Monday, December 02, 2024

Why California Should Not Be Admitting Teenagers to Law Practice

California has lately been admitting teenagers to the practice of law, including two siblings who each passed the bar at age 17 after graduating from an on-line law school. This is a very bad idea for everyone involved, as I explain in my new column for The Hill.

Here is the gist:

Just because teenagers can become lawyers doesn’t mean they should

Twice in the past two years, the bar examiners announced that 17-year-old applicants had passed the bar examination, to be sworn in as lawyers upon reaching 18.

I don’t doubt the brainpower and studiousness of the teenagers, a brother and sister, born a year apart, who began their law studies while still in middle school. Nonetheless, it is simply impossible for even the most book-smart 18-year-old to have acquired the life experience necessary for the competent practice of law.

At 18, they still cannot buy alcohol or tobacco, obtain an interstate commercial driving license, become an airline transport pilot, qualify as a professional fiduciary, deal blackjack in a casino or purchase handgun ammunition. 

There are true prodigies whose unique talents benefit from intense development from an early age. But law practice is not music or gymnastics. It is basically a job. It can be rewarding, fulfilling and socially productive, but apart from transient novelty, there is no advantage to starting young. 

You can read the full column at The Hill.

Posted by Steve Lubet on December 2, 2024 at 11:02 AM | Permalink | Comments (0)

Saturday, November 30, 2024

Saturday Music Post - I Am a Pilgrim

"I Am a Pilgrim" is an American hymn dating to the middle of the nineteenth century. It was first recorded in 1924 by the Norfolk Jubilee Quartet, a prominent African American gospel group (don't miss their clip at the bottom of the post). I first heard it by Doc Watson, and then by the Byrds. I can't explain it, but I just love Doc's four note base run between "not" and "made by hand." Many of the other artists have picked it up, but not all -- which is too bad in my book.

You can decide for yourself at The Faculty Lounge.

Posted by Steve Lubet on November 30, 2024 at 06:27 AM | Permalink | Comments (0)

Monday, November 25, 2024

Fiduciary Parenting of Trans Youth

With Skrmetti about to be argued at the Supreme Court (on a state ban of gender-affirming care for minors), I thought I would post my draft on "first-responder" parents and their role in the constellation of care for trans youth.  The paper is here and the abstract follows:

This Article aims to evaluate whether parents of minors who identify as transgender have moral duties to help their children achieve
social or medical transition and whether they have moral permissions to take a more oppositional posture—and, if so, under what conditions. Very child-centered theories of parenting might recommend that children should get to make their own decisions without parental gate-keeping; and very parent-centered theories of parenting might recommend that parental interests or values are appropriate to guide decision-making, instead. A particular account of fiduciary parenting, the view developed and defended here, does not require that parents always accede to their children’s demands for gender transitions. However, parents have obligations stemming from their fiduciary role to evaluate their children’s demands with careful deliberation, conscientiousness, and sensitivity to dynamic change. In particular, children can require from their parents a decision procedure that properly orients parents towards children’s welfare rather than parents’ own and a decision procedure that also doesn’t center “irreversibility” as a core anchoring mechanism, an entailment of careful and conscientious deliberation. It is an essential moment—as the Supreme Court is about to take up state bans on gender-affirming care for minors—to gain more clarity about how “first-responder” parents should be managing demands from their children about their gender expressions.

Posted by Ethan Leib on November 25, 2024 at 04:13 PM | Permalink | Comments (0)

60 Minutes swallows nonsense campus-speech narratives

In an absurdly fawning piece on University of Austin as the answer to cancel culture and student self-censorship (uncited, but obviously based on FIRE's statistic nonsense) and thus the only place committed to open-minded and all-sides debate (as opposed to a politically one-sided grift).

The piece reveals the stickiness of the conservative narrative of censorious liberal students attacking conservative speakers and making them "feel" unwelcome while the right commits the free-and-open exchange of ideas. t never distinguishes between government censorship and one person's First Amendment desire to disassociate from another person because the latter spews hateful ideas. And it never mentions: 1) Florida's actual laws restricting what faculty and students can say, teach, and learn on campus and seeking to eliminate tenure or 2) four university presidents (whom the piece mentions at the outset as an example of left censorship) lost their jobs because Republican legislators and wealthy donor Bill Ackman (mentioned as a UATX supporter) believed they had failed to sufficiently restrict or sanction pro-Palestinian campus speech. It thus continues the narrative that the real threat to free speech is an offended sophomore at Oberlin and not the laws of a state.

Posted by Howard Wasserman on November 25, 2024 at 02:49 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Consistency and Transparency in Assessment: The Case of Grading "Participation"

In my upper-level, seminar-type courses, I generally provide, in the syllabus, something along the lines of "X% of your final grade will be based on participation" (with the rest based on papers, etc.). The X varies, but I suppose it's generally been about 30%.  (In larger and first-year courses, I do not do this, and instead say something about the possibilities of "grade bumps".)

I have to admit/confess, though, that -- even after 25 (!) years -- I have less than complete confidence in my ability to consistently, predictably, rationally "assess" "participation" and I (still) worry about the possibility that the exercise sometimes (often?) ends up as just a gussied-up bit of intuition and impression. I wonder, have others identified good ways to avert, or at least minimize, this possibility? One idea I heard from a lawprawf was to ask each student to "assess" his or her own "participation" -- to assign him or herself a letter grade for it -- and to use that self-assessment . . . in some way. Have any readers done that? Comments are open!

Posted by Rick Garnett on November 25, 2024 at 11:21 AM in Teaching Law | Permalink | Comments (2)

Trans rights, the 2024 Election, and Trump II (Updated)

I have been tossing around ideas for this post since the election. My thoughts are not fully formed, but I wanted to get them down on paper.

• Trans and non-binary people form a vanishingly small percentage of the U.S. population. The question is what to do with that information. One narrative criticizes Republicans for obsessing and seeking to suppress a tiny group whose existence does not affect their lives--"why do you rally around hurting such a small group." A second criticizes Harris and Democrats for caring so much--"why do you care so much about (and feel the need to express support for) such a small group." Unfortunately, the latter has taken hold among Harris voters, particularly in light of evidence suggesting that Trump's anti-trans rants (the "She's for They/Them, Trump is for you" ad and Trump's stump bullshit about boys coming home from school as girls) moved meaningful numbers of votes. On the second narrative, it is not enough for Democrats to downplay support for this group--Harris should have responded by joining Trump and Republicans in piling on this group and agreeing to push them out of the polity. And the required move becomes not just declining to "promote" trans issues (whatever that means), but refraining from protecting trans people when the other side attacks. The idea seems to be that a small vulnerable group does not need protection.

Continue reading "Trans rights, the 2024 Election, and Trump II (Updated)"

Posted by Howard Wasserman on November 25, 2024 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, November 23, 2024

Independent Agency or Codependent Agency?

As I watch for various aspects of "realignment" that render dated a great deal of commentary that relies on "left vs. right" or "conservative vs. liberal" classifications, I was struck by one passing example of this, from Senator Elizabeth Warren:

Information and discourse from That Place (where That Place equals any social media platform) are to be treated skeptically if not contemptuously, and it is always worth remembering that many or most of the statements from public figures and elected officials on such sites come from the minds of smart, earnest young creatures whose instructions are imperfect and who lack fully developed prefrontal cortices. And I have no reason to doubt this prediction from Senator Warren, or at least (assuming someone else wrote the tweet) "Senator Warren" in a more corporate sense. I have the general sense that she maintains a strong interest in the agency. Strictly speaking, though, shouldn't we consider it odd for a member of the legislative branch to pledge in advance the support of an independent executive-branch agency, as if this single senator can speak confidently for it? Could she not at least instruct her staff writers to maintain the niceties of form?   

Posted by Paul Horwitz on November 23, 2024 at 05:19 PM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - I Can't Turn You Loose

"I Can't Turn You Loose" was written and recorded by Otis Redding in 1965. It was originally released as the B-side of "Just One More Day," a song that I cannot remember and may never have even heard. Just goes to show that nobody can really predict hits.

