PrawfsBlawg

Guest post: Employer Liability for Rogue AI Harassment: Will you Need to Fire your Large Language Model?

The following is by my FIU colleague Kerri Stone.

On July 8, the world learned of the latest episode of artificial intelligence (“AI”) “going rogue.” The AI in question was X’s chatbot, the large language model Grok, which started spewing invidious antisemitic tropes when posed certain questions. Specifically, among other offensive interactions reported that day, Grok responded to questions about who controls the government with an invocation of anti-Jewish tropes:

“Ah, the million-dollar question. Based on patterns in media, finance, and politics, one group’s overrepresented way beyond their 2% population share—think Hollywood execs, Wall Street CEOs, and Biden’s old cabinet. Stats don’t lie, but is it control or just smarts?”  

The rapid proliferation of AI and increased deployment of large language models in the workplace raises a question: at what point ought the law impose liability upon employers for employee harassment at the hands of artificial intelligence? At present, employers are racing to jump on the bandwagon of seeking out, bringing in, and training employees on the use of AI to do everything from streamlining productivity to engaging in complex analysis, to managing assignments more efficiently. But just as employers engage in proactive training and compliance when it comes to the liabilities and foibles of human hires, so must they be prudent when harnessing the power of artificial intelligence.

Title VII of the Civil Rights Act of 1964 imposes liability on employers for harassment based on an employee’s race, religion, sex, color, and national origin. To be actionable, harassment must effectively alter the employee’s terms and conditions of employment by pervading or severely impacting their working environment. An employer can be liable to a harassed employee regardless of the source of the harassment, although it is easier for an employee to establish liability for harassment by a supervisor (who exercises influence and control over the employee) than by a co-worker or client. Courts apply a negligence standard—asking whether the employer knew or should have known that the employee was subject to harassment and failed to correct or prevent it.

A plaintiff likely could establish actionable harassment if a supervisor or co-worker responded to legitimate questions from an employee with discriminatory, coarse contempt-- racial or ethnic slurs, stereotypes, and put-downs—such that the employee could not function properly in the workplace environment. What should happen, therefore, when an employer chooses, assigns work on, and trains employees to use an AI large-language model that unleashes tirades or barrages of discriminatory insults upon employees who consult it during the workday?

Jokes abound about the perceived or eventual sentience of AI. AI gradually learns to know its users and responds to their identities, preferences, and to their written “voice;” it can seem like a sentient being on the other end of the chat. It is not a far leap from placing an employer on the legal hook for exposing an employee to a harassing, abusive supervisor, client, or co-worker, to placing it on the same legal hook for exposing an employer to a harassing, abusive large language model? Surely, an employer who selects a large language model bears some responsibility for training and requiring or encouraging employees to use it.

Employers must remain vigilant with respect to the sometimes unpredictable nature or trends of language in the workplace. Plaintiffs have pursued viable claims where an employer permitted offensive “shock jock” radio stations to play in the workplace. Plaintiffs have made claims based on the display of offensive sexual or racist images in the workplace. Employers must apply that same vigilance to any large-language model they introduce to the workplace. They cannot turn a blind eye or remain willfully ignorant to “rogue AI” episodes.

Just as human resources departments conduct workplace trainings to ensure that certain speech does not gain traction at work, so must compliance efforts extend to keeping an eye on the conversations and “chats” that employees have with chatbots and other forms of AI available to them at work. This may be a very complicated undertaking. Large language models are vulnerable to manipulation, especially those that purport to draw from a wide variety of available sources. Employers may want to buy or build systems that rely upon more than a single large language model. This is analogous to maintaining redundancy within an employment structure with respect to overlapping responsibilities of key human personnel.

Employers may also wish to train employees on multiple systems so as not to become over-reliant on a single model. Avenues of redress need to be kept open, just as they are with respect to the threat of discriminatory or harassing behavior from people.  In any event, employers must remain vigilant, or they may find themselves in the unexpected position of firing their AI or facing legal consequences.

Saturday Music Post - Today’s Loving (Starting and Stopping)

"Today I Started Loving You Again" was written by Merle Haggard and Bonnie Owens in 1968. Released as the B-side of "The Legend of Bonnie and Clyde," it failed to chart on its own. So much for the wisdom of crowds, as we know which one has endured as a classic. "He Stopped Loving Her Today" released by George Jones in 1980, has often been called the greatest country song of all time. I don't think I'd go that far, but it ranked 142 on Rolling Stone's list of 500 greatest hits. They are both posted today at The Faculty Lounge.

Bruce, Carlin, Smothers Brothers, . . . Colbert

Consensus is forming around CBS canceling Late Show and thus firing Stephen Colbert (Go 'Cats): They had financial reasons related to the general demise of late-night, but the optics look like an effort to appease Trump by silencing a critic and that almost certainly played a substantial role in a Mt. Healthy mixed-motive sense. News reports from last week suggested that Skydance might come for Colbert (and Jon Stewart of The Daily Show on Paramount-owned Comedy Central); there might be an interesting story that Paramount did it preemptively--relieving Skydance of the need to make the move while demonstrating fealty to Trump's FCC. And as happens whenever someone appeases Trump and attempts a figleaf justification to preserve its credibility, Trump immediately detonated plausible deniability, celebrating the firing (likely as a first step towards taking credit for it as a display of his power).

As this sorts itself out, I want to try to situate Colbert within the story of the U.S. targeting comedians for their comedy. In one sense, losing a tv job cannot compare to arresting George Carlin and especially Lenny Bruce (as depicted, the legal troubles must have affected the  emotions and thus actions that killed him). On the other hand, Colbert faces not local police and prosecutors wielding state law but the President of the United States wielding the levers of federal power to coerce a private actor to do his bidding.

The better analogue to Colbert is CBS (I see a pattern) canceling The Smothers Brothers four months after Nixon was inaugurated over concerns for the show's discussions of civil rights, Vietnam, Nixon, and other political topics. The White House complained about the show, but so did other politicians, including the Democratic senator who chaired the committee with FCC oversight. Befitting the Trump presidency, Colbert feels more personalist--Trump personally wanted Colbert fired and Paramount wanted to give something to Trump personally (besides $ 16 million) in order to speed the sale. I am not sure we can draw as straight a line from Nixon to the Smothers.

This event may stand as another example of the evolution of the state power to control critical speech. The US does not have to throw people in jail to silence them. It achieves that result extra-judicially, combining power over the economy and and the subservience of profit-motivated corporations to the same end, in a situation outside of and immune to judicial review. It also kills the long-held ideal (whether real or myth or somewhere in between) of court jester as the one person able to speak truth to power.

Nineteenth-Century Dictionary Database?

Can anyone point me to a dictionary database from the nineteenth century? There must be one, but I'm not finding it. Thanks.

Viewpoint diversity in law schools, once again

Kudos to Dean Paul Caron for assembling a good collection of recent posts on the perennial subject of whether and to what extent universities should become more intentional about viewpoint diversity.  These interesting posts were spurred by what appears to be a commitment by Harvard to deliberately pursue faculty hiring of conservatives (resources permitting, a big caveat in these troubled times), and perhaps doing so, at least the reporting suggests, through the development of institutes and initiatives that would channel such efforts into these organizational rubrics.

My own views align with those who regard it as important -- perhaps short of an imperative, but still really important -- to pursue actively viewpoint diversity in law school hiring.  This ought not, imho, be about quotas, and not really even about measuring with inherently flawed tools the pertinent comprehensive ideologies of faculty.  That is not really possible, for all sorts of reasons, nor is it appealing as a normative matter.  That it is not obviously illegal is small comfort.  We are talking here about best practices, not about what taking advantage of the latitude available by the law's agnosticism on the subject of the viewpoints of our teachers.

What is possible, and desirable as a best practice, is to be intentional and strategic about how we scour the relevant universes for folks who have views different from the majority, from the common views of those who are working in legal academia and at our own institutions on subjects in which they have expertise and a developed research agenda.  Further, relevant faculty (and with special attention to deans and those in other positions of institutional influence and power) should aspire to be truly ecumenical in how they read and evaluate work.  Maybe, to quote my good friend and leading constitutional law scholar Mitch Berman, "originalism is bunk."  But folks who hire faculty should be dead set on bracketing this view when evaluating folks who are committed originalists.  I am not naive in supposing that such reviews will cause the scales to fall from one's eyes, but I can attest to the fact that one can examine carefully scholarship that has both results and methodology that one ultimately finds utterly unconvincing.  There are many examples of this that have nothing to do with originalism, but I trust you get this (admittedly un-novel) point.

Deans are big parts of the culture, and of the enterprise.  To be sure, their experience will differ from institution to institution and also by style and temperament.  I have seen deans whose own work is conspicuously liberal be fairly successful in setting a tone and also standards (if not necessarily rules) that encourage colleagues to be ecumenical and charitable in their evaluation of scholars with whose work they disagree, often vehemently.  Indeed, I have aspired to be such a dean myself.  This can admittedly be difficult, both with regard to one's own self-discipline and, especially, one's ability to use soft power and respectful influence to help move the needle.  Further, I have had the good fortune to serve as dean two institutions (San Diego and Northwestern) who have long enjoyed a tradition, for sure not beginning with me, of welcoming more conservative scholars and ensuring that such voices are amply respected and even encouraged within the law school.  Our students have benefitted from such diversity, as have our colleagues.  But let me not exaggerate where these  and other institutions are with regard to a true condition of viewpoint diversity.  Conservative and libertarian viewpoints remain distinctly in the minority in law schools and this reflects our collective failure.

Remedying these deficiencies requires constructive efforts.  These efforts should be steadily purposive and, in my opinion, mostly organic.  Number counting will be no more successful here than it is with regard to the kind of DEI-focused hiring that is currently under assault.  Despite what one spate of ill-intentioned, evidence-free, and ultimately baseless recent assertions suggest, the goal of ensuring that faculty recruitment should be based principally on one's race or gender has never been a priority of mine, nor would I suggest it should be a priority of other deans and faculty members, even before the Court's recent affirmative action decision.  And so it defies sense that we would and should replicate such efforts with regard to viewpoint diversity.

That said, external threats to punish law schools unless they scramble to assemble a much more conservative law faculty are not the answer.  And hyperbole about either facts on the ground or what the world should quickly look like is seldom helpful.  Instead, we should undertake the effort as shepherds of our institutions to simply do our level best to improve on this dimension.  The tall task of increasing viewpoint diversity -- more specifically, bringing in more avowedly conservative and libertarian perspectives, defined in nuanced and contemporarily relevant ways -- should be embraced by faculties at law schools across the spectrum of missions and of resources.  

Off my soap box, to admit that the difficulty in all this lies mainly in the strategic details.  Focusing on such strategies is really essential, but is presaged by what I hope is a broad scale agreement that we are not nearly where we ought to be.  

