Saturday, May 18, 2024

Saturday Music Post - I’ll Be Your Baby Tonight

Released in 1967 on Bob Dylan's Nashville album John Wesley Harding, "I'll Be Your Baby Tonight has been a staple of his live shows ever since.

The clips are at The Faculty Lounge.

 

Posted by Steve Lubet on May 18, 2024 at 04:59 AM | Permalink | Comments (0)

Friday, May 17, 2024

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

Posted by Howard Wasserman on May 17, 2024 at 12:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Globalizing the Intifada

This is the meaning of banners seen at Northwestern and other encampments:

As reported by CNN:

Police have shot dead an armed attacker who was trying to set fire to a synagogue in the northern French city of Rouen, according to authorities.

As reported in the New York Times:

The identity and motives of the man who attacked the synagogue were not immediately clear, but the French authorities were treating the incident as an antisemitic act. Local prosecutors have opened an investigation into “religiously motivated arson” and assault.

As reported by Reuters:

French police shot dead a knife-wielding Algerian man who set fire to a synagogue and threatened police in the city of Rouen on Friday in the latest antisemitic attack, officials said.

France, like many countries across Europe, has seen a huge spike in anti-Jewish acts since Hamas' Oct. 7 attack on Israel and Israel's military response in Gaza.

 

Posted by Steve Lubet on May 17, 2024 at 11:27 AM | Permalink | Comments (0)

Thursday, May 16, 2024

New SEALS Faculty Recruitment Platforms

Posted on behalf of SEALS:

The Southeastern Association of Law Schools is excited to offer a new set of free services to the law teaching community, including and especially prospective members who are interested in joining legal academia.  For it to be effective, we must get the word out and encourage candidates to register and schools to use it.  Please help us by circulating this information widely to your VAPs, alumni, and search committee members.

The SEALS faculty recruitment platform is now live with two new hiring portals.

  • The Faculty Hiring Portal allows faculty candidates to indicate their interest in finding an academic job and permits faculty hiring committees to search for candidates who meet the school’s hiring needs.
  • Meanwhile, the Visiting Faculty Portal allows current law school faculty to indicate their interest in visiting opportunities on a look-see, podium, or overload basis. Meanwhile, schools interested in hiring are able to create institutional accounts (a single law school account provides access to both portals) and view candidate materials.
  • Finally, the Job Postings site is a bulletin for schools to advertise their various hiring interests and position details.

We welcome your questions and suggestions for the SEALS Faculty Recruitment Committee, which can be directed to committee chair Linda Jellum at [email protected].

Posted by Sarah Lawsky on May 16, 2024 at 04:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.

 

Posted by Dan Rodriguez on May 16, 2024 at 11:33 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, May 15, 2024

Bar reform in California. A promising start

Innovation in legal services is a slog.  One that rewards those who take the long view, and who can find some cautious optimism in a world of setbacks -- of protectionism, parochialism, inertia, and even the occasional crisis (financial; pandemic, etc) that knocks back fruitful experiments to the beginning or off the stage altogether.  This is at least as true of lawyer credentialing and the administration of the much-maligned bar exam.

And so we should welcome the interesting experiment just announced out of California.  The Golden State is eschewing its cooperation with the Nat'l Conference of Bar Examiners (NCBE), the organization based in Madison, Wisconsin -- peculiarly, given that this is the state that grants the diploma privilege to state law school grads, but I digress.  The NCBE has had an iron death-grip on the content, and many elements of administration, of the bar exams of states around the country.  The organization has not had a reputation for being especially innovation minded; nor has it been, in my experience, a constructive cooperator.  Anecdote: I was once in a meeting of twenty or so deans with the then-director of the organization, in the hopes of facilitating a useful exchange of student performance and bar data, data which has long been critical to a better understanding of where law schools fail, where NCBE and bar authorities come up short, and how we might improve the world for our students.  The response was, and this is mighty close to a direct quote:  "Well, we have high-level psychometricians at NCBE who work on these difficult issues and law schools (and other groups) couldn't possibly grasp the nuance of this performance information."  Us pea-brained deans got the message, and left without any optimism that law school/NCBE cooperation would be forthcoming.  About a dozen years later:  Same as it ever was.

Into this frustrating status quo comes California's decision to work internally on key matters of bar administration, including the possibility of an in-home version of the test -- something that so many grads pleaded for during Covid, and disabled grads would benefit from going forward.  Even more promising is the prospect that, in collaboration with Kaplan, Inc., California will develop some ambitious new types of content -- something that is really truly a "new generation" bar exam, which the NCBE has been touting with some fanfare for the last few years.  By way of context, I was involved in some conversations with state bar staff and an organization whose name I won't here disclose about the prospect of leveraging new ways of assessing knowledge, perhaps drawing from developments in gamification and AI/machine learning.  While I honestly don't know if this future-oriented discussion is part of this new initiative, I hope California will use all the big brains it can muster to give us novel, constructive ideas.

To be sure, this is a partnership with a company that has skin in the game.  I won't speak to either the incentives or the bona fides of Kaplan in regard, not for any cagey reason but just from a dearth of actual knowledge of the arrangement struck.  But I'll just say that the fact that California apparently knows what it doesn't know and seeks out external help from an organization other than one whose monopoly over bar exam ventures has hobbled innovation, is a promising development.  Many things betwixt cup and lip for sure, but we should watch with great interest what happens in California.  A failure will be a setback, but this natural experiment will yield valuable information.  That's what laboratories of experimentation are all about.  And if this succeeds, both in solving some serious financial problems that plague Cal Bar and in advancing the welfare of our graduates, that's a game-changer.  And change is what we need.

Posted by Dan Rodriguez on May 15, 2024 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Posted by Howard Wasserman on May 15, 2024 at 11:44 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 14, 2024

Lawsky Entry Level Hiring Report 2024

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2024. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 International license, cited as Sarah Lawsky, Reported Entry-Level Law School Hiring Spring 2024, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2024/05/lawsky-entry-level-hiring-report-2024.html.

Here is the full spreadsheet:

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There were 106 tenure-track hires at U.S. law schools reported, at 72 different law schools.

Q: How does 106 reported hires compare to past years?

A: There are fewer hires than each of the last two years, but still somewhat more than usual compared to the years since the “new normal” began. The average number of hires since 2014 is 87. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year to include it in the report.)

00_reported_hires_blog

It would useful to know the percentage of those on the market who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. The x-axis here is Hiring Year; thus, for example, if the Hiring Year is 2024, the FAR forms were released in 2023.

00A_hire_far_count

As that graph suggests, the hires per FAR form were roughly comparable to 2019 and onward; last year seems to have been an anomaly.

Far_and_percent

As is true every year, some people who received entry-level jobs and are represented in this data did not participate in the AALS/FAR process.

Q: You say the hires were at 72 law schools. How does that compare to previous years?

A: Comparable to previous relatively recent years.

02_schools_hiring

Q: How many reported hires got their JD from School X?

03_jd_from

Yale: 23; Harvard: 12; NYU: 7; Georgetown: 6; Chicago: 5; Michigan: 4; Berkeley: 4; Hebrew University: 3; Baylor: 3; Penn: 3; Virginia: 3; Fewer than Three: 33

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Minnesota; Northwestern

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Alabama; Arizona; Arizona State; Brooklyn; Cardozo; Chicago Kent; Columbia; FGV Direito São Paulo; Geneva; Houston; Kogi State University; LSE; Lahore University; McGeorge; Nanchang; Nat'l Law University Jodhpur; Notre Dame; Ohio State; Pepperdine; Reichman; San Francisco; Stanford; Tel Aviv; UCLA; UNLV; Universidad Torcuato Di Tella; Vanderbilt; Washington & Lee; William & Mary

A high percentage of hires every year get their degree from Yale, Harvard, Stanford, or NYU.

03A_YHSN

However, over time, many schools are represented as the source of entry-level hiring.

03B_jd_from_over_time

The schools with four hires include: BYU; British Columbia; CUNY; Cardozo; Indiana-Bloomington; Iowa; LSU; Tel Aviv; Tennessee; Tulane; USC; Washington (St. Louis).

The schools with three hires include: American; Arizona; Arizona State; Arkansas-Fayetteville; Baylor; Brooklyn; Chicago Kent; Davis; Emory; Florida; George Mason; Howard; Miami; Mitchell Hamline; Northeastern; Pittsburgh; Pontificia Universidad Católica de Chile; Washington (University of).

The schools with two hires include: Cambridge; Colorado; East China University; Florida State; Georgia; ITAM; Kansas; Kentucky; Lewis & Clark; Nat'l Law School of India; New Mexico; New South Wales; Nigeria Law School; North Carolina; North Dakota; Oklahoma; Oregon; Queen's University; Queensland; Reichman; San Diego; Seoul Nat'l U; Sorbonne; St. Louis; Suffolk; Thomas Jefferson; UNLV; Universidad Torcuato Di Tella; West Virginia.

