

SCOTUS Indefinitely Revives the Dred Scott Decision

My new essay on Slate explains how the Supreme Court has just given Trump the go-ahead to indefinitely revive the Dred Scott decision. Here is the gist:

The Supreme Court Just Revived a Key Portion of Dred Scott

By Steven Lubet

June 27, 2025

For the first time in over a century, children will soon be born in the United States without the benefit of birthright citizenship, thanks to a ruling by the U.S. Supreme Court on Friday. Although the six-justice majority denied making a decision on the merits, the impact of the ruling will indefinitely condemn many thousands of children to status that has not existed since the era of the court’s infamous Dred Scott opinion. 

The upshot is that Trump’s unprecedented decree can continue to strip citizenship from children whose parents—who by definition may be subject to deportation—lack the resources to file their own lawsuit.

Trump’s executive order would actually revive the logic of Dred Scott by creating a new class of outcasts, excluded from the political community solely by virtue of their parentage.

You can read the entire piece on Slate (with free registration).

R.Jackson, J., concurring

In her dissent in CASA, Justice Jackson cited the Youngstown concurrence as "R. Jackson, J., concurring". I think this is first use of that description. Recent Supreme Court cases that cite Robert Jackson in the text now say "Justice Robert Jackson" rather than "Justice Jackson" to avoid confusion. I do wonder if all of that is necessary, in that we all know that the current Justice Jackson was not on the Court 75 years ago.

That said, I eagerly await the first cite of H. Jackson. That would be Justice Howell Jackson, who served on the Court from 1893-1895.

Goldsmith on judicial (or at least SCOTUS) supremacy in CASA

Jack Goldsmith discusses FN 18 of the CASA majority, in which the Court says (on the SG's representation and for the first time) that SCOTUS opinions--their interpretations of the Constitution and constitutional meaning--bind the other branches.

Goldsmith describes this as a potential Marbury moment:

[T]he Court under the guise of judicial weakness proclaims a power that enhances its authority over the ages. The Court acted from a position of relative institutional weakness not unlike what the Marshall Court faced—a hostile executive branch implicitly threatening judicial defiance. And it played its weak hand shrewdly. It ruled in a way that it was previously inclined to rule on universal injunctions, while leaving open many other avenues to lower-court universal relief. And in exchange it extracted a first-ever executive branch pledge of fealty to Supreme Court “judgments and opinions,” which will appear in the forever-citable pages of the U.S. Reports.

On Reading Statutes

One issue if and when the Court reaches the merits on birthright citizenship is the instability created by leaving that determination to executive discretion. Suppose that the Court upholds the current Executive Order. A future President can rescind or modify that order. This means that citizenship will become uncertain for a lot of people and will oscillate depending on who wins the White House. It's antithetical to the idea that citizenship is permanent unless relinquished by the citizen.

But if the citizenship statute is read as codifying the traditional understanding of birth citizenship as applying to the children born here to temporary visitors and people who are here illegally, then presidents lack the power to change this on their own. The 1952 Immigration law copied the Fourteenth Amendment's Citizenship Clause without explanation. You could read it to support or reject the Executive Order. Reading the statute to reject the Executive Order would avoid a constitutional difficulty and the citizenship instability problem. 

Free Speech Coalition and least-bad option

A quick word on Free Speech Coalition, declaring valid Texas' porn-site age-verification law.

Everyone on the Court seems to agree the law is constitutionally valid. The six-justice majority believes the state has the power to enact such a law. And I am not sure the three dissenters disagree. They hedge, but they seem to believe Texas should be able to keep this material away from minors and that requiring adults to prove identity might be an acceptable burden, perhaps after some analysis about the efficacy of filters. Also, neither opinion mentions the right to anonymous speech--which has become more vigorous since Ginsberg--and which is undermined by demanding age verification.

It may be that the Court divided over choosing a "least-bad option" to reach this "law is (or at least may be) valid" conclusion. The majority treats a facially content-based law--one that burdens adult access to some content because of that content--as content-neutral (thus subject to intermediate scrutiny) through some circular gymnastics. The dissent seems a bit blase about the prospect that this law could survive strict scrutiny (when, as the majority points out, one law has survived strict scrutiny before the Court). So which is worse--"watering down" strict scrutiny so it is not as a "practical matter . . . fatal in fact absent truly extraordinary circumstances?" Or making it easier (by applying intermediate scrutiny) for government to burden access for one group to a lot of constitutionally protected speech by inventing a rationale around preventing or burdening access to a different group.

Expect two bad practical consequences from the decision. First, burdens on the porn industry, because compliance with the law is expensive, might cause sites to block access from certain states.Second, the over-inclusiveness of "harmful to minors" likely will limit access (for adults and minors) to important and constitutionally protected (having serious literary, artistic, political, or scientific value for minors) information about sex, sexual identity. Sites will put it behind a wall out of fear of government sanction, even if the speech is likely protected. Both consequences reflect the legislative goal. The majority used the "facial challenge" dodge to avoid adjudicating important questions about the law's scope and application; courts must answer these questions after enforcement efforts that may never come (because sites over-comply) or a wave of lawsuits by non-porn sites and users (adults and minors) seeking access to protected information that also may never come.

Non-universality, 24 hours later (updated to 48 hours later)

The temperature around CASA is high. Some thoughts 24 hours after the decision and my original post, and having had an opportunity to think about the opinion and to hear the discourse around the opinion. The podcast Advisory Opinions analyzes the opinion with Will Baude and Dan Epps of Divided Argument.

• Sam Bray (in The New York Times) and Nick Bagley (in the The Atlantic) attempt to rationally explain what the Court said, why it reflects a better/more proper judicial role, and the many avenues open for broad relief. As Nick puts it "the case represents a stark rejection of a conception of the judiciary as a free-roving expositor of federal law. That may, in time, orient judges to a healthier understanding of their (limited) role in our constitutional system."

• Without saying as much, Justice Kavanaugh's opinion adopts the view of the Court's role that Mark Lemley and Steve Vladeck have criticized--in which only the Supreme Court matters and the lower courts are perfunctory steps litigants must take to get to the Supreme Court and whose judgments should not last long. SCOTUS can exercise original jurisdiction in a vanishingly small number of cases, but Kavanaugh argues that they should seize the power to achieve the equivalent result through the shadow docket. Would it make more sense (and be cleaner procedurally) to allow states to pursue original § 1251(b)(2) through suits against the United States?

• People online are arguing that Justice Barrett called Justice Jackson stupid. MAGA asshats have seized on that to argue that she is dumb and a DEI hire and worse; liberals are mad at Barrett for the suggestion. Barrett uses unusually sharp language in rebutting the dissent.  But I do not think Barrett suggests stupidity as much as a fundamentally different and incorrect view of the judicial role. I happen to share Barrett's vision and reject Jackson's. But I do not see anyone as suggesting stupidity or incompetence. Perhaps she should have been more restrained. But I doubt she was suggesting what has been attributed.

• On that note: This dispute reduces to competing visions of the judicial role, who decides what the Constitution means, and what it means for the executive to "ignore the Constitution." Critics who see the decision as licensing lawlessness necessarily adopt any or all of the following: the Constitution means what any court says it means (including lower courts in the interim, until a higher court speaks); the executive has no contrary say or room to disagree; enforcement of a law is not specific to any target; and the court's word about the law stops the executive in his tracks in all respects as to all people. This is Jackson's dissent and Cooper v. Aaron. And I think it may be Kavanaugh's view, which is why he wants to funnel everything to SCOTUS as soon as possible. But there is no reason in Article III, equity, democracy, Marbury, or the concept of judicial review that requires these to be true.

• If district judges cannot universally enjoin Trump's birthright citizenship EO then district judges cannot universally enjoin Biden's EO forgiving student loans. The objection seems to go to the optics. It somehow would look better if a conservative Court rejected universality while stopping conservative lower-court judges from enjoining enforcement of liberal policies. (Biden SG Elizabeth Prelogar unsuccessfully sought emergency relief on scope in a few cases, although those involved possibly distinct-and-valid APA universal vacatur--see, again, Kavanaugh's concurrence). And using this case for the narrow procedural point (while leaving untouched constitutional merits that everyone agrees are obvious) allows Trump and his minions to misrepresent the Court's decision.

I see the optics point. But it does not matter for the practical purposes of the birthright-citizenship litigation. Imagine the Court rejected universality in 2023. We would be in the same place in June 2025 with respect to the citizenship EO--no universal injunctions. The court must certify a class, grant an injunction protecting the association (and thus its members), or find that New Jersey's injury requires an injunction protecting every U.S.-born person. But liberal critics of the decision seem to reject that state of affairs, regardless of how the Court got there.

In other words, the problem is not how the Court reached non-universality, it is the fact of non-universality. Or, at least, non-universality as applied to the bad things Donald Trump is doing. And here we get the inevitable partisan breakdown--"universality for me but not for thee." Had the Court rejected universality in the mifepristone case or student-loan case, liberals would have cheered. But many would now complain about the other hoops that CASA must clear to challenge this horrible law. I suppose CASA and other plaintiffs would have been on notice and would have sought class certification at the outset, saving some time and effort. But that does not seem to be the complaint.

• Going forward, courts should distinguish a universal injunction from a plaintiff-protective injunction that incidentally benefits others because the complete remedy for the plaintiff necessarily sweeps others. Barrett offered a nuisance action against a neighbor's loud noise--the plaintiff-protective remedy (lower or stop the music) necessarily benefits other neighbors. Legislative districting offers a better example--an injunction allowing plaintiff to vote in a valid district necessarily allows other people to vote in a valid district (not surprising that this majority would not want to use voting rights as an example).

This injunction should not be understood as universal. The injunction orders what the court believes gives the plaintiff complete relief; the benefits to others are incidental and not part of the injunction. Thus, if New Jersey is correct that everyone in the country must have birthright citizenship to protect it from administrative burdens, the injunction protects New Jersey by its terms; it protects people outside New Jersey only as an incident of that.

• On the podcast, Will offers a counter-factual post-Brown world in which the NAACP targeted specific school districts for party-specific relief (this is the position Justice Black urged in Brown II); he argues they would have achieved deeper integration more quickly in those districts, which might have had precedential effect elsewhere. Note that school cases presented the same scope-of-relief issues courts face now. Courts could give a small group of plaintiffs complete relief by allowing them to attend their chosen school without ordering integration or offering any relief to non-parties. The Court amended Rule 23(b)(2) in 1966 to allow plaintiffs to seek classwide relief for all similarly situated students.

• Many people are understandably worried about non-party babies falling through the cracks if they are unable to sue. I wonder if this brings us back to Will's point about how the NAACP might have proceeded post-Brown in a broad litigation strategy. And does this offer a model for CASA and other immigrant groups (absent class certification)--outreach and education of pregnant women and families and a series of lawsuits where people live, whether as individual or class actions. More importantly, at least for the EO, the image of a single, poor non-citizen with a U.S.-born newborn tryng to navigate the courts does not depict the legal landscape. As with desegregation, a web of expert organizations are able to drive this litigation. I concede this will be difficult, costly, resource-intensive, and time-consuming. But plaintiffs--and cause lawyers--are not entitled to the cheapest and easiest approach to constitutional litigation (just as the benefits of offensive litigation do not render defensive litigation inadequate).

• I mentioned this article arguing for class treatment of challenges to the law firm EOs. One of the authors--David Marcus--wrote this 2020 article showing that Wal Mart had not  destroyed or undermined Rule 23(b)(2) public-interest class actions in lower court. Marcus creates a typology of class actions.Type II includes cases in which one law violates rights in an undifferentiated way but courts could remedy violations individually. birthright citizenship EO, is a Type II case--the EO purports to strip everyone in the class of citizenship but a court could grant individual remedies by protecting only the plaintiff from losing her citizenship. Marcus shows that however much Wal Mart narrows class actions, it does not affect Type II actions. (I may have more to say about this).