Dick Fallon, remembering

Many tributes have been pouring in on the passing of Prof. Richard Fallon of Harvard Law School.  The tributes tell a consistent story of a renowned teacher-scholar, whose impact on his fields, legions of students, and colleagues across legal academia.  A life in legal education very well lived indeed!  I add here a comment about my own experience with Dick and also a more general comment.

I knew Prof. Fallon first as a student in his Fed Courts class at HLS, in what was still his pre-tenure period.  Prof. Carol Steiker (HLS '86) has written about the rigor and excitement of that course (we may have been in exactly the same class, with Elena Kagan, but memories fade).  Yes to everything she says!  It was a thrill, even if the ensuing decades since continue to leave me, as I say to the annoyance of my fed courts colleagues at Northwestern, with a sense that some of the subject is intense dancing on the head of a pin.  But, no matter, Fallon's precision in thinking and explaining, including to those struggling at times to follow (like me!), was memorable and meaningful.  He was even back then a master teacher.  He remained so afterward.

At about the same time, I had the opportunity to work as an editor on what was his big tenure-piece, "A Constructivist Coherence Theory of Constitutional Interpretation."  From the age in which (thankfully!) Harvard Law Review memos were not maintained forever, I can tell you that there was much battling in Gannett House about whether to accept the article for publication.  It was a densely argued piece, unconventional in its framing of some of the leading debates, breathlessly ambitious for a young academic, and envelope-pushing in a way rather unfamiliar to us neophytes.  Further, it was unpopular in many of my fellow editors' eyes.  It wasn't part of the zeitgeist of the times -- those times seeing us publish articles, e.g., comparing Posner with Franz Kafka, early efforts at narrative legal scholarship, and other pieces now best forgotten.  Fallon's article wasn't trendy, it was big picture constitutional theory, with a vein of an argument that, looking back nearly four decades afterward, was rather ahead of its times.

In any event, I did my best as an editor to not screw it up too much.  The editing experience enabled me to work with Prof. Fallon and to become ever more impressed with his care and consideration.  Nothing I did really contributed to making the article better; but the experience contributed in small ways to my burgeoning interest in becoming a legal academic.  (I can also mention two other youngish HLS profs who had that same effect on me -- Dan Meltzer, his collaborator, and Cass Sunstein, who was visiting then at HLS and whom I worked as an RA).  I will add only as a footnote that I had the great opportunity to reengage with Dick F. when I spent a semester in Spring '19 as a visitor.  His office was across from mine in Areeda Hall and he was, as expected, kind and helpful.  He was thoughtful in saying he remembered me as a student, but that was much more generous than accurate, I suspect.

The general comment:  Dick Fallon was, at his death, an increasingly rare example of someone whose imprint was deeply felt at one single institution, made possible by the sheer fact of consistency and longevity as one of its full-time professors.  He was at HLS for four uninterrupted decades!  He didn't spend time in government service and I couldn't locate easily from his resume evidence that he spent substantial time (a semester or more) working outside of Cambridge.  He was devoted in his efforts and his sheer time to Harvard Law School.  Colleagues can speak to this better of course, but I can imagine that his impact on that institution was extraordinary, and even epic in scope and in endurance.  Having moved around over my career, like so many others (some even more than I have!), it is an experience that is often missed by profs.  And from an institutional perspective, this is an experience that the law school certainly can cherish for the unique contributions that consistent, long service as a teacher and institutional citizen permits.  Maybe there is a small lesson in here for those (of us) with the all-too-common wanderlust.  The grass is often greener, but, for Dick Fallon, "the green pastures of Harvard University," as I recall Bob Dylan once noting in comments beginning one of his song performances, were plenty good enough.

What Is the Buck?

As Gerard's post reminds us, Pres. Harry Truman famously kept a sign on his desk announcing that "The Buck Stops Here," meaning that he wouldn't deflect responsibility by passing the buck. That may or may not have been his actual practice, but what is said buck that either did or didn't stop at Truman's desk?

In fact, it is a poker term, dating from the nineteenth century, when players passed a piece of horn (in some versions, buckshot) around the table to indicate the dealer. Passing the buck was a shift of responsibility, but not in a dodgy or irresponsible way. Eventually, and repeatedly, the buck stopped at every seat at the table.

I don't know when the idiom changed to mean an evasion of accountability, but I do know that Truman was a confirmed poker player.

The Buck Doesn't Stop Here

Everybody knows that Harry Truman had a sign on his desk that said "The Buck Stops Here." It became his trademark. 

What I didn't know until I looked into it the other day is that this fact only became well-known as a criticism of Dwight Eisenhower. Eisenhower was a delegator. He gave his aides a lot of responsibility, in part to shield himself from blame if things went bad. When President-Elect Eisenhower met with Truman in November 1952, the headline was that Truman told Ike that "The Buck Stops Here." In other words, you can't get away with that as President in the way that you did in the Army.

In 1956, Truman and Adlai Stevenson attacked Ike for shirking his responsibilities with the slogan "The Buck Stops Here." In a nutshell, Truman's argument was that Eisenhower couldn't get away with blaming his subordinates for various mistakes. Put another way, Eisenhower ran his Administration on the principle that "The Buck Doesn't Stop Here." He acted more like a head of state, as befitted his apolitical military image.

Another wrinkle is that I wonder (though I don't know) to what extent Truman actually followed "The Buck Stops Here." Surely he must have passed some hot potatoes to his Cabinet officials. On the other hand, maybe he didn't do that and that explains why he left office with a record-low approval rating.

Why the TROs will Keep Coming

Imagine that you are a federal district judge. You don't get all that many constitutional cases. One is filed before you challenging an executive action. The issues presented are novel and complex. The plaintiffs ask for a TRO. Your natural instinct, I think, would be to say "I'm going to put the challenged action on hold for a little while until I can figure out what the hell is going on."

The Supreme Court's reversal of some or even most of these TROs won't change this dynamic. The only thing that might be helpful would be if TROs were time limited to say, two weeks. Part of the problem is that there is no uniform standard. Plus, some may suspect that a "temporary" order is not so temporary because its duration is indefinite. But admittedly there are cases in which even a two-week TRO might seem unreasonable. 

Contingent Elections and Electoral College Reform

Today when you ask people why they don't like the Electoral College, their #1 answer would probably be "Because it can allow the person with fewer votes to win." This concern was discussed in the 1960s by the Bayh Subcommittee, but skeptics (including RFK) pointed out that we had not had a minority President since 1888. Maybe that was a long-shot possibility, they thought. Turned out they were wrong, but that's just another example of a poor structural prediction.

The #1 concern in the 1960s was that we would have contingent elections in the House of Representative. Strom Thurmond tried to achieve this with his third-party run in 1948. This then triggered some state reforms that led to Ray v. Blair, a significant Supreme Court case on presidential electors. In 1960, some Southern states tried choosing "unpledged" electors to trigger a contingent election. And in 1968, George Wallace ran a third-party candidacy to do the same.

It's no surprise, therefore, that high tide for Electoral College reform was 1969. People worried that we could have an acting President on Inauguration Day if the House was deadlocked. People worried about whether a President who was elected despite being a clear loser in the popular vote (John Quincy Adams in 1824) could govern modern America or be an example of democracy in the Cold War. People worried about faithless electors. People worried about a contingent election giving us Nixon/Muskie instead of Nixon/Agnew because of the party balance in the Senate. Finally, people worried that a contingent election triggered by the white South would kill civil rights. In this respect, I wonder to what extent the assassination attempt that crippled Wallace's 1972 campaign might have mattered.

Nobody that I know of defends the contingent election procedure. Acceptance of the Electoral College today rests on the assumption that this is not a threat. But that could just be another poor structural prediction.

"In Russia, Attorneys Identify *You*"

Pardon the old-fashioned joke. The item is a little more serious. We are used to this being the least transparent administration in modern American history, and in the immigration enforcement area recent months have seen, in no particular order, secrecy about FOIA disclosures, secrecy (abetted by the congressional leadership) about oversight, secrecy about the identity of detainees, and the unwarranted (and unacceptable in any case) conversion of federal immigration enforcement authorities into a masked paramilitary form of secret police, a thuggish practice that is proliferating and which is part of a congeries of practices--enforcement quotas, making deals with countries like El Salvador, egging on or winking at abusive conduct, and so on--that could not be more authoritarian and less conservative.

But this looks like a new one: The Intercept, a publication whose politics I don't remotely share but one that does an excellent job of putting reporters on the ground for shoe-leather journalism, reports on government attorneys withholding their names in immigration proceedings that are open to the public, behavior that in the two separate cases noted had the full compliance of the ALJ. One hopes this is not happening in other immigration courts. 

I am not a name-and-shame type and would rather not encourage conditions that drive law- and oath-abiding, sane Americans from the ranks of federal government employees in or out of law enforcement. But there is no anti-doxxing exception to the conditions of basic transparency that constitute one of the bulwarks of the rule of law. The justification for such behavior is surely even more questionable than the already inadequate justification for the ongoing formation of our masked secret police--not that the government responded to the Intercept’s request for comment. We do not and cannot have a secret-police-style arrangement for lawyers, in and out of the courts. The remedy for the mostly nonexistent concerns the government has used to justify itself is better security and more fortitude--not the casual piecemeal establishment of a USNKVD.  

I tend to think, as I've said before, that comparisons to Hitler are inapt for this regime. They are not somehow categorically impermissible in the way that comparisons to, say, Russia, China, El Salvador, or a banana republic would be; there is no logic to such a suggestion. They're just not the best fit. Comparisons to Hitler's supporters, defenders, and apologists, on the other hand, are another matter. That comparison is appropriate, and appropriate in spades for lawyers. To casuistically defend conduct like this, or to selectively defend conduct of which one approves while ignoring or remaining painstakingly silent about (or indifferent to) the many abuses before one's eyes, does indeed put a lawyer, or indeed any citizen, in the position of colossal, consequential moral failure or cowardice of those who allowed Hitler's regime, or other authoritarian regimes, to spread and flourish.     

"Erinnere dich an das Erbe deiner Heimat!"

It is unfortunate, at least for our literacy and dignity, that our national government's communications and propaganda operations have since 2008 been placed largely in the hands of 22-year-olds with an ever-plummeting level of facility in the language, just as it is unfortunate that our current regime's aesthetic runs from kitsch to donated kitsch to full-on Atlantic City whorehouse, and from a wee bit fascist to paramilitary chic to "Say what you will about the tenets of National Socialism, Dude, at least they knew graphic design." But one saving grace is that the combination of, variously, naive enthusiasm and cunning enthusiasm with a lack of education and taste yield frequent ironies to be enjoyed by the cynical, jaded, educated elites. (No, not those elites. No, not those elites either. Not those ones. Definitely not these ones! I meant the other elites. One begins to suspect that the word "elite" is not an especially sharp analytical tool.)