The schools with one hire include: Ain Shams Fac of Law; Alabama; Aristotle U; Athens; Augsburg; Barry; Belarusian State U; Bonn; Catholic (Portugal); College of Mgmt Acad Stud; Cologne; Connecticut; Dayton; DePaul; Democritus of Thrace; Denver; Diego Portales; FGV Direito São Paulo; Freiburg; Fundacao Getulio Vargas; Geneva; Genoa; Georgia State; Ghent; Haifa; Hamburg; Hawaii; Hofstra; Houston; Humboldt; Idaho; Inter-American; Irvine; Kogi State University; LSE; Lahore University; Lisbon; Louisville; Loyola-Chicago; Loyola-LA; Loyola-New Orleans; Maine; McGeorge; McGill; Melbourne; Montana; Nanchang; Nat'l Chengchi U; Nat'l Law University Jodhpur; Nebraska; New Hampshire; Ohio State; Passac (Germany); Penn State; Pepperdine; Phillipines; Pontificia Universidad Javeriana; Richmond; Rutgers; SMU; San Francisco; Sao Paulo; Sapienza; Savannah; Shandong; Shenzhen; South Carolina; Southern; Southern Illinois; Sydney; Tehran; Toronto; Trinity; Tsinghua; Tulsa; UCL; Universitat Pompeu Fabra; University of Ljubljana; Utah; Vermont; Vienna; Wayne State; Whittier; William & Mary; Zimbabwe.

Again, this is a partial list, as over time I am certainly missing hires. This is just an aggregation of the information reported to me in the spring of the year in which I do each report.

And each year, there are relatively many unique schools represented.

03C_jd_unique_over_time

The number of unique schools may be in part a function of the number of hires. Unique schools as a percentage of total hires is comparable to recent years. (This graph represents the number of unique schools from which hires got their JD in a given year divided by total number of hires for that year. If in a particular year there were five total hires, and each came from a different law school, the graph would show 5/5 = 100% for that year. If in a given year there were five total hires, and three of those hires came from School X and two came from school Y, then the graph would show 2/5 = 40% for that year.)

03D_jd_unique_percent_list

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued.

Q: How many reported hires had a fellowship, degree, or clerkship?

81 (about 76%) had a fellowship; 54 (about 51%) had a clerkship; 63 (about 59%) had a higher degree. 5 people had none of these credentials. The percentage of each of these credentials was consistent with but slightly lower than percentages in recent years.

09B_percent_Fellowship_per_year

09B_percent_Clerkship_per_year

09B_percent_Higher Degree_per_year

Venn diagram. Of the five people who did not have a fellowship, clerkship, or advanced degree, at least four of the five had significant, extensive academic experience (three were non-tenure-track to tenure-track hires and one was a current professor in another field).

045_Venn_addl_text

Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--last year seems to have been an anomaly.

05_Venn_compare

Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

06_fellowship_school

Harvard: 14; NYU: 14; Penn: 4; Columbia: 4; Stanford: 4; Chicago: 4; Gonzaga: 3; UCLA: 3; Yale: 3; Georgetown: 3; George Washington: 3; Fewer than Three: 40

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees.

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 63 “highest” advanced degrees broke down like this:

07_highest_degree

Doctorate: 37; Masters: 19; LLM: 6; MBA: 1

Topics ranged all over the maps. For the 37 Doctorates, a number of topics had multiple hires, including Law: 13; Philosophy: 6; Political Science: 6; History: 4; Health: 2. The other doctorate topics, each of which had one hire, were Education; Psychology; Literature; Religion; Sociology; Environment.

Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

84% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. The percentage of reported hires with doctorates is roughly comparable to years since 2017, though still below 40%.

09_doctorate_and_or_fellowship

The percentage of doctorates who also had a fellowship is 78%, which is comparable to recent years (except for last year).

12_doctorate_and_fellowship

Q: How long ago did these reported hires get their initial law degrees?

10_year_of_jd

Zero to Four Years (Graduated 2020-2024): 14; Five to Nine Years (Graduated 2015-2019): 47; Ten to 19 Years (Graduated 2005-2014): 40; Twenty or More Years (Graduated before 2005): 5

Q: How do the "years since initial degree" numbers compare to previous years?

Consistent with prior years.

11_year_of_jd_over_time

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this report is certainly missing some information. It is without question incomplete. If you are aware of an entry-level hire who is not reported, please let me know and I will add that person.

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about entry-level hires reported to me as of the spring before the school year starts.

Originally posted 5/14/2024. Updated 5/15/24 to fix the JD school over time graph and add text for schools with fewer than five hires over time. Updated 5/16/24 to add hires and add text related to NTT to TT hires. Updated 5/19/24 (approximately), 5/23/24 to add hires. Updated 5/29/24 to add one fellowship to fellowship school information.

Posted by Sarah Lawsky on May 14, 2024 at 03:54 PM in Entry Level Hiring Report | Permalink | Comments (0)

Monday, May 13, 2024

2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) San Diego September 13-14, 2024 - book your hotel with group rate

Dear Friends,

This is a reminder that the 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held in San Diego on Friday, September 13 - Saturday, September 14, 2024. The host schools are California Western School of Law and the University of San Diego School of Law. We hope you will calendar these dates and plan to attend.

An event webpage should be available for registration and abstract submission in the next 2 - 3 weeks. This works-in-progress event does not require submission of a paper, but we do ask that you provide a paper abstract so that submissions may be organized thematically into appropriate panels. We will post again once the 2024 COSELL registration webpage is live.

In the meanwhile, we have reserved a block of rooms at the Marriot Courtyard San Diego Old Town, which is equidistant from both host campuses. A reservation link  appears below. The start date for the US$194 per night conference rate is Thursday, September 12, 2024. The end date is Saturday, September 14, 2024. The last day to book is August 13, 2024.

Here is the the link for the hotel registration:

Book your group rate for CoSELL Conference 

If you have difficulty with the link or any other questions, please contact Susan Bisom-Rapp ([email protected]) or Orly Lobel ([email protected]).

Warm regards,

Susan Bisom-Rapp, Dean Steven R. Smith Professor of Law, California Western School of Law

Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment & Labor Policy, University of San Diego School of Law

Posted by Orly Lobel on May 13, 2024 at 06:21 PM | Permalink | Comments (0)

The Judges' Boycott of Columbia University is Bad, Bad, Bad

My new essay for The Hill explains why 13 Trump-appointed judges are wrong – in so very many ways – to boycott graduates of Columbia University. Here is the gist:

In an open letter to President Minouche Shafik, 13 Trump-appointed federal judges have announced that they will not hire graduates of Columbia University because the campus has become “ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints.” 

The boycott, including undergraduates and law students, is irrational, self-defeating and unethical — with no redeeming features.

Savvy judges should easily be able to weed out any bad actors unless they believe there is a conspiracy among Hamas supporters to establish sleeper cells in judicial chambers. Even Fox News hasn’t gone that far.

Law clerks and other staff are public employees, provided to judges for assistance in deciding cases. It is flatly improper to use the positions as a reward, or punishment, dangled before third parties to bully their compliance with a judge’s ideological agenda.

You can read the full essay at The Hill.

Posted by Steve Lubet on May 13, 2024 at 12:14 PM | Permalink | Comments (0)

Saturday, May 11, 2024

Desuetude

Recent discussion on the possible revival of the Comstock Act got me to thinking about desuetude doctrine. Though there is no federal version of that idea, there are state cases where courts say that a criminal statute cannot be enforced due to desuetude. One example is State ex rel. Canterbury v. Blake, a 2003 West Virginia Supreme Court case. In applying desuetude there, the Court said that three factors were pertinent:

(1) The statute proscribes only acts that are malum prohibitum and not malum in se;
(2) There has been open, notorious and pervasive violation of the statute for a long period; and
(3) There has been a conspicuous policy of nonenforcement of the statute.
 
Anyway, food for thought.
 
 

Posted by Gerard Magliocca on May 11, 2024 at 09:21 AM | Permalink | Comments (0)

Saturday Music Post - Crashes

Surprisingly many musicians have died in plane crashes, including some who are less well known than the stars.

Today's clips are at The Faculty Lounge.

 

Posted by Steve Lubet on May 11, 2024 at 05:45 AM | Permalink | Comments (0)

Friday, May 10, 2024

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

Posted by Howard Wasserman on May 10, 2024 at 06:51 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 09, 2024

Why I (Probably) Won't Sign the Statement from Jewish Faculty Opposing the Antisemitism Awareness Act

There are now nearly 800 signatories to the "Statement from Concerned Jewish Faculty Against Antisemitism," but it presents a tough problem for me. I agree with the bottom line that the "Antisemitism Awareness Act," already passed by the House, should be defeated in the Senate or vetoed by Pres. Biden, because it is wrong to codify the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism. The IHRA definition has much to commend it as an educational tool. By its own terms, however, it was intended to be "non-legally binding," and it would be a mistake to make it legally enforceable.

The Statement goes further, however, inaccurately stating that the IHRA definition “conflates antisemitism with criticism of the state of Israel.” In fact, the IHRA definition simply points out that criticism of Israel may be antisemitic, which is unquestionably true, and that "criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic." That is the opposite of conflation.

The Statement is signed by many people I respect, but it also includes Judith Butler and Gabriel Winant, who have no credibility on antisemitism, among others with whom I do not care to associate.

So this is a tough one for me. The Antisemitism Awareness Act would do more harm than good, but the Statement from Concerned Jewish Faculty also misrepresents and undermines the IHRA definition even for educational purposes. I am still undecided, but leaning against signing (the default being inaction).

Posted by Steve Lubet on May 9, 2024 at 11:26 AM | Permalink | Comments (0)

Wednesday, May 08, 2024

The Federal Judge Who Put an Innocent Child in Handcuffs Has Been Disciplined, Sort Of

Howard recently posted about the sanctions imposed on Judge Roger Benitez for placing a defendant's 13-year-old daughter in handcuffs, purportedly to teach her a lesson about drugs. He and I had an earlier exchange about whether Benitez would face meaningful consequences. Well, the Ninth Circuit Judicial Council has now issued a disciplinary order, leading Howard to explain that he will "leave it to those who study judicial ethics to opine on whether any of this constitutes 'real consequences.'"