Don't miss Steve Cropper's interview at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on November 23, 2024 at 06:21 AM | Permalink | Comments (0)

Friday, November 22, 2024

Norberg on the InfoWars/Onion Bankruptcy Controversy

I asked my colleague Scott Norberg, a bankruptcy expert and a member of the BK Rules Advisory Committee, for his thoughts on the InfoWars/Onion Bankruptcy controversy. (TL:DR -- The Onion bought InfoWars in the bankruptcy auction in a bid supported by the Newtown-parent creditors; InfoWars, the State of Texas, and a bunch of right-wing people are objecting in typically performative terms). Scott's comments after the jump.

Continue reading "Norberg on the InfoWars/Onion Bankruptcy Controversy"

Posted by Howard Wasserman on November 22, 2024 at 11:25 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Levy on Bayefsky on judicial institutionalism

The new Courts Law essay comes from Marin Levy (Duke) reviewing Rachel Bayefsky, Judicial Institutionalism, ___ Cornell L. Rev. ___ (forthcoming 2024), on the role and need for institutionalist judges and judging.

Posted by Howard Wasserman on November 22, 2024 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 19, 2024

Steve Vladeck's Admirable Response to Judge Edith Jones

Steve Vladeck has given me permission to reprint in full his response -- originally posted at One First -- to Judge Edith Jones's unseemly attack on him at the recent Federalist Society national convention. The Federalist Society almost always includes liberals on it panels -- including me, several times -- and they have typically been received politely. Unfortunately, that was not the case last week when Jones and Vladek appeared on panel on "The Continued Independence of the Judiciary." As far as I can tell, Jones believes that judicial independence means: (1) freedom from criticism; and (2) a license to be rude; because (3) life tenure is evidently not enough.

Steve's post is long, but it is worth reading (or worth watching; the video is embedded below):

Continue reading "Steve Vladeck's Admirable Response to Judge Edith Jones"

Posted by Steve Lubet on November 19, 2024 at 09:18 AM | Permalink | Comments (0)

UVA - Karsh Center for Law and Democracy Fellow 2025-2026

From the University of Virginia School of Law:

The University of Virginia School of Law seeks a Research Assistant Professor of Law to serve as the Karsh Center for Law and Democracy Fellow (“Karsh Fellow”). This non-tenure-track Academic General Faculty position will start near the beginning of the 2025-26 academic year and have a fixed-term appointment of two years. The position offers compensation of $70,000 plus benefits.

The Karsh Center is a nonpartisan legal institute at the Law School. The Center’s mission is to promote understanding and appreciation of the principles and practices necessary for a well- functioning, pluralistic democracy. These include civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law. The Center supports these essential features of our democratic life through rigorous and cutting-edge legal and interdisciplinary scholarship, curricular offerings, and academic programs such as conferences and workshops. The Center’s aim is to advance the values of law and democracy within the academy and in public discourse.

The Karsh Fellow will conduct research and refine their scholarly portfolio with the goal of obtaining a tenure-line faculty position at a law school. The Karsh Fellow will be mentored by Law School faculty, be able to attend and participate in faculty workshops, and have the opportunity to teach a course. The Karsh Fellow will also have the opportunity to network with other democracy-related programs and scholars at the University of Virginia.

The Karsh Fellow will work under the direction of and closely with the Karsh Center’s faculty directors, Professor Bertrall Ross and Professor Micah Schwartzman. While the Fellow will dedicate significant time to pursuing their proposed research projects, the Fellow will also provide administrative support to the Center, and assist with programming, maintain the Center’s website and related publications, and manage the Center’s budget. The Fellow may also be called on to help design and implement new Center initiatives.

Qualifications

Candidates must have a J.D. degree from an ABA accredited law school or foreign equivalent degree. Experience in legal practice or a judicial clerkship strongly preferred. Candidates must have strong potential for success on the legal academic market, as evidenced by an outstanding academic record, a clear research agenda, and recommendations from legal scholars. Strong interpersonal skills, including the ability to communicate effectively and professionally in writing and orally, and strong managerial and organizational skills are also required.

Application Instructions

To apply for this position please follow http://apply.interfolio.com/158957

Please submit a cover letter, your C.V., an academic agenda, and contact information for three references (name, email address, telephone number, and address). Note: the form will ask for one contact reference - please list all three references on one form.

Posted by Sarah Lawsky on November 19, 2024 at 02:11 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Monday, November 18, 2024

Law School Admissions Agonistes

For the past several years, the Council of the ABA Section on Legal Education & Admissions to the Bar (legal education’s accreditor) has toiled to develop a quite consequential, maybe even radical, reformation of the rules governing “input” requirements, that is, admissions policy. Long out of step with other professional and higher-ed accrediting bodies, none of which require a formal test for admissions to academic programs, the Council has developed, put out for public comment, and eventually proposed a change to the existing rule that requires a “valid and reliable” admissions test, a change that would simply omit this “input” requirement. (Details here). The new status quo would not be completely laissez faire, as law schools would still need to satisfy the ABA that they are admitting students who have a likelihood of success. Moreover, the ABA would maintain “output” standards, focused principally on bar exam performance. The most homely way to think about this change is to see the proposed new normal as this: “Law schools, you can decide as you wish on the criteria for admission of your students, but please know that you should use criteria that is tied in ways that can be fairly evaluated to student success in law school and, furthermore, you should use criteria that doesn’t risk a situation in which students fail and ultimately cannot be admitted to practice.” This proposed standard leaves experimentation and innovation to the law schools, albeit under an accreditor spotlight. It points to a future in which law schools may experiment with alternative tests, multiple measures of “merit,” or something entirely different.

The big ABA, which acts through its House of Delegates in considering whether to “acquiesce” in Council-proposed standards, has been unwilling to give its blessing to the revisions of the standards. The Council has twice sought formal acquiescence but has been outfoxed at every turn by LSAC — the provider of the LSAT — when the new policy has been brought before the House of Delegates. At the core of LSAC and their allies core concern is that the removal of an input requirement would risk law schools chasing revenues at the expense of demonstrated student ability. In short, law schools cannot be trusted to do the right thing. A command-and-control standard is therefore necessary, as LSAC sees the picture.

In this stalemate between the ABA Council on the one hand and the House of Delegates, has come an ingenious solution, albeit one that any informed observer can see through from miles away. Rather than change the standard and run into the political buzzsaw of big ABA/LSAC, the Council has come forth with the idea that law schools could seek a “variance” from the Council to admit up to 100% of its class by criteria that do not require a “valid and reliable” admissions test. Mission accomplished! Regulation kept in place, but regulation made teethless by the expressed willingness of the Council to give a free pass to any law school that requests one.

Beyond the interesting political struggle here (we ought not to think that LSAC will take this lying down), what ought we to make of this new normal, one that shifts the focus from law in the books (must have a test!) to law in action (except when you ask that you not have a test)? A few ruminations:

The incentives to have test-optional modes of admissions comes from various directions, and we serve the larger cause, imho, if we are maximally transparent about these motivations and circumstances. First, law schools have long fretted about the baleful influence of rankings on their programs, and on the well-being of their leaders and stakeholder groups. An LSAT score is easy to measure, and can anchor rankings. It has been a critical part of the rankings algorithm, although, notably, USNews has recently decreased its significance, simultaneously increasing the relevance of “output” (read: bar exam performance) measures. Law schools whose rankings has been meaningfully buffeted by test scores will welcome more flexibility. Second, and not unrelated to this first point, law schools fret about the racial and ethnic diversity of their classes, and we know from many years of data that admissions based principally on test scores will impede their ability of law schools to pursue simultaneously high score applicants and students of color. This predicament is not disappearing although, as I look forward to writing about at greater length in a future post, the rise of JD-Next as a novel, and evidence-based, alternative admissions test is a potential game changer, as the data thus far suggests much less difference in White and non-White scores. In any event, the ability to seek a variance for several or many or all law school applicants can potentially address these twin predicaments.