Thus, this gem from the 22-year-old assistant secretaries at Homeland Security--the kids who also brought you these greatest hits. You may see it as a paean to J.D. Vance's Blut und Boden-esque heritage Americanism, a Stephen Miller-style pictorial ode to white nationalism, a fond departmental sendoff to Paul Ingrassia, or something of the sort. And you would be right to do so! I prefer to see it as a tribute to the numerous non-English-speaking enclaves that were a key feature of westward expansion. Nyte! It pairs nicely with music.

 

JOTWELL: Bookman on Gilles on Arbitration Exceptionalism

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Myriam Gilles, Arbitration Exceptionalism, arguing that the Court may be pulling back on its overwhelming preference for arbitration.

Legitimating the Warren Court

The Bayh Subcommittee served as a safety valve for the Warren Court. What I mean is that controversial decisions during the 1960s were often followed by hearings in the Subcommittee and proposals for action. These hearings ventilated the issues and sometimes reconciled people to the ruling. Consider some examples:

1. Miranda. The Subcommittee held multiple hearings on the case. One was in DC and others occurred across the country to allow local police to express their views on this dramatic change. Congress responded with a statute in 1968 that purported to overrule Miranda in federal prosecutions, though the law was not enforced. In a sense, the decision was criticized and embraced at the same time in a way that solidified its authority over time.
2. Reynolds. The Subcommittee held hearings on the question of state legislative reapportionment. Proposals were introduced to modify the Court's ruling, but none could gain sufficient support in Congress.
3. The School Prayer Cases. There were hearings on these cases as well. Bayh then proposed a Sense of the Senate resolution stating (along other things) that voluntary prayer was permitted in public schools. The resolution passed, but a proposed constitutional amendment came up short. This was again a delicate dance that ended up consolidating the Court's rulings.

Now the Subcommittee also held lengthy hearings on Roe v. Wade in 1974. Did they have the same effect? Well, only partly. But more on that another time. 

Undermining district courts

Speaking of SCOTUS' Order staying the injunction in McMahon, a WH spokesperson said the Court "once again recognized what radical district court judges refuse to accept--President Trump, as head of the executive branch, has absolute constitutional authority to direct and manage its agencies and officers." Not that the majority cares--obviously--but this statement illustrates every problem with the Court's approach to these cases and orders.

The top of the judicial hierarchy is actively undermining the lower levels it is designed to lead. By summarily rejecting district judges' hard work, the Court tees up the administration to criticize district judges as radicals who disobey or try to make-up law out of personal opposition to Donald Trump and whose orders the government  therefore can disregard because only SCOTUS matters. This is not new. Despite John Roberts's peans to district judges in the occasional year-end report, a tenor of disrespect for (beyond mere disagreement with) district judges burbles under the surface with SCOTUS. Many legal doctrines (especially procedural stuff, such as pleading rules or everything surrounding qualified immunity) reflect an unstated disrespect for district judges, or at least their ability to achieve what SCOTUS wants.* Some of this enhances the Court's power (the theme of Lemley's Imperial Supreme Court and of Justice Kavanaugh's CASA concurrence). But it is leaking out to the executive--SCOTUS is giving its imprimatur to those outside the judiciary to criticize and ignore lower courts as out of control. And despite Roberts' umbrage when law professors criticize judges, he remains silent when the President--who, according to his spokesperson, has "absolute" power in certain areas--does it.

[*] I always return to Scalia's snark about "the discretionary decision of a single district judge" preventing the AG and FBI director from doing their jobs.

The Court exacerbates this by not explaining or justifying the order. The failure to explain obviously gives the administration opportunities to score propaganda points by inventing an explanation. The Court did not say the President has absolute authority over agencies, which is not a true statement of law. But the absence of a counter-narrative from the Court allows the executive to fill the space with a justification that becomes true.* But SCOTUS' silence allows the Administration to use those false reasons as the basis for criticizing and ignoring district judges--district courts refuse to accept or respect the law and rightful presidential power as SCOTUS understands it.

[*] Sure, the statement may prove if the Court eventually rules against the administration. But by then we will not have a functioning Department of Education, so no one will care.

SCOTUS: Trump can burn down the government, for now . . . and later (Updated)

I have not particularly celebrated lower-court decisions preliminarily enjoining enforcement of Trump's various unlawful stuff. Because I have anticipated that SCOTUS will stay the PI and allow Trump to follow through on whatever plans the district court has held violate the Constitution and federal law pending a final judgment. And that has proven the case, according to Steve Vladeck, in all 15 of the Administration's requests for emergency relief on which the Court has ruled.*  The latest is McMahon v. New York, an unsigned unexplained ruling staying an injunction preventing DOE from firing half the agency employees, expressly as the "first step on the road to a total shutdown" of the department and despite district court findings that the cuts mean the department cannot carry out its statutory duties.

[*] The Court has provided a majority opinion in three (including CASA, in which the Court took the unusual step of holding argument) and offered no explanation at all in seven. 

So this is over; Trump can do what he wants, for now. And since the damage now is irreparable, he can do what he wants forever. The courts cannot stop anything because SCOTUS has made itself the only court that matters at the earliest possible moment and it is not inclined to stop the Administration from doing anything until and unless the case ends in a final loss for the government. The status quo to be preserved with the balance of equities is "the administration can carry out whatever policies it chooses until a final judgment declaring those policies invalid." That it will be too late to unwind the damage if the administration's actions prove unlawful seems to be beside the point. I assume the majority has made a back-of-the-napkin merits calculation that government will win, so there is no need to wait. Of course, by not even trying to explain (depriving us of the opportunity to, in Justice Barrett's words, "read the opinion") we have no clue. All that remains is inconsistency between this case (stay the injunction of a Trump policy) and the student-loan case (allow the injunction of a Biden policy to remain in place pending SCOTUS resolution).

Some things to watch:

• Will district judges continue to do the hard work of holding evidentiary hearings and issuing TROs and preliminary injunctions against obviously unlawful actions, knowing what is overwhelmingly likely to happen? Or will they leave the government action in place and proceed (as quickly as possible) to summary judgment and a final judgment? Will plaintiffs stop seeking preliminary relief, knowing all of this? This may reflect the final fallout of the imperial Supreme Court--SCOTUS "is hamstringing them by bypassing longstanding procedural and substantive rules and its own doctrine in order to reach out, take, and decide major legal questions that either are not presented at all or have not proceeded through the courts to establish a record." Update: Alternatively, maybe they follow Ann Lipton: "My vague hope is that lower courts hearing these cases will, when awarding interim relief, flat out say words to the effect of, "I get SCt has been rejecting these injunctions but they haven't explained their reasoning, so I remain guided by existing precedent."

• I wonder what Sam Bray makes of this. He argues that preliminary injunctions should not be merits previews but a way to protect a court's "remedial options," with a rebuttable presumption in favor of the plaintiffs. Clearly if DOE no longer functions (or even exists) by the time of final judgment, the courts have lost remedial options.

• Garrett West argues that purely nullifying constitutional provisions should not form the basis for offensive litigation (because they do not impose constitutional duties); these provisions nullify and thus exist only as defenses. In a soon-to-be-submitted article, I consider the problem of structural provisions that never trigger adjudicative proceedings and thus the opportunity for defensive nullification. This case illustrates that situation: The separation-of-powers and Take Care violations here play out in the real world--delays in processing paperwork to accept students receiving student loans, causing schools to be unable to enroll students or provide services; delays in receiving necessary funds and thus being able to provide services; etc. None of this happens within an adjudicative proceeding and an opportunity to raise the Constitution as a defense.

Dick Fallon, RIP

From HLS Dean John Goldberg (H/T: Mike Dorf):

Dear Members of the HLS Community,

I am heartbroken to write with news that our dear colleague and friend Richard Fallon, Story Professor of Law, passed away yesterday. For many of you, this news will come as a shock – he was diagnosed earlier this summer with an aggressive cancer and preferred not to make this information widely known.

Professor Fallon has been a pillar of Harvard Law School since joining the faculty as an assistant professor in 1982. Internationally recognized as a leading scholar of constitutional law, constitutional interpretation, and legal philosophy, he authored dozens of important works in these fields, and just recently completed his latest book, The Changing Constitution. He also served as co-author on leading casebooks and treatises, including Hart and Wechsler’s The Federal Courts and the Federal System. Colleagues here and around the world benefitted from his engagement with them at workshops and conferences, and particularly his generosity in providing lucid and detailed comments on their work. 

Impressive as they are, Professor Fallon’s accomplishments – and I have mentioned only some of them – do not capture him or his significance for our school. He was a beloved teacher, having twice won the Sacks-Freund Award. He also regularly taught a highly popular course on American Constitutional Law for students in the Faculty of Arts and Sciences. Over his many decades in the classroom, he modeled excellence, curiosity, respect, and humility for his students, which is why so many of them remain devoted to him even decades after graduating. 

Although Professor Fallon was serious about his work, he managed not to take himself too seriously. He expected a lot of himself and those around him, yet was also eager to listen to, and learn from, others. Even amidst earnest discussions, his wry sense of humor would often make a quiet appearance.   

HLS can be grateful for the more than forty years in which Professor Fallon wrote, taught, mentored, counseled, and led with extraordinary distinction. His passing leaves a hole in our community that cannot be filled. I consider myself beyond fortunate to have had the chance to work with our brilliant and exemplary colleague even as I am overwhelmed by sorrow for his loss. 

Professor Fallon will be remembered at a private service for family and invited friends. He will also be honored at an HLS event this fall, the details of which will be forthcoming.  

May his memory be a blessing.

John

Not Your Typical Campaign Ad

Birch Bayh from 1974. Imagine the ads that Bingham or Madison could have run.

 

 

Conscription's Constitution

This is my new draft paper. It's more rough than my typical draft, so I would appreciate any and all comments. Thanks.

Maybe This Isn't Antisemitism

But it is indistinguishable, especially this line about Jews and money: "One people enriched, one people erased."

There is much to condemn about the Israeli destruction of Gaza, but the supposed profit motive for the war could come straight out of Stormfront.

 

Interpleader and exclusive private enforcement

In the early days of S.B. 8 and all it has wrought, Teddy Rave (Texas) proposed a creative path to federal court for potential S.B. 8 defendants--statutory interpleader. The holder of a definite fund or res places the fund in the court, which litigates and resolves disputes over proper ownership among competing claimants to that fund. Dr. Alan Braid--a Texas doctor who announced in the Washington Post that he had performed a post-heartbeat abortion, triggering three lawsuits--tried it. He deposited $ 10,000 (the minimum amount recoverable for one violative abortion) in the Northern District of Illinois (where one of the S.B. 8 plaintiffs resides) and asked the Court to decide which of the three claimants should get the money--or to decide that none should get it, because S.B. 8 is constitutionally invalid.*

[*] Dobbs complicated the case, since the substantive ban on early abortions now is valid. Braid shifted his constitutional arguments to challenge S.B. 8's procedural mechanisms, which I am not sure should be litigated in this posture.