I now have a new column in Slate about Benitez, who has finally been disciplined, sort of.

Here is the gist (I did not write the headline):

A Judge Had a 13-Year-Old Girl Handcuffed for No Reason. A Year Later, He’s Faced Basically No Consequences.

[Benitez] implausibly denied that he had done anything to “demean or shame” Puente’s daughter, as though standing in a crowded courtroom, weeping and handcuffed, while receiving a lecture on drug use, was something an innocent child could be expected to endure without humiliation.

“Trying to help a 13-year-old girl,” Benitez maintained, “can’t be judicial misconduct.”

While the [judicial council's] condemnation of Benitez’s conduct was unequivocal, the consequence did not match the offense.

In a typical criminal case, for example, a defendant’s lack of remorse would call for a significant sentencing enhancement, and Benitez showed no contrition.

Nonetheless, the judicial council issued only a public reprimand and prohibited Benitez from presiding over new criminal cases for three years.

A more fitting penalty also available under the law, although unmentioned in the judicial council decision, would have been to suspend Benitez from presiding over any cases at all “for a time certain.”

Perhaps 10 months completely away from the bench—the same length of time to which he sentenced Mario Puente—might bring about some serious and much-needed reflection.

You can read the entire essay on Slate.

Posted by Steve Lubet on May 8, 2024 at 01:21 PM | Permalink | Comments (0)

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Posted by Howard Wasserman on May 8, 2024 at 08:58 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 07, 2024

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024.  The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2024.

Posted by Rick Garnett on May 7, 2024 at 12:51 PM in Rick Garnett | Permalink | Comments (0)

Constitutional Compromise

It's a game for kids (4th-6th grade) that you might like. Here is the link.

Posted by Gerard Magliocca on May 7, 2024 at 08:27 AM | Permalink | Comments (0)

The AAUP Continues Its Policy of Antisemitism Denial

As an AAUP member, I recently received an email from President Irene Mulvey regarding the "Crisis on Campus." She commends various AAUP chapters for "standing up and speaking out to defend free speech and peaceful protests on our campuses and for condemning in the strongest possible terms the repressive and violent militarized responses ordered by college and university administrators." She does not mention the protests that have interfered with other students' access to university facilities, or the incidents of harassment directed at perceived "Zionist" and visibly Jewish students.

Regarding antisemitism, Mulvey says: 

The AAUP has been clear that antisemitism and hate have no place on our campuses or anywhere. On many campuses, criticism of a war and the policies of governments and institutions, including criticism by Jewish students, is being conflated with antisemitism.

She says nothing about the documented incidents of non-conflated antisemitism, such as the blood libel against Berkeley Law Dean Erwin Chemerinsky or the similar poster depicting Northwestern's President Michael Schill with horns. A recently opened civil rights investigation at UC Berkeley conflates islamophobia with a law professor's attempt to ensure civility in her own backyard. Will we see an objection from the AAUP?

The link in Mulvey's email goes to a single tweet, which reads:

Here’s a quick thread clarifying the AAUP’s stance on antisemitism.

The AAUP views the growth of antisemitism as a severe threat which can & should be addressed under existing civil rights laws as religious or race discrimination.

That's it. The AAUP's stance is that antisemitism should not be recognized as a unique phenomenon, with a unique history, even though, as I explained here, it has features that transcend, and cannot be adequately covered, by religious or race discrimination laws.

In other words, the AAUP is firmly opposed to antisemitism in the abstract, but takes no notice of it in the real world, where it is invariably said to be either nonexistent, weaponized, or impermissibly conflated. 

Nor has the AAUP made similarly dismissive statements about other forms of discrimination -- such as genetic information, parental status, domestic violence victim status, or use of worker's compensation -- that are often enshrined in universities' conduct codes.

Likewise, the AAUP called on university administrations to refrain from issuing statements about Hamas's Oct. 7 terror attack on Israeli Jews, in order to maintain neutrality, while saying exactly nothing about the scores of Palestine solidarity statements that university units -- including over 130 gender and feminist studies departments, among many others -- have issued for years.

It gets worse. Mulvey goes on to say,

Suppressing speech or silencing peaceful protest in the name of safety is antithetical to the mission of higher education to promote free and open expression, inquiry, and debate. 

We all know that the invocation of emotional "safety" has been overused and abused by students and DEI programs to shield students from all manner of merely uncomfortable speech. It would be good to eliminate it from the lexicon of student services. The AAUP, however, repudiates student "safety" only when it is invoked to protect Jewish students. The longstanding use by other minorities to suppress or discourage speech has not been challenged by the AAUP.

To be sure, antisemitism has lately been exploited as a wedge issue by opportunists in Congress. The now-pending Antisemitism Awareness Act goes much too far by requiring use of the International Holocaust Remembrance Alliance's definition of antisemitism "for the enforcement of Federal antidiscrimination laws." The IHRA definition has much to commend it as an educational tool, but it was not intended to be enforced and should never be written into law.

The AAUP quite rightly calls itself the “most prominent guardian of academic freedom” for faculty and students in the U.S. Its cursory approach to antisemitism -- which is typically acknowledged in a single-sentence platitude, or less, followed by a much longer disclaimer -- is a deeply troubling reflection of contemporary politics on the left, which undermines the organization's reputation for objectivity. Even so, the AAUP otherwise plays an invaluable in irreplaceable role in academic life. I intend to maintain my membership and I encourage others to join.

Posted by Steve Lubet on May 7, 2024 at 05:33 AM | Permalink | Comments (0)

Monday, May 06, 2024

Is Boycotting a University the Best Means of Criticizing it? Is it Even a Good One?

The federal district court judge who served as the speaker at my law school's graduation ceremony yesterday--congratulations to our newest alumni!--gave a speech that was in turns funny and moving. In the latter category, he shared a couple of incidents from his life, including serving as a bone marrow donor, to remind our graduates to look for those moments when your gut is telling you to do something and seize them as opportunities to do the right thing. I appreciated his sharing the recollection and admired him for his donation. But I don't recall him issuing a press release about his donation; his goal at that moment, I'm sure, was to help someone and not to self-aggrandize. That is a good quality in a judge, since for the most part judges, like pets and children, are at their best when they're fairly quiet and avoid calling attention to themselves. It's a classic judicial trait, partly as a matter of disposition and partly as a matter of office and ethics. 

Then there is Judge James Ho, who once again is co-signing and, of course, trumpeting a boycott announcement. This one says that he and other co-signers "will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024." The boycott shares several things in common with the current demands of student protesters. One is the letter's overwrought prose, and its self-seriousness--which always risks becoming a form of self-regard. Another is its sweeping nature, which embraces the guilty and innocent alike. A third, perhaps, is its assumption that there are no innocents, because any students who choose to become members of that institution are ipso facto guilty. Another is a ready willingness to attribute motives to others. There is also the fact that it makes demands vague enough that there is no clear gauge for their satisfaction, so that one can continue one's boycott for as long as one wishes and end it just as easily (although probably much more quietly). 

Yet another is an imperfect regard for accuracy. As Josh Blackman notes at the Volokh Conspiracy, Justice William Brennan did not "refuse[ ] to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty." Rather, as Blackman helpfully points out, quoting Owen Fiss, Brennan "decided to end his practice of hiring his clerks, as a matter of course, from Harvard." The key language is "as a matter of course." Brennan, like some justices before him, had previously effectively contracted out the job of clerk selection to a professor at a single school, in this case Paul Freund at Harvard. After he "became somewhat disillusioned with his alma mater," he changed his practice. He no longer selected Harvard graduates "as a matter of course," but began looking at clerks from other schools, while still also hiring Harvard graduates, although at a slower clip. (The "somewhat disillusioned" quote is from Stephen Wermiel's article on Brennan and his law clerks. Wermiel agrees with Fiss's explanation that faculty reactions were at the root of Brennan's disillusionment. Illustrating that recollections like Fiss's are not history and should not be taken as the whole story, however, Wermiel notes other bases for dissatisfaction on Brennan's part, and adds that Brennan had faced pressure for some time not to select his clerks from one school only.) Judge Ho is still a young man, and so we might excuse a little inaccuracy here and there just as we excuse it for feckless young student protesters: by saying "they're just kids" or "it's just a little exaggeration for effect." I prefer to think that people of legal age who come from fancy schools are responsible for their own words and actions, and that if you're going to close a statement with a flourish, you'd better stick the landing.     

Finally, there is the simple fact of seeing the boycotts of institutions, and specifically the application of that boycott not to institutional leaders or the institution qua institution, but to its members--including, say, 18-year-olds rendered guilty by choosing to attend that institution--as a useful approach. I can't say I agree. For one thing, at least in this context, it's rather elitist in its treatment of elite schools. I not concerned, for present purposes, about some thoracic surgeon's kid who ends up choosing among Columbia, Stanford, and Penn. But I don't begrudge the decision to go to a school like Columbia to a smart kid who got into only one such place, or a smart kid with no means who only got into one that would offer enough scholarship money to make it viable to go there. And it gives short shrift to the other reasons people choose particular schools, even fancy-pants ones, beyond their general elite status. It doesn't really make much difference what law school you go to: a smart, hard-working young man or woman can fail to learn the Rule Against Perpetuities all across this great country of ours. But it matters for other sectors of university education. It does matter when a particular program is only offered at some schools (maybe the student wants to study at a school where freshmen still have a Great Books requirement!), where there are qualitative differences in approach or focus between schools in particular departments, and so on.