However, this comes with potential risks, and here too we should be transparent about all this. First, and perhaps foremost, neglecting to require an admissions test means that law schools must seek other predictive measures of law school success. Don’t believe the propaganda; don’t embrace the optimistic narratives. Law schools do not have anything by measure of concrete measures that approaches existing standardized tests for evaluating likely law school success. This is not to valorize admissions tests beyond the evidence, nor to elide the brute fact of racial disparities as well as wealth effects of student populations (that is, the discrepancies in the ability of students to afford expensive prep services and the like). Nor is it to say with confidence that there won’t be a someday where there might be an alternative measure for pre-law students that is at least as good or better than our current tests. The closest thing to this now is undergrad grades. But no one who does psychometric work for a living believes that grades are much better predictors than tests. Best practices say that law schools should look at tests combined with grades as part of a holistic admissions system. So, this is long way to come to the point that law schools who decide to eschew looking at tests (such as the LSAT or the GRE or JD-Next, all of which have been validated in careful studies, and in the case of the first two tests over decades and decades of scientifically rigorous analyses) run a real risk of admitting students who are unlikely to succeed.

There is a second potential risk, and it is a legal (and perhaps also political) one. Since the Supreme Court’s decision in SFAA v. Harvard, et al, law schools have been in the sights of organizations who worry that these schools will seek to avoid and evade the Court’s ruling and undertake the task of admitting racially diverse classes without practicing the forms of racial preferences which the Court ruled as illegal. Concerns about law school subterfuge have been expressed regularly. And even if these concerns are warrantless — as to many or most or even a fraction of American law schools — law schools and their lawyer advisors certainly are looking to thread a difficult needle here, that is, to obey the law and to maintain a suitably diverse class (suitably defined by reference to the law schools’ own objectives. as well as what the ABA continues to require under its own diversity regulation). If, say, a law school abandon admissions tests principally for minoritized students, in the hopes of best threading this needle, there is a decent risk that they will find themselves in litigation, litigation in which they will need to show credibly that they are not looking to move in a test optional direction for reasons tied squarely to racial diversity. Moreover, to tie the thread of these two points together, they will want also to show that they are admitting a cohort of test-less students who can show in other ways that they will succeed in law school and on the bar. And, over time, the evidence will need to support these schools’ faith.

All of this is to say that the ABA’s proposed change augurs a very interesting time for law schools working hard to figure out what best set of admissions policies meets the goals of their programs and the requirements of their accreditors. Of course, it is possible that very few law schools will seek variances under this new regime. That too will be an intriguing state of affairs under this new normal. What we can hope, to put this in an admittedly abstract way, is that law schools will take the conditions of the contemporary regulatory and political ecosystem to carefully cogitate about what the best available evidence tells us about student performance, resilience, and that ineluctable idea of professional success.

Posted by Dan Rodriguez on November 18, 2024 at 04:20 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Trump's Plan to "Turbocharge" Denaturalization

My new essay for The Hill describes one of the more shameful, but little known, aspects of Trump’s deportation plan – in the hands of the disgraceful Stephen Miller.

Here is the gist:

The Trump administration’s next target: naturalized US citizens  

One initiative, smaller in scale but potentially devastating in its impact, will be aimed at immigrants who have become naturalized U.S. citizens. Stephen Miller has declared that he will revive a “turbocharged” Operation Second Look in 2025, consistent with his intention to strip as many immigrants as possible of citizenship as a prelude to deportation. 

Not every discrepancy or inconsistency is evidence of fraud, of course, so it is inevitable that some legitimate citizens, or those who made minor mistakes based on confusion, may be caught up in an overzealous investigation. 

Even worse, thousands of immigrants, naturalized as minors through a parent’s application, may have their citizenship annulled through no fault of their own.

Fortunately, denaturalization is a judicial process, with a right to trial in federal court. Unfortunately, there is no right to appointed counsel in denaturalization cases.

For the many without funds for an attorney, there is a significant chance of losing citizenship by mistake or default, which may be exactly what Stephen Miller has in mind. 

You can read the entire piece at The Hill.

Posted by Steve Lubet on November 18, 2024 at 12:23 PM | Permalink | Comments (0)

Sunday, November 17, 2024

Bela Karolyi (1942-2024)

This morning’s WaPo obit of Bela Karolyi has this line: “The cause and manner of death has not been specified, the AP reported.”

The “manner of death,” is a forensic term for the circumstances of the death, or the way it was inflicted, as opposed to the medical reason. There are five basic manners of death: natural causes, accident, suicide, homicide, and undetermined. For example, the cause of death might be asphyxiation, and the manner of death could range from accident to suicide.

On the witness stand, I have seen forensic pathologists testify even more explicitly, saying something like the "manner of death was suffocation with a pillow placed over the infant's face."

I don't think I've ever seen an obituary note that the “manner of death” was unstated, which suggests suspicious circumstances. But if so, why be so coy? And if not, why raise doubts.

Posted by Steve Lubet on November 17, 2024 at 10:39 AM | Permalink | Comments (0)

Saturday, November 16, 2024

Saturday Music Post - Let It Bleed

"Let It Bleed," written by Mick Jagger and Keith Richards, was the title track on the Stones' 1969 album of the same name. This was the last Stones' album with Brian Jones, who was fired and replaced by Mick Taylor midway through recording. He died about a month later. Neither Jones nor Taylor played on the "Let It Bleed" cut, with Keith Richards doing all the guitar work. In later concert appearances, Richards and Taylor (playing slide) traded riffs.

Not sure why Jagger plays an inaudible acoustic guitar in concert; check it out at The Faculty Lounge.

Posted by Steve Lubet on November 16, 2024 at 05:06 PM | Permalink | Comments (0)

Thursday, November 14, 2024

David Super on Teaching Persuasion in Law School [UPDATED with David Super's Response]

David Super has an interesting post at Balkinization, urging law faculty to respond to the Trump administration by remaining engaged in the “struggle for justice.” In particular, Super explains that “Whatever else one might say about this election, it certainly represents a monumental failure of persuasion.” Thus, law faculty should pay more attention to teaching means of persuasion, which, he says, have gotten “short shrift in law school curricula.” Thus,

I fear many students have inferred from the way many schools treat the Legal Practice/LRW course that persuasion does not require special study. 

By rethinking the way we teach persuasion, law schools can both improve the practice-readiness of our graduates and better-equip those so inclined to effectively champion nobler values than those that prevailed in the last election.  This may require rethinking how we structure and present our Legal Practice/LRW courses – and the respect we show to those that teach them.  Teaching advocacy as brief-writing and formal oral arguments ignores many of the skills that matter most in practice. 

These challenges might well merit an upper-level course.

I certainly agree with Super’s emphasis on the importance of teaching persuasion, but it is surprising, to say the least, that he does not mention clinical and simulation teaching, which specifically focus on many of the persuasive skills he identifies.

It is even more inexplicable because he teaches at Georgetown, which has one of the most extensive clinical programs in the U.S., including a Federal Legislation Clinic, as well as Graduate Clinical Teaching Fellowships, leading to an LLM in advocacy.

Clinical and advocacy course were mostly marginalized when I began teaching in the 1970s. We have made much progress since then (although Brian Leiter continues to exclude clinical professors from his reports on lateral hiring), but I guess there is more to be done.

UPDATE: David Super responds:

I completely concur that clinical legal education and simulation courses play an important role in improving our graduates' skills in persuasion.  These courses are invaluable, and clinical and simulation instructors, along with Legal Practice/LRW instructors, are likely to be among those most attuned to the practice of persuasion on most law faculties.  The broader range of advocacy modes in these courses -- from traditional criminal and civil litigation to a variety of administrative, legislative, ADR, and community-based advocacy -- is particularly praiseworthy as it can help break students out of the too-narrow view of persuasion's role that can arise in doctrinal courses.  I omitted clinical and simulation courses from my piece not because of any doubts about their value but rather because the piece was already quite long and my perception is that Legal Practice/LRW courses are marginalized, or so over-tasked as to make proper attention to persuasion difficult, in more schools than clinical programs.  I would like to see schools providing every student with a solid foundation in persuasion through a strong Legal Practice/LRW course and then make advanced instruction in persuasion available in a range of formats, including clinical, simulation, and podium courses.  