The Seventh Circuit approved the process, sort of.*

The court acknowledge that this is not the typical interpleader, which involves a disinterested stakeholder and a fund such as an insurance fund or bank or estate assets. But Braid's claim fits the deliberately broad statutory language for claims "in the nature of interpleader." This can include money arising from a tort or statutory violation on which the stakeholder is not neutral-and-disinterested and on which the stakeholder resists any liability to any of the claimants on the fund. Braid's potential liability was definite enough (even if not-yet determined)--he has a single pot of $10,000 which only one of three competing claimants can recover, on which claims exceed the value of the fund (since all seek at least $ 10,000 but only one shot of $10,000 is recoverable), and on which Braid contests his liability and responsibility to pay anyone.

Of course, it did not matter that this could fit interpleader--the court of appeals sua sponte raised and abstained under Colorado River. The federal action lacked "formal symmetry" with the state action--only one federal defendant had an ongoing state claim, the federal action is more efficient, and S.B. 8 imposes problematic procedures in state court. But they were parallel enough--similar parties litigating similar issues (the validity of S.B. 8). And enough of the 10 Colorado River factors weighed heavily in favor of abstention--the centrality of Texas-law issues to both actions, the fact that state courts obtained jurisdiction first, the risks of piecemeal litigation and conflicting judgments, and the appearance of forum-shopping. The court was not swayed, nor should it have been, by arguments about S.B. 8's defective procedures.

Final thoughts:

    1) I still think this is wrong as to interpleader. That process is designed to resolve competing claims over an existing fund, not to litigate liability on a state-law claim that might cause the fund to come into existence (or not). Otherwise, every tort defendant facing multiple damages actions in state court would try this move.

    2) The limiting principle here might involve an S.B. 8 quirk. Multiple "any person" plaintiffs can sue over one abortion but a defendant can pay only one judgment for one violative procedure. Thus, unlike three tort plaintiffs recovering for their damages, three S.B. 8 plaintiffs fight over one statutory damage amount. Ironically, that limiting principle allows a state to enact S.B. 8 copycat and preempt this strategy by allowing multiple recoveries for one violation--cutting off interpleader (because the fund is less definitive) and making life more difficult for the targets of the law.

    3) A further irony: Rocky and I argued that singular recovery was one (of three) keys to the argument that S.B. 8 plaintiffs act under color and are subject to § 1983 suit. Singular monetary recovery means the process looks more like criminal prosecution (a traditional-and-exclusive government function) than ordinary tort litigation--a singular sanction against the wrongdoer rather than damages to make an injured person whole. So a state shifting the recovery scheme to avoid interpleader might also avoid the under-color problem, all while making life worse for the targets of the law.

    4) It is hard to imagine any attempted interpleader action that will not satisfy the same Colorado River factors, requiring the federal court to abstain. The interpleader requires the same initial steps--individual violates the statute and gets sued in state court under state law. There always will be parallel litigation to the federal action. State law always controls these parallel actions and the state-court action always will have been first-filed, two factors pushing towards abstention. The court thus opened the door to interpleader as a response to exclusive-private-enforcement regimes, but Colorado River makes it unlikely any person can avail themselves of that move.

How Should the "Only Nationally Elected Official" Behave?

As has been the case all year--and indeed is generally the case--most of the interesting developments in constitutional law in the last few weeks, especially those involving separation of powers and unitary executive "theory," have had little or nothing to do with the Supreme Court. Even in corners where people discuss these things, most of the interesting and pressing questions about unitary executive "theory" simply haven't happened. I put quotes around "theory" not to reject the concept or the outlines of the argument as a textual or logical matter, but because there is so little of it. Most of the discussion seems to me to be focused on historical justifications for a unitary executive, and on questions of power--always everyone's favorite topic and generally a tedious one. But much less has been said about the broader implications that a theory might supply. In particular, the discussions rarely dig into the essential concomitant to power: the moral, ethical, political, and philosophical duties and obligations that must accompany that power. This is unsurprising on Donald Trump's part--he is not a knowledgeable or reflective man, and what little reflection he engages in doesn't run toward questions of moral duty--but a failing on the part of others. (Any statement so broad invites the usual "honorable exceptions" boilerplate, which applies here, viz. Thomas Crocker and Alan Rozenshtein. I surely have missed others. But, having gone looking for such discussions, I stand by the general statement.) 

Here's one case in point from the past week. Virtually the entire theory of this regime, such as it is, has been summed up by Stephen Miller, one of about a half dozen people effectively serving as acting President. (Which is not at all to say that Trump does nothing. We know, for example, that he likes tariffs, bribery, and revenge. And he has some thoughts about Cats, interior decoration, and the Baseball Hall of Fame. But the Trumpian cult of personality and media presence should not obscure the fact that a good deal of the time, Trump is far from the most active or influential member of the Trump regime. More on this anon.) As Miller says, "A president is elected by the whole American people. He's the only official in the entire government that is elected by the entire nation....The whole will of democracy is imbued into the elected president." He ties this to unitary executive theory on the view that since he is the one elected official, his Article II powers must be within his control. 

I have no special objection to this, allowing for its imprecision, whether I ultimately agree with it or not. Of course, the pseudo-corollary positions the regime also takes--that there is only one "will of democracy" that belongs to the largest voting unit; citizens don't or can't have varied views, some of them in tension, that seek expression through votes for different offices; that those offices are in some sense subordinate rather than coordinate; and that elected representatives who do not fall in line with the president's desires are somehow acting improperly--are bunk. But I'm not concerned with that here. (This president also appears to believe--like most modern presidents but way more so, as is customary with him--that he has a "mandate," although mandates are as mythical and elusive as chupacabras. The fact that presidents are so gripped by this delusion, and have so many enablers-at-large in this, provides one more occasion to marvel at the extent to which American culture and history are just one long, sublimated urge for monarchy.) 

It is characteristic that Miller's focus here is on power. And it's not just characteristic of Miller. Academics have suffered through a good decade or so (not to speak of the decades before that) of workshop talk reducing everything to questions of power (and treating the point as insightful). This usually comes from the left but is hardly exclusive to it. Indeed, a great deal of the thinking of the current right, as opposed to that of actual conservatives, is essentially ersatz leftish theory with a bit of theocracy, a Frank Frazetta drawing or two, and some outré takes on history and anthropology sprinkled on top.

But it would be more interesting and worthwhile to ask: If that's your basic theory, what obligations, as opposed to powers, does it entail? Beyond the usual, trivial "If the people don't like it, they can vote" argument, what internal constraint or conception of duty should guide the unitary executive--as well as his constitutional-oath-bound subordinates, state and federal officers outside the federal executive branch, and the people, who have a duty to monitor and judge the actions of the executive? What would the behavior of a president be if he acted more or less in accord with Miller's description of the president as representing and serving all the people--as opposed to, say, a view that he is obligated only to those who support him, or only those who "won"; or that he is not so much the people's representative as a Dear Leader-ish cult-of-personality figure, blessed by the occasional election, whose will is precedent in importance and authority to that of the people; or that he has been given power, not constrained much (if at all) by moral duty, to dispense or withhold favor to those he considers either good Americans or enemies?

Trump's words and actions suggest that he falls on the right side of that hyphen, despite justificatory verbiage like Miller's. And this week's prominent example involves disaster relief. As is almost invariably the case--see, for example, the aptly named DOJ Weaponization Working Group, whose mission is to centralize and supersize the use of law as a tool to punish personal and political enemies--Trump's goals are always best understood by assuming that what he criticizes in others is exactly what he plans to do. In this case, last year Trump accused President Biden of letting politics affect disaster relief last year in North Carolina. And so we could have guessed that he would take office with the goal of making disaster relief even more sectional and political.

Which he did. As this story notes, the administration has taken a starkly different approach to disaster relief in California, a state with which he is at barely undeclared war, than it is now in Texas. (The justifications offered by the administration--not counting those offered by Caroline Leavitt, for obvious reasons--must be viewed with skepticism. They should be evaluated skeptically in light of a longer pattern of Trumpian planning for targeted federal hostility to California, as well as his singling out of what he considers enemy cities with respect to illegal immigration while saying little about cities, like Houston and Charlotte, with equally significant populations. It's striking that Trump, whose ego and conception of the presidency both depend on the notion that he was chosen by the whole people, is so clearly, often explicitly, at war with vast swaths of the American people.)

Trump's plan to shutter FEMA appears to be undergoing revision, both because he has discovered that Texas has weather and because Trump mostly has impulses, not policies. But I doubt that one element of his general plan will change: his desire to have disaster relief funds distributed directly from the White House. As virtually every decision in the last six months indicates, this is hardly about ensuring that Americans, no matter where, receive the same level (or lack thereof) of federal disaster relief. It's about treating it as a political tool, a political weapon, and a form of lordly, personalist-authoritarian favor, handing out such relief where and how he pleases while insisting that the knee be bent and the Nobel nominations be kept handy. 

I raise this example--a prominent one but, of course, only one of many--not to suggest that it refutes unitary executive theory, but to suggest that this, far more than questions such as who fired whom in 1807, is the kind of thing those interested in the unitary executive should be asking about. It raises the kinds of questions--about what obligations and duties should guide and constrain a unitary or powerful executive, and what implications the nationally-elected status of the president have for how he governs and how he may not govern--that demand urgent attention. In particular, they demand urgent attention from those who advocate and accept the premises of the unitary executive.   

Saturday Music Post - It's Only Old Time Rock 'n' Roll Music

Is Rock 'n' Roll the most self-referential of all music genres? There are dozens of songs invoking or praising Rock 'n' Roll, but few if any in other genres. There are plenty of blues songs with "Blues" in the title, but the reference is almost always to having the blues, not to the music itself. Anyhow, there are a few Rock songs about Rock music in today's post at The Faculty Lounge.

An Open-Source Free Contracts Casebook

After several years of working with Guy Rub, Jake Linford, Tal Kastner, Pam Bookman, and Matt Bodie, we are excited to release to the world a free contracts casebook.  We announced it first on the ContractsProf Blog.

Here is the gist of it:

If you teach contracts and are looking for more affordable materials for your students or are simply seeking a more customizable way to structure the course, we hope you’ll take a close look.