But these are secondary concerns. I simply doubt that boycotting a school is the best means of either criticizing it or reforming it, and a good deal of the time I doubt whether it's even a particularly good one. People who care--actually care--about institutions would much rather see them meaningfully strengthened and steered back onto the right path than withered and gone, or given over to those who would remake them in ways that would further detract from the core functions of that institution. That requires involvement, not the back of the hand. And that's especially true for students. Their exercise of voice will be much more powerful coming from within that institution, and their use of exit will be of limited importance. And, however much the letter may be addressed to the president of Columbia, it's the prospective students the boycott is addressed to in its effects. Even now, some students are choosing to attend Columbia not because of, but despite, the tents or the cops or any other distractions, and for sound academic reasons. I would just as soon not put them on some list by virtue of guilt by association, or treat their choice as necessarily tainted because of it.

Ultimately, the letter seems to me to be much closer in spirit to those student protesters who do seem to reject the idea that institutions, and nations, are varied and complex, and that individual decisions to participate in them are varied and complex, and instead prefer to slather the concept of moral complicity on everything with the gusto of a starving man with a jar of peanut butter.

(What justification those students--or faculty--can claim for continuing to be associated with these schools is another matter. Given some of the views that have been enthusiastically expressed on the topic of moral complicity, and given that the protests merely called attention to features that they claim are longstanding and persistent, the choice to attend or teach at such an institution rather than withdraw or resign from it is much more morally dubious for individuals holding these views. One wonders at the fact that there has not been a much larger faculty exodus from Columbia and other similarly “complicit” universities, or that students at elite universities who hold such views do not balk at attending them.) 

Although I agree with Josh that the letter writers close their announcement with an inaccuracy, I can't say I agree particularly with him that it was "fitting" that the announcement was issued on Holocaust Remembrance Day. Since there is no single Jewish view on this (or just about any other) question, I don't begrudge him a different view. As a Jew, though, I will note that although anti-semitism is mentioned in the letter, twice, on the whole it barely figures in it. I don't question the letter writers' sincerity. But given the passel of other issues it raises, and the general sense that it's just another routine salvo in the culture wars, I can't help but feel that--despite the fact that it happened to be issued on Holocaust Remembrance Day--Jews occupy a wholly familiar role in the letter: an incidental and convenient one, in which we are mere objects and not subjects. Thanks all the same, but I'll pass.     

Posted by Paul Horwitz on May 6, 2024 at 04:24 PM in Paul Horwitz | Permalink | Comments (0)

Writers Attacking Pen America over Israel Are Burning Down Their Own House

My new essay on the inexcusable boycott of Pen America has been posted at The Hill.

Here is the gist:

Writers attacking Pen America over Israel are burning down their own house

Almost tragically, a hard corps of American writers — some prominent, others emerging — have, evidently, set out to all but destroy Pen America for the perceived sin of being insufficiently condemnatory of Israel’s Gaza war. 

There is a crucial scene in “A Man for All Seasons,” Robert Bolt’s iconic play about the role of integrity in human affairs, when Sir Thomas More explains his unwavering principles to a disbelieving William Roper: 

More: “What would you do? Cut a great road through the law to get after the Devil?” 

Roper: Yes, I’d cut down every law in England to do that!” 

More: “And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat?” 

To the writers who would flatten Pen America for the offense of insufficient demonization of Israel: Where will you find a champion, should the zeitgeist turn ‘round on you? 

You can read the entire essay at The Hill.

Posted by Steve Lubet on May 6, 2024 at 02:54 PM | Permalink | Comments (0)

Saturday, May 04, 2024

Saturday Music Post - Reason to Believe

"Reason to Believe" was written and recorded as an album cut by Tim Hardin in the mid-1960s. It was covered on albums by The Youngbloods, Peter Paul & Mary, and even Peggy Lee, but it did not become widely known until Rod Stewart released it as a single in 1971. Interestingly, it was originally the A side of a record with "Maggie May" on the B side. Both were hits, but "Maggie May" made it all the way to number one on the Hot 100. Yes, I should have included that in my earlier post about two-sided hits.

The clips are at The Faculty Lounge. And because today is Kentucky Derby Day, there is a bonus clip at the bottom of the post.

Posted by Steve Lubet on May 4, 2024 at 06:03 AM | Permalink | Comments (0)

Friday, May 03, 2024

The Papers of Bushrod Washington--Digital Edition

This week Mount Vernon launched a new website dedicated to Justice Washington. Check it out.

UPDATE: There is a long-felt but unmet need for a similar project on John Bingham.

Posted by Gerard Magliocca on May 3, 2024 at 09:32 PM | Permalink | Comments (0)

State law jurisdictionality

I have written a lot on why the failure of a federal claim on the merits should never (even if the claim is frivolous) be a basis for destroying jurisdiction. I had not thought about how the problem might arise in diversity cases because the jurisdictional facts (party citizenship and amount-in-controversy) have no connection to the underlying merits of the state-law claim.

The Fourth Circuit wrestled the issue in a worker's comp claim. State law strips state courts of jurisdiction over certain tort claims and places them within the jurisdiction of a state agency. So what happens when the injured plaintiff files an otherwise-barred tort action in federal court? Obviously the plaintiff must lose--an unguided Erie analysis requires the federal court to apply state law. But will the federal court dismiss on the merits or for lack of jurisdiction? The district court said the latter, the Fourth Circuit said it must be the former. The court had jurisdiction under § 1332 and state law cannot expand or limit the jurisdiction of federal courts. Thus, the unavailability of the claim under state law is a merits failure in federal court.

This may be right, but I need to think on it. The court is right that the jurisdictional inquiry in federal court begins and ends with § 1332. But there is something odd about the state-law dismissals being for different reasons in federal and state court. And does a merits dismissal have the preclusive effect that a jurisdictional dismissal does not, especially the defendant tried to get to fed court by removing.

Posted by Howard Wasserman on May 3, 2024 at 11:27 AM | Permalink | Comments (0)

"Peaceful Protest" and "Non-Violent Protest"

Campus protest season is winding down, unevenly, unprettily, and sometimes unlawfully, and for a variety of reasons, not least the academic calendar, which is the eternal annual balm for campus unrest. My views on the propriety of the conduct of both protesters (and counter-protesters) and universities are determined and bounded by my sense of  the First Amendment's demands, and also by my sense of the role of universities and the norms that should govern in that institutional space. But I would like to make one point.  

The point may feel somewhat semantic, but it clearly feeds into the understandings of both the participants and the wider public. The phrase du jour was "peaceful protests." That's a pretty imperfect phrase, or at least one that requires further specification. It seems to me to elide the difference between "peaceful protest" and "non-violent protest." At least based on what I have read, there is an excellent argument that the vast majority of protests and protesters were engaged in non-violent protest. Of course one can engage, if one wishes, in arguments about what constitutes "violent" protest, with potential pushback from two sides. One is the conventional contemporary argument that violence to property can never be considered violent as such. As a strictly intuitive matter--as a question of how I would fit some example into my perhaps eccentric mental schema--I doubt I'd think of spraying graffiti on a building as "violent" simply because it constituted damage to property. I would think of shattering the windows of a building or breaking down its doors for purposes of breaking into and occupying it as "violent," even if no people are harmed. I would think of it in those terms, not to put too fine a point on it, because it is violent, and the argument to the contrary is bosh. From the other side comes the argument that any protest, or any slogan, that is emotionally or psychically harmful to some audience is violent. I am equally unpersuaded by this line of argument. Whether "from the river to the sea" is a just slogan or a stupid one, it is not "violence."  

But there's a difference between "non-violent" and "peaceful," I think. And the statement that many protests were non-violent but not necessarily peaceful seems like an accurate summation--and one that's more accurate than simply using the blanket description "peaceful protests." Of course many protests were both peaceful and non-violent. But if, as was sometimes the case, protests were sufficiently loud and disruptive; if students, faculty, or staff were prevented from going whither they would on campus, sometimes because a space was occupied and sometimes by a degree of mobbing; or, no doubt, if other conditions were met--then I think it would be more accurate to call those protests non-violent than to call them peaceful. (Likewise, many counter-protesters were non-violent but not peaceful. I would add that I began writing this post a few days ago, before recent counter-protester action that was clearly and disturbingly violent.)

Is it a side issue? Yes and no. The First Amendment protects protest in many ways, just as it generally protects many other forms of expression. And it generally draws the line at violent activity, not just for protest but for other forms of expressive conduct. But there is no absolutely protected category of "peaceful protest," not least because "peaceful expression," whether in general or with respect to protest in particular, is not in itself an absolutely protected category. It is always potentially subject to any number of limitations. Not least among them is the difference between public and private property, but even on public property that has been since "time out of mind" used for protests and other forms of assembly, there are, among other things, permissible time, place, and manner restrictions. One may argue quite reasonably that the permissible spaces for that expression have shrunk, and that the courts should take a different and more expansive and protective approach to speech in those spaces. But it is beyond question that permissible limitations existed even when the courts were at their high-water mark in lauding and protecting protest, and would even if the legal landscape changed.

In that sense, what to call the campus protests is, legally speaking, close to irrelevant, although both the protesters and others seemed to place a great premium on the allegedly sacrosanct legal status of "peaceful protest." But a protest has always been, and certainly is these days, not just a thing in itself, but an object for media consumption, in which it is not just described, but branded, marketed, and propagandized from all directions. To convey and sell a mental picture of utter placidity and harmlessness, it is more useful to call a protest "peaceful" than merely, and somewhat pregnantly, "non-violent." The protesters, and their advocates (among whom I count myself as to some but not all of their conduct), surely appreciated this. More accurately, probably, some of them appreciated the strategic value of the right label and thus pushed "peaceful protest," and many others simply absorbed it and took it for granted. But it's an imperfect label and we should question it, regardless of one's conclusions about the legality or morality of particular protests.