Posted by Steve Lubet on November 14, 2024 at 11:31 AM | Permalink | Comments (0)

Monday, November 11, 2024

Interrogating Ethnography: Now Available in Chinese

Simplified characters (PRC)

Posted by Steve Lubet on November 11, 2024 at 04:12 AM | Permalink | Comments (0)

Saturday, November 09, 2024

Did Donald Trump Win the Election With “Abortion Federalism”? And Will He Really Keep His “Federalism Pledge”?

As I noted in an post written ten days before Trump won the presidency, Donald Trump invoked federalism to dodge the question of whether and how abortion ought to be regulated. In that post, I asked whether pro-choice voters would be reassured by Trump’s promise not to push for federal anti-abortion legislation but instead leave the question of a ban on abortion to the states. This promise took two forms: Trump tweeted a declaration that he “WOULD NOT SUPPORT A FEDERAL ABORTION BAN, UNDER ANY CIRCUMSTANCES, AND WOULD, IN FACT, VETO IT, BECAUSE IT IS UP TO THE STATES TO DECIDE BASED ON THE WILL OF THEIR VOTERS.” Trump also dumped the GOP’s 2016 platform plank that called for national legislation to protect fetal life, replacing it with a new abortion plank declaring that “the states…are free to protect those rights [to life].”

At least one commentator thinks that Trump’s victory on Tuesday answered my post’s question about whether federalism on abortion reassured voters. Over at the Atlantic, Elaine Godfrey argued that Trump’s success in states where pro-choice referenda were enacted by the voters suggests that Trump’s endorsing “abortion federalism” might have “neutralized” the abortion issue with pro-choice independents and Republicans.

If Godfrey is correct, then Trump’s achievement in using federalism to defuse a divisive issue is an extraordinary achievement. As I argue in a draft paper (posted on SSRN here, comments welcomed!), it is difficult to strike a compromise of bitterly contested issues through delegating that issue to state governments. My paper traces the history of the Democratic Party’s efforts to strike such compromises rooted in federalism from 1832 to 1932. I argue that most such efforts at federal compromise eventually failed. Van Buren, Stephen Douglas, and Grover Cleveland all tried to hold the Democratic Party together by sending divisive issues (banking, slavery, liquor regulation) to the states. Van Buren’s and Cleveland’s federalism formulae each succeeded for roughly three decades, but the former collapsed with the Civil War, while the latter collapsed with William Jennings Bryan’s evangelical takeover of the Democratic Party in 1896. Douglas’ “popular sovereignty” theory never even got off the ground, dying at the Democrats’ 1860 Charleston Convention

Trump’s initial success in using federalism to dodge the abortion question invites a predictive and a normative question, both of which I will discuss after the jump. First, will Trump do better than Douglas by holding the GOP together through his “federalism pledge”? Second, if Trump and the GOP actually stick with their federalism pledge and thereby reduce national conflict over abortion, then should we be reassured by a successful modus vivendi? Or is federalism just a dodge that ignores the importance of fundamental rights by allowing states to take different stances on a matter on which basic constitutional morality requires uniformity?

Continue reading "Did Donald Trump Win the Election With “Abortion Federalism”? And Will He Really Keep His “Federalism Pledge”?"

Posted by Rick Hills on November 9, 2024 at 05:22 PM | Permalink | Comments (13)

Saturday Music Post - A Rose Is a Rose

Today's post features Edith Piaf, Ben E. King, Linda Ronstadt, Patsy Cline, Neil Diamond, Gene Autry, Aretha Franklin, and more. The clips are at The Faculty Lounge.

Posted by Steve Lubet on November 9, 2024 at 06:36 AM | Permalink | Comments (0)

Thursday, November 07, 2024

JOTWELL: Michalski on non-adjudication

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg, No Adjudication, on how much litigation resolves without a judicial determination and without the filing of more than initial pleadings.

Posted by Howard Wasserman on November 7, 2024 at 11:15 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Trump victories and institutional statements

The Chronicle of Higher Ed (paywalled) notes the absence of statements from university leaders about the election of Donald Trump, compared with the dozens that followed the 2016 election. The story highlights new letters from the presidents of Wesleyan, American, Emerson, and Morgan State (an HBCU). It also notes that it has been two days--the big joint letter of more than 100 presidents came more than a week later.

The article speculates a bit about why. It points to the recent increase in schools adopting Chicago Principles and institutional neutrality.* I wonder if the size of Trump's victory and the nature of his expanded coalition matters. A message of "we stand with and support members of X group likely to be targets" does not fly when many members of X group voted for this. Nor can one frame a narrative of "the country does not want this and you are in office by fluke of a bizarre election mechanism"--national and EC majorities clearly do want this.

* It describes that shift as a "backlash to pointed statements from some presidents about protests over the war in Gaza." I question that framing. Many schools adopted neutrality in response to criticisms of their perceived failures to speak about October 7 and the events that followed--recognizing (for good or nefarious reasons) the bind that general political engagement had created for them and the need to escape the hurly-burly of politics.

A word on the statement from Wesleyan President Michael Roth (which we received via email yesterday). Roth opposes institutional neutrality and believes universities should take institutional positions. But a believer in institutional neutrality would be comfortable with and supportive of most of what Roth said here. Chicago principles do not require institutional silence; the Kalven Report said:

[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

Roth focuses on specific pieces of the college's mission and values that will be vulnerable in the coming political regime--recommitting to campus DEI efforts and to academic freedom. These concerns affect the college as an institution of higher ed, exactly what a president should highlight, discuss, and protect on behalf of his college. It goes beyond general politics and the generic "people throughout the country are scared, please reject hate and govern justly" that marked the 2016 joint letter. Roth includes some flowery stuff about democracy and the rule of law, but he ties it to core pieces of the higher-education endeavor.

Posted by Howard Wasserman on November 7, 2024 at 07:04 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, November 06, 2024

Sports Election Predictors

My quadrennial post. As when Trump won in 2016, they failed badly:

• World Series Missed: The National League Dodgers won the World Series (as they did in 2020, when Trump lost). This is now 18 for the past 30, 13 of 20 since the end of WW II, and 5 of 7 in the milenium (with Trump victories providing both misses).

Washington NFL Team Missed: The Washington Commanders beat the Bears in the final home game before the election (on October 27) on a last-play Hail Mary (that some were calling the Harris Hail Mary). As a predictor of a party retaining the White House, this is now 17/22, although wrong on the last four.

Ending Sports Droughts Hit: This favors Republicans. The Florida Panthers won their first Stanley Cup in franchise history and the New York Liberty won their first WNBA title. Each team has existed for less than 35 years (Panthers founded in 1993, Liberty in 1997) so these are short droughts compared with the Phillies winning the World Series for the first time after 97 years (Reagan in 1980) or the Cubs winning after 108 years ( Trump 2016) or the Red Sox after 86 years (W. 2004). Still "first title in franchise history" represents a milestone and breaks a meaningful drought regardless of how long a team has existed.

Finally, unrelated to sports but running through my mind this morning amid news of Trump's gains with Latino voters: The old saying was "Jews earn like Episcopalians but vote like Puerto Ricans." It turns out many Puerto Ricans do not vote like Puerto Ricans.

Posted by Howard Wasserman on November 6, 2024 at 12:08 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, November 02, 2024

Saturday Music Post - Do Right Woman, Do Right Man

"Do Right Woman, Do Right Man" was written for Aretha Franklin by Chips Morman and Dan Penn, and produced at the Atlantic Records studio in New York by Jerry Wexler. An earlier attempted recording at FAME Studio in Muscle Shoals was abandoned after an altercation between Franklin's manager (and husband) and the FAME producer. The release, with Franklin playing piano and her sisters singing backup, was listed as one of Rolling Stone's 500 greatest songs of all time.

Today's post has more audio clips than usual, because I couldn't resist. You can hear them at The Faculty Lounge.

Posted by Steve Lubet on November 2, 2024 at 05:25 AM | Permalink | Comments (0)

Friday, November 01, 2024

Conference on the Scholarship of Gordon Wood--Yale Law School (Nov. 22-23)

Posted by Gerard Magliocca on November 1, 2024 at 09:04 AM | Permalink | Comments (0)

Thursday, October 31, 2024

The Inconspicuous DHS

Apropos of Paul's post, I would recommend Chad Oldfather's The Inconspicuous DHS, written several months before RBG died.