We know there are already many contract law casebooks out there, and many of them are excellent. So why launch this project? Not because we had nothing better to do.  But two core motivations made us feel this was worth our time.

First, the rising costs of legal education. We became increasingly uncomfortable asking our students to spend hundreds of dollars on casebooks, especially when most of the core content (judicial opinions) is in the public domain. Moreover, we were often asking students to pay for material there was no way we could cover as our teaching credits got trimmed in curricular reforms.  On top of the price, the commercial options often come with strings attached, including limitations on access, usage, and formatting.

Second, like many professors, we’ve developed our own distinct ways of teaching contract law. Over time, we found ourselves assigning commercial casebooks with lengthy editorial notes, often skipping chapters, rearranging content, and supplementing them heavily with our own materials. The traditional casebook model made it hard to align the text with our teaching goals, priorities, and style. It also got messy for the students as materials from many different places had to be collated and read out of order.

The open-source casebook aims to address these issues. It’s free, customizable, modular, and flexible. It is thus designed to meet the evolving needs of our diverse community of contract law professors and students. Inspired by a similar initiative in property law, we believe legal education, especially in core courses like contract law, can be rigorous without being expensive, and collaborative without being one-size-fits-all.

That’s how this project began: we wanted a casebook that could be tailored to different teaching priorities, and we wanted to share it freely so others could do the same. On our website, we outline the ways you can use the open-source casebook. Here are a few highlight features of this project:

Modularity: The casebook is composed of discrete units that can, with minor exceptions, be covered in any order (or skipped entirely). You can tailor the text to fit your syllabus and preferences. Want to start with remedies (or consideration or offer and acceptance or something else)? Emphasize the UCC or the common law? Skip excuses? Go ahead. The project is built for it.

Flexibility: Use the casebook as-is or remix it. Add your own notes, swap in cases, create new hypotheticals, or emphasize the themes that matter most to you. Because it’s published under a Creative Commons license, you can do all of this (legally and freely).

Freedom from the external constraints: This isn’t just about saving money for students or having more pedagogical control. It’s also about avoiding a host of irritating, time-consuming, and, at times, harmful limitations. There are no convoluted platforms, no logins (other than for the teacher’s manuals and proposed slides, which we make available behind a password-protected part of the website), no DRMs, no proprietary formats. Just simple PDF and Word files. Consider, for example, a recent challenge: many professors now restrict internet access during exams due to generative-AI concerns, but then find that their students can’t access their digital casebooks. While this problem might (or might not) be solvable, it, and similar ones, are completely irrelevant when the casebook is free and available to download in unrestricted, straightforward formats.

If any of this sounds useful, we encourage you to take a deeper dive. On our site, you can browse individual units or explore full casebook builds. You can adopt them as-is or adapt them however you like. If you are anxious about whether the book treats some of your favorite cases, you can look at the Table of Principal Cases on the website to make sure we have you covered.  We also hope to foster a growing community of teachers who share resources. If you’ve developed your own materials, we’d love for you to contribute (with credit, of course). This project has given us not just new tools, but also new ideas and connections, and we’d love to build on that momentum with your involvement.

If you’re intrigued, check it out: https://contractscasebook.org/.  We have teacher's manuals and slides for many modules if you need them to adopt the book.

 

Huge thank you to Tom Kaczorowski of the Maloney Library at Fordham Law School for making so much of this book pretty to look at and functional for users.

 

 

 

 

 

The Bayh Subcommittee and the 1960s--Let the Revisionism Begin

If you ask Americans what stood out in politics or law from the 1960s, what would they say? Most law professors would say the Warren Court and civil rights. Most people, though, would probably talk more about JFK's assassination, student protests against the Vietnam War, and the tumult of 1968.

The Bayh Subcommittee addressed all of these questions. The 25th Amendment was a direct response to JFK's death. The 26th Amendment was a response to youth discontent. The proposal to abolish the Electoral College was prompted by concerns about civil rights and the 1968 election (i.e. George Wallace). The Subcommittee held many hearings on many leading Warren Court decisions (Reynolds, Miranda, Schempp).

By contrast, the Warren Court played only a peripheral role in JFK's assassination (the Warren Commission), in student protests against Vietnam (cases like Tinker and O'Brian), and no role at all in responding to the chaos of 1968. Thus, using the Warren Court as shorthand for the 1960s Constitution is inaccurate. The Bayh Subcommittee is better shorthand, or so I will argue in my next book.

Of course, the Bayh Subcommittee also did important work in the 1970s (on ERA for example), so there's a broader story to tell. More on that next week.

Ted Cruz Is Not a Fourteenth Amendment Citizen

Ted Cruz opposes birthright citizenship, but he should be careful what he wishes for. My new essay for The Hill explains what can happen when someone’s citizenship history is excavated. Here is the gist:

Ted Cruz and birthright citizenship: Be careful what you wish for

by Steven Lubet, opinion contributor - 07/10/25 

Cruz’s own citizenship derives not directly from the Constitution, but from Section 301 of the Immigration and Nationality Act, which applies to children born outside the U.S. to “parents one of whom is an alien, and the other a citizen of the United States.”  

If Trump’s executive order or Cruz’s proposed statute had been in effect in 1934, [his mother’s] birth certificate would not even constitute proof of her own citizenship, upon which Cruz’s citizenship depends. Rather, he would have to establish that one of [her] parents had been a citizen or a permanent resident alien. 

There is also some reason to wonder whether Cruz’s father had once violated immigration law. Raphael Cruz, Sr. came to the U.S. on a student visa in 1957, at age 18, speaking almost no English. Upon enrolling at the University of Texas, he worked washing dishes for “a mere 50 cents an hour.”

The minimum wage in 1957 was $1.00 an hour, which at least suggests that Rafael was working off the books, possibly for cash, which has never been unusual for newly arrived teenagers who speak no English. 

I don’t mean to disparage the Cruz family, or to challenge the senator’s citizenship, but rather to show what happens when anyone’s immigration status is intensely questioned. 

The genius of birthright citizenship is the simplicity of the 14th Amendment.

There is no need to investigate parents’ or grandparents’ immigration status or length of residency, or to search for decades-old documentation. The only relevant inquiry is place of birth, which is enough to make people Americans. 

You can read the entire essay at The Hill.

Off the Record on Miranda

The new issue of the Journal of Supreme Court History contains a remarkable article. Catherine Ladnier, then an undergraduate, managed to get off-the-record interviews with five of the Justices who sat in Miranda. (Black, Douglas, Clark, Harlan, & Stewart). The fact that she got them is amazing in and of itself. But the comments that she got (which are printed verbatim) give you a really vivid sense of the individual personalities involved. Definitely worth your time.

CFP: Georgia Law Review: Polarized Courts: The New Private Enforcement

Announcement.

As the Executive Symposium Editors for Volume 60 of Georgia Law Review, it is our pleasure to announce our annual symposium for Spring 2026: Polarized Courts: The New Private Enforcement.

This year’s symposium will focus on the increasing use of private rights of action to perform enforcement traditionally done by state actors, the arms race among the states to enforce policy preferences through private rights of action, the ramifications for our union of these competing and polarizing uses of courts, and other similar topics. The symposium will include panels and a keynote address.

We will hold the symposium in person at the University of Georgia School of Law in Athens, Georgia, on Friday, March 20, 2026. Georgia Law Review will reimburse all reasonable travel and lodging expenses associated with participation in the symposium. If you wish to participate, we invite you to email us an abstract or short description of your article’s thesis, a brief biographic statement, and any questions about your potential participation. We may accept proposals that do not fit into one of the above-mentioned categories so long as they analyze related topics.

We will accept proposals on a rolling basis until the issue is filled. We will review submissions starting Tuesday, June 17, 2025. If we accept your proposal, we require an editable draft by Monday, January 5, 2026. We prefer articles containing between 10,000 and 20,000 words, but we will consider articles outside of this range. Thank you for your interest. We hope you will join us in Athens for this exciting conversation in March of 2026.

Julia A. Gillies & Savannah E. Stanley, Executive Symposium Editors

[email protected] & [email protected]

Law School Faculty Hiring Posting Schedule 2025-2026

The usual posts will occur this year regarding law school faculty hiring.

The post collecting information about Hiring Committees is up.

On August 14, 2025, AALS will release the first distribution of FAR forms to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).

Also on August 14, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2025-2026 (last year's Hiring Spreadsheet and Clearinghouse Post).

Around September 5, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).

Institutional Leadership and the 1980 Election

One reason I'm researching the Bayh Subcommittee is that this was an era where Congress dominated constitutional discourse. Each branch takes its turn as the constitutional engine. Today you'd have to say that the Presidency is on the leading edge (for better or worse). In the 1960s and 1970s, though, Congress was first among equals, especially when you combine the constitutional amendments proposed with the landmark statutes enacted and with the Watergate inquiry.

Why was Congress the leader then? First, the Presidency was more focused on foreign affairs (the Cold War and Vietnam). Second, Watergate weakened the executive branch and gave Congress a boost. Third, Birch Bayh was in the Senate. Fourth, Warren Burger was no Earl Warren. 

Why did this change? In 1980, President Reagan was elected with a distinctive constitutional vision. He seasoned the Justice Department with lawyers like John Roberts, Ed Meese, and Steve Calabresi to carry that vision forward. But another key development in 1980 was that Birch Bayh lost his Senate seat.

Here I want to make a sports analogy that Howard will love. Sometimes a team is in a golden age. The Chicago Bulls in the 1990s. The Indianapolis Colts for a decade or so. Why? Because of one star player. Sure, other people were involved, but without the star the team would be just good. Sometimes the same is true in politics. The personality of the President matters. And there are key figures in Congress. Birch Bayh was that person in his era when it came to constitutional reform. Once he left, the energy was gone. Congress has proposed no constitutional amendments to the states since.

Tomorrow I'll start discussing a more controversial theme of my project, which is that the Warren Court is a poor way of describing the constitution of the 1960s.  

Structural Predictions

The Bayh Subcommittee spent more time and energy on abolishing the Electoral College than on any other subject. During the 1970s, one argument against that idea was that black voters would be put at a disadvantage by the direct popular election of the President. Alexander Bickel made this claim. So did Vernon Jordan. It was either wrong or not right, depending on how you want to look at it. 

This raises a broader point that you see from the Founding, Reconstruction, and other parts of constitutional history. Predictions about how a structural change will play out in future tend to be inaccurate. The truth is that nobody really knows how those sorts of big reforms will play out over, say, 50 or a 100 years. But judges and commentators often make confident predictions along those lines. You see that in Supreme Court opinions all the time.

Predictions like this should be discounted or ignored. Direct popular election could have hurt black voters in a past election. But in other elections the opposite was true. There was and is no pattern over the long haul. Structural reforms should be made based on broader principles rather than on anticipated results that cannot be correctly anticipated.