One other point. I try to avoid the Other Place, but someone sent me a tweet by Scott Shapiro, a legal theorist at Yale, who wrote, "Now that Hamilton Hall has been cleared, Columbia students can go to class and learn about the glories of liberalism." Far be it from me to argue with a legal philosopher, or just about anyone else, about the nature of liberalism and its merits and demerits. And quips on Twitter, along with anything else written there, should not be paid undue attention. But it seems to me this quip nicely achieves two layers of irony. The first is what I assume is the obvious and intended one. The second-layer irony, however, is that whatever else one might say about the manner of retaking Hamilton Hall from those who occupied it, the general fact of retaking a university building that has been forcefully occupied by students, and doing so through the threat or use of state force, is entirely consistent with liberalism. Perhaps the second layer was intended too, even if its audience does not seem to have appreciated it that way. Of course one is free, in our liberal society, to make up one's own mind about whether this counts for or against liberalism.     

Posted by Paul Horwitz on May 3, 2024 at 11:08 AM in Paul Horwitz | Permalink | Comments (0)

Recruiting activists

Tyler Austin Harper, a professor of environmental studies at Bates College, argues that colleges promoted themselves to activist students as places that encouraged and celebrated activism and protest, making recent university actions a greater betrayal. Orin Kerr offers thoughts, grounded in his prior view that university views about protest changed when the topic of protest shifted to non-consensus issues (as Orin puts it, when "one person's protest for justice is another person's collective attack on their identity").

Harper assumes any commitment to activism and protest includes the right to civil disobedience without consequence--including occupying and camping in campus buildings and public spaces. There is no difference in permissibility between Columbia students barricading themselves in a campus building (without food) and UT students milling on the quad shouting stuff. By promoting their histories of activism and selling themselves as places students could engage in activism and protest ("trad[ing] on the legacy," Harper says), schools gave students permission to engage in all forms of protest--lawful and unlawful, including occupying buildings--when they believe the cause worthy. And schools reneged on their commitment by stopping the occupations and expelling or sanctioning students for conduct that violates otherwise-neutral school regulations.

I think this has two problems. It effectively means universities ceded control of campus spaces if and when students want to occupy them. By offering students the opportunity protest and engage in activism as the carrot to get them to enroll, they offered preferred access of campus spaces for their expressive use. And if the universities did not surrender all control, they limited their ability to regain control when activist students took over--no cops, no academic consequences, you can have it back if you put us on the committee that decides university investments. Second, it continues to treat civil disobedience as creating a free-speech immunity from sanction for violating content-neutral conduct regulations, rather than either: 1) a drag on how quickly or forcefully universities should act (urging some "leeway") or 2) students willing to risk sanction to highlight an injustice and effect change.

A possible response to what I just said: By celebrating past civil disobedience, universities confess error for cracking down on those protests. They thus promised to do better, to not repeat past administrations' mistakes, and to allow occupations because--as 1968 showed--they change history. I like Orin's reply: Administrators assumed "students hold the protest, break a rule here or there for a bit, and then go back to the status quo," whereas recent events appear more aggressive, more interfering, and more permanent--and schools did not know how to react. I think this jibes with my idea above--universities give students leeway to break small rules for a short time to shout themselves out, unless the occupation never stops.

Posted by Howard Wasserman on May 3, 2024 at 11:04 AM in Howard Wasserman, Life of Law Schools | Permalink | Comments (0)

Marco Rubio and the Twelfth Amendment

Senator Rubio may be under consideration to be Donald Trump's running mate. An objection to that idea is that Trump and Rubio both live in Florida. As a result, that ticket would violate the 12th Amendment. But that claim is wrong.

The relevant point in time for the 12th Amendment rule is when the electors vote. Before December, Senator Rubio can change his legal residence to DC, where I assume that he has a house or an apartment. Probably that would happen in November if and only if Trump wins, when you also might expect Rubio to resign his Senate seat.

The upshot is that there is no practical constitutional barrier to a Trump/Rubio ticket.

Posted by Gerard Magliocca on May 3, 2024 at 07:50 AM | Permalink | Comments (0)

Thursday, May 02, 2024

"Violence" at UCLA

As UCLA's Joey Fishkin pointed out at Balkinization, the media reports of “violent clashes on campus” used passive voice to obscure what was actually an attack on the protest encampment by a gang of pro-Israel thugs. This is completely in accord with an eye witness account I received from the emeritus rabbi of the UCLA Hillel:

The instigators were clearly the pro-Israel thugs. They had already demonstrated their penchant for violence on Sunday as part of the Jewish Federation’s effort to demonstrate its support for Jewish students (btw, no one asked them for this support and they were asked by Hillel not to come). These ‘thugs’ included a chasid(tzitzit flying) who was waving a big yellow flag that proclaimed Moshiach with one hand and spraying some substance with the other. The pro-Israel mob threw firecrackers, parts of the barrier, 2x4’s and other projectiles aside from attempting to break through to the encampment. At times you could only hope that no one would get killed. 

I watched the confrontation for 2 1/2 hours and I didn’t see any violence that was initiated by those in the encampment. I will check on the young woman to determine what happened. But, while certainly condemning her beating, the aggression was overwhelmingly from the pro-Israel side.

I just got off the phone with a Jewish student who wants to organize a statement condemning the Jewish initiated violence last night.

All the best,

Chaim

****

Rabbi Chaim Seidler-Feller

Director Emeritus,UCLA Hillel

I have been very critical of the antisemitism displayed by some of the protesters (more on that next week), but there is no excuse for physical attacks against them.

Posted by Steve Lubet on May 2, 2024 at 08:04 PM | Permalink | Comments (0)

No Advice and Consent

A convention of American politics is that new presidents get their Cabinet picks and other executive appointees confirmed. Every so often a person is rejected, but that's rare. But let's try out a thought experiment.

Suppose President X is elected. The Senate is controlled by the other party. They refuse to confirm any executive appointments unless and until certain demands are met. The new President is thus stuck with holdovers from the prior Administration or civil servants. This would effectively remove the President's removal power of his subordinates and make him far weaker. Yet this is constitutional--the Senate is not required to confirm anybody. 

Posted by Gerard Magliocca on May 2, 2024 at 07:35 AM | Permalink | Comments (0)

Wednesday, May 01, 2024

Judge sanctioned for handcuffing teenager

In March 2023, Steve and I had an exchange about Judge Benitez (S.D. Cal.), who probationee's daughter handcuffed and placed in the jury box during a revocation hearing, purportedly to teach the girl a life lesson. Steve and I debated whether judicial immunity would protect Benitez in a damages action and Steve worried that he would suffer no real consequences.

Fourteen months later, we have something: The Judicial Council of the Ninth Circuit reprimanded Benitez; prohibited Benitez from taking new criminal cases for three years;* and allowed defendants in pending or future probation-revocation hearings to move to recuse Benitez, with the motion going to the Chief District Judge.

[*] Relatively meaningless, because Benitez took senior status in 2017 and no longer takes new criminal cases.

I leave it to those who study judicial ethics to opine on whether any of this constitutes "real consequences."

Posted by Howard Wasserman on May 1, 2024 at 04:04 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

A bunch of random stuff about campus protests

Some random thoughts, partly reacting to what other people have said:

Orin Kerr said on Twitter that the current protest wave reflects the first time that campus protests have targeted issues about which there is sharp disagreement. Some consensus surrounded the issues at heart of prior protests--anti-war(s), nukes, apartheid, climate change. No large pro-nuke or pro-apartheid constituency sought to oppose or counter-protest, even if not everyone shared protesters' passion or engagement on the issues. But the rules of campus protest--including allowing protesters leeway in occupying campus spaces and otherwise allowing violations of neutral regulations--developed around those prior issues. Those rules do not work when that consensus disappears.

Continue reading "A bunch of random stuff about campus protests"

Posted by Howard Wasserman on May 1, 2024 at 09:36 AM in Howard Wasserman | Permalink | Comments (0)

Tuesday, April 30, 2024

"Yes, Minister" on the Purpose of Government

This exchange, which lasts about six minutes, is one of my favorites in the entire series. The conversation is more relevant than ever.

 



 

 

Posted by Gerard Magliocca on April 30, 2024 at 02:33 PM | Permalink | Comments (0)

Except when they're not really questions

Gerard should be right. The problem is that many questions in oral argument are not really questions. They are statements of the justice's views or thoughts or arguments about the case. And many of those views and thoughts are so off the wall as to look less like devil's advocate and more like justices flirting with (what the panicking folks regard as) troubling ideas. Or it reflects their willingness (if not intention) muck up the timing of the prosecution to do more than is necessary in the case. And while it has always been thus, it seems to be getting worse. Or the presumption of good faith surrounding the Court has so disappeared that we cannot come back--everyone assumes the justices have made up their minds and their questions are designed to further and defend their determined positions.