Saturday Music Post - Blueberry Hill

"Blueberry Hill" is best known today for Antoine "Fats" Domino's 1956 R&B hit, but it had been a hit for others over fifteen years earlier. Written in 1940 by Vincent Rose, Larry Stock, and Al Lewis, its first release was a fox trot rendition by Sammy Kaye's big band. The first hit version was by the Glen Miller Orchestra, also in 1940, on the RCA subsidiary Bluebird Records. (Note: Bluebird may be best remembered today for its early blues releases by Blind Willie McTell, Tampa Red, Memphis Minnie, Washboard Sam, and others. I didn't know until researching "Blueberry Hill" that big bands also recorded for Bluebird.) Louis Armstrong also had a hit with "Blueberry Hill" in 1949, with the Gordon Jenkins Orchestra, which was sort of a transitional version that influenced Domino. (Another note: Gordon Jenkins seemed to make a habit of recording with diverse artists, including the Weavers' English translation of "Tzena Tzena" in 1950.)

There have been numerous covers, virtually all of the Fats Domino version, including an unexpected one by an infamous amateur at the bottom of today's post at The Faculty Lounge.

They are called universal injunctions and they are not allowed (Updated and Moved to Top)

Trump v. CASA is out. Universal injunctions are impermissible. And, in a footnote, the Court says they should be called universal (rather than nationwide) because that captures the problem. The Court does not touch the merits of birthright citizenship. And it does not reject the injunction in this case; it stays it only to the extent it is broader than necessary to give the plaintiff states complete relief. But the states argue that it is not overbroad because the nature of citizenship and the ability of people to move across state lines requires an injunction that protects beyond the plaintiff states; the Court remands for that analysis.

It is 119 pages, with concurring opinions from Thomas, Alito and Kavanague and dissents from Sotomayor and Jackson; Sotomayor read her dissent (which sounds like a barn-burner) from the bench. Will have more once I read this (and the other opinions coming today).

Update: OK, I have given it a preliminary read, along with early comments from Mike Dorf and Sam Bray. TL;DR of the opinions:

Barrett: Everything Sam Bray says in his 2017 Harvard piece (the article that started this scholarly conversation) is right. (A friend asked if this was a Notre Dame Law School thing--but I think Barrett was on the bench before Sam got there). There are policy arguments on both sides, but we do not care because it is all about the history.

Thomas (with Gorsuch): "Complete relief" is the ceiling, not the floor--a court cannot grant more-than-complete relief but can grant less-than-complete relief. Also a remedy can protect non-parties through indivisibility only when party-specific relief is "all but impossible;” that is a high bar and courts better not use incidental benefits to revive universality.

Alito (with Thomas): While we're at it, get ride of third-party standing and do not forget that FRCP 23 is narrow and it should be difficult to certify classes.

Justice Kavanaugh: Universal vacatur survives (spoken like a D.C. Circuit alumnus). SCOTUS provides practical universality through precedent via more-aggressive use of the shadow docket.

Justice Jackson: 1) Dispute resolution is incidental to federal courts' primary role of declaring the law, not the other way around. 2) Rule-of-law in a non-monarchy establishes and requires judicial supremacy and anything else is lawless (as Barrett puts it, Jackson "offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush").

Editorial comments:

• I am pleased to win the nomenclature battle.

• The Thomas and Alito concurrences reflect fissures within the six-Justice majority. Three reject the states' argument that the broad injunction they seek is necessary to afford complete relief. Two suggest that class certification should be narrow and rare. As Steve Vladeck argues, one cannot reject universal injunctions and narrow Rule 23; plaintiffs and courts need some mechanism to reach and stop wide-ranging misconduct that causes wide-ranging, identical harm to similarly situated people. The question is whether this represents genuine fissures among the six (such that at least two among Roberts, Gorsuch, Kavanaugh, and Barrett will join Sotomayor, Kagan, and Jackson to uphold class challenges to birthright citizenship and other constitutionally defective Trump policies) or whether this is those four exercising "restraint" in not tipping their hands on unnecessary issues, whereas Thomas and Alito want to put their views out there.

• I would have expected Alito to also target associational standing as means of expanding the scope of litigation and thus the scope of the remedies. After all, the individual plaintiff here is CASA, an organization suing on behalf of its more than 150,000 members

• That is a typical Kavanaugh "please like me, here are all the ways the decision will not be so bad" opinion. He is right that SCOTUS gets to a universal outcome through precedent rather than judgment and remedy. That said, expanding the shadow docket so the Court can--speedily, on limited briefing, and without explanation--superintend the scope of every injunction seems to exacerbate the shadow-docket problems. To tamp this down, Kavanaugh introduces a new concept demanding closer SCOTUS scrutiny in lieu of universality--"major new" (a term he uses 24 times in less than 12 pages) statutes and executive actions. Of course, he fails to define what qualifies as "major new" legal rules. His examples include pretty much every challenged federal enactment of the past decade, meaning SCOTUS should use the shadow docket for every federal enactment that draws a constitutional challenge.

• If one rejects judicial supremacy, Jackson's opinion is hard to read (speaking as someone who genuinely likes her writing). She accepts, without defending, that "the law" is whatever one district court says it is and the executive acts in a lawless manner by acting inconsistent with that judicial determination. So it begs multiple questions throughout in speaking of the law, and disobeying the law, and what things are blatantly unconstitutional, without explaining who decides any of this.

• Jackson offers two lines that are nonsensical. 1) The judicial power is especially great with respect to suits against the executive--except all constitutional litigation runs against the executive (or a non-executive officer performing an executive function). 2) Concern for "blatantly unconstitutional" laws. But constitutional invalidity is like pregnancy--you cannot have just a little bit of it. And she never explains when invalidity crosses that line into "blatancy."  Ironically,she offers an example--an executive who orders incarceration of his political foes--that fails on its own procedural  terms; that challenge would sound in habeas (if they seek release from custody) and not an EpY action for any sort of injunction, universal or otherwise.

• Beyond that, no one can offer any lines for when universality is proper that do not collapse into "every injunction" or "every injunction involving immigration" or "every injunction involving federal law."

• None of the Justices pursue any form of departmentalism. All accept that the courts (especially SCOTUS) get the last word. The only departure is how the Court expresses that last word--for everyone or for the parties (pending precedent and future litigation). Jackson and some of the online commentary equate departmentalism with a return to monarchical tyranny.

• Some nice online discussion about whether to teach this case, whether in Civ Pro or Fed Courts. I think Jackson's opinion illustrates the "law declaration" model of federal courts in a stark way.

• Plaintiffs in several birthright-citizenship cases have already filed amended complaints seeking class certification. Meanwhile, in the latest episode of "the media sucks," they are engaged in stenography of Trump's victory lap, as if the Court declared his EO valid or even suggested that he is right on birthright citizenship.

• One more thing: To everyone complaining that the end of universal injunctions represents "an alarming development for our constitutional republic" (sorry to pick on the excellent Chris Geidner, many people are doing this): What would your reaction be if the Court reached the same conclusion--narrowed injunction remains in place--in the Mifepristone case or the DACA case or any of the challenges to Obama and Biden policies? Would taking away Judge Kaczmarek's power to enjoin all enforcement of a Democratic president's policies be an "alarming developing for our constitutional republic?" If your answer is no, the explanation must be something other than "Kaczmarek was wrong;" as with challenges to S.B. 8, substantive objections cannot drive procedural arguments.

End All Opt-Outs

Mahmoud v. Taylor holds that parents were entitled to an injunction requiring school to notify them of the use of certain TGBTQ+ content in the classroom and offer their kids an opt-out. The content burdens parents rights to control their children's religious beliefs and does not survive strict scrutiny because the school offers other opt-outs (religious and otherwise).

On one hand, this is Alito driving the anti-LGTBQ+ "ad hoc nullification machine." On the other, what happens if a school eliminates all opt-outs? At least part of why the school policies fail strict scrutiny is that other opt-outs show their feasibility. So could a school say "this is the educational content we believe is appropriate and we are going with it for all students, no opt-outs for any reasons and if you don't like it find another place for your education" (a decision the conservative justices--especially Alito and Thomas--insist deserve deference)? Or does free exercise now give religious believers a right to participate in public functions and to dictate that the content conform to their personal religious beliefs?

En Banc 9th Circuit rethinking SLAPP laws in federal court

Two issues: 1) Whether the denial of the anti-SLAPP is immediately appealable under collateral order; 2) Whether attorney's fees are available (seemingly separate from the statute's procedural mechanisms). The parties seem to agree on #2, which is undoubtedly correct--the state fee provision does not collide with any federal rule and must apply in federal court under Hanna and the twin aims. So most of the argument focuses on the first issue. The appellee's concern was less with the legal question of whether SLAPP motions can be made in federal court and more with the timing of the SLAPP motion (several years into the litigation).

The briefing suggests that the Ninth Circuit has avoided the collision with the FRCP by incorporating the state law analysis into the FRCP--a SLAPP motion challenging the allegations is treated as a 12(b)(6), a SLAPP motion challenging the facts is treated as Summary Judgment. But that makes the COD issue more challenging--the plaintiff is basically seeking COD appeal of the denial of an ordinary 12(b)(6), rather than some special substance-bound-up procedure.

Appellee's counsel got into some trouble late when he asked the court to address the merits of the SLAPP motion (while arguing against COD jurisdiction) to avoid a third round of appeals. When a judge asked how they could do that, he asked the court to write an advisory opinion--that was received as you would expect.

Video after the jump.

 

Statement from UF Law Dean

UF Law Dean Merritt McAlister sent a statement to the UF Law Community on The Seminar Paper. Full text, plus my comments, after the jump.

Dear Alumni and Friends,

Many of you may have seen the recent New York Times article about a student at the law school.  The article stated that the student—who told the Times it “would not be manifestly wrong” to call him a Nazi—received a recognition through a “book award,” which is given to the highest overall grade in a law school class.  The paper he wrote, which counted for 65% of the final grade in the small seminar course, argued for constitutional “nationalism” based on an understanding of the Constitution that excluded non-white people from legal and civil participation in America.  Although the law school is limited by what it can say about these events under federal and state law that protects the privacy of student record information, that student has now disclosed some information publicly.

Let me state unequivocally: the student’s views are revolting and do not reflect the values of UF Law, its faculty, or its administration.  We welcome all, we discriminate against none, and we aim to create a community where students feel a sense of belonging and connection—without experiencing fear or threats or hatred.

The paper’s views also in no way reflect the views of the professor in this course.  The professor had no knowledge of this student’s history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position.  As abhorrent as the paper’s thesis may be, that work still falls within the bounds of academic freedom and the First Amendment, and, as such, was graded consistent with the grading standard for the course.

As a matter of practice at UF Law and most other law schools across the nation, the highest-performing student in any class receives a “book award” during the grading process.  Indeed, the professor believed that recognition was mandatory for the top scoring student.

I understand that these events and this article have caused many in our community pain, disappointment, and fear.  I know that many of you are outraged at the law school for not taking the book award away from the student.  But the administration does not second-guess grading decisions at the law school, except in very narrow circumstances, and those circumstances did not apply here.  Upholding academic freedom and the student’s First Amendment right to express even odious ideas is the harder path, but it is the path our principles require.   

Rescinding the honor might feel righteous, but it would betray those principles and set a dangerous precedent in a law school that trains students to confront unpopular ideas and represent unpopular clients.  Defending free expression is easiest when we approve of the speech; it is hardest when, as in this instance, the speech tears at the fabric of our community.  But that is precisely when our commitment must hold.

We have protected academic freedom and the student’s First Amendment rights while also prioritizing the safety and security of our community.  As soon as the student’s conduct became threatening and substantially disruptive, in collaboration with UFPD and UF administration, the student was barred from campus.  We heightened security across the college.  It is important to note that the escalation in the student’s conduct that led to his trespass happened three months after the book award had been announced in January.

Sadly, this article has given an extremist provocateur exactly what he wanted: a platform for greater visibility.  And it has caused hurt and pain within our community in the process.  I also regret that this has led an honorable public servant—one who has served his country for decades as a federal public defender and a federal judge—to receive death threats because of an impartial grading decision he made.  No one deserves that treatment for selflessly teaching as a part-time instructor in a law school.