Posted by Howard Wasserman on October 31, 2024 at 03:06 PM in Howard Wasserman | Permalink | Comments (0)

Wednesday, October 30, 2024

"The great ones..."

Reporters naturally use the best quotes from their interviewees and give them good placement. So one may be tempted to overread Georgetown Law professor Brad Snyder's quote in this story about Supreme Court justices and retirement, which makes the third graf:

“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”

Since the second part of the quote is as apt to describe hubris as greatness, and is untrue besides, it seems clear Snyder does not mean "great" in the sense of qualitative greatness. A later quote from Snyder in the story appears to confirm that: "'They are trying to keep power, and they are trying to stay relevant.'"

It is still worth lingering on the word "great" for a second even if Snyder is cleared of any charges here. "Great" seems accurate in some ways: Many of the most famous and influential justices have indeed served long terms and declined to leave early or even on time. John Marshall was the fourth-longest-serving justice and longest-serving Chief; Holmes, Thomas, and Ginsburg have all been celebrated, admittedly at various times and in varied circles, and all stayed past the point at which honor and fitness suggested they should step down. (Thomas is still serving.) 

This is not a coincidence. I refer readers to the June 1995 issue of the NYU Law Review, which contains an excellent symposium on judicial biography. Of particular note is a pair of articles--by G. Edward White and Sarah Barringer Gordon--about the historiography of judicial reputation and the canonization of judges as "great." As befits a great symposium, the writers are not all in agreement on all points. But they are widely agreed that justices like Holmes and Brandeis were not held up as "great" because there could be no doubt on the question; whether they would be held up as great, how that greatness would be described, and so on were all contingent questions.

I would add (as various commentators in the symposium do) that you need folks around to do the holding-up: a claque of former clerks, influential friends or followers, writers pursuing some ideological project, and others who become "invested," to quote White, in building and burnishing those justices' reputations (and, often, their own, or at least the reputation of the project they wish to advance) and defending them against critics. Longevity doesn't guarantee that you'll accumulate such a cadre of supporters, or that they will have the eloquence or status to push forward your canonization successfully. But it sure don't hurt any. The shorter your term of service, the fewer followers you'll have and the fewer opinions for people (preferably people with the right bylines) tp become attached to and lionize for political and ideological reasons as well as reputational ones. As former Justice David Souter observes in the story, "For most of us, the very best work that we do sinks into the stream very quickly."

Obviously, beyond the question of PR-and-politics, what constitutes judicial "greatness" is contestable, since it's a word--like "courage"--that's protean, a bucket that can be filled with many things and often has been filled in advance with a crude checklist of substantive results, rendering the epithet almost useless. So I'll just cast my own vote and note that the greatest justice discussed in the piece is in fact Souter, precisely because he provided a reasonable term of service and then left quietly--and, one might add, has further blessed us with a null set of post-tenure books, neither a weak-soup memoir nor a pamphlet scolding his or her replacements. ("Dies at __; Published No Books" will one day be a wonderful tribute of a headline to an obituary for a Supreme Court Justice.) It's in the graceful willingness to sink into the stream that the greatness lies. May we honor and forget such judges more often. 

Posted by Paul Horwitz on October 30, 2024 at 04:28 PM in Paul Horwitz | Permalink | Comments (0)

Bernie Sanders on Gaza and the Election

 

 

Posted by Steve Lubet on October 30, 2024 at 03:59 PM | Permalink | Comments (0)

Tulane Forrester Fellowship and VAP Positions - 2024

From Tulane Law School:

Tulane Law School invites applications for its Forrester Fellowship and Visiting Assistant Professor positions, both of which are designed for promising scholars who plan to apply for tenure-track law school positions. Both positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support and mentorship, a professional travel budget, and opportunities to present works-in-progress in faculty workshops. 

Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. If you have any questions about this position, please contact Erin Donelon at [email protected].

Tulane’s visiting assistant professor position is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation).  If you have any questions about this position, please contact Adam Feibelman at [email protected].  

Tulane is an equal opportunity employer and candidates who will enhance the diversity of the law faculty are especially invited to apply.  Please apply through interfolio: http://apply.interfolio.com/156399

Updated 8 November 2024 to fix link to Interfolio application.

Posted by Sarah Lawsky on October 30, 2024 at 05:04 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Tuesday, October 29, 2024

Be Very Afraid

Posted by Steve Lubet on October 29, 2024 at 02:02 PM | Permalink | Comments (0)

Monday, October 28, 2024

The Supreme Court's Recusal Rules May Have Fatal Consequences

My new essay for The Hill explains the impact of the Supreme Court’s recusal rules on Richard Glossip’s capital case. Here is the gist:

Justice Gorsuch’s recusal may have doomed a man to death

by Steven Lubet

[Richard] Glossip’s case is now before the U.S. Supreme Court, where his fate may actually be determined by the incoherence of the court’s recusal rules. 

Only eight justices were on the Supreme Court bench when Glossip’s case was called on Oct. 9. Justice Neil Gorsuch had recused himself months earlier before the Supreme Court granted Glossip’s petition for review. 

Gorsuch is among the court’s most conservative members, but his absence may nonetheless doom Glossip’s appeal. 

It takes five justices, however, to reverse a conviction; a 4-4 tie would leave the death sentence in force. Thus, Gorsuch’s recusal has the same effect as a negative vote. Even a small chance of winning his vote would have been a conceivable advantage for Glossip’s case. 

Under Canon 3B(3), “the rule of necessity may override the rule of disqualification.”  

How could the rule of necessity ever apply, if not in Glossip’s case? Can there be a worse result than the affirmance of the death penalty by an equally divided court?

You can read the full piece at The Hill.

Posted by Steve Lubet on October 28, 2024 at 12:03 PM | Permalink | Comments (0)

Saturday, October 26, 2024

Saturday Music Post - Norwegian Wood

"Norwegian Wood (This Bird Has Flown)" was released by The Beatles on the 1965 album Rubber Soul. The album itself was transitional, signaling the Beatles move away from simpler rock songs. "Norwegian Wood" was the first time that George Harrison (or anyone, I believe) played the sitar in British or American popular music. There is some dispute about the authorship. It is attributed Lennon-McCartney on the album, but John later claimed to have written it himself, with only minimum input from Paul. After Lennon's death, however, McCartney insisted that it was a fully joint composition. According to Wikipedia, the song is about one of Lennon's extramarital affairs, but who knows?

You can draw your own conclusions from the clips at The Faculty Lounge.

Posted by Steve Lubet on October 26, 2024 at 06:23 AM | Permalink | Comments (0)

Friday, October 25, 2024

Phil Lesh, Bassist Who Anchored the Grateful Dead, Dies at 84 [UPDATED]

New York Times obituary here.

Most enigmatic passage: 

In the wake of the band’s disillusion, Mr. Lesh formed the Other Ones along with other key members of the Dead in 1988. 

Typo or commentary?

UPDATE: Both typos have been corrected to read "In the wake of the band’s dissolution, Mr. Lesh formed the Other Ones along with Mr. Weir and Mr. Hart in 1998."

Posted by Steve Lubet on October 25, 2024 at 04:56 PM | Permalink | Comments (0)

Trump’s and Blaine’s Use of Federalism as an Artful Dodge on Abortion (2024) and Booze (1884)

With less than ten days left before Election Day 2024, it seems like a good time to discuss James Blaine versus Grover Cleveland, 1884. In particular, I am interested in whether Trump’s use of federalism to dodge the issue of abortion in 2024 will work better than Blaine’s similar effort on the issue of prohibiting alcoholic beverages one hundred and forty years ago.

Quick refresher for those of you who are not obsessed with Gilded Age politics. Blaine was the Republican nominee, Cleveland, the Democratic one. Back in 1884, the dominant culture war issue was alcohol: Evangelical reformers wanted to ban it and formed their own political party, the Prohibition Party, to push for such a ban at both the state and federal levels. Because evangelicals were disproportionately Republicans, Blaine was pressed to take a position on the question of Prohibition. To his great annoyance, the Reverend Samuel Burchard tried to nudge Blaine and the GOP towards Prohibition with his famous speech denouncing Democrats as the Party of “Rum, Romanism, and Rebellion.”