And this is non-partisan. Consider the EMTALA argument. Some people highlighted the eight pages of exchange (beginning on p.104) between Justice Alito and Elizabeth Prelogar, in which Alito suggested that EMTALA does not protect abortions because the unborn child is identified in the statute. It is a textually awful argument and Prelogar explained how it misreads the text and the logical end of the underlying premise. But at least Alito gave Prelogar a chance to answer, at length, pushing back when he did not like what she said. Contrast that with the five-ish pages (beginning on p.14) between Justice Sotomayor and Joshua Turner. Sotomayor began with a long hypothetical about a state prohibiting the use of insulin to treat diabetes, complete with details about the medical problems that would result, then never gave Turner a chance to offer more than a sentence in response--the colloquy ended when the Chief jumped in to get Turner to complete his answer.

Posted by Howard Wasserman on April 30, 2024 at 11:47 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Questions Can Really Be Questions

I've been surprised by the panic in some quarters about recent oral arguments at the Court. The problem, I think, is that too many people are treating questions as if they were statements in an opinion. These are, in fact, fundamentally different things. A question can just be a question. Maybe it's a devil's advocate question. Maybe the question just helps the Justice think about something. Maybe the question gets a satisfactory answer. 

I would add, though, that the Court may be partly to blame for this. Increasingly you see cites in opinions to statements by the advocate. I'm not sure why that's appropriate. It's not the same as statements in a brief. Citing those is fair because plenty of thought went into what was written. An off-the-cuff comment by a lawyer should not get the same treatment. But if the Court does so, then I can understand why people might treat the questions as authoritative in some sense.

Posted by Gerard Magliocca on April 30, 2024 at 09:16 AM | Permalink | Comments (0)

Monday, April 29, 2024

FTC final noncompete rule, and not-so-final upcoming legal challenges...

With excitement, I watched  the live vote, 3-2 at the FTC, passing the final rule banning noncompetes nationwide. 

The ban will set talent free benefiting not only employees but innovation, entrepreneurship, market competition, consumers (including patients in the healthcare industry) and the economy at large.

As expected, already lawsuits have been filed to challenge the rule and already predictions that under the current court climate, the rule will be invalidated in court under one or another major questions/lack of administrative rulemaking authority/arbitrary rule variety garden doctrines. 

Ever the optimist, my hope is that facts and empirical evidence still matter. And in any event, this is an important moment and action continues at the state and federal levels to strengthen labor market competition.

Posted by Orly Lobel on April 29, 2024 at 01:02 PM | Permalink | Comments (0)

No, not antisemitic at all

Two friends of mine wrote that the matzo boxes in two of their local supermarkets (in the same city; not Chicago) have been vandalized and had to be destroyed, making it impossible for some observant Jews to fully observe Passover. Neither chain reported the vandalism to the police, and the vandalism has not been covered in the news. Here is one of the emails:

I just stopped at a fancy local supermarket chain with a Passover section, in search of Kosher for Pesach matzo.  This is the first time we've ever run out, which may be because one of my kids has moved back home.

There was none to be found.  When I got to the checkout, the cashier explained why.  A group of pro-Palestinians had come to three stores in the chain and placed stickers on all the boxes, and they all had to be destroyed.  The owners decided not to order more, presumably expecting a return of the vandals.

The cashier told me that the store did not publicize the incident because they didn't want to upset anyone.  That clearly didn't work, since I made a special trip to a store I only shop at once a year for Pesach to discover that all the matzo had been destroyed by vandals.

She did not tell me whether the vandals had been found and arrested, which would have been appropriate.  I asked if the stickers were antisemitic or anti-Israel.  She replied that they could be interpreted that way, but said something to the effect that they called for "peace."

The stickers could have said anything and they still would have been antisemitic.  They were an attack on Jews, regardless of their politics.  I think the store was wrong not to publicize this.  Perhaps they didn't want to offend their pro-Hamas customers, while being located in one of the most Jewish neighborhoods.

Another friend told me of the same experience at a Whole Foods store in the same city.

I also searched the relevant news outlets and found nothing.

Someone will no doubt rationalize that the “peace activists” didn’t realize that they would be un-koshering the matzo (by indicating possible tampering) or otherwise making it unsellable. The non-Pesach kosher items were untouched, according to my friend, "possibly indicating that the vandals knew what they were doing." But either way, the intrusion on religious observance was unmistakably antisemitic, even if the boxes had still been usable. And keeping it quiet is sadly par for the course.

Posted by Steve Lubet on April 29, 2024 at 04:15 AM | Permalink | Comments (0)

Sunday, April 28, 2024

The Presidency Can Take Care of Itself

One lesson from Justice Jackson's Youngstown concurrence that often goes unheeded is that the Court should not give the President the benefit of the doubt in a contest with Congress. Towards the end, the opinion states: 

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."

This statement is remarkable because Jackson was Attorney General before joining the Court. Today we would tend to assume that a former Attorney General would lean strongly in favor of presidential authority. But he did the opposite as a judge (perhaps because of his intervening experience at Nuremberg).

Many constitutional cases in recent decades proceed from the premise that the Court does need to protect the President from Congress. Chadha is one example that I discuss in my forthcoming book, but the same can be said about cases such as Selia Law. I'm not sure where this idea comes from. Congress should not always prevail in a contest with the President. But the belief that greater presidential authority is a worthy goal by itself is something I don't understand.

Posted by Gerard Magliocca on April 28, 2024 at 03:06 PM | Permalink | Comments (0)

Fish on the University: It's All Academic

I haven't posted much in the past couple of weeks about the events on campus across the country, partly because of exams and other duties that actually relate to the core of a university's functioning, and partly because I wanted the time to work through my ambivalence about David Pozen's interesting Balkinization post. I thought it simultaneously had real value as a discussion of failures to follow university procedures, and ran the risk of doing the same thing I see in too much recent contemporary constitutional scholarship: the invocation of "norms" and "settlements" in a way that potentially loads up the content of those words in an imperial and conversation-stopping manner, when there is actually fair debate to be had about what the norms are, how stable the settlements are and when they may be reexamined, and what lessons we might take from the paradigm cases that gave rise to those always-contestable "norms" and "settlements." (The lesson to be taken from the vandalism, anti-intellectualism, and American-style milquetoast hostage-taking that was the 1968 Columbia occupation, for instance, including questions about its morality, efficacy, message discipline, and larger political consequences, may differ in the eye of various beholders. On 1968 as a wider global or at least Western event--in which the American version, predictably, was both closer to cosplay and further away from a meaningful connection to workers or the working class--I recommend Richard Viner's fine book 1968: Radical Protest and its Enemies.)

Of course a good deal has happened since then. I should say that the letter issued by multiple Columbia law faculty members is quite good. God bless lawyers for focusing on the key question of process, and skipping the standard sentences that genuflect to one or another standard sentiment in a way that inevitably leaves someone or everyone dissatisfied. And I am still thinking about Super's post.

In the meantime, I commend to readers a late entrant to the discussion: Stanley Fish's post A Note to University Administrators, which appears in the excellent and pleasingly eccentric Catholic journal The Lamp. Readers of Fish's other work in this area will not be surprised either by his views or by the élan with which he states them. The core of his post is that the university is a university and not something else; its job is to do its job; that job does not include "play[ing] a role on the world's stage"; and while student or faculty political speech may occur on campus in particular spots and at particular times, just as that sort of general speech might happen in lots of other places, the duty of university administrators is to ensure that the main business of the university can take place--and to act, forcefully if necessary, when that business is disturbed. 

I do not agree with 100 percent of Fish's post. He could have said more about the genuine enforcement difficulties involved when administrators face large numbers with few resources (a problem that would be eased if they had acted earlier and more consistently on such matters). In saying--correctly--that speech and conduct that "threatens to undermine the main business of the enterprise...must be curbed and even silenced," he could have added a few words about consistency and procedural regularity. He could have noted the difference, for purposes of university autonomy, between university administrators inviting in the police and state or local politicians sending them in. Finally, I don't think Tinker v. Des Moines was the best case to cite for his purposes. So I hover at only around 80 to 90 percent agreement. But Fish is basically right, certainly right on the fundamentals, and much better and more sensible than many other recent interventions.

The silliest of those, I think. at least outside social media, is this (paywalled) piece in the Chronicle of Higher Education, the gist of which is that the only reason students are currently forced to shout so loud is that the universities have failed to truly listen to them. The piece, by Chicago historian Gabriel Winant, offers some perfectly sensible statements about the consumer orientation of the modern university, which has indeed been a terrible mistake. And I think it uses "listen" accurately; often enough, when someone writes "failed to listen" they actually mean "failed to agree or capitulate." But Winant's piece seems to walk a fine and perhaps strategic line between suggesting that the current protests highlight the failure of current "democratic norms [in] the academic community," and arguing that whatever form the university currently takes, it ought to be a democratic institution. He writes: "Substantive democracy on campus — in which students, faculty members, and staff are meaningful participants in the governance of the university — is the only way to realize the values of academic freedom and freedom of speech that are so widely touted by university leaders and the donors and politicians whom they serve." His view that the university is or ought to be a democracy is connected to a larger complaint about the "undemocratic structures of American social institutions," which I take to include more than just universities.

All this is quite wrong. (I set aside the fact that when someone appends a word like "substantive" to a word like "democracy," you should get ready to be flim-flammed.) The university is not a democracy. It should not be a democracy. If "American social institutions" are currently in bad shape and losing public trust, it is not because they are undemocratic; if anything, the converse is closer to true: the more these institutions try to satisfy everyone's needs and drown their distinctiveness in democratic waters, the less they satisfy anyone. There is room to argue about the proper structure of university governance. But "meaningful, democratic representation for students, faculty, and staff on university boards" is not "the only institutional mechanism that can secure" what the author calls "the university’s role as a place for the free development of critical thought and democratic citizenship." To the contrary. Fish has it right: the way universities contribute to "democratic citizenship" is not by reproducing democracy (or, I guess, "substantive democracy," a phrase whose meaning, again, may end up including all sorts of questionable moves), but by doing their job of "instruction and the advancement of knowledge in the humanities, social sciences, physical sciences and computer sciences." As anyone who has fairly received a high or low grade, fairly been granted or denied tenure, or been praised for advancing knowledge or criticized for erroneous or repetitive scholarship can tell you, these are not democratic activities. 