The decisions we’ve made in this instance reflect the best efforts of dedicated professionals to protect students’ First Amendment rights and embody the principles of academic freedom in grading, administering, and guiding a law school.  Not everyone will agree with our judgment, and I respect that.  But I hope we can begin to move forward together recognizing that, collectively, we share commitments to uphold the First Amendment, academic freedom, and our shared sense of humanity.

Best,
Merritt
Merritt McAlister
Interim Dean and Levin, Mabie, & Levin Professor of Law  

I believe McAlister has handled this about as well as any dean could have and I told her as much in an email.

I agree with three key points: 1) The grade is not an endorsement of the viewpoint in the paper, either by the school or the profs; 2) Book awards are not some unique prize but an automatic "recognition" to the top paper; 3) We do not, cannot, and will not change grades.

I do not agree with the first substantive paragraph rejecting the views expressed in the paper, but I understand why she included it. But to me that opens Pandora's Box. Students in my colleague's class have argued against Title VII as a matter of constitutional law and social policy; a law-school classmate argued in favor of coverture marriage; must the school publicly reject all those views?

I question the premise that "The professor had no knowledge of this student’s history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position." It was obvious the paper aligns with the student's beliefs; the last paragraph endorses  action, including civil war, to advance the "detestable and extreme position" presented in the paper. Most of us believe the correctness of the positions we take in our writing.  In any event, that is irrelevant--if academic freedom protects the student in writing (and the prof in awarding a high grade to) this paper, it does not matter whether the paper reflects the author's deeply held offensive beliefs, was an attempt to play devil's advocate, or was a troll.

The unspoken issue--which I would not expect McAlister to address in a public statement--is whether Judge Badalamenti and his co-instructor should teach this class again. Given the prevailing view that the paper did not (and could) make the case he purports to make, the question becomes whether the co-teachers possess the requisite expertise to teach a historically grounded class. The school can determine that, consistent with academic freedom.

Finally, I still question whether his suspension and trespass were proper, although that is out of the dean's hands and rests with the university and campus law enforcement. I have not heard of any statements that qualify as "true threats." And "substantial disruption"--especially from off-campus speech--should not be the standard at a university. I wait to see how that plays out.

Challenging court rules and the problem of offensive litigation

The United States has sued the District Court for the District of Maryland (and each of its judges) , challenging the validity of a district-wide standing order that automatically stays removal for any habeas petitioner in the district. The suit argues the order violates the requirements for injunctive relief, ignores jurisdictional bars on immigration cases, and violates § 2071 and FRCP 83 by effectively creating a local rule without notice-and-comment. It also has some gratuitous language about how lower courts are interfering with the executive; how SCOTUS has had to pause unlawful restraints on core Article II powers; and woe-is-me about how many nationwide injunctions that have been issued against the Trump Administration.

Aside from the oddity of the federal executive suing a federal court, the case offers another example of how the default to offensive pre-enforcement litigation has taken over. It seems to me the correct procedural posture for this action would be for the government to seek to appeal (under COD) or mandamus the automatic injunction in the next habeas action filed in the district. Although I enjoy the irony of the federal executive pursuing the big-picture litigation efforts it decries from private litigants.

These sorts of pre-enforcement challenges to local rules are becoming common. A Tennessee civil rights attorney attempted this move in challenging a Middle District of Tennessee rule precluding attorneys from making extra-judicial statements. The district court dismissed for lack of standing--enforcement of the rule against him was not certainly impending in any of a series of actions against the private-prison company CoreCivic. (The district repealed the rule last month). This suit did not make sense to me, either. It seemed like a perfect candidate for defensive litigation within a pending proceeding--argue the invalidity of the local rule in defending against its attempted enforcement, then attempt to appeal the gag order* or seek mandamus.** 

[*] The collateral order doctrine would seem to allow review, even after Mohawk. The gag is completely separate from the merits; the attorney's free speech is an important issue; and the loss of his First Amendment rights cannot be remedied on appeal from final judgment, as he is denied the opportunity to speak in the meantime.

[**] There also might have been a Younger issue (or the equitable equivalent of Younger between two federal proceedings) in that action--the injunction would interfere with the power of the judge in the ongoing action to control the proceedings before him. I guess the question is whether a gag order is akin to contempt.

The challengers would argue that the rule (applicable to all the suits the lawyer had against CoreCivic) or standing order (applicable to all habeas actions in the district) creates the constitutional problem, not the application in one action. But that is always the case--the violation is the enforcement of a rule, not the existence of the rule itself. Precedent from that first action (especially binding precedent from the court of appeals) defeats enforcement of the rule or order in other actions.

The usual argument (see critics of S.B. 8 and its copycats) against defensive litigation--it requires someone to violate a rule and risk suit and liability and it chills real-world conduct--does not apply. The challenged rules apply once judicial proceedings begin, at which point they have the opportunity to challenge the rule. The challenged rule does not cause any real-world chilling effect, independent of those proceedings.

Thinking About Religious Exemptions

When the First Amendment requires a religious exemption from a general law is a vexing question. Here's an idea that I'm playing with in an article I'm drafting.

Conscription laws from World War I on provided draft exemptions for ministers. You can think of those exemptions as a reflection of the religious views of those people. But you can also see them as necessary for religious expression more generally. Drafting young priests or rabbis would leave many people hard-pressed to practice their faith.

Now think of Wisconsin v. Yoder. Giving older Amish children an exemption from compulsory public school was partly about the beliefs of those child and their partners. But it was also important for maintaining the health of the Amish community as a whole. 

What's the takeaway? Maybe a religious exemption from a general law is required only when the harm from not providing one extends to the church or religious group as a whole. This would mean that Smith itself was wrong due to the impact of the peyote restrictions on that Native American church. But that does not mean a return to an open-ended balancing test for free exercise claims. 

Law firms, class actions, and universality

Nora Freeman Engstrom (Stanford), Jonah Gelbach (Berkeley), and David Marcus (UCLA) have an essay (forthcoming in Stanford L. Rev. Online) arguing for 23(b)(2) class treatment of law firm challenges to Trump EOs. They explain the scope of the class, why a class is better than a universal injunction (even if those are possible), and why class litigation offers a viable alternative (despite stated concerns in many corners) at least in a case such as this where a single policy announcement affects all firms. A short-and-quick, but important read.

Jury Nullification and ICE

My new essay for The Hill explains the historical precedents for jury nullification, which are likely to thwart the Trump administration’s attempts to prosecute blue state office holders – so far, a judge and a member of Congress – for interfering with ICE operations.

Here is the gist:

History shows prosecuting officials challenging ICE raids won’t be easy

by Steven Lubet, opinion contributor - 06/23/25

President Trump’s promised retribution against what he has called the “core of the Democrat Power Center” includes siccing thousands of ICE agents  on “blue cities.” The assault has already led to the prosecution of public officials who challenged his abusive immigration seizures. 

But the Trump administration will likely lose those cases, thanks to the strong American tradition of jury resistance, sometimes called nullification, dating to before the Civil War. 

The McIver and Dugan prosecutors will have to contend with potential jurors appalled by Trump’s indiscriminate pursuit of migrants, just as jurors in antebellum Boston and Philadelphia were appalled by the kidnapping of fugitives and arrests of rescuers. 

In the 1850s, northern opposition to the spread of slavery, sharpened by confrontations with slave hunters and federal marshals, led to Abraham Lincoln’s election in 1860. 

Will the prosecution of Democratic officeholders and the arrests of countless migrants by masked Immigration and Customs Enforcement agents have the same impact on the mid-term elections of 2026? 

You can read the entire essay at The Hill.

More about UF courses

Another tangential piece to the story about the white nationalist seminar paper at UF:

Carliss Chatman visited at UF from SMU in the spring. She proposed to teach a course called "Race, Entrepreneurship and Inequality," but the school listed it only as “Entrepreneurship” in the course catalogue. The Times presents this as a politically tinged juxtaposition--student gets award for racist papers in the name of intellectual diversity while prof cannot teach class with race in the title in the name of institutional neutrality. 

Welcome to higher education in Florida under Ron DeSantis. But including it in the story confounds the narrative. Damsky's story is one of core academic freedom, which McAlister could and rightly did protect.

Chatman's story presents different issues, with different legal and practical results. The state has issued various decrees about courses, going to titles, syllabi, and content, with the implicit threat that a state DOGE will be combing through course catalogues, likely using AI for key words. Universities have responded by ordering units to scrub web sites and course catalogues of classes, programs, syllabi, etc. containing "bad" words, such as "race" or "inequality" or "diversity;" units are complying. No one knows what happens if they fail to do so--whether the state or the university will impose formal sanctions (loss of funds, firing administrators, whatever) or whether this seeks to preempt Chris Rufo from turning this into a political issue.

It is not clear how academic freedom protects things such as course titles--how could the prof or college defend if the state or university  sanctioned the school over what the course is called. Compare that with course content, which is more obviously protected. That is, if Chatman could teach the course she otherwise wanted to, academic freedom is mostly served. Just as it was served because the judge gave the grade he deemed appropriate.

In any event, I do not want to set Chatman's issue as some ideological counterpart to the student paper. And I do not want to blame the law school administration for the course title; they are working under real pressure in an uncertain area.

Is the Achilles the new ACL?

In the '80s, a torn ACL was the nightmare injury for basketball players. The recovery took a year+ and the player was unlikely to return at the same level, especially in terms of running, jumping, and athletic explosiveness.* And it felt like a product of the evolution of the game--players ran and jumped liked never before and maybe the human body was not meant to do this.  But medical science has made it easier for players to return more quickly and in the same form.

[*] Bernard King was one of the few to pull it off after his 1985 injury--he missed about a year, returned after a year without that explosiveness, then took another year to get that back--he averaged more than 20 ppg for three straight years, beginning in the third year after the injury.

The torn Achilles Tendon has become the new nightmare, both in its increasing commonness and in it effects. Three star players--the Bucks' Damian Lillard, the Celtics' Jayson Tatum, and (in last night's Finals Game 7) the Pacers' Tyrese Halliburton--tore their Achilles. Kevin Durant tore his in Game 6 of the 2019 Finals. Lillard and Halliburton (and Durant in 2019) were dealing with calf injuries, continued to play through them, and suffered the injury. The injuries happen on similar plays--an attempted quick first step from a standing or slow position, in which the calf extends. High-def video and slow motion allows you to see a "wiggle" in the leg. And the players recognize the injury in an instant. It also is interesting that four major examples occurred during the playoffs--when the intensity and physicality ratchets up.

The injury takes more than a year to recover from. So given how late in the season, Lillard, Tatum, and Halliburton are expected to miss all of 2025-26. The question now is whether they can "be the same players"--which in Tatum's case was First-Team All-NBA and in Halliburton's was an emerging best player on a championship team. Durant has done it, after missing about 1 1/4 seasons.

Hiring Plans and Hiring Committees 2025-2026

Link to a tool to search and filter the information on the below spreadsheet by subject area sought, location, and lateral/entry level.

---

I am collecting information about (1) whether a particular school plans to hire in 2025-2026, and (2) if so, information about the school's hiring committee and hiring interests.

Please fill out a Google form or email me to provide information about your school's hiring committee and hiring interests for 2025-2026 (scroll down for the list of specific information I'm hoping to collect). Any responses to the Google form can be viewed by anyone.

I will aggregate cleaned, standardized information submitted through the form, emailed to me, or gathered from other sources (such as public hiring ads, posts on the web, social media, etc.) in a downloadable, sortable spreadsheet. You cannot edit this spreadsheet directly. To provide this information, fill out the Google form or email me.

Use a web tool available on the Lawsky Projects website to filter the information in the spreadsheet by subject area, location, and lateral/entry level. All that the tool on the Lawsky Projects website does is sort and filter what is in the spreadsheet; it is therefore only as useful as the spreadsheet is complete.

Here is the specific information I'm hoping to collect. You can submit this information through the Google form or by emailing me:

First:

(a) your school;

 

(b) whether your school is pursuing entry-level hiring in 2025-2026;

 

(c) whether your school is pursuing lateral hiring in 2025-2026.