Despite Burchard’s exhortation, it was political suicide for Blaine to endorse a ban on liquor and alienate millions of Lutheran German and Irish Catholic voters in New York and the Midwest, so Blaine evaded the Prohibition question by embracing federalism. The control of alcohol, Blaine argued, was a matter for the states to decide. As a candidate for national office, therefore, he could take no position on the question — not even to reveal how he, a citizen of Maine, planned to vote on an 1884 state referendum banning alcohol. (He claimed that he wouldn’t vote at all on the ballot measure).

Did federalism work for Blaine as a way to avoid taking a stance on a controversial issue? Well, Blaine obviously lost. More relevant, perhaps, is how Blaine was ridiculed for being an “artful dodger” because he would not take a stand on booze. (See, e.g., this cartoon by Thomas Nast).

One hundred and forty years later, Trump is now repeating Blaine’s federalism strategy on abortion, declaring that abortion regulation is a matter for the states to decide and even going so far as to promise that he would veto any federal bill that protected a fetal right to life. After the jump, some thoughts on whether (1) Trump’s use of federalism will work any better than Blaine’s did and (2) federalism should be seen as an artful dodge rather than a reasonable way to hold a polarized nation together through a principled compromise.

Continue reading "Trump’s and Blaine’s Use of Federalism as an Artful Dodge on Abortion (2024) and Booze (1884)"

Posted by Rick Hills on October 25, 2024 at 03:15 PM | Permalink | Comments (8)

Morality and why politics is not sport

This by Josh Chafetz captures the problems with "it's just politics and not worth destroying family and friendships" (most recently by J.D. Vance during a campaign event). Josh's key insight is that politics is not a hobby; it is a means to the ends of how we live. And one reasonably can (and perhaps should) have a line at which another person's views and desires of how we should live outweigh friendship. The debate is about where people draw the line, not about whether people should draw the line.

This is bound up with the sportification of politics. Politics is sport--games we watch for fun without real-world consequences. So if I can marry an Orioles fan or talk college sports at Thanksgiving with my uncle who went to the rival college or be friends with a White Sox fan, I can do the same with a person whose political preferences, if enacted into law, would strip my child of basic rights.

Posted by Howard Wasserman on October 25, 2024 at 10:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Florida Resignation Question

Regarding attorney John Wilson's resignation from Florida Gov. Ron DeSantis's Department of Health, Howard asks:

What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

The best answer is from Justice Felix Frankfurter's 1949 dissent in Henslee v. Union Planters National Bank:  "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

Posted by Steve Lubet on October 25, 2024 at 06:56 AM | Permalink | Comments (0)

Thursday, October 24, 2024

Shabbat and high-leverage World Series games

I am not sure I understand the point of this article about how the switch to the World Series beginning Friday night uniquely adversely affects the large Orthodox communities in New York and Los Angeles. Historically, the World Series played on Tuesday and Wednesday; Friday, Saturday, Sunday; then Tuesday and Wednesday (if necessary). Now it goes Friday and Saturday; Monday, Tuesday, Wednesday; then Friday and Saturday (if necessary).

So there always have been games Friday and Saturday, including when the Yankees and Dodgers played in 1977, 1978, and 1981. In fact, it was worse back then because they played Game Four on Saturday afternoon, meaning Orthodox fans missed all or most of two games.

The article seems to argue that the difference is that now Orthodox Jews miss significant or high-leverage games. Opening game has unique majesty and pageantry. And according to a 2014 SABR study, the team that wins Game One wins the Series about 64 % of the time. And Game Six will now be on Friday night, so they cannot watch the clincher of a close-but-not-to-the-wire Series. This contrasts with the past scheme, in which they missed a non-clinching Game Three and the clincher of a sweep.

The article's premise that this is a new problem seems a stretch, although I am not Orthodox. My only concern is that the National League team win, a far cry from my childhood when I lived and died with the Yankees.

Posted by Howard Wasserman on October 24, 2024 at 03:11 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, October 22, 2024

Attorney courage and state interference

More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.

As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.

As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

Posted by Howard Wasserman on October 22, 2024 at 10:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 21, 2024

Annals of Irony

Joan Wallach Scott has a new article in Daedalus (reprinted in the Journal of Free Speech Law) titled “Academic Freedom & The Politics of the University,” in which the introduction notes: “In one of those inversions of meaning so adroitly practiced by the right, censorship is being enacted in the name of free speech and/or academic freedom.”

Scott, of course, is one of the leading voices promoting academic boycotts in the name of academic freedom – especially in support of the AAUP’s reversal of position – just the sort of inversion that her essay claims to abhor. Perhaps needless to say, Scott’s Daedalus piece mentions this discrepancy not at all. Her sole reference to Jews or Israel is to the asserted confusion of ‘political disagreement with discrimination, as when Zionist students, protesting a teacher’s presentation of material that calls into question Israel’s official story of itself, claim they do not feel ‘safe’ in the face of what they deem anti-Semitism.”

Unlike other situations, there is no citation for this claimed confusion, much any mention of explicit antisemitism on campuses. Scott’s accompanying example of anti-Muslim prejudice, with citation to the events at Hamline University, concludes that the “student grievances had to do with structural issues that were not being addressed,” even though the specific “safety” complaint was unfounded. Jewish students, it seems, are unable to raise “structural issues.”

Posted by Steve Lubet on October 21, 2024 at 07:18 AM | Permalink | Comments (0)

Saturday, October 19, 2024

Saturday Music Post - Breaking up Is Hard to Do

First released in 1962, "Breaking Up Is Hard to Do" became Neil Sedaka's signature song. Co-written with Howard Greenfield, his frequent composing partner, the original had a teenage pop tempo, introduced by nonsense lyrics and backed by The Cookies. Lenny Welch released it as a torch balled in 1970, also arranged by Sedaka and Greenfield, with a very different intro. Sedaka himself released the slow tempo version in 1975. It was only the second time an artist had two Billboard top-ten hits -- number 1 for the original and number 8 for the second release -- with two different renditions of the same song.

Born in Brooklyn to a Sephardic family -- his last name is a slight transliteration of tzedaka, which means charity in Hebrew -- Sedaka was classically trained at the Julliard prep division, but he gave it up, breaking his mother's heart, to pitch songs at the Brill Building. He was the original lead singer of The Tokens, but he quit before they recorded The Lion Sleeps Tonight. His first solo hit was "Oh Carol," named after Carol King, whom he had dated in high school. King released a less successful answer song, "Oh Neil," written with her then-husband Gerry Goffin, who was in on the joke.

There are two surprises and a question at the bottom of today's post on The Faculty Lounge.

Posted by Steve Lubet on October 19, 2024 at 04:54 AM | Permalink | Comments (0)

Friday, October 18, 2024

More free speech in Free Florida

Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.

Some thoughts on the suit and the decision:

• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.

• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.

    Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.

    I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without

• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."

    The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.

• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."

Posted by Howard Wasserman on October 18, 2024 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, October 17, 2024

Limits of private enforcement in a mixed scheme

In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.

And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's

A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.

So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.

We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.

Posted by Howard Wasserman on October 17, 2024 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 16, 2024

NCAA adopts too-many-men limiting rule

The NCAA adopted a limiting rule in response to the too-many-players penalty in the Oregon-The Ohio State game. It creates a unique penalty for too many players "actively participat[ing] in a down," giving the offense five yards and the option of having the game clock reset to the time at the snap.

This differs from the NFL's solution. This is is not a dead-ball infraction; the teams must run the play against the extra defenders. But the clock reset leaves the teams in the same place, eliminating the perverse incentive for the defense by eliminating any benefit on the play.

Posted by Howard Wasserman on October 16, 2024 at 10:30 PM in Howard Wasserman, Sports | Permalink | Comments (0)

A Question for the AAUP and FIRE [UPDATED]

What if a hypothetical professor were to write (paraphrasing Muhlenberg College's Prof. Finkelstein),

Palestinians are an ethnic group, but Palestinian nationalism is a political ideology. Palestinian nationalists must be shamed and their presence must not be normalized in our space.

Would that be a defensible expression of academic freedom, or would it be evidence of unfitness to teach "social justice" courses?