Here are some passages from Fish's post, all of which is worth reading, although I doubt it will be pleasing to those who favor virtually untrammeled student protest, and I am sure that Fish's response to those who see this moment as requiring a purge of instructors or courses of instruction on a non-disciplinary basis would be equally displeasing to them. (I don't think he would have much sympathy, for instance, for a doctoral student complaining about the "platforming" of an academic lecture on theology and asserting that "the nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice." I think he would say, "As an academic matter, and if the academic speaker is academically qualified, you bet your ass they are.")   

University administrators faced with sit-ins, tent encampments, and other forms of protest continue to betray an inability to understand their situations. A prominent (and even poignant) case in point is Columbia’s president, Minouche Shafik, who began a recent statement by acknowledging the obvious: “There is a terrible conflict raging in the Middle East with devastating consequences.” She then notes that many on her campus “are experiencing deep moral distress and want Columbia to help alleviate this by taking action.” Her next sentence falls off the cliff. “We should be having serious conversations about how Columbia can contribute.”

No, no, no! What she should have said is this: “Intervening in a political crisis is not within our job description; it’s not something we are either equipped to do or assigned to do. Our job is to introduce students to the materials and histories of various academic disciplines and to provide those same students with the analytical skills that will enable them to proceed on their own after a course is over.” That’s it, nothing else. Any “contribution” we as members of the academy might make to the solving of society’s problems would be indirect....

If this account of what institutions of higher learning appropriately do—they don’t do everything, they do the academic thing—is accepted, a conclusion (no doubt counterintuitive to many) immediately follows: colleges and universities have no obligation to foster or even allow political protests on campus. Indeed, it is quite the reverse, for if the overriding and defining imperative is to ensure the flourishing of the academic enterprise—classes being taught, research being conducted, procedures being followed—administrators have a positive duty to remove any impediments to that flourishing, including tent encampments, sit-ins, obstacles to exits and entries, building occupations, forcing the cancellation of classes and a host of other things now occurring....

When you are granted a platform [in the institutional context of the university], you are expected to produce speech that contributes in a significant way to the practice that has accepted you as a member. This is not free speech, but speech constrained by the norms and protocols that define and monitor the profession. As with any other practice, it is always possible, and indeed mandatory, to say of something offered, “That’s not the kind of thing we do around here.” In the academy political protest is not the kind of thing we do around here; it is not part of the core mission, although universities can decide to permit a bit of it in designated places on the model of a Hyde Park corner. But once the permitted political speech gets out of hand and threatens to undermine the main business of the enterprise—instructing students and advancing the state of knowledge—it must be curbed and even silenced....

Colleges and universities are not in the free speech business or the democracy business. They are in the education business; and while institutions of higher education may decide to allow a certain amount of political speech on their campuses, they are not required to do so. They are, however, required to silence that same speech once it enters the stage of interference and disruption.

“Required” is a strong word and it hearkens back to my earlier phrase “positive duty.” Some administrators see themselves as torn between the obligation to support free speech and the obligation to maintain a secure and safe campus. But they can dispense with their moral dilemmas (a hard thing for academics to do) and the hand-wringing that accompanies them once they remember that they were hired to administer an enterprise, not to be constitutional watchdogs or guardians of democracy. Removing obstacles to the functioning of the academic process (even by calling in the police) is not something they should apologize for, but something that follows from the office they hold....President Shafik is said to be in danger of losing her job. If that happens, it will be because she doesn’t know what it is.

 

Posted by Paul Horwitz on April 28, 2024 at 10:52 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, April 27, 2024

Seen at the Northwestern Divestment Encampment

Encampment sign

In fact, the quotation is from Barry Goldwater's acceptance speech at the 1964 Republican National Convention. Malcolm X later debated the same proposition at the Oxford Union, acknowledging Goldwater's authorship and advocating the Republican's position. 

Posted by Steve Lubet on April 27, 2024 at 04:14 PM | Permalink | Comments (0)

Saturday Music Post - Mr. Tambourine Man

In 1965, "Mr. Tambourine Man" was released as the first track on the acoustic side of Bob Dylan's fifth album, Bringing It All Back Home. That is a little surprising, given that the Byrds' electric version, which reached number one on the Hot 100, was released as a single only a few months later. The lyrics are open to many interpretations, including drug references (which Dylan has denied), to the search for a muse, to simply an appreciation of guitarist Bruce Langhorne's actual tambourine playing. Both Dylan's version and the Byrds' (much truncated, with only one of Dylan's four verses) made Rolling Stone's list of the 500 greatest rock songs.

You can draw your own conclusions after checking out the clips at The Faculty Lounge.

Posted by Steve Lubet on April 27, 2024 at 06:05 AM | Permalink | Comments (0)

Friday, April 26, 2024

Supersessionism at the Harvard Divinity School

“Supersessionism” is the theological argument that Abraham’s covenant with G-d has been superseded by Christianity. It has been repudiated as antisemitic by most Christian denominations, but it is apparently welcome at the Harvard Divinity School, as described in the below oped from the Harvard Crimson (reposted with the author's permission).

How Dare You Reinterpret Our Religion for Us?

By Genia Lukin, Contributing Opinion Writer

Genia Lukin is a second-year Ph.D. student at the Graduate School of Arts and Sciences.

On April 16, the week before Passover, Christian-Palestinian theologian Mitri Raheb spoke at Harvard Divinity School about his recent book “Decolonizing Palestine: The Land, The People, The Bible.”

The book criticizes the use of Biblical texts in substantiating Israel’s right to statehood and calls for the decolonization of Palestine, which, according to Raheb, requires decolonizing theological concepts including “Israel, the land, election, and chosen people.”

The presentation at HDS is the latest in a series of pro-Palestinian programs that feature speakers like Raheb who seem to have a great deal to say about Jewish scripture, Jewish theology, and Jewish identity. Somehow, it has become acceptable for Raheb to dictate to Jewish people — the people who have read and interpreted the Torah for millenia — how to “decolonize” their own identities to suit his own political agenda. It is cultural appropriation par excellence.

The expectation that Jewish history and identity need to be adjusted to be acceptable to the current socio-political landscape disregards the endurance of Jewish traditions through 3,000 years of development, often in the face of extreme oppression, colonialist displacement, and ethnic cleansing. Never mind the fact that the Torah has already been frequently usurped and weaponized against the Jews by both Christians and Muslims, who reinterpret key Jewish texts in an attempt to harm Jews.

Continue reading "Supersessionism at the Harvard Divinity School"

Posted by Steve Lubet on April 26, 2024 at 04:29 AM | Permalink | Comments (0)

Thursday, April 25, 2024

JOTWELL: Craig on Shatzman on clerkship whisper network

The new (guest) Courts Law essay comes from Jade Craig (Nova-Southeastern) reviewing Aliza Shatzman, The Clerkship Whisper Network: What It Is, Why It's Broken, and How to Fix It, 123 Colum. L. Rev. F. 110 (2023).

Posted by Howard Wasserman on April 25, 2024 at 10:55 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Harari and McWhorter on Gaza, Israel, and Columbia

Yuval Noah Harari and John McWhorter have written important essays on the the Israel/Hamas war (Harari, in Haaretz) and the response on American campuses (McWhorter in the NYTimes). Both are well worth reading in full, and I have excerpted a few paragraphs of each below.

Harari, "From Gaza to Iran, the Netanyahu Government Is Endangering Israel's Survival":

Following the horrendous massacre of October 7, Israel needed to liberate the hostages and disarm Hamas, but these should not have been its only aims. In light of the existential threat posed to Israel by Iran and its agents of chaos, Israel also needed to deepen its alliance with Western democracies, strengthen cooperation with moderate Arab forces, and work to establish a stable regional order. However, the Netanyahu government ignored all these aims, and instead focused on revenge. It has failed to secure the release of all the hostages, and has not disarmed Hamas. Worse, it intentionally inflicted a humanitarian disaster on the 2.3 million Palestinians in the Gaza Strip, and thereby undermined the moral and geopolitical basis for Israel's existence.

The decision to inflict on Gaza a humanitarian catastrophe resulted from a combination of three long-term factors: lack of sensitivity to the value of Palestinian lives; lack of sensitivity to Israel's international standing; and skewed priorities that ignored Israel's real security needs.

Netanyahu continues to promise Israelis "total victory," but the truth is, we are a step away from total defeat. Whatever could have been achieved by fighting – rebuilding domestic trust in the IDF following the October 7 debacle, rebuilding Israeli deterrence abroad, and eliminating most of Hamas' military capabilities – have already been achieved. Nothing more will be gained from continuing the war. It is a dangerous illusion to believe that one more victory, in Rafah, will bring about the collapse of Hamas, the release of all the hostages, and the surrender of Israel's many enemies. Every additional day of war only serves the purposes of Hamas and Iran, and intensifies Israel's international isolation.

McWhorter, "I’m a Columbia Professor. The Protests on My Campus Are Not Justice."