If your school does plan on pursuing hiring in 2025-2026:

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--I hope that this information will be useful for both entry level and lateral candidates);

 

(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

 

(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) whether you are open to direct applications/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 

 

(h) your committee's preferred way to be contacted; 

 

(i) the website, if any, that candidates should use to obtain information about the position or to apply; and

 

(j) the number of available faculty positions at your school.

The form also provides a space to provide additional information, such as pasting in a hiring ad.

Again, to submit this information, please use the Google Form or email me directly.

The Limits of ChatGPT

Recognizing that the free version of ChatGPT is not the most current and that the technology will get better, a simple test suggests that its got work to do.

I asked: "Who is Gerard Magliocca?" I was told that my most notable work is The Chief Justiceship of Charles Evans Hughes. I have not written anything like this. Now if I treat this as advice or something like going to Nostradamus, maybe I should think about for my next book. 

About that UF student paper (Update)

From the New York Times.This begins with a fall 2024 seminar on originalism co-taught by U.S. District Judge Badalamenti (M.D. Fla.) at UF. A student named Preston Damsky--a white nationalist and antisemite who (according to the Times) said it "'would not be manifestly wrong'" to refer to him as a Nazi--wrote a paper arguing that "we the people" refers only to white people and that constitutional and other changes contrary to that represent a "demographic assault on their sovereignty" and a "terrible crime" that white people must resist. Damsky booked the class. That sparked controversy and a series of emails and town hall in spring. That controversy took another turn in February when Damsky began posting racist and antisemitic messages on Twitter, including a March post stating that Jews must be "abolished by any means necessary." He was suspended and and barred from campus.

Update: Link to the paper, which means it will attract more readers than most published scholarship.

• Anthony Michael Kreis (Georgia State) has read the paper and says:

It’s bad. It’s just Dred Scott repackaged. No new historical research. No innovative argument. It isn’t poorly written but that’s about the only thing I can say about it— certainly could not have been the best paper in the class.

Evan Bernick (Northern Illinois) goes a step further, insisting that "no paper that argued for the KKK’s interpretation of the Constitution should have received a passing grade, let alone an award."* I do not agree that the paper's conclusion or viewpoint (however odious) renders it ineligible for the award or a good grade. Anthony's reaction to the paper does not surprise me. I  doubt a student (or anyone else, probably) could make the doctrinal, textual, and historical arguments necessary to provide originalist support for this position. And the paper fails if it does not recognize (as Bernick describes in his posts) the historical forerunners of his arguments. If he cannot make those showings and properly situate his arguments, this becomes a bigoted policy argument in legal drag--which does not warrant a good grade and and certainly does not warrant the book award. But that should be the framing.

[*] This is consistent with Bernick's views--expressed most forcefully in his article on birthright citizenship (with Kreis and Paul Gowder)--that legal scholars carry an obligation not to make weak, politically motivated arguments for the sake of "just asking questions" when those arguments can be used to destabilize fundamental rights.

• To people unfamiliar with law school, the phrase "book award" sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition. One of my colleagues declines to give a book award in seminars or other non-anonymous classes. Although at FIU we have begun a program of having profs pick a "best" paper from each seminar, for the student to present at a school program the following semester. So we end up in the same place, whatever we call it.

• Good on UF Dean Merritt McAlister for not overruling Judge Badalamenti on the book award or the grade. (Eric Segall disagrees on this). Absent some showing of bias, mistake, or other impropriety, the administration cannot overrule a prof on a grade, including identifying the "best" grade for the class. Grading is core academic freedom, on which the professor's expertise controls. And she is correct that a prof cannot "grade down a paper that is otherwise successful simply because he or she disagrees with the ideas the paper advances.” (Whether the paper was "otherwise successful"--and the extent to which those two things may overlap--goes back to Kreis's point. But that, too, remains outside the dean's realm),

Unfortunately, either McAlister or the Times bound her defenses within "institutional neutrality," which has become an unfortunate buzzword and bastardization of the Chicago Principles that has nothing to do with this controversy. This case does not involve the university taking a position about George Floyd or Donald Trump's decision to bomb Iran. It involves academic functions (course work and grading) at the heart of the academic mission that the administration must address. The administration rightfully stayed out of it but that has nothing to do with institutional neutrality and everything to do with academic freedom.

• The story includes an additional tidbit: An anonymous new graduate told the Times that a  law firm withdrew a job offer when it learned that he had criticized the judge for giving the book award to Damsky. It would be nice to name and shame the law firm. Unfortunately, that graduate's career depends (for now) on his identity--and thus the firm's identity--remaining unknown.

• Saving the worst for last: Nothing described in the Times story or in an April story in the Alligator (UF's independent student paper) cited in the Times justifies suspending or trespassing Damsky. The key exchange seemed to go like this:

• Damsky posted his call for abolishing Jews by any means necessary in March.

• A UF prof asked Damsky if he would murder her and her family.

• Damsky responded that “'surely a genocide of all whites should be an even greater outrage than a genocide of all Jews, given the far greater number of whites.'”

Nothing described qualifies as a true threat (his statements were not targeted or immediate), incitement (nothing more than abstract calls for violence as a good idea in the future), or targeted harassment (not targeted or severe-and-pervasive within a small context). Perhaps Damsky targeted his second  statement--genocide of Jews is a lesser outrage--because he spoke to the prof in responding to her question; by definition, "genocide of all Jews" includes killing the Jewish person to whom he is speaking. But the content of the speech cuts against that--he still spoke in the abstract about a genocide of all Jews, not about a direct personal action that would cause a listener to reasonably fear imminent harm from the speaker.

The Times says Damsky is challenging his suspension. It seems to me he has a good argument.

• I will throw out one final question: Assuming UF readmits Damsky and he graduates, can he pass C&F? How much does the First Amendment limit the Bar's inquiry into protected speech as a basis to deny admission?

    Update: One example is Matthew Hale, a neo-Nazi who was denied admission to the Illinois Bar in the 1990s. The Illinois Supreme Court (over a dissent) denied review of the Character and Fitness Committee decision. Hale was convicted in 2005 of threatening a federal judge.

Four Days in December 1941

This is a post that has nothing to do with law. On December 7, 1941, Pearl Harbor was attacked. Four days later, Hitler declared war on the United States. What happened during those four days between the United States and Germany?

What I mean by that is suppose Hitler had not declared war on us. Were we going to? Was that uncertain? What were those conversations like? Perhaps there is a history of World War II that discusses this. If so, I'd be interested to know. If not, I think that this topic could make a great book. 

UPDATE: John Lucks wrote a great book called Five Days in London: May 1940 that did something similar for Winston Churchill's start as Prime Minister.

Saturday Music Post - Playing Favorites

Rock Legends Keith Richards and Paul McCartney (among others) have occasionally listed their favorite songs and artists. You can see some of them today at The Faculty Lounge.

What should trans-rights activists have done?

Having used its pages to "just ask questions" and thus launder anti-trans bigotry into empathetic medico-scientific caution,  the Times bounces the rubble with a long story about how the Skrmetti litigants "gambled and lost and "set the movement back a generation." Josh Blackman reads the story as revealing something meaningful about movement politics and the shape of the left. Actually, the story represents an opportunity for the Times to support its priors by quoting a bunch of the trans movements allies saying "told you so."

This all comes down to one question: What should trans activists and their lawyers have done in the face of that Tennessee law?

They had four options: 1) Do nothing and live under a discriminatory law in Tennessee (and other states enacting similar laws); 2) Litigate in state court (or at least try state court first) as a way to buy time; 3) Litigate in federal court but do not try SCOTUS--stated differently, lose substantial rights in Tennessee, Kentucky, and Ohio (and Michigan, next time it has a Republican governor and legislator) but allow other people in other places to enjoy those rights and perhaps fight another day;* or 4) Try what they did and live with the consequences. # 1 should not be acceptable; # 2 seems like a waste of time and money, certainly in Tennessee--there is a reason we do not require state-law exhaustion before pursuing § 1983/EpY claims. Blaming the losing litigants also ignores that SCOTUS reached out to take the case. Its docket is discretionary, so it had no obligation to hear it; there was no direct circuit split to resolve, so the Court had none of its ordinary reasons to hear the case. Which I guess reifies # 3 as the least-bad option.

[*] First they came for the trans people in Tennessee, but I did not speak out because I am a trans person who does not live in Tennessee . . .

The Times' "over-reach" framing sounds in "too soon"--the movement tried to move too fast it blew up, and now we're screwed for generations. It pushes option # 1. But as I wrote here:

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

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

The analogy might be Plessy and Jim Crow--a deliberate test case to challenge relatively new  laws (Jim Crow began in earnest in the late 1880s and 1890s). Like 1890s state legislatures targeting Black people with new laws, 2020s state legislatures target trans people with new laws. So if option # 1 is it, does that mean trans people must live in a discriminatory environment for another 30-60 years?

If not, I return to my question: What else should trans people living in a state denying them necessary medical coverage have done?

More on "To the President of the United States"

A reader emails about my post on the unknown origins of the Chief's "To the President of the United States" toast at the Supreme Court Historical Society dinner. He writes

Its origins pretty plainly lie in the elite adaption of the Loyal Toast in the United Kingdom -- simply "The Queen," as it was for most of my life, or "The King" -- and has been a feature of U.S. military and civic dinners since at least the late 1800s. It absolutely reeks of undiscerning Anglophilia -- an affliction this country can't seem to shake off -- and I'm not surprised that the Court's historical society perpetuates such a un-republican tradition.

This supports my head-of-state theory and the problem with making the same person head of the state and the government.The connection to the U.K. takes it another state by making the head of state the sovereign, the embodiment of the nation, something we supposedly discarded in 1776. Of course, given how Trump seeks to govern and the power Republicans seem intent on giving him, perhaps it fits.

"Some gallows humor from an Israeli academic friend," per Brian Leiter

Brian Leiter writes, 

Some gallows humor from an Israeli academic friend

He writes:   "A few hours ago a missile that was headed to Ben-Gurion University hit a hospital instead, and there is a lot of damage there. Many missiles are targeted at universities. (The joke among Israeli academics is that the Iranians understand the importance of higher education much better than the Israeli government does)." 

An alternative punch line is that the Iranians have taken their cue from American professors who advocate the academic boycott of Israeli universities.

Skrmetti

Yeah, I missed badly on this one, sorry to say. 6-3, by the Chief, following the usual political lines and arguments. Justice Kagan's short dissent argues the position I thought the Court would take--heightened scrutiny applies (she joins Sotomayor's primary dissent on this), kick it back to the lower court.

Also, I hope this ends the "Barrett is less conservative and more moderate than everyone thinks" bullshit in non-legal media. On every "culture-war" issue (such as equal protection and discrimination), she is in lockstep with the Republican-appointed supermajority. In fact, she went further than the majority here, with a concurrence (joined by Thomas and echoed by Alito in a separate concurrence) arguing that transgender people are not a discrete-and-insular minority with a history a de jure discrimination as to warrant quasi-suspect classification and heightened scrutiny. (The majority said the law did not discriminate on trans status and thus no need to decide the suspect-class issue).

Now, that is fine if that is her jurisprudential position. She is a member of the Court and gets to make those decisions according to her judicial philosophy. But the mainstream media continues to fail (and fail and fail) at its basic job if it writes softball stories suggesting Barrett is something other than what she is, at least on the stuff of larger societal import.*

[*] See also all the simplistic stories about the Court's new-found unanimity.

Canada and the NPR Solution

The Trump administration's threats to funding for NPR, and demand to annex Canada, reminded me of this 2006 column that may actually suggest a stop-gap solution. Twenty years ago, we probably all enjoyed joking about NPR. The Trump attack isn't funny, but maybe this will help us recall better times. Also, everyone should join their local public radio stations, and subscribe to local newspapers. Independent journalism is more important now than ever.