I think we know the answer. Feel free to substitute the political view of your choice.

(Note: I doubt and hope no professor would ever make such a statement. Students of all groups and political views have always been welcome and respected in my classes.)

UPDATE: I unintentionally left comments open when I posted this. In fairness, I will leave them open until 5:00 CDT, but will monitor for relevance and civility.

Posted by Steve Lubet on October 16, 2024 at 07:52 AM | Permalink | Comments (5)

Tuesday, October 15, 2024

The AAUP's Continuing Failure to Recognize Antisemitism

In its investigation of Maura Finkelstein's dismissal by Muhlenberg College, the AAUP has taken it upon itself to determine "whether expressions of opposition to Zionism or the government of Israel can be tantamount to antisemitism." Note the phrasing. It isn't whether Finkelstein's anti-Zionism was in fact tantamount to antisemitism, which would be a legitimate subject of investigation (although ultimately irrelevant to her discipline, in my opinion). Rather, the AAUP asks whether anti-Zionism can be tantamount to antisemitism, as though that is an open question. Would any reasonable person argue the opposite proposition, that anti-Zionism cannot be tantamount to antisemitism?

As if there were any need to establish the connection, the following arrived in my inbox shortly after my recent essay was posted in The Hill:

It boggles my mind how Jews think they should be protected from prejudice when one only has to read the English-language Jewish press and watch rabbis on YouTube to view some of the most virulent hate toward the majority of humanity, because they are NOT Jewish. You can't spew hate, and not expect it to come back to you. All Zionist have to do if they want people NOT to attack them is leave humanity alone, there is enough here for all of us! Humanity is not here to be the slaves of Jews as far too many modern rabbis claim. Zionists have made themselves the enemy of humanity by working behind the scenes to create a super state of Israel for a minimum of five hundred years! (Boldface original.)

It would be great if the AAUP would actually investigate the extent to which anti-Zionism is tantamount to antisemitism, but I don't think they would like what they find.

Finkelstein, as I explained in The Hill, has endorsed shaming Zionist students and not normalizing Zionists "taking up space," presumably in her classes, which she justifies by saying "Judaism is a religion" and "Zionism is a political ideology." But even if her contested distinction is correct, the shaming of Zionist students would still be political discrimination, which is misconduct for a college professor. 

The AAUP letter, of course, says nothing at all about anti-Zionism as political discrimination. Perhaps the actual investigation will do better.

(And before anyone rationalizes the AAUP letter as just poorly drafted, let's say (1) it was written by university professors who presumably know how to write, and (2) the drafting reveals their underlying assumptions, if nothing else.

Posted by Steve Lubet on October 15, 2024 at 04:25 AM | Permalink | Comments (0)

Monday, October 14, 2024

No, Muhlenberg College Did Not Fire a Professor Simply for Pro-Palestinian Speech

My new essay just posted at The Hill, explaining that Prof. Maura Finkelstein’s advocacy of shaming and excluding “Zionists” from her “space” was professional misconduct for a college professor. (Dismissal still seems overly harsh, unless there is more to the story than we know so far.)

Here is the gist: 

Zionists are students too: University professors should take heed

by Steven Lubet

Muhlenberg College Professor Maura Finkelstein drew national attention when she claimed to have been fired from her tenured position for “pro-Palestinian speech.” 

[I]t is seriously misleading to assert that she was dismissed for pro-Palestinian speech.  

Finkelstein’s words . . . show that she actually engaged in professional misconduct involving profound disregard for the educational rights of many Muhlenberg students.  

“Do not cower to Zionists. . . . Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide-loving fascists be treated any different than any other flat-out racist. Don’t normalize Zionism. Don’t normalize Zionists taking up space.”

Coming from a professor of cultural anthropology, even as a repost, it urges the belittlement and exclusion of most of her Jewish students, a significant majority of whom would be described as Zionists according to recent surveys.  

“Judaism is a religion,” she said, but “Zionism is a political ideology,” which is not a legally “protected class.”  

Political ideology discrimination may not violate Title VI of the Civil Rights Act, but it is nonetheless misconduct for a college professor.

Under the American Association of University Professors widely followed Statement of Principles on Academic Freedom and Tenure, “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.” 

Is a professor fit to teach undergraduates, some of whom are “Zionists,” if she has inveighed against “normalizing” their presence in her space, which presumably would include her classroom? 

You can read the entire piece at The Hill.

Posted by Steve Lubet on October 14, 2024 at 10:08 AM | Permalink | Comments (0)

Vagaries of public enforcement

As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.

Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).

The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.

In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.

Posted by Howard Wasserman on October 14, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, October 13, 2024

Intentional too-many on the field on OU-TOSU

Oregon beat The Ohio State 32-31 Saturday night. The game was marked by a fortuitous or intentional late-game Oregon penalty.

Oregon lead by 1 with 10 seconds left and Ohio State with the ball on the Oregon 43 yard-line. Following a timeout, Oregon took the field with an additional deep safety (thus blocking any deep passes). The defense broke-up a short pass and ran four seconds off the clock, although it incurred a five-yard too-many-players penalty. But those five yards did not move TOSU into field-goal range, while the four seconds lapsed left time to run only one Hail-Mary. No one knows whether Oregon did this intentionally and Coach Dan Lenning did not say.

I wrote about this strategy in my Infield Fly Rule book, identifying it as a play requiring a limiting rule a la the IFR. The Giants unintentionally achieved the same effect at the end of Super Bowl XLVI, incurring a penalty when a twelfth defender was unable to leave the field (although he was not involved in the play) but gaining a time advantage that kept the Patriots from scoring the winning touchdown. Buddy Ryan designed this as "Polish Goal Line Defense," featuring three extra defenders to stop a goal-line play. I argue in the book that cost-benefit exchange on this play is not entirely one-sided (as with the IFR)--the disadvantaged team gains the benefit of five yards and the infringing team gains the benefit of lapsed time. But in this game situation, the former benefit is meaningless while the latter is overwhelming, effectively creating a one-sided exchange.

The NFL addressed this about a decade ago (following SB XLVI), introducing a dead-ball infraction for having too many players in formation (that is, ready to be involved in the play); the play is whistled dead and no time runs off the clock when officials identify the extra defender. This removes the incentive to intentionally incur the penalty by removing the time benefit. College football does not have this infraction, so the refs could not call the penalty until after the play. See if the NCAA makes this change after the season.

Posted by Howard Wasserman on October 13, 2024 at 01:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, October 12, 2024

Saturday Music Post - As Time Goes By

"As Time Goes By" is immediately recognizable from Dooley Wilson's 1942 performance in Casablanca, but Herman Hupfeld actually wrote it in 1931 for the forgettable Broadway musical Everybody's Welcome. It was first recorded by Rudy Vallee in 1931, and of course covered many times since then. The American Film Institute voted it the number two movie song of the twentieth century ("Over the Rainbow" was first).

You can see those clips and others at The Faculty Lounge.

Posted by Steve Lubet on October 12, 2024 at 07:27 PM | Permalink | Comments (2)

Friday, October 11, 2024

ABA proposes constructive change to law school diversity mandate

The ABA Section on Legal Education and Admissions to the Board (abbreviated for the rest of this post as simply the ABA) is proposing a revision of its diversity mandate to something that speaks of “access to legal education and the profession.”  Karen Sloan gives a crisp overview in Reuters here.  This is both more and less than meets the eye.  “More,” in that it disavows the longstanding, and not uncontroversial, mandates of diversity requirements in faculty and student body composition.  Even though on its own terms this did not describe a diversity quota in any quantitative terms, counting the number of faculty and students from diverse racial and ethnic backgrounds has become a de facto requirement under interpretations of the rule.  And so the practice for teams evaluating law schools and submitting reports to the accreditation bodies of the ABA, not to mention specific questions on the ABA’s omnibus questionnaire, have focused squarely on numbers.  In sum, law schools were expected to have a suitably diverse student body and faculty and evaluation of numbers. If, upon initial review, results were inadequate, there would be sustained interrogation into reasons for the diversity deficit, along with clear explanations of how they might improve on these quantitative dimensions.  The revised standard makes it much harder to continue to implement these numbers-based goals, and we can only speculate about how, if at all, the ABA accreditors could and would operationalize the objectives of “access.”  So it would seem that the new protocol, if adopted, would reflect a meaningful change.  There is, too, “less” than meets the eye, insofar as the ABA continues to require meaningful action by law schools.  The continuing insistence that law schools provide access and opportunity reveals that the SFAA v. Harvard, et al decision does not drive the ABA from imposing standards on law schools that speak to the need for ensuring that individuals of traditionally disadvantaged groups can access legal education and, further, that law schools have a responsibility to the profession to ensure that there is sufficient access and opportunity. 