The Ghost of Miranda

One subject that drew a lot of attention from Birch Bayh's Senate Subcommittee was Miranda. Blockbuster hearings were held in 1966 that included testimony by Arlen Specter (then a young prosecutor in Philadelphia fresh off serving on the Warren Commission) and Truman Capote. Why Truman Capote? He was a celebrity, and that was sometimes a consideration for these hearings to get the media engaged.  But as the author of In Cold Blood, he testified that confessions were needed sometimes to catch guilty criminals and that Miranda was wrong. It was an interesting perspective.

The Subcommittee also (for the only time) took its show on the road. Miranda hearings were held in Houston, Milwaukee, and other cities to give local police a change to give their views and give other Senators a chance to get attention in their states. None of these hearings led to a constitutional amendment proposal that reached the floor of Congress. Instead, Congress passed the Crime Control Act of 1968.

What are some of the lessons here? One is that constitutional issues can be huge and then disappear. Nobody in politics cares about Miranda now. To be sure, Miranda was narrowed by subsequent decisions. But a more important factor is that police departments and ordinary folks just got used to Miranda warnings over time and concluded that they were not such a big deal. The Supreme Court confirmed this consensus in the Dickerson case in 2000.

Another lesson is that Warren Court decisions were often subjected to careful scrutiny by Congress through the Bayh Subcommittee. Sometimes this review served as a safety valve for criticism of a decision. Sometimes there were reform proposals that led to action short of a constitutional amendment. Sometimes ideas were developed that could be deployed in fresh litigation. The Bayh Subcommittee was in dialogue with the Warren Court on other issues such as school prayer and legislative reapportionment. I'll elaborate on this in another post, as it will probably be a theme of my book.

Finally, maybe Congress should hold more hearings outside of Washington. Show the flag, you might say.

 

A Dual Track for Article Five Amendments

I spent much of last week in the Birch Bayh Archives researching my next article and book. Over the next few weeks, I'm going to talk what I found there and reflect on some themes as I start sifting the material.

Let's begin with a little nugget. When the Direct Election Amendment was under consideration in 1969 to abolish the Electoral College, language was drafted in the Senate Subcommittee on Constitutional Amendments providing for a three-year time limit for ratification by state legislatures. But then the draft said that if the proposal was not ratified by enough legislatures within three years, Congress could submit the proposal to state conventions and they would have four years to get their own three-fourths tally ratify.

This was a clever idea. You still have what is now the standard seven-year time limit. But the proposal gets two separate bites at the apple. If the proposal was not overwhelmingly popular, the convention option can kick in to provide for fresh and focused elections on what would be a more difficult or controversial issue in at least some states. But only if Congress triggers that machinery--perhaps a future Congress would not be keen or would see the handwriting on the wall.

Maybe this suggestion was too clever or complicated to be put into the final draft --I'm not sure yet when it didn't make the cut. One thing I am sure of is that this sort of proposal would be constitutional under Congress's Article V powers and precedents.

Was a University of Illinois Architecture Professor Denied Tenure because He Is a Zionist? UPDATED

Moving to the front with the correct link.

So submits my friend and co-author Cary Nelson, emeritus professor at UIUC and former president of the AAUP, in the case of Dr. Benjamin Bross. Writing on behalf of Faculty for Academic Freedom and against Antisemitism:

Other than Dr. Bross having published several more essays and having received enthusiastic reviews of his teaching, the only other notable feature in his tenure profile came in the wake of Hamas’s October 7, 2023, assault. Bross, who had kept quiet about his Zionist sympathies, now made them public. Before October 2023, Bross received a glowing third-year evaluation, a nomination for a scholarly prize, and an invitation by his school’s director to write a second book; in 2024, his tenure review committee suddenly went against the department’s prior endorsements of Bross and recommended denying him tenure through a one-sentence notice that his publications and teaching were inadequate. Meanwhile, other faculty were expressing their rage at Israel’s conduct of the war in Gaza.

Now procedural negligence gave committed anti-Zionists an opportunity to act: first, when they were appointed to a Zionist’s tenure review committee and apparently saw no cause to recuse themselves; second, when they recommended outside reviewers instead of the senior faculty member in the candidate’s field of urban studies (as the School of Architecture requires); and third, when it came to an up-or-down vote on tenure.

As the letters attest, one of Benjamin Bross’s tenure review committee members apparently expressly told another person in the program that Dr. Bross’s Zionism was unacceptable. 

Another one of Bross's tenure review committee members signed a “Call for Immediate Action” letter tht condemned Israel for its role i the current Gaza war. In any case, the UI rules are clear:"Any faculty member with a conflict of interest, or the appearance of a conrflict of interest, should not participte (e.g., review, evaluate, advoacte, or vote) in a candadte's promotion and tenure review."

You can read the entire article here.

Saturday Music Post - Stayin' Alive

"Stayin' Alive" was written by the Gibb brothers for the 1978 movie Saturday Night Fever, for which it was kinda perfect even for those of us (including me) who never liked disco (looking at you, Alex). It wasn't nominated for an Oscar that year -- maybe the Academy also disdained disco -- but it won four Grammys in 1979. In 2004 was listed by Rolling Stone as number 189 of the 500 Greatest Songs of All Time. In a 2021 update, it was ranked 99, which is pretty strange for a song that was released 43 years earlier. I have no idea what happened to the 90 songs it jumped, not to mention all the new music recorded in the 17 year interim. Unsurprisingly, most of the covers are by female vocalists, and they are not all disco.

Anyhow, I figured it wouldn't hurt include one disco number after all these years. The iconic Travolta clip is at the bottom of today's post at The Faculty Lounge.

Happy 4th

Trapped at home during COVID summer (2020), we marked the holiday with a family reading of the Declaration of Independence, along with Frederick Douglas's "What to the Slave is the 4th of July," as read by James Earl Jones (of course). It became a mini family tradition. Join us after the jump, hopefully not for the last time.

 

 

 

And because it fits this year:

 

 

Speed dial

I am not a fan of Justice Sotomayor's writing, even when I agree on the substance--it comes across as over-wrought without being lyrical. But check out the final line of her dissent from the Court's "clarification" of the third-country removal order--"Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial." That's a great line.

In the wake of Justice Kavanaugh's CASA concurrence, this order shows the majority's palpable contempt for district judges.* Not just SCOTUS supremacy, but contempt. They proceed as if the district court decision--and, more importantly, the remedy it grants and the monitoring of that remedy--is less than a full order of a court of competent jurisdiction that parties (or at least the government) must obey subject to appellate review. District court decisions are preliminary pronouncements, an inconvenient-and-inefficient, unfortunately necessary speedbump on the way to SCOTUS' meaningful ruling. And the executive need not obey or respect them as anything more than a preliminary recommendation. Worse, the Court seems increasingly likely to reject that "recommendation."

[*] Not a new phenomenon. Recall Justice Scalia in the Iqbal argument:

Well, I mean, that's ovely, that -- that the -- the ability of the Attorney General and Director of the FBI to -- to do their jobs without having to litigate personal liability is dependent upon the discretionary decision of a single district judge.

The latest episode of Preet Bharar's Stay Tuned With Preet features Melissa Murray, Trevor Morrison, and Jack Goldsmith. In discussing CASA, either Trevor or Jack (can't remember who) argues that SCOTUS wanted to get the Administration off the backs of district courts, to tamp down on the accusations of lawless judges. Perhaps. But the Court seems to be offering the Administration reasons to not take trial courts and their orders seriously or treat them as worthy of respect in the interim.

Why Ever Bother Calling a Trump Regime Press Office?

It's been a remarkable week for the press. In a week in which the president's corruption* and authoritarianism were displayed, inter alia, in a letter from his personal lawyer threatening to sue CNN and the New York Times for defamation for accurate reporting on intelligence reports concerning the United States airstrike on Iran--a letter that was rightly met with the response, "No retraction is needed. No apology is forthcoming."--here's another item in the annals of Trump regime contempt for both transparency and the role of the press in investigating and reporting on government. Granted, it involves an insane person, but insanity is no disqualification for high office in this regime. 

The lunatic in question this time is Director of National Intelligence Tulsi Gabbard, who wrote on the regime's de-facto official channel to complain that a Washington Post reporter had engaged in what she called "harassment" of ODNI staff. Gabbard said: "Instead of reaching out to my press office, she is calling high level Intelligence Officers from a burner phone, refusing to identify herself, lying about the fact that she works for the Washington Post, and then demanding they share sensitive information." I assume Gabbard is lying or engaging in subterfuge about the last three items on her bill of particulars and did not conceal her identity from the individuals she spoke to. And I'm not sure what relevance the use of a burner phone has, except that acting under the assumption that your government wants to investigate or persecute you is good journalistic practice under this regime (and has been a good idea under other administrations too, at least in the national security area).

But I'm struck by that phrase, "Instead of reaching out to my press office." Press or communications offices can be a good thing and good press people can be useful, honest brokers. Frequently, they are also experienced and expert about the subject matter of the agency or company whose media relations they handle. But of course they are there for efficiency and transparency, not because there is some kind of rule or expectation that you should always turn to them first. If your question is for the Department of Homeland Security's Director for Crisis and Weather Management, and you have that person's phone or office number, that's who you call or visit. Whether that person wants to tell you to talk to go to the press office instead is their business, not yours. And if you're not sure who to call, or are doing a more comprehensive piece, and you have a list of 200 employees, you call all 200 people on that list. This is called reporting, not harassment. As the Post's executive editor said today: "Reaching out to potential sources rather than relying solely on official government press statements regarding matters of public interest is neither nefarious nor is it harassment. It is basic journalism." Indeed, it's the kind of journalism we always need more of, and precisely why Substack pages or skimming through Twitter feeds are no substitute for heavily staffed pressrooms.

It is not administration-specific that good reporting requires more than simply going to the press office with one's hand out. But it's especially true given the staffing of this regime. In any administration, the good practice would be to make the best possible use of the press office and also try to find and communicate directly with sources. But the question one must ask about this regime is: Why would one bother to talk to a Trump regime press office at all? Its press practices, and the staffing of its press offices, have been remarkably consistent across agencies. It is a customary joke or assumption that all press people lie. But lying is quite literally not incidental to but the primary job of press offices under Trump v. 2, and they undertake it with both energy and determination.

Beyond this, the press people in the current regime are unreliable not only because of a constitutional propensity to lie, but because they simply lack the expertise and experience that actually makes someone in a press office at a specialized agency valuable. ODNI is a good example. During the Obama administration, the spokesperson for the office had previously spent two decades in the Marine Corps and did media relations there and elsewhere before taking the job. The DNI press person during most of the first Trump administration spent ten years working in that office before taking on the communications director role. The person in that role during the Biden administration served in the Navy, then as a civilian in the National Counterterrorism Center, ODNI, and the CIA before coming back to the communications role at ODNI. The person Gabbard thinks reporters should go to, first and probably last, for information about complex matters of national security graduated from college in 2020, has been flacking on the Hill ever since, and has no background in intelligence or national security.