WBEZ has air time to fill? Tune in on the Canadians

Chicago Sun Times (IL)

May 15, 2006

Steven Lubet

Just about everyone in town has an opinion about the impending changes at WBEZ, Chicago's public radio station, that will eliminate jazz and other music programming in favor of a 24-hour news-and-talk format. Bebop afficionados are threatening to hold their breaths and turn (appropriately) blue if the decision isn't reversed, while news junkies are salivating at the thought of even more current events coverage -- let's call it All Things Considered ad Nauseam.

But for all the erudite sturm und drang, no one has put their finger on the real problem. Where is WBEZ going to get 24 hours worth of news and talk? Sure, talk is cheap, but that doesn't mean it's easy to find, especially since it will have to fit public radio's hyphenated template -- super-serious, self-possessed, ultra-rational, and mostly non-partisan. 

Fortunately, I know just the place where deadly earnest content abounds, where time limitations know no bounds, and where NPR's grave solemnity is exceeded by leaps and bounds. Yes, I'm talking about Canada. WBEZ simply needs to point its antenna to the north, and it will be able to fill virtually endless hours with in-depth coverage of subjects like software licensing in Toronto or the importance of weatherproof paint in New Brunswick.

Talk about long-form reporting! Canadian radio makes NPR seem like sound-bite central. Of course, they broadcast exclusively in Canadian, which takes a little getting used to. But half of my family is from Manitoba, so I can provide a fair translation.

Imagine the joy of listening to a 30-minute piece about mail delivery on Prince Edward Island:

"So, how's the postal service?"

"Well, I'd say it's pretty good, eh."

"Get your mail on time, do you?"

"Most days."

"How about the weekend?"

"Doesn't come on Saturday or Sunday. Can't say I miss it, though."

And if that won't be enough to keep you fastened to their frequency, how about another hour on the grain harvest in Saskatchewan:

"What are you growing in that field over there?"

"Wheat."

"How about that one?"

"More wheat."

"That field behind us?"

"Winter wheat."

"Then it's pretty much all wheat, eh?

"Pretty much."

That ought to whet your appetite for real news radio. And just wait for the annual precipitation report from Baffin Island! I can hear it now:

"Get much precipitation up here?"

"I wouldn't say so. Except for the snow."

Sure, it can't all be that educational. In addition to breaking news, you have to give listeners a chance to speak their minds, whether expressing opinions or seeking advice. Canadians, of course, would never tolerate someone as intrusive and judgmental as Dr. Laura Schlessinger. But they ought to have their own, less-aggressive, radio therapist. Let's call her Dr. MacKenzie:

"Thanks for taking my call, Dr. MacKenzie, I'm having some trouble in my marriage."

"Lots of people do, but it's probably not the sort of thing you'd want to discuss with a total stranger."

"I guess not, but I could really use some help."

"Sure you could, but it's really best kept to yourself."

"OK, Dr. MacKenzie, I'll just sit tight. Thanks for the advice."

"That's what I'm here for."

Yep, Canadian radio would make us all forget all about the world music, Celtic ballads and Afro-pop that used to consume valuable air time on WBEZ. Instead, we'll be able to hear descriptions of an art gallery run by former Nicaraguan contras, or an explanation of orthographic reform in Azerbaijan.

With informative stuff like that available at the twist of a dial, who needs all that jazz.

Author's note: All of the dialog is fictional, but one of the stories really did run on WBEZ: Bonus points go to any reader who correctly recognized Azeri orthography -- they recently changed their alphabet from Cyrillic to Latin -- as an actual NPR report.

 

The Buck Stops Somewhere Over There, I Guess

Judicial nominations are one area in which it doesn't much matter whether one holds a unitary executive theory of the presidency or not. In other cases, it does. For example, if an FCC chairman were to grossly abuse his office, raising or dropping investigations selectively for partisan purposes, or leaning on a media company that is in the middle of merger negotiations to encourage it to settle a lawsuit brought by a patron of that chairman, the president would obviously want to fire him; who could have confidence in such a person? The president's inability to do so would be a point in favor of the unitary executive theory, which emphasizes that, as the saying goes, the buck stops here. When it comes to judicial nominations, things are simpler. The president alone makes the nomination. He can be a lawyer or a felonious reality TV star, a genius or a semi-literate dope, but his nominations are his call.

So it seems odd to read Josh Blackman saying, in this of all areas, that if Donald Trump made bad choices of judges in his first administration--he did, although, rather conspicuously, not in the case of the one judge Blackman is discussing--then "the blame should not lie with President Trump." Of course it should. Where else could it lie?

Is it true that "[i]t's not the President's job to vet the pool of Supreme Court nominees?" Well, say rather that it's unlikely that any president will do his own Westlaw searches. But he can’t delegate making judicial nominations, and vetting the pool of potential nominees is much more his job, and much more within his capacity for decision-making, than, say, evaluating nuclear reactor safety or interest rates, or other jobs over which this president insists on control and random tinkering. And picking the people who do the vetting, or at least the people who pick those people, is certainly within his capacity and responsibility. It very much is his job.

Whether he makes a bad choice because he personally chose the wrong judge, because he picked the wrong people to do the vetting, or--and this seems to have been the case—because he made a deal about who would do the vetting, either to satisfy a constituency or to spare himself the trouble of having to care about something boring, is quite irrelevant. He, or his apologists, can't, to coin a phrase, post-emptively pin the blame on unnamed lawyers. To be sure, those lawyers were responsible to Trump. But Trump, like any president, was still responsible for the choices. If he doesn’t want to be blamed for things—and he sure doesn’t! What is his perversion of the office and the rule of law if not an extended temper tantrum over losing an election?—then he shouldn’t have run for president.

As it turns out, I think Trump made some sound choices for judges during his first administration. (At least, given his priors, or more accurately those of more interested and intelligent people working for him. I would have made other choices, unsurprisingly, but I ain’t the president.) Also some terrible choices, and some plausible choices who I think have embarrassed themselves on the bench with blowhard speeches, dubious decisions, and an addiction to dicta. I would guess that the current regime, burdened as it is by a surfeit of misplaced loyalty and ambition and a deficit of intelligence, experience, and integrity, will make a few good nominations and a lot of terrible ones. (I also imagine that first-term appointees in the "terrible choice" and "plausible but ultimately embarrassing" categories will be first in line for any Supreme Court seats. But it's just a guess.) But given that Trump, and his political dependents, are hardly shy about placing him "at the helm" when they want to flatter him (and reap political and financial benefits, and placate the mob), surely they should place him there when—after the fact—they dislike his choices. Especially, it seems, the intelligent, temperamentally judicious ones.

It’s true that, as they say, Trump consistently disrupts all political norms, none more than the sound, sober, and selfless ones. But "the buck stops here" is a pretty good norm. We should totally keep that one.

Cross-ideological benefits

SCOTUS granted cert in First Choice Women's Resource Ctrs. v. Platkin to resolve "'[w]hether, when the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, a federal court in a first-filed action is deprived of jurisdiction because those rights must be adjudicated in state court." That is, can the target of an investigator subpoena challenge the subpoena in federal court or must it wait until the state seeks to enforce the subpoena, at which point Younger and preclusion kick-in.

The petitioner is a crisis pregnancy center seeking to challenge a subpoena from the New Jersey AG seeking donor information as part of a fraud investigation. Support for the petition cam entirely from conservative organizations. Mark Joseph Stern describes this as "a spite grant: The conservative justices are mad that New Jersey has dared to investigate a "crisis pregnancy center," so it will once again contort the law to shield CPCs from legal scrutiny. The biggest losers will be "patients" scammed out of obtaining actual health care services."

But it seems to me a decision making it easier for subpoena targets to win the race to to the federal courthouse (which Stern believes will be the likely outcome) will benefit liberal groups targeted by MAGA state governments. Consider Ken Paxton's crusades against Media Matters (also seeking donor and similar First Amendment-protected information) or Pre-Musk Twitter, similarly alleging fraud or consumer deception). Stern and other liberals reject the underlying premise of the lawsuit--that crisis pregnancy centers  have First Amendment rights to engage in what these people regard as medical fraud. Fair enough on the merits. But the immediate precedent procedural/jurisdictional issue the Court will decide is not unique to conservative, religious, or anti-choice organizations.

Unless I am missing something. I am surprised at the one-sidedness of the response thus far. I look forward to seeing what the merits briefing looks like and how the U.S. positions itself in this case.

Read your damn book

The Forward reports on attorney Steven Ludwig's loud resignation from the board of Philadelphia's ADL chapter to protest the direction that Jonathan Greenblatt has taken the organization. The letter quotes from Greenblatt's 2022 book It Could Happen Here, then argues that the things Greenblatt warned against--infringements on voting rights, infringements on the rule of law, censorship, and attacks on immigrants) are happening under Trump 2.0.  But the ADL has not stood up or spoken out because none deals directly with antisemitism and, in fact, the administration is doing many of these things in the name of stopping antisemitism (and anti-Zionism as antisemitism).

Here is the ending of the letter:

At this rate, the ADL will invariably give an award to Trump for being the GREATEST fighter against antisemitism and for doing more for American Jews than anyone ever? (After all, Trump did more for Blacks with the possible exception of President Lincoln.)

Before it is too late, please fulfill ADL’s historic mission to fight for civil rights and to stand up for what’s right while there is still time.

Read your damn book.

The ADL downplayed the resignation, stating that it loses 1-2% of its 800 members across 23 regional boards each year. Still, this is a well-done argument, showing Greenblatt's mistakes, without having to reach for low-hanging fruit, such as Elon Musk's Nazi salutes.

The Forward story also said that Greenblatt walked back his support for Trump administration attacks on universities in a note to leadership, promising to "make a point to continue to call out to the administration the need and constitutional right for due process.” This highlights one of my criticisms of Greenblatt--he does not seem to object to deporting people or punishing colleges and students over protected speech that he deems antisemitic (e.g., Rumeysa Ozturk's op-ed), so long as they receive due process. That cannot be the limits of civil rights.

Saturday Music Post - Love and Marriage

Songs idealizing marriage -- if sometimes only fleetingly or implicitly -- used to be pretty common in popular music, even in '60s rock. I am insufficiently up-to-date to know whether that's still the case, but there are some old examples, along with a with a bonus or two, in today post at The Faculty Lounge.

Teaching and intellectual evolution

This Atlantic piece has stuck with me since first published in 2019 (I blogged about it). The Atlantic website recirculated it in today's daily email. I will highlight the piece that captures teaching and the academic connection.

As Bach demonstrated, teaching is an ability that decays very late in life, a principal exception to the general pattern of professional decline over time. A study in The Journal of Higher Education showed that the oldest college professors in disciplines requiring a large store of fixed knowledge, specifically the humanities, tended to get evaluated most positively by students. This probably explains the professional longevity of college professors, three-quarters of whom plan to retire after age 65—more than half of them after 70, and some 15 percent of them after 80. (The average American retires at 61.) One day, during my first year as a professor, I asked a colleague in his late 60s whether he’d ever considered retiring. He laughed, and told me he was more likely to leave his office horizontally than vertically.

Our dean might have chuckled ruefully at this—college administrators complain that research productivity among tenured faculty drops off significantly in the last decades of their career. Older professors take up budget slots that could otherwise be used to hire young scholars hungry to do cutting-edge research. But perhaps therein lies an opportunity: If older faculty members can shift the balance of their work from research to teaching without loss of professional prestige, younger faculty members can take on more research.

Ironically, the move to vigorous post-tenure review since 2019 (most prominently at Florida schools) flies in the face of this six-year-old article's insight--a 60-year-old who has taught for 25 years cannot be as productive a scholar as a 40-year-old in her first decade of teaching, and schools should adjust job assignments, expectations, and evaluation accordingly. Post-tenure review potentially flattens that evolution.

Procedural law v. procedural culture

One interesting feature of teaching Civ Pro involves balancing formal rules and statutes against subtler, less formal practices (some from standing orders of each judge, some from the ether of the court system, some from general legal culture). Edith Beersden (Temple) has written about this as to discovery and other areas.