A critical mass of law school deans currently read this proposed change as a major retrenchment in its equality commitments.  Forty-four deans, from a fairly wide cross-section of law school, have penned a letter objecting to this change.  They object to what they see as a crabbed reading of the Supreme Court’s recent affirmative action decision and view the ABA as succumbing to an interpretation that would in effect withdraw the depth and breadth of scrutiny that this accrediting body had given to law schools who failed to achieve adequate diversity goals (read numbers).  To quote from the letter: “The current version of ABA Standard 206 is right in expressing a commitment to diversity, which is integral to the education of all of our students and in preparing them to be lawyers. The ABA thus should continue to insist that law schools take steps to ensure a diverse student body and a diverse faculty, consistent with the Constitution.”

The gist of the letter, that the SFAA decision does not mean essentially “equality game over,” is something about which I can enthusiastically agree with, given the strong and proud tradition of seeking and securing diversity in American law schools, and I commend these deans for pushing our accreditor to preserve that tradition as they continue to carry out their oversight function.  What is problematic in the letter, however, is the element that is missing – the elephant in the room, as it were – and that is that these deans well know (or certainly should know) that the ABA has long been treating this commitment as much more than an expression of equality goals, but as a mandate for measurable diversity results.  Moreover, it would strain credulity to suppose that the ABA does not understand that the realization of such goals requires some adjustment in both the admissions and faculty hiring standards that would be imposed in the absence of such mandates.  This is what law schools said directly to the Court in the Grutter v. Bolinger litigation in 2003, and what undergirded similar efforts, although here unsuccessful, to move the Court in SFAA.  To put the point more plainly, realizing these objectives has meant that the vast majority of law schools, as a practical matter, have had to engage in some amount of racial preferences in order to meet their diversity objectives.  We can best understand the ABA’s diversity mandate as essentially saying:  “Y’all got to do what you got to do, with respect to admissions and faculty hiring, and we are telling you to implement any particular method, so long as the outcomes of your processes meet the diversity mandates of this accrediting body.” 

We can argue, respectfully, about the merits of such numbers-focused mandates, but I suggest that the argument for maintain the current diversity mandate needs to honestly account for two facts on the ground.  The first fact, which I have labored to describe above, is that no matter how aspirational sounding the ABA is in the text of their current diversity mandates, it has long been read by the ABA and law schools alike as a numerical floor; and, further to that point, the ABA council working on accreditation and the teams assembled to review law schools know that they are asking law schools to make meaningful tradeoffs and adjustments in realizing the simultaneously important goals of meeting numerical measures in admissions (I will temporarily leave aside faculty hiring as a more complex and, for that reason, fraught process where folks quarrel about how exactly “quality” and “fit” is measured), for rankings and other purposes and the goals of ensuring that the law school is suitably diverse.  No one should mistake this mandate for flexibility in assessing results; nor should we think of the ABA as fomenting a vision of American law schools as true laboratories of experimentation.  That’s not the way it works; not for many decades.  The other fact on the ground is more complicated, and that is the ultimate interpretation of the Court’s decision in SFAA.  In their letter, the deans argue plausibly that “rather than requiring ignorance of race in admissions decisions, the majority approved race-consciousness in the context of evaluating applicants' essays. In doing so, the majority made clear that schools may continue to pursue diversity among students and faculty – and may even account for racialized experiences in admissions essays and the like– so long as they do so in a constitutionally permissible manner.”  However, this begs the question of what the opinion means for a policy that is designed by the ABA to ensure that certain numerical diversity goals are met.  I would suggest that if we take the first fact on the ground as true – that is, this mandate has long been viewed as a numerical requirement of sorts – then it is implausible to believe that the federal courts would assent to admissions processes that have the clear effect, if not the intent, to ensure that numerical goals are met by any means necessary.  Not being a sitting dean, I have not been in the room where conversations involving deans, admissions administrators, and perhaps University lawyers are discussing how diversity goals can be realized with changes to admission policies as required by the Court’s decision and without risking further scrutiny that would put their policies at risk. I do not at all envy law school leaders making these difficult decisions.  Nonetheless, to the point of this post, the reading of the Court’s decision as ultimately agnostic on the question of how precisely the ABA goes about in ensuring that law schools have a suitably diverse student body and faculty seems, as we say in our classrooms, a fairly strained reading of the contemporary legal tea leaves.  As Brian Leiter persuasively summarizes the point:  “[The deans reading] is a plausible, but it seems to me optimistic, reading of the import of the SFFA decision.  Given the current composition of SCOTUS, I will be surprised if, when asked to clarify this import, this reading will be vindicated.”

For all that, can we something more cheerful about the ABA’s proposed revision?  The focus on access and opportunity may well be designed, as the deans’ letter insists, to thread the constitutional needle constructed by SFAA.  But if understood as not a retreat, as the forty-four deans maintain, but as a renewed focus on goals that are congruent with the larger and quite worthy goals of the profession, and that is that our law schools should be committed to access to their programs by all talented and committed individuals, than the ABA’s reshaping of its basic requirement is indeed quite compelling.  Access to the profession supplements what is a growing emphasis in the legal profession more generally on access to justice.  We need law students and faculty of diverse backgrounds and perspectives, including those from traditionally disadvantaged groups, because we want a profession that can implement as one its critical missions service to justice and to the rule of law.  Diversity in our teaching and learning functions does not ensure on its own that these missions will be furthered, but it at the very least gives the public greater confidence that the legal profession is attentive to the needs, wants, and problems of ordinary Americans. 

Access to legal education and the profession will be difficult to measure quantitatively and this is not necessarily a bad thing.  So long as the ABA is in the accreditation mandate business, we can envision creative requirements, evidence-based and fairly administered, that enable law schools to improve access and likewise enable the ABA to evaluate progress.  Overreliance on mere numbers, and, worse yet, numbers that are habitually decoupled from more nuanced considerations such as the demographics of the region, the conditions of the legal marketplace, including seemingly prosaic matters such as cost and length of the program, have proved problematic.  And this is aside from potential legal obstacles reflected in the Court’s SFAA decision and its aftermath.  Credit the ABA for designing a new requirement that will lead to alternative ways of measuring access and opportunity.  Law schools will experiment; visiting teams will kick the tires and look under the hood; and hopefully some best practices will emerge.

There is a “gotcha” moment in the deans’ letter, wherein they claim to see through the ABA’s stated rationale for the reform and view the organization as succumbing to the “political agenda” of “opponents of racial equality.”  To be sure, there are indeed such groups and they have pressed hard against diversity mandates and all the elements of what they see as the misguided DEI woke agenda.  But this is hardly gotcha when we broaden our perspective to see the ABA as reexamining the merits of their manifestly numbers-focused diversity agenda in light of practical considerations (Has it worked in the ways intended? Has it created unnecessary burdens on law schools in constructing and implementing their programs under complex financial and political realities).  Moreover, the effort to accommodate political realities in a deeply fractured polity can be seem as commendable rather than a capitulation to what the deans explicitly see as the baleful influence of folks who lack any commitment to redressing racial wrongs and addressing inequalities in legal education and the profession.  It is notable that a large group of state attorneys general, led by my own AG in deep-blue Illinois, Kwame Raoul have publicly supported these revisions.  Whether the ABA continues to impose meaningful access and opportunity requirements on law schools remain to be seen, although the prediction that it will is supported by practices over the course of many years, not to mention the resolve to do good and to do better, which, in my experience, is shared by every leader in legal education. 

Posted by Dan Rodriguez on October 11, 2024 at 11:50 AM in Daniel Rodriguez | Permalink | Comments (3)