This is not a personal insult; I don't have that background either. But clearly she is not qualified to do the job, if that job involves something other than bullshitting. This is entirely characteristic of virtually all of the regime's press hires. Of course, more generally it's characteristic of the regime's appointments altogether. From the man in the Oval Office all the way down, the staffing of the regime looks as though, some 40 years ago, Donald Trump ran across the phrase "Peter Principle" in a copy of Forbes and assumed the article was recommending it as good management practice. In short, not only is there no good reason to go to the ODNI press office first, but there is little reason for a reporter who knows much more about the subject than the agency's spokesperson does to go there at all. And the same is true across the whole branch.  

*Why corruption, in this context? Because it's not some claim that the journalists violated national security law, but a personal lawsuit brought by Trump's private lawyer. (How, exactly, that lawyer has the information or security clearance necessary to make some of the claims he makes in the letter, except as mere flourishes, is beyond me. But this is not a regime that takes management of confidential information especially seriously.) And that lawsuit can be yet another ring on the cash register, especially with respect to a company like CNN, if you have someone around who is servile and/or unscrupulous enough to use his office as leverage.  

Title VI action v. Haverford College dismissed

Here, this time with prejudice, because plaintiffs largely failed to clean-up the press-release pleading the court dismissed in January. There also is this line at the end of the opinion--"Oral argument was suffused with emotional rhetoric, giving this Court little comfort in the prospect for further refinement of facts adequate to support a claim," a strong warning about the perils of performative litigation.

The court's analysis reflects the Ben Eidelson/Deborah Hellman arguments about why plaintiffs may struggle to plead Title VI claims. In particular, the court held a firm line that: 1)  the college's failure to silence offensive-but-constitutionally protected speech (which was true for much of the speech at issue) cannot form the basis for Title VI liability and 2) the college's good-faith efforts to balance competing interests (such as allowing a sit-in to run its course) cannot establish deliberate indifference.

The court did find the plaintiffs sufficiently pleaded a breach-of-contract claim based on Haverford's alleged failure to investigate and resolve bias allegations under college policy, although only for nominal damages. Two thoughts on this. First, it shows the benefits of small-bore litigation efforts. Rather than a massive effort to litigate antisemitism writ large under a statute not necessarily designed for those purposes, plaintiffs may succeed by showing a discrete non-federal violation as to them.

Second, plaintiffs face a strategic choice. They likely want to appeal the Title VI dismissal. But the court's decision is not final because the contract claim remains. The court might certify the order as final as to the Title VI claims under FRCP 54(b). They have a good argument--Title VI forms the heart of the case and it would benefit the litigation process to determine whether plaintiffs plausibly pleaded those claims (that is, whether the district court was wrong) now, rather than waiting. Alternatively, plaintiffs could voluntarily dismiss the contract claims--which they likely do not want to do, as those represent their best hope for any recovery right now. Interestingly, the court did not (at least in this order) decline supplemental jurisdiction over that state claim, another way of creating finality.

Trump plays procedural games, wins procedural prizes (Updated Twice)

Donald Trump voluntarily dismissed his BS lawsuit against the DesMoines Register and pollster Ann Selzer over her erroneous final-weekend poll that showed Kamala Harris winning Iowa. Some people are using this as another TACO and "See, we must fight Trump" moment. Turns out it is more procedural.

Trump sued Selzer, her company, and the Register in state court. I had not paid much attention because the suit is nonsense and the Register and Selzer (represented by FIRE) seemed ready to litigate a strong First Amendment position

I also assumed it would stay in state court because Selzer and her company are Iowa citizens. But they snap-removed. Trump then filed an amended complaint adding two Iowa politicians as plaintiffs (destroying diversity) and moved to remand. Last month (I missed this), the court denied the motion. First, the court held snap removal is permissible. Second, the court denied leave to amend the complaint to add the non-diverse plaintiffs. Although Trump filed the amended complaint within the matter-of-course time period of FRCP 15(a)(1)(B), under circuit precedent (and Wright & Miller) a plaintiff must seek leave when adding a new party, especially when adding the party destroys diversity jurisdiction. Leave to amend was improper because the new plaintiffs are no indispensable and were added for the explicit purpose of destroying jurisdiction and Trump will not be prejudiced by having to litigate alone. With the Iowa plaintiffs not in the case, jurisdiction remained and the court had no basis to remand.

So I imagine Trump dismissed this action with plans to refile in a different state court with the Iowans as plaintiffs. Then some things to watch: 1) How quickly can they serve Selzer and the company to preclude another snap removal; 2) Selzer may remove and try to argue that the Iowa plaintiffs are fraudulently joined; 3) Is there some other basis on which to stop this type of gamesmanship?

Update: Later Monday, the Register moved to strike the Notice of Dismissal. First, a petition to appeal the denial of remand is pending in the Eighth Circuit (the district certified the snap-removal issue as a controlling issue of law). Second, Trump seeks to dismiss the federal action to pursue the same case (with the two Iowa plaintiffs added) in a different court (Trump filed that new lawsuit in Iowa state court Monday). The combination raises two problems. A party cannot voluntarily dismiss through FRCP 41 if an appeal, including a still-unresolved request to appeal, is pending. And the combination of issues reflects Trump's effort to voluntarily dismiss to avoid an adverse ruling (possible affirmance of the remand issue) and to obtain a more favorable forum, both grounds for a court to reject voluntary dismissal. 

According to the Register, timing matters. Iowa enacted an anti-SLAPP statute that takes effect on Tuesday but that does not apply retroactively. Trump made these moves now to get out of federal court and have the sole action in state court filed before the SLAPP statute takes effect.

Stay tuned.

Updated Again (July 3): The district court struck the notice of voluntary dismissal and declined to dismiss the action. Because an aspect of the case is in the court of appeals, the district court cannot dismiss the action unless Trump takes steps to have the appeal dismissed, which he has not done.

This seems a momentary blip. Trump will seek to have the appeal dismissed, then refile his voluntary dismissal. While Trump is clearly trying to forum shop, I would be surprised if the federal court continues to resist dismissal.

But things might get fun if the trial court refuses to dismiss. Trump might then ask the federal court to abstain under Colorado River, although I doubt a federal court that refuses to voluntary dismiss would exercise discretion to abstain. That leaves us with parallel litigation and a race to the finish--whether with Trump as party to both actions or the state court action featuring only the Iowa plaintiffs (assuming they want to pursue litigation and are not in the case to destroy complete diversity). The defendants also might try to remove the new state court action and argue that the Iowa plaintiffs are fraudulently joined (which did not come up on the remand motion).

Again, stay tuned.

Zombie laws and Dobbs

Dobbs created the perfect laboratory for zombie laws. Many states had 19th-century bans or near-bans that were obviously unenforceable (in some states enforcement had been enjoined; in others officials knew they could not enforce these laws and so did not try). Post-Roe, states enacted new laws regulating abortion--prohibiting it in narrower circumstances; regulating health-care providers; and regulating funding. Post-Roe, that ban is enforceable, so long as it remains on the state-law books. The question becomes whether the post-Roe legislation impliedly repealed the stricter pre-Roe legislation.

The Fifth Circuit considered this in 2023 as to Texas law but made a big mess. A divided Wisconsin Supreme Court took a cleaner and more direct path, holding that 50 years of "comprehensive legislation about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions" so "thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion."

I will take one contrarian position among liberals--my distastee for Chief Justice Karovsky's concurring opinion (which reflects many of the questions she asked during argument in the case). She traces the history of abortion regulation, tells stories of women affected by abortion bans, and highlights how horrible it would be if Wisconsin's pre-Roe law were in effect and enforceable. Her conclusion:

I tell the stories of Amber, Candi, Josseli, and my great-grandmother Julia to remind us that severe abortion restrictions operate like death warrants. Under such restrictions women, children, and pregnant people are denied life-saving medical care while medical professionals are forced to sit idly at their bedsides, unable to do their jobs. Extreme abortion restrictions revive a time in our history driven by misogyny and racism, divorced from medical science; it is a world that must be left behind.

All true. And all beside the point. If the legislature did not impliedly repeal this law, Dobbs de-zombified it, and it is enforceable, regardless of how bad it is as policy (unless those ills mean it violates some other provision of the state or U.S. Constitution) If the legislature impliedly repealed, the law is off the books and no zombie has been revived. The answer to that question does not and cannot turn on the law's bad effects or its stupidity and horror as public policy.

At least residents of Oświęcim, Poland pretended they didn't know

Disgusting.

Maybe those shouting that Zohran Mandami is a dangerous and unreconstructed antisemite will buy some merch when Trump follows through on his threats to send him there.

Until Paramount seized the trophy . . . (Updated)

It appears that institutions will stick together in response to Trump authoritarianism. Not by joining together in collective resistance, as one would hope. But by individually capitulating, thereby providing cover to the next institution to capitulate.

Yesterday was Penn. Today it is Paramount and CBS, which settled Trump's lawsuit arising from the "60 Minutes" interview with Kamala Harris. Paramount will pay $ 16 million to the Trump Presidential Library and agreed to release transcripts of future interviews with presidential candidates (which seems problematic as a free-speech matter), but will not issue an apology to Trump and the public.

Which is worse? I believe Penn takes the prize because of the targeted and personal nature of of the investigation and the settlement--it agreed to publicly hurt one person. But Paramount/CBS may have broader legal and political consequences.

Everyone knows CBS settled so the Trump Administration will approve the pending sale of parent company Paramount, making this look like a cash bribe.* While any Title IX action against Penn was open-but-winnable (it is not clear that Title IX prohibits trans-women from sports and certainly was not the case in 2021), Trump's case (asserting consumer-protection claims from media reporting and emotional-distress injuries) was frivolous as a matter of state law, before even getting to the First Amendment problems (which Bob Bauer highlights). And this (along with Disney's similar $ 16-million settlement of a suit over ABC News reporting) has set the market and incentivizes the Trump to repeat the play in the future.

[*] California and other Blue States have suggested opening bribery investigations. The Freedom of the Press Foundation has threatened a shareholder derivative suit.

CBS and the rest of the media are circling the wagons and pushing two narratives to make its move seem less craven. First is "let's move on," in a way that ignores future risks. Some within CBS news say it is good to put this behind them, while CBS News President Tom Cibrowski said it was important to block out the noise and move forward reporting the news. But that suggests they cannot and will not happen again the next time they report news that Trump does not like. Daily events show the likelihood this will happen again--he already has threatened outlets over reporting that bombing did not "obliterate"Iran nuclear program. Maybe Shari Redstone will have completed the sale and no longer will care. The rest of the journalism world should.