That distinction runs through Thursday' opinion in Parrish v. United States. A federal prisoner did not receive the district court order dismissing his civil rights action because he was released from federal prison and transferred to state prison the day after the order. When he received the order three months later, he sent a letter to the court that he called a notice of appeal. The Fourth Circuit recognized Parrish's letter/notice as a motion to reopen the time appeal; the district court granted that motion. But the Fourth Circuit, over the disagreement of both parties, held that Parrish had to file a new notice of appeal within the newly reopened time period; his original, premature notice (the letter to the district court) was insufficient.

The Court decided 8-1 that the original notice sufficed (Justice Gorsuch would have DIGed the case). But they split 6-2 as to why.

Writing for the majority, Justice Sotomayor focused on the controlling statutes (§ 2107 and FRAP 4). Those provisions codify the pre-existing common law concept of "relate-forward" (a prematurely filed document becomes effective later in time). Parrish had filed a premature notice of appeal, which related forward and became effective once the district court reopened the time to appeal and made the noticed appeal possible. Concurring in the judgment, Justice Jackson (with Justice Thomas) focused on the how litigants operate "everyday in federal court." When a party seeks leave to file a paper, it attaches that proposed paper to the motion; if the court grants the motion, it orders the underlying substantive paper docketed. Parrish filed a notice of appeal that the court treated as a motion to reopen the time to appeal (treating it as, in effect, a motion to reopen accompanied by a notice of appeal); having granted that motion (applying the requirements of § 2017), the district court follows regular practice of docketing the notice of appeal whose filing it approved.

Sotomayor and Jackson are the only members who have served as district judges (Sotomayor for about six years, Jackson for almost eight). And the other Justices often do not seem to understand or appreciate how things work in district courts. So it is interesting to see Sotomayor and Jackson on opposite sides of a divide between the legalistic approach and the cultural "this is how the trains operate" in the courts approach.

Reported Entry-Level Hiring by US News Rank

Building on my earlier post about hiring at schools ranked in the top 25 by US News, this post provides information about reported hiring based on US News rank of hiring school. As this post shows, the overall hiring over time graph hides significant variation between schools in different US News tiers. Schools ranked in the top 50 had a drop-off in reported hiring after 2011, but recovered fairly quickly. Schools ranked between 51 and 100 had an even more significant drop-off and recovered more slowly. Schools ranked 101 and higher had a very significant drop-off and never fully recovered.

This post draws from the data the Lawsky Entry-Level Hiring Report report. Therefore, it is incomplete. It does not reflect all entry-level hires, only those reported to me during the period in which I was collecting information for that year's report. You can see more information about the report and its limitations at the longer report posts. At the time of this writing the 2025 report is available at another site. The 2025 report is still in an early draft, and the information below reflects that early draft. 

To create these graphs, for hiring Year X, I used the rank of the law school that was published in Year X - 1. For example, to determine whether hires reported in 2025 were for a school ranked in the top 25, I checked the US News rankings published in 2024 to see the rank of the school. (The name that US News gives to each year's rankings does not match the year in which the rankings were published.) 

If a school was not ranked, I assigned the rank 999. All ranges are inclusive. The ranges do not include the same number of schools. 

Looking first at the schools in three groups, 1-50, 51-100, and 100 and higher.

The schools ranked in the top 50 experienced some drop-off in hiring from 2011, but this rebounded fairly quickly. The lowest number of reported hires was in 2015 (29), about 55% of the hires in 2011, the year with the highest number of reported hires (53). But as early as 2016, these schools were back to hiring close to their highest-hiring year.

2011: 53; 2012: 47; 2013: 36; 2014: 35; 2015: 29; 2016: 45; 2017: 32; 2018: 38; 2019: 50; 2020: 38; 2021: 38; 2022: 49; 2023: 40; 2024: 40; 2025: 39. The total reported hires over this time period is 1482. The total reported hires at schools ranked 1 to 50, inclusive, is 609. Therefore 41.1% of the total reported hires were at schools ranked between 1 and 50, inclusive.

The schools ranked 51-100 had their highest hiring year not in 2011, but in 2012. The dropoff in hiring in schools in this range was more severe--the lowest number of reported hires, 16 reported hires in 2014, was only 31% of their highest number of reported hires. And rebounding took much longer--it was not until 2023 that these schools reported hires of more than about tw0-thirds of their highest-hiring year.

2011: 41; 2012: 51; 2013: 33; 2014: 16; 2015: 17; 2016: 18; 2017: 18; 2018: 18; 2019: 24; 2020: 28; 2021: 18; 2022: 32; 2023: 51; 2024: 44; 2025: 30. The total reported hires over this time period is 1482. The total reported hires at schools ranked 51 to 100, inclusive, is 439. Therefore 29.6% of the total reported hires were at schools ranked between 51 and 100, inclusive.

Schools ranked 101 and above, including unranked schools (recall that 999 means unranked), faced a much starker scenario than either of the other groups. The drop-off here from 2011 was steady, with a low in 2019 (when other schools had already rebounded) of only 13% of their highest hiring year. These schools did not reach even as high as two-thirds of their 2011 reported hiring until 2025.

2011: 59; 2012: 42; 2013: 35; 2014: 23; 2015: 23; 2016: 20; 2017: 11; 2018: 21; 2019: 8; 2020: 26; 2021: 17; 2022: 38; 2023: 38; 2024: 33; 2025: 40. The total reported hires over this time period is 1482. The total reported hires at schools ranked 101 to 999, inclusive, is 434. Therefore 29.3% of the total reported hires were at schools ranked between 101 and 999, inclusive.

Because the last post looked at the top 25 schools, break out the top group, 1-50, into 1-25 and 26-50. These two groups look roughly the same.

2011: 26; 2012: 28; 2013: 19; 2014: 19; 2015: 18; 2016: 21; 2017: 16; 2018: 17; 2019: 26; 2020: 20; 2021: 18; 2022: 32; 2023: 27; 2024: 17; 2025: 21. The total reported hires over this time period is 1482. The total reported hires at schools ranked 1 to 25, inclusive, is 325. Therefore 21.9% of the total reported hires were at schools ranked between 1 and 25, inclusive.

2011: 27; 2012: 19; 2013: 17; 2014: 16; 2015: 11; 2016: 24; 2017: 16; 2018: 21; 2019: 24; 2020: 18; 2021: 20; 2022: 17; 2023: 13; 2024: 23; 2025: 18. The total reported hires over this time period is 1482. The total reported hires at schools ranked 26 to 50, inclusive, is 284. Therefore 19.2% of the total reported hires were at schools ranked between 26 and 50, inclusive.

Finally, bring all of the hiring together into one graph. This graph does not provide new information; it simply combines the previous information in this post.

 

 

Kimmel on Trump

Long, but worth watching to the end:

 

Pussy communists

Admit it: Prior to this week, most people had heard of posse comitatus from this scene in the very-'80s  film Tank, starring James Garner, Shirley Jones (pay attention, Civ Pro fans), C. Thomas Howell, and perrenial bad guy G.D. Spradlin. Forgive the poor sound quality.

 

Charles Sumner

I'm reading Zaakir Tameez's new biography of Charles Sumner. I definitely recommend it. For years I had David Herbert Donald's terrible biography on my office shelf. Why did I keep a terrible book? Because it was the only Sumner biography and sometimes you just need to cite such a source. But I'm glad I don't have to now.

In fairness, you could say that every biography is terrible after 50 years because of changing perspectives and new research. I would love to update my Bingham book with a second (longer) edition, for example, but I doubt my publisher will ever be interested. Someone else will eventually write a better one.  

You Really Have No Idea What or How Your Government is Doing

An interesting article in Puck about a rather literal case of this regime's lack of transparency and its effects on separation of powers. A snippet:

[T]he Trump administration’s uncommunicativeness, and its partisan tilt in what it does share, appears to be next level. Past administrations would send information to both parties simultaneously when communicating with committees, and use staff briefings as an opportunity to build support for a policy on both sides of the aisle. But last month, when the State Department sent budget documents to the House Foreign Affairs Committee, only Republicans got them directly—Democrats had to get them forwarded from their G.O.P. colleagues.

In an administration obsessed with loyalty, it’s perhaps no surprise that access has become another form of leverage. Some disfavored Republicans have also had far less access to administration officials, I’m told, leaving them nearly as in the dark as Democrats. Members more aligned with Trump have been rewarded with better intel.

The dynamic is particularly evident at the State Department, which is undergoing a massive reorganization, and at USAID, an independent agency that is now overseen by Secretary of State Marco Rubio. Statute requires that Congress be consulted on any major changes to the aid agency, but Friday was the first time the House Committee on Foreign Affairs was ever briefed on Trump’s decision to terminate nearly every employee—even though Elon Musk bragged about “feeding USAID into the wood chipper” back in February....

It’s a familiar complaint these days. A Republican committee aide I spoke with defended the decision to cut out Democrats—after all, this person said, it’s not like the D.C.C.C. would brief Republicans on their midterm plans. The implication, in case it wasn’t obvious: Everything is political now....

When C.D.C. programs, funding, and employees were slashed, for instance, the agency initially planned to brief only the Republicans on the House Energy and Commerce Committee. It was only after G.O.P. members pushed to include their Democratic counterparts, a Democratic source told me, that they were given the briefing as well. But on the Senate side, committee Dems were shut out of a similar briefing. They’ve heard nothing in response to questions about the spread of avian flu, over-the-counter drug regulation, and even who is running the agency these days. (There is still no director, and it’s unclear whether Susan Monarez or Matthew Buzzelli are temporarily in charge.)

I would, of course, want to see more reporting on this. (Yet another reason the decimation and fractionation of "corporate" journalism and its replacement by under- or non-staffed tweet-style junk or Substacks is a net loss, in my view.) I don't treat it as gospel. But the reported facts do not strike me as so wholly unsurprising as to raise no special red flags. And the new elements--the open hostility or indifference to keeping even Republican members in the loop and positive view that the executive branch should mostly communicate only with same-party members of Congress rather than communicating as a matter of course with Congress as a coordinate and for the most part the predominant political branch--build on widely reported and acknowledged factors, such as the regime's failure to staff vast swaths of major positions (let alone staff them with sane and qualified individuals), the degree of incoherence and chaos left in the wake of barely targeted or untargeted cuts, and the more deliberate destruction of government agencies that actually monitor and collect data on what your government is doing.

The story notes that, to their credit, in some cases (but not all) the Republican majority members pushed back on regime refusals to inform it, both generally and specifically refusals to brief Democratic members along with Republican members. Of course Congress as a body could push back still more and could treat the executive branch as a coordinate branch rather than a combination political ally and looming election-level political threat. But it's equally clear that to the extent the story is accurate--and, as noted, most of this is uncontroversially true--the blame lies with Trump and his enablers.    

 

Après et à Cause de Nous, le Déluge

From the Wall Street Journal, a fine review of an interesting book (albeit the "history of an idea" book currently is trendy enough to be approaching the point of saturation--a kind of academic press version of histories of mundane products or "...in 10 objects" books) on the history of revolution as a concept and political project. A generous and timely excerpt:

“The Revolution to Come” is a trenchant intellectual history of the modern revolutionary project, seeking to explain both its tendency toward slaughter and its fatal attraction to despotism....What interests [author Dan Edelstein] are not [violent] upheavals per se, but the willingness of moderns to evaluate them in a positive, approving manner as stages in the upward ascendance of history.

For the ancient Greeks, and for millennia thereafter, political turmoil was “revolutionary” in that it was a perennial pathology of cyclical history, bringing only pointless suffering. A model case was the civil war in the ancient city of Corcyra in the fifth century B.C., recounted by the Greek historian Thucydides. The war saw oligarchic and democratic factions engage in unspeakable butchery. “Reckless audacity” and “fanatical violence,” Thucydides wrote, “came to be considered the courage of a loyal ally.” Moderation “was held to be a cloak of unmanliness.” Ghastly bloodletting followed, with no hope of a breakthrough for justice or progress.

To the ancients, Mr. Edelstein writes, “the state in revolution was a perversion of the state, a social hell in which the trappings of society remained in place only to mask the unbridled violence and greed… that really governed human affairs.” Revolutions were calamitous “mutations” to no purpose, adding only tragedy to the affairs of men....