I thought about what would have happened if protesters were instead chanting anti-Black slogans or even something like “D.E.I. has got to die,” to the same “Sound Off” tune that “From the river to the sea” has been adapted to. They would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence. I’d wager that most of the student protesters against the Gaza war would view them that way. Why do so many people think that weekslong campus protests against not just the war in Gaza but Israel’s very existence are nevertheless permissible?

However, the relentless assault of this current protest — daily, loud, louder, into the night and using ever-angrier rhetoric — is beyond what any people should be expected to bear up under, regardless of their whiteness, privilege or power.

Social media discussion has been claiming that the protests are peaceful. They are, some of the time.

And besides, calling all this peaceful stretches the use of the word rather implausibly. It’s an odd kind of peace when a local rabbi urges Jewish students to go home as soon as possible, when an Israeli Arab activist is roughed up on Broadway, when the angry chanting becomes so constant that you almost start not to hear it and it starts to feel normal to see posters and clothing portraying members of Hamas as heroes. 

What began as intelligent protest has become, in its uncompromising fury and its ceaselessness, a form of abuse.

As McWhorter and Harari point out, it should be possible to oppose the nature of the war in Gaza without descending into antisemitism. Unfortunately, that isn't happening in too many places.

Posted by Steve Lubet on April 25, 2024 at 03:10 AM | Permalink | Comments (0)

Wednesday, April 24, 2024

Lateral position announcments at Notre Dame Law School

The Notre Dame Law School has advertised some open lateral searches, tenured and tenure-track.  The searches are not limited to any particular subject(s). Come join us in South Bend!  

Posted by Rick Garnett on April 24, 2024 at 10:47 AM in Rick Garnett | Permalink | Comments (0)

Trump's Admiration for Robert E. Lee

[Cross-posted on The Faculty Lounge]

In a recent speech at Schnecksville, Pennsylvania, former President Trump had this to say about the Battle of Gettysburg:

The Battle of Gettysburg. What an unbelievable — it was so much and so interesting, and so vicious and horrible, and so beautiful in so many different ways. It represented such a big portion of the success of this country. Gettysburg, wow. I go to Gettysburg’s Pennsylvania to look and to watch, and the statement of Robert E. Lee, who’s no longer in favor, did you ever notice that? No longer in favor. ‘Never fight up hill, me boys. Never fight up hill,’ he said. Wow. That was a big mistake. He lost his great general.

That was not Trump's first expression of admiration for Robert E. Lee, who committed treason in defense of slavery (and did not talk like a pirate). In 2017, Al Brophy and I published an oped in the Chicago Tribune explaining why Trump's comparison of Lee to George Washington was offensive and wrong:

Why Trump is wrong to equate George Washington with Robert E. Lee

By Alfred Brophy and Steven Lubet

PUBLISHED: August 20, 2017

The recent neo-Nazi march in Charlottesville, Va., was purportedly held to protest the municipality’s decision to remove a statue of Confederate Gen. Robert E. Lee. In an alarming news conference, President Donald Trump seemed to indicate respect for the marchers’ goal, if not their tactics.

If the Lee monument is removed, he asked rhetorically, “are we going to take down statues to George Washington?” The president’s personal lawyer was even more explicit, circulating an email that directly equated Washington with Lee. Under the subject line “The Information that Validates President Trump on Charlottesville,” the email said: “You cannot be against General Lee and be for General Washington (because) there literally is no difference between the two men.”

The comparison, now made by both the president and his attorney, is deeply offensive for some reasons that should be obvious to everyone and others better known to historians.

First and foremost, of course, is the fact that George Washington was a patriot and Robert E. Lee was a traitor. Washington led his countrymen in battle to win the independence of the United States, while Lee did his utmost to destroy our “more perfect Union” for the sake of chattel slavery.

And make no mistake, the very purpose of the Confederacy was to perpetuate and expand slavery. The Confederate Constitution, which Lee took an oath to uphold and defend, prohibited laws “impairing the right of property in negro slaves,” meaning that no state could ever abolish slavery even if it wanted to. In all, there were 10 specific references to slaves or slavery in the Confederate Constitution. The 11 state secession conventions focused on Abraham Lincoln’s election as a threat to slavery, and declared the need to leave the Union to create a slaveholders’ republic.

It is true that Washington was also a slaveholder, but that is where his resemblance to Lee ends. As Matthew Yglesias pointed out in Vox, we revere Washington today because of his many accomplishments on behalf of the nation that had nothing to do with slavery. He was the military leader in the Revolutionary War, he presided over the Constitutional Convention in 1787 and, perhaps most important, he established the precedent of peacefully leaving office at the end of his term.

Lee, in contrast, had virtually no achievements other than the military defense of slavery, which led to the deaths of hundreds of thousands of Americans. If Washington is remembered despite his connection to slavery, Lee is remembered only because of it. To be sure, Washington’s slaveholding is, and must be, an indelible stain on his reputation. Lee, by contrast, would have no historical reputation at all if he had not committed treason to defend human bondage.

There is one more distinction between the two men that depends on an understanding of abolitionist history. The lives of Washington (1732-1799) and Lee (1807-1870) did not overlap, and they were divided by a crucial inflection point in American attitudes toward slavery.

Continue reading "Trump's Admiration for Robert E. Lee"

Posted by Steve Lubet on April 24, 2024 at 05:17 AM | Permalink | Comments (0)

Tuesday, April 23, 2024

2024 Symposium on AI Disrupting Law

2024 Symposium on AI Disrupting Law https://studentorgs.kentlaw.iit.edu/cklawreview/live-symposia/ai-disrupting-law-symposium/

feel free to join in!

Friday, April 26, 2024

Time (CDT)

Event

Zoom Link 

12:45 PM – 2:00 PM 

Georgia Jenkins, A Principle of Artistic Data Sovereignty: Linking Creative Reuse to Author Remuneration

Daniel Gervais, Artificial Intellectual Property

Commentators: Pam Samuelson & Dan Hunter

https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09

2:00 PM – 3:15 PM

Camilla Hrdy, Trade Secrecy Meets Generative AI

Ryan Abbott, Creative Machines: Generative Artificial Intelligence and Copyright Law

Commentators: Sonia Katyal & Orly Lobel

https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09

3:15 PM – 3:30 PM

Coffee Break

N/A

3:30 PM – 4:45 PM

James Grimmelmann & A. Feder Cooper, The Files Are in the Computer: Copyright, Memorization, and Generative AI

Catherine Sharkey, A Products Liability Framework for AI

Commentators: Derek Bambauer & Eugene Volokh

https://iit-edu.zoom.us/j/87299684335?pwd=MCtwZ3lYS1hMTjVxZ25zQXdMSlMrdz09

Posted by Orly Lobel on April 23, 2024 at 01:59 PM | Permalink | Comments (0)

Monday, April 22, 2024

Antisemitic Images on Campus

My new essay for The Hill addresses recent antisemitic incidents on American campuses. Here is the gist:

Free antisemitic speech is still antisemitic and indefensible

BY STEVEN LUBET, OPINION CONTRIBUTOR - 04/22/24

Although anti-Israel activists typically assert that their protests are leveled only at Zionism, some have lately demonstrated a shocking inclination to employ classically antisemitic themes and images.  

Law Students for Justice in Palestine placed posters throughout the law school, as well as on their Instagram account, featuring a grotesque caricature of Dean Erwin Chemerinsky holding a bloody knife and fork, with the caption “No Dinner with Zionist Chem While Gaza Starves.” 

Chemerinsky recognized the image as “blatant antisemitism,” invoking the “horrible antisemitic trope of blood libel” and attacking him for “no apparent reason other than I am Jewish.”  

He wasn’t exaggerating. 

The portrayal of Jews as leering blood drinkers — historically known as a “blood libel” — dates back to Medieval times, and it has been used ever since as an excuse for pogroms, expulsions, and worse. It was a staple of Germany’s Der Stürmer in the Nazi era and can be seen today in its American descendant, the far-right, neo-Nazi publication The Daily Stormer.

You can read the full essay at The Hill.

Posted by Steve Lubet on April 22, 2024 at 12:20 PM | Permalink | Comments (0)

Two Nuggets on The Application of the Draft

In my research on the draft, I recently come across two interesting items.

First, every draft law (Civil War, World War I, World War II) exempts the Vice President (and all other significant federal officials) but does not specifically exempt the President. This may be because Congress assumed that drafting the President is unconstitutional, or that the President was put in charge of the draft and would presumably not pick himself. I'll be looking into more closely.

Second, I did not know that the Pennsylvania Supreme Court declared the draft unconstitutional in 1863. (Kneedler v. Lane). The Court reversed itself a year later after state elections that went well for Republicans. There is secondary literature on this that I will dig into.

I think that this might well be my next book. With Uncle Sam on the cover.

Posted by Gerard Magliocca on April 22, 2024 at 10:26 AM | Permalink | Comments (0)

Saturday, April 20, 2024

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

Posted by Howard Wasserman on April 20, 2024 at 09:43 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday Music Post - Worthwhile Canadian Music

The Canadian folk and folk-rock duo Ian & Sylvia began performing together in New York in 1961. They married in 1964 and broke up -- musically and maritally -- in 1975 (with at least one later reunion concert). Their most famous song, written by Ian, was "Four Strong Winds," which has been covered many times. In 2005, CBC listeners vote "Four Strong Winds" the greatest Canadian song of all time. 

Sylvia also wrote the much-covered song, "You Were on My Mind." 

The clips are at The Faculty Lounge.

[For those who did not get the reference in the post's title -- intended absolutely ironically, I assure you -- see here.]

Posted by Steve Lubet on April 20, 2024 at 06:12 AM | Permalink | Comments (0)