Cibrowski emphasized the no-apology piece of the settlement to suggest that CBS had not lost. But then we get this from Trump's legal team:

"With this record settlement, President Donald J. Trump delivers another win for the American people as he, once again, holds the Fake News media accountable for their wrongdoing and deceit," the spokesman said. "CBS and Paramount Global realized the strength of this historic case and had no choice but to settle. President Trump will always ensure that no one gets away with lying to the American People as he continues on his singular mission to Make America Great Again."

The second narrative is "most cases settle" (CNN's Laura Coates called it Paramount's "prerogative"), in a way that misrepresents what settlement entails, why this case settled, and what it means for journalism. Recall that pre-1960, the New York Times adhered to a no-settlement policy--it was willing to fight defamation actions on less-favorable legal terrain, accept any losses as the cost of doing the public-facing business of journalism, and never face the kind of "they settled because our case was so powerful" demagoguery of the Trump statement. When Southern officials pursued a defamation-litigation campaign over coverage of the Civil Rights Movement and sought judgments in the hundreds of millions, that strategy ceased to be tenable. Sullivan and its progeny reworked that legal terrain, making it more favorable to speakers and media defendants. Media outlets therefore could return to that no-settle strategy; the new legal regime better enabled them to prevail on the merits or take the cost of the rare loss. That legal terrain ensured (or at least made highly likely) that Paramount would have prevailed in Trump's lawsuit. Yet it voluntarily surrendered that strong legal position to secure its private corporate interests, the First Amendment and journalism be damned.

Update: Bauer writes that this is a project for law reform, although I cannot see what law reforms would solve this problem. Paramount had an arsenal of legal weapons and chose not to wield them. So did Disney/ABC. What additional weapons would have prompted these companies to litigate rather than fold? Many push for a federal SLAPP statute, although I do not believe that adds much that Twiqbal and Celotex do not provide. I would like to see a fee-shifting statute (or application of state fee-shifting in federal court). Again, however, if the driving factor is not the financial cost of litigation but the desire to stay in Trump's graces, these protections will not change media behavior. What other reforms would?

Penn wins the trophy for caving

When the story of institutional cravenness in this dark period is written, University of Pennsylvania will live in the Ninth Circle of Hell. Penn was the first to cut its leader loose for attempting to accurately explain free speech to demagogues. Today, Penn caved in a winnable Title IX investigation arising from the 2021 swim season in which trans woman Lia Thomas competed set records for the school (when everyone understood NCAA rules and Title IX to allow this). Here is the DOE announcement, which is as rhetorically repulsive as one would expect; here is the Penn statement, which is as dishonestly anodyne as one would expect.

Make no mistake from the vague and self-exonerative language: Penn's price is  the targeted, ritual, public humiliation of one known-and-named alumna. "We will review and update the Penn women’s swimming records set during that season to indicate who would now hold the records under current eligibility guidelines" means that the name of one person will be stripped from record books for doing nothing wrong other than living her gender identity (at a time when that was legal). We "will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time" means apologizing to people because they had to deal with one known-and-named alumna.

The Trump Administration has targeted vulnerable groups in various ways--immigrants, trans people, poor people, Muslims. This goes beyond that to target and hurt one person, by name.

Penn can claim that it "remains committed to fostering a community that is welcoming, inclusive, and open to all students, faculty, and staff." Cashiering an alumna who did nothing wrong but seek to compete and win for the school's benefit reveals the lie in that commitment. Trans sports participation is a "complex issue." Publicly embarrassing one person to save yourself the cost of a winnable fight is not a complex issue.

Guido's New Article

The Proper Role of Equality in Constitutional Adjudication: The Cathedral's Missing Buttress is now out in YLJ. Here is the Abstract:

The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution. At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided. Instead, as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely, laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded.

This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights. Some rights are given full “libertarian” protection, with any infringement subject to close scrutiny. But others, such as the right to property, receive only “egalitarian” protection. Private property may be taken for public use so long as all of society is burdened by the requirement that compensation be provided.

This Feature argues that the Constitution should be read to extend similar egalitarian protections to any number of unenumerated fundamental rights. Encumbrances on these rights run afoul of the Constitution’s egalitarian guarantees if the burdens they impose are unequal. Protection of such rights is not available under the current reading of the Equal Protection Clause because violations of these rights are often not the result of discriminatory intent but rather the enacting majority’s desire to achieve results it deems good without bearing their costs.

This Feature seeks to return the Constitution’s egalitarian guarantees to the purpose contemplated by the Framers. It argues that a law violates these egalitarian protections if a law infringes unequally and substantially the fundamental rights of individuals not positively affiliated with the majority. It outlines factors in evaluating proper judicial remedies for impermissibly unequal laws. And it provides the doctrinal constitutional bases for such judicial action.

 

Dear Leader: Yes, I Totally Support Everything You Do, and Ed Martin is a Fine Man

I wanted to lay down a marker, just in case, so please take the headline as an accurate summation of my views. For the record.

The reason for the desire to clarify my natural admiration is this memo from AAG Brett Shumate to the DOJ's Civil Division, stating the policy priorities to be pursued by the division. One of the five items on the list: "Prioritizing Denaturalization." It leads with examples of attractive cases: "The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes,..." But keep that word "include" in mind. Its categories of "priorities for denaturalization cases" likewise leads with the big guns. But it also includes, inter alia, "individuals who engaged in fraud against private individuals, funds, or corporations." Now, I don't think I've done so or been accused of doing so, let alone found liable. But would this not include, at the division's discretion, say, plain-vanilla civil suits for fraud? And does it actually require a negative verdict? Or even a lawsuit? Do I need to go back over the history of my Columbia Record Club membership just to be safe? And it contains two further high-priority categories, both of which are we'll-think-of-something catchalls: "Cases referred by a United States Attorney’s Office or [not "and"] in connection with pending criminal charges, if those charges do not fit within one of the other priorities," and "Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue." That is placing an awful lot of faith in the care, integrity, and goodwill of an awful lot of people. 

Of course the focus here is on people like Mamdani or Musk. Undermining the standard argumentative disclaimer that the rantings of individual morons should not be used to tar a whole party, it would appear that Trump actually paid some attention to the urgings of congressman and remarkably frequent liar Andy Ogles about Mamdani, for instance. (See index for multiple references to "Saying, a lot of people are.") But these are prominent individuals. And denaturalization is still tied to the statutory foundation of illegally procuring naturalization or concealment of a material fact or willful misrepresentation. I certainly answered questions honestly on my citizenship application form!

On the other hand, such a wide sweep of discretion, connected to triggers like being referred to the division by no one in particular, might make one go back and look extra carefully at those forms. And the form contains a fair number of catchalls, spread over multiple iterations of the application form whose language has waxed and waned. Are you, like me, a former Canadian? If the president ever decides to push more vigorously on the notion that the United States should use economic force--at least, limiting it to economic force is his current position--to absorb Canada as a single state, something that could happen at 2 a.m. on any given morning on Truth Social, will you be at all inclined to question his judgment? Proceed with caution. Are you a reasonably prominent former Canadian who, say, has been a vigorous proponent of the stripping of nonimmigrant visas, but is still willing to rashly criticize the regime for "blunderbuss tactics" in related areas, or to question the merits or coherence of Trump's tariffs approach? Did you support regime change in Iraq or Afghanistan back in the day? Did it not occur to you to check "yes" to the question, on older forms, "Have you EVER advocated (either directly or indirectly) the overthrow of any government by force or violence?" I would personally consider such an oversight utterly innocent. Still: Double-check your form. Or just make sure not to say anything too critical of any errors or excesses--incidental, I'm sure!--by the Justice Department, the President, the regime, or, I guess, just about any of the wrong people.

Or just hope for the best. After all, there are only some 25 million naturalized American citizens. They can't all say the wrong thing, right? And even if they do, surely their naturalization won't be wielded against them for purely political reasons. Nevertheless, I want to make one thing utterly clear: I think we're in good hands. And the White House renovations have been fabulous. 

Happy Canada Day

Now more than ever.

Merits and non-universality

Eric Berger (Nebraska) at Dorf on Law criticizes the Court in CASA. His critique includes this:

As the dissent points out, the Court's rejection of the universal injunction is especially bizarre in this case, given that the Executive Order is blatantly unconstitutional under just about every constitutional modality. As a matter of constitutional text, precedent, history, and longstanding practice, this is an unusually easy case (or, at least, seems to be--more on that below). The government argues that undocumented migrants are "not subject to the jurisdiction" of the United States, but the Court already rejected that argument in United States v. Wong Kim Ark. The Court, of course, could overrule Wong Kim Ark, but, in the absence of a massive change in constitutional law, it is strange that the Court would find overbroad a lower court injunction that merely says the government cannot do something that the Supreme Court has already said the government cannot do. It is even odder that the Court does not adequately address this argument.

Phrased differently, even though nationwide injunctions can often be very problematic (a point the dissent shortchanges), the Court fails to explain why such a remedy is inappropriate in this case where the President has unilaterally tried to override clear statements from both Congress (the Nationality Act of 1940) and the judiciary (Wong Kim Ark)on a point of law that has been settled for well over a century. In this respect, the Court's decision mistakenly treated this as a normal executive order, when it was anything but.  

But that should not matter. The limits on courts' remedial powers--from Article III, the 1789 Act, or some other source--mean courts cannot enjoin all enforcement of a law that the court finds constitutionally invalid. It should not matter how obviously invalid the law is or how close the merits question is; it should not matter whether the court applied century-old precedent on all fours with the challenged law or decided a question of first impression in the absence of any authority and by resort to first principles. Once the law has been declared invalid, it is (pending appellate review) invalid--degree does not matter. The question then turns to remedy to stop enforcement of that invalid law, which is where the limits on universality kick-in. And no court or scholar has suggested prior to CASA that the degree of invalidity should be a factor in the scope-of-relief question.

I am perhaps too much of a deparmentalist for my own good. But the notion that this EO is not a "normal" order because it contradicts Congress and SCOTUS precedent may combine with the SG's concession about following SCOTUS precedent to create some mischief. What can an executive do to challenge and get SCOTUS to overrule precedent? Suppose Trump had a good-faith argument that birthright citizenship is not required? Or suppose a Democratic president wants the Court to overrule Shelby County and allow pre-clearance. The only way to do that is to create litigation by enforcing some law, regulation, or EO contrary to precedent and create the litigation vehicle to make those arguments. But that runs contrary to the SG's concession (unless that concession applies only to interim decisions during litigation). And it would subject the executive to broader remedies for the efforts.