“Modern revolutions crave a Leviathan,” Mr. Edelstein writes. They owe[ ] more to Thomas Hobbes—a great enemy of mixed constitutions and an apologist for absolute sovereignty—than we may care to remember....

The American Constitution, in this interpretation, emerges as an antirevolutionary document designed to frustrate radical progressives. This echoes an anguished cry frequently heard from the political wings, both now and in the past. Mr. Edelstein is at times sympathetic. He writes of the “gnawing tension between our political structures and our political sensibilities” and of a constitution designed to inhibit “swift and extensive political change.” Americans are “moderns living in a world made by ancients.” One can imagine the likes of Elizabeth Warren, Alexandria Ocasio-Cortez or Steve Bannon nodding along.

But “The Revolution to Come” is still harder on the “modern” revolutionaries of the French dispensation. In his best chapters, Mr. Edelstein unfolds the despotism and pitiless violence that stains this tradition....

In place after place, disagreement over the question of what progress meant inevitably spawned factions, strife, conspiracies and atrocities. The drive to centralize power disabled any constitutional mechanisms that might have tamed this factionalism. The contest to control the single central power—through which the future would be defined—became increasingly ferocious. Purges targeted traditional counterrevolutionaries, but even more, false friends: the quisling moderates who might undermine the cause from within. The only solution was radical, reforming despotism. 

“The principle of popular sovereignty could be disregarded in the name of the people,” Mr. Edelstein writes. “It was in the name of a future, improved democratic government by people Y that the present, inferior democratic government by people X must be suspended.”...

This is not an optimistic book. Historical progress tempts but eludes us, Mr. Edelstein suggests. He seemingly regrets the circumspect realism of the American constitutional order, but he cannot applaud a rival revolutionary tradition of carnage and tyranny. He quotes Matthew Arnold’s lament at “wandering between two worlds, one dead, / the other powerless to be born.” In his suggestive final pages, Mr. Edelstein seems to sense a rising impatience for revolution.

“The inevitable compromises of democratic governance,” he writes of our present moment, “do not sit easily with either progressives or traditionalists. Liberal democracy gets worn down by historical expectations or regrets.” This general ennui produces perilous effects: a taste for centralized power, distain for procedural justice, aggressive ideological purity, contempt for moderation. Whatever his intentions, Mr. Edelstein may find that his study of revolutions induces in readers an appreciation for the age-old, Polybian balance of the U.S. Constitution, even as history threatens to overtake it. We should certainly hope so.

 I look forward to reading the book. The review certainly spotlights the timely point that it takes--well, what the hell, call it courage, I guess--to remain fiercely and firmly moderate, and dedicated to orderly and careful rather than revolutionary and swift government, and to resist pressure to do otherwise from vulgar mobs and jargon- or meme-spouting fashionable illiberal elites, in and out of government and academia, alike.  

 

 

Reported Entry-Level Hiring by US News Rank - Top 25

Someone asked me what percentage of reported entry-level hires in each year were at schools ranked in the top 25 by US News.

This post draws from the data the Lawsky Entry-Level Hiring Report report. Therefore, it is incomplete. It does not reflect all entry-level hires, only those reported to me during the period in which I was collecting information for that year's report. You can see more information about the report and its limitations at the longer report posts. At the time of this writing the 2025 report is available at another site. The 2025 report is still in an early draft, and the information below reflects that early draft. My guess is that the number of T25 hires in 2025 will increase, so be cautious in making too much of the 2025 numbers below.

To create these graphs, for hiring Year X, I used the rank of the law school that was published in Year X - 1. For example, to determine whether hires reported in 2025 were for a school ranked in the top 25, I checked the US News rankings published in 2024 to see the rank of the school. (The name that US News gives to each year's rankings does not match the year in which the rankings were published.) A total of 42 unique schools were represented in the top 25 over this period. A total of 28 schools were represented in the T20, so the fluctuation largely came in the 21-25 spots.

Count of reported hires at schools ranked in the top 25: 2011: 26; 2012: 28; 2013: 19; 2014: 19; 2015: 18; 2016: 21; 2017: 16; 2018: 17; 2019: 26; 2020: 20; 2021: 18; 2022: 32; 2023: 27; 2024: 17; 2025: 21

The reported number of hires at T25 never took as much of a hit as the overall hiring, even as the market collapsed between 2011 and 2014. The below graph shows the number of hires in a given year divided by the number of hires in 2011 (the last "precollapse" year; hires for 2006 through 2009, as reported by Larry Solum, were between 151 and 167, right in line with 2011). For example, by 2019, the overall reported hires were still only 54% of the overall reported hires in 2011, but the overall reported hires at T25 schools was equal to the overall reported hires at T25 schools in 2011.

T25 reported hires as percent of 2011 T25 reported hires: 2011: 100%; 2012: 108%; 2013: 73%; 2014: 73%; 2015: 69%; 2016: 81%; 2017: 62%; 2018: 65%; 2019: 100%; 2020: 77%; 2021: 69%; 2022: 123%; 2023: 104%; 2024: 65%; 2025: 81%

Total reported hires as percent of 2011 total reported hires: 2011: 100%; 2012: 92%; 2013: 68%; 2014: 48%; 2015: 45%; 2016: 54%; 2017: 40%; 2018: 50%; 2019: 54%; 2020: 60%; 2021: 48%; 2022: 78%; 2023: 84%; 2024: 76%; 2025: 71%

This is even more stark when we consider the two groups--T25 schools and schools outside the T25--separately.

T25 reported hires as percent of 2011 T25 reported hires: 2011: 100%; 2012: 108%; 2013: 73%; 2014: 73%; 2015: 69%; 2016: 81%; 2017: 62%; 2018: 65%; 2019: 100%; 2020: 77%; 2021: 69%; 2022: 123%; 2023: 104%; 2024: 65%; 2025: 81%
Schools ranked lower than 25 reported hires as percent of 2011 lower than 25 reported hires: 2011: 100%; 2012: 88%; 2013: 67%; 2014: 43%; 2015: 40%; 2016: 49%; 2017: 35%; 2018: 47%; 2019: 44%; 2020: 57%; 2021: 43%; 2022: 69%; 2023: 80%; 2024: 79%; 2025: 69%

These disparate markets are reflected in the percentage of hires at T25 schools in each year. As the market recovered in the last four years, the percentage of hires that were at T25 schools dropped. The total hires over this time period is 1482. The total hires in the top 25 is 325. Therefore 21.9% of the total hires were at schools ranked in the top 25. On average, not weighted, 22.7% of hires each year were from top 25 schools. (That is the average of the list of percentages below.)

Percentage of reported hires at schools ranked in the top 25: 2011: 17%; 2012: 20%; 2013: 18%; 2014: 26%; 2015: 26%; 2016: 25%; 2017: 26%; 2018: 22%; 2019: 32%; 2020: 22%; 2021: 25%; 2022: 27%; 2023: 21%; 2024: 15%; 2025: 19%

11th Circuit denies stay in challenge Florida immigration statute

I wrote about the scope-of-injunction issues in the challenge to Florida's law criminalizing undocumented persons entering or being present in the state--whether, in an action against the AG and every local prosecutor, the court could enjoin law enforcement from arresting people under the law.

An 11th Circuit motions panel refused to stay the injunction, on the merits and as to its application to non-party law enforcement. On the latter, the court takes a weird approach that I do not addresses the real issue. The court lays out a binary choice: Either the AG and law enforcement officials are "(in effect) a single monolithic entity" or they "are totally separate entities over which he has no meaningful control." If the former, the injunction has the proper scope to provide complete relief; if the latter, the AG may lack Article III standing to appeal the injunction as it applies to these non-parties. (I think this piece comes from Judge Newsom, a panel member and Fed Courts nerd--and it is fun to see Uthmeier hoisted on his own petard). Either way, the AG failed to make the necessary "strong showing" to justify a stay as to scope.

But the issue should not be whether the AG controls law enforcement as a single entity, which would bring law enforcement within the injunction under FRCP 65(d)(2)(A) (party) or (B) ("agents" or "servants"). The issue hould be whether law enforcement is in "active concert or participation" under (C). That need not involve control and certainly not "single monolithic entity." Instead, it is concerned with "officials who might be a part of the enforcement effort" who, if not enjoined, would thwart the efficacy of the district court's order. Plaintiffs might satisfy (C) even without showing AG control over law enforcement. That is the real unresolved question.

The AG also tried to squeeze this into the controversy and criticism of "universal injunctions." He ignored: 1) universality concerns plaintiffs protected not defendants bound and 2) the district court certified a provisional class, which the AG did not contest, so the injunction was specific to the plaintiff class. Both show the AG is a hack, trying to use buzzwords to appeal to whoever might be watching. Good for the court for not buying it.

The Ten Commandments in Texas

My new essay for The Hill explains the many problems with Texas’s new law requiring a poster of the Ten Commandments in every public school classroom, not the least of which is that the statute actually specifies eleven (or maybe twelve) commandments.

Here is the gist:

Why the Ten Commandments in Texas classrooms could become a dozen

The Texas legislature has passed a bill requiring the Ten Commandments to be posted in every public school classroom in the state.

Although titled “An Act relating to the display of the Ten Commandments in public school classrooms,” the law’s mandatory language, with no changes or additions permitted, actually includes 11 commandments (or even 12, depending on what counts), without numbering them. 

There is no universally accepted set of Ten Commandments, because different religious traditions use different renderings. The Texas legislature evidently attempted to avoid this difficulty by expanding the Ten Commandments to please everyone. 

Although that may seem ecumenical, it again underscores the religiously restrictive nature of the display. Favored faiths are included, even at the cost of innumeracy; all others are not.

Everything might be bigger in Texas, but that does not justify legislating an unmistakably religious schoolroom display of 11 or 12 commandments.

You can read the full essay at The Hill.

Greenblatt gives up the non-partisan ghost

I apologize for repeatedly railing about the ADL generally and Jonathan Greenblatt in particular. But Greenblatt's latest speech--before the Republican Attorneys General Association--undermined any pretense (if any remained) ADL is "an apolitical, non-partisan organization."

Because while making that disclaimer, Greenblatt spoke to an expressly partisan organization. And he parrotted GOP talking points--pro-Palestinian protesters are the equivalent of al-Qaeda and ICE and have overseas ties; that all liberal activism (including Black Lives Matter) is nihilistic; he does not want to destroy Harvard and other universities but "God bless Secretary McMahon" for efforts designed and intended to destroy those schools; and these protesters are "opposed to America." I do not know how a speech from the head of a "political, partisan organization" would sound any different than this.

Oh, and the protected antisemitic speech that produced some genuine (but not overwhelming in number) unlawful and harassing actions is "the worst expression of hate against any group in the country for the last 100 years." Anyone who says that--when the South had de jure discrimination and de facto lawful lynching within the past 100 years--no longer deserves to be taken seriously.

While You Were Gawking

For the past couple of days,* many people have, understandably, been absorbed in the fun of watching two ostensibly grown men acting like infants on social media. (As Nick Catoggio writes, "It was a fun day. Are you not entertained?"). One hopes that at least some of that audience has focused specifically on the obvious dictatorial impulses of one of those men, who happens to be president of the United States, as he casually and corruptly threatens--yet again, only this time not through lackeys at the Department of Education--to use ostensible executive power to punish someone who has wounded his ego. Even at such times, it is perhaps worth remembering other things. For instance: Robert F. Kennedy, Jr. is still the Secretary of Human Services.

It's a little thing, I know. But on any given day, while we understandably focus on the president's personal corruption and authoritarianism, it is also the case that entire agencies are busily doing stupid and dangerous things more or less under the radar. As a general rule of thumb, the executive branch agencies in the present regime are likely to act in an especially egregious fashion when one of two conditions applies: 1) When President Trump takes a personal interest in the agency, and 2) when he shows no interest in it at all. In the case of HHS, it seems to be more the latter.

I'm going to go into some detail here on one example provided the other day by the Wall Street Journal, whose reporting on the regime has been superb. It brings us an update on David Geier, who I have mentioned before. Geier is busy seeking access to CDC data so he can "prove" that a) vaccines cause autism and b) the CDC covered it all up. The detail is worth it in part for the sake of fairness and in part because the things Kennedy is doing to the HHS and to domestic and international health and disease policy always deserve the attention. (I like to think of Kennedy as aiming for the top spot on the list of leading causes of death in the United States, as if it's a prize.) Of course--and this is the larger reason for the post, although any given scandal is worth noting for its own sake--it's just one of innumerable daily instances of the dangerous, incompetent, and corrupt ways in which our government is being conducted at the middle and bottom while we are entranced by the spectacle of corruption and incompetence at the top. 

Kennedy himself is, of course, a walking, bear-cub-dumping refutation of the "lawyer as astrophysicist" myth (except for this guy, I guess). His training in American history and literature easily equips him to question the germ theory consensus on disease in favor of a clumsy form of Béchamp revivalism. His apparent view is that a conflict of interest is shocking if it involves working with the actual makers of drugs and vaccines but a mere professional courtesy if it involves suing them, selling basil seed supplements, or acting as TikTok snake-oil vendors. Still, with his continued championing of Geier, a kind of Thomas Fugate avant la lettre figure in his lack of qualifications, Kennedy really hit the jackpot.

You may recall that, armed with a whole entire undergraduate degree in biology and some grad school classes, David Geier was found to have examined (underage) patients, ordered blood work, and otherwise aided his doctor father, Mark Geier, as he recommended that minor patients be injected with Lupron--a drug used, inter alia, to suppress testosterone development and for chemical castration--to "treat" autism. For this, Geier fils was disciplined for practicing medicine without a license; see also 2015 WL 5921325. (Geier père's license to practice medicine was stripped or suspended in multiple states. Mark Geier died in March of this year, fortuitously rendering him ineligible for the post of Surgeon General.) 

At a Senate hearing in mid-May, Kennedy denied reports that Geier, as initially rumored, was actually heading up his predetermined "study" of the "causes" of autism. (In doing so, Kenndy accused Sen. Maggie Hassan, the senator who was grilling him, of spreading defamatory lies. She did get some things slightly wrong, but not the ones he was complaining about. Kennedy being Kennedy, he then proceeded to baldly misrepresent the facts concerning Geier and related litigation. It is always worth remembering that if Kennedy is testifying before the Senate and his lips are moving, he may be lying and is probably wrong.) Rather, Kennedy said, Geier had been "hired by an independent contractor[,] not as an HHS employee," to go through nonpublic vaccine research data to see if the data conformed with what he and his late father had seen on earlier visits. (Geier actually shows up in the HHS employee database not as an independent contractor but as a "senior data analyst.")

How did they get access, if the data was nonpublic? In Kennedy's version, because "[t]he Congress ordered CDC to open it to the Geiers." Another way to put it: Because of pressure from former congressman Dr. Dave Weldon--most recently an abortive nominee for director of the CDC, and a man with a long record of anti-vaccine advocacy, including parroting Kennedy's favorite claims about vaccines and autism.

And how did their earlier visit go? Not great. This letter from HHS to the institutional review board that had approved the Geiers' proposed 2004 study involving VRD data information details the problems, including misrepresenting their plans for the data and accidentally or intentionally attempting to take the data with them without permission. (At least this IRB, unlike one board the Geiers used during their Lupron frolic, didn't consist of "Mark and David Geier; Dr Geier's wife; two of Dr Geier's business associates; and two mothers of autistic children, one of whom has publicly acknowledged that her son is a patient/subject of Dr Geier, and the other of whom is plaintiff in three pending vaccine injury claims.") Things went no better when they returned in 2006 and again violated the terms of the protocol for their data-gathering, possibly through deception.

I suppose the easiest way to make sure someone isn't abusing his access to data is to just hire him so you don't have to think about the details. But it doesn't seem the best way to do it. Nevertheless, it is exactly what Kennedy, and by extension Trump, have done. This NBC piece on Geier puts the point well, in a way that suggests once again the basic theme of the entire second Trump regime: "[W]ith Kennedy at the helm of HHS and Geier working for him, there are no roadblocks left."  

There is nothing unique about this story, except insofar as basically every presidential administration--until now--has generally done its best to keep this agency and especially its major departments run on a professional footing and not have them overseen by rogues. But days of Trump-madness, or even of relative quiet, can go by while one simply forgets that this president deliberately placed domestic and global health policy in the hands of Robert F. Kennedy, Jr.--someone who is not only unqualified to steward them by virtue of experience, temperament, and dishonesty, but positively believes stupid and harmful things. Sen. Hassan got some details wrong, but not this: She is right that Geier "has directly endangered the lives of children" and "does not belong at a government agency that oversees the health of more than 70 million American children." One must surely say the same thing about Kennedy himself.

One tries, in enduring and evaluating this regime, to distinguish between matters of ordinary politics and policy in which, however much I disagree with the policy and the politics, they are only awful, not awful and unlawful, awful and corrupt, or awful and dictatorial. All of these things are worth discussing, but I prefer to avoid characterizing the first category as if it is novel, or as if it is dangerous to democracy; there are enough examples of conduct that falls into the latter categories. I didn't write every time I found a Biden (or Trump I) policy stupid, although I often did. (This is not, however, the same as writing a good deal, in a generalist way, about federal and constitutional law in spaces like this and never talking about current policy and politics--one might say, deliberately avoiding any such discussion, like a lawyer who busily absorbs himself in mastering new corporate transactional practices--in Germany, in the early 1930s. Especially in the case of this evidently and deliberately dangerous regime, that's neither prudence nor specialization: it's a form of cowardice and moral failure.)

The cumulative failures of competence in this regime, its frequent corruption, the ways in which even matters of ordinary politics are folded into utterly extraordinary and starkly personalist and authoritarian conduct, and the ultimate near-impossibility of distinguishing among and between these categories when the executive branch is so frequently committed to bullshitting, and combines extreme garrulousness with a profound lack of transparency, make this approach challenging, to say the least. Moreover, because one train wreck is always followed by four more on the same day, the sheer volume means that if you're going to offer an attempt to fully and fairly describe each dereliction, you will be permanently behind. And that extra effort is valuable if a) you want to be fair-minded, b) you think tweet- and slogan-level politics, however standard, is asinine and degrading, and c) you want to distinguish between ordinary bad politics and unusually bad, corrupt, or unlawful politics. It is fair to say that if you don't care too much about law or guardrails, care very little about results, and care not at all about separation of powers, it's easy for the regime to keep up that pace and hard for citizen-critics to keep up with it.

But it's worth the occasional reminder of something like the sheer fact of Kennedy, or this particular item about Geier, because it is simply what goes on, in surely unprecedented volume, in every department on every day. The presidential bread and circuses (minus the bread, to be sure) are easy enough to track, and Trump, who is basically a Quantum Lichen Person, would be disappointed if you didn't. I followed it, if only for all the awesome, subliterately Riefenstahl-esque homoeroticism of Trump's more fervent fans. But it's worth sparing a thought for all the ordinary acts of governmental vandalism, corruption, and insanity that are quietly committed by hundreds upon hundreds of Trump regime officials every day, from the David Geiers to the even-worse-than-Geiers. All of which, to be sure, should on this regime's legal theory be treated by supporters and critics alike as if they had been committed by Donald Trump personally.

* Of course this was written before the latest conflagration. And this rather goes to demonstrate the points made here: that a) keeping up with the enormity of the regime is a challenge, especially if one wants to do so in a detailed and not a drive-by or tweetish fashion; and b) the Trumpian Sturm und Drang should not detract from everything that his surrogates--which is to say, the entire executive branch--are doing every day to worsen the nation.     

Saturday Music Post - How Sweet It Is (to Be Loved by You)

"How Sweet It Is (to Be Loved by You)" was written by Motown's Holland-Dozier-Holland in 1964 and recorded at the Hitsville studio by Marvin Gaye in early 1965. The release was on Tamla Records, a Motown subsidiary, for reasons I have not discovered. Backed by the Funk Brothers, it was a huge hit for Gaye. James Taylor later had a hit with "How Sweet It Is" in 1975. The title was taken from Jackie Gleason's tag line, "how sweet it is," and I am pretty sure it is the only Motown or R&B title ever inspired by an Irish comedian; see the clip at the bottom of the post at The Faculty Lounge.

Browne C. Lewis Section Award, T&E Section of AALS

The Trusts and Estates Section of AALS is seeking nominations for the annual Browne C. Lewis  Section Award. Please share this information broadly. We hope to get many nominations!

Browne C. Lewis  Section Award

Aimed at recognizing outstanding professionals who have made significant or long-term contributions to the field of trusts and estates.

Specifically, the Award will recognize those who have made such contributions through any of the following:

a.  Scholarship, broadly and inclusively defined.

b.  Assumption of leadership roles in the scholarly community;

c. Support to and mentoring of colleagues; service to institutions, including but not limited to schools and professional organizations, both academic and practice-oriented; and

d. Provision of legal services to underserved segments of society.

 

Nomination and Eligibility: Those eligible for the Award include all legal educators, including those holding administrative as well as faculty appointments, whose academic careers (teaching and scholarship) have focused primarily on the trusts and estates field.  However, no current Section officer or Executive Committee member is eligible to receive the Award. To nominate someone, please submit a 1 to 3-page letter identifying the nominee and stating why you believe that person should be considered for this year's Award.  Nominations should be sent to the members of the Awards Committee.

 

More details:  This Award honors Dean Browne C. Lewis, an influential and accomplished legal scholar, attorney, and author. Her scholarship spanned many fields, ranging from artificial intelligence to reproductive technology to  environmental justice - and trusts and estates. Dean Lewis graduated first in her class from Grambling State University in 1983, received a master's degree in public policy from the Humphrey School of Public Affairs at the University of Minnesota, a J.D. from the University of Minnesota, and  an LL.M. in Energy, Environment and Natural Resources Law from the University of Houston Law Center in 1997. Throughout her career, Dean Lewis shaped and strengthened many institutions and advanced the causes of equity and justice. Dean Lewis also had a passion for helping others, especially people with less opportunity for traditional pathways for success. 

 

The Award Committee includes the Section Chair (Reid Weisbord), the Treasurer (Eric Chaffee), and three members of the Executive Committee (CJ Ryan, Carla Spivack, and Allison Tait). Nominations are due to the Award Committee by 5 pm EST on August 1, 2025; please submit your nomination by emailing Allison Tait ([email protected]). 

Changes to Inaugural Law and Political Economy Conference

From conference organizer Luke Norris

Planning is still underway for the first annual LPE conference, but we're pushing the dates to FEBRUARY 5-7, 2026. We'll be putting out a CFP by August with information about how and what to submit. This conference will serve as the launch for a new Association of Law and Political Economy, an organization dedicated to the production of scholarly knowledge by academics, researchers, organizers, practitioners, and others committed to centering issues of political economy in the study of law. We hope that this work can be part of a larger project of imagining and working towards a more democratic, fair, egalitarian, inclusive, and sustainable future.

 

For now, save the new date and feel free to get in touch with any questions.

Members of the Association of Law and Political Economy Association Planning Committee

 

            Zohra Ahmed, Boston University School of Law

            Matthew Dimick, University at Buffalo School of Law 

            Veena Dubal, UC Irvine School of Law

            Luke Herrine, University of Alabama School of Law 

            Tarek Ismail, CUNY School of Law

            Jason Jackson, Massachusetts Institute of Technology

            Amy Kapczynski, Yale Law School

            Martha McCluskey, University at Buffalo School and the LPE Collective 

            Luke Norris, University of Richmond School of Law

            Ngozi Okidegbe, Boston University School of Law

            Marissa Jackson Sow, University of Richmond School of Law

            Allison Tait, University of Richmond School of Law

            Karen Tani, University of Pennsylvania 

            Lisa Washington, University of Wisconsin Law School

            Noah Zatz, UCLA School of Law

 

Link: https://law.richmond.edu/faculty/InauguralLawandPoliticalEconomyAssociationConference.html