Sunday, July 18, 2021

Best Jewish teammates?

Joc Pederson was traded from the Cubs (as part of an impending firesale by a cheap-and-mismanaged organization) to the Braves, where he teams with lefty starter Max Fried. In their first game together last night, Pederson went 2-for-5 with a two-run homer and Fried struck out seven in seven shutout innings (and had three hits, raising his season average to .333).

Are Fried and Pederson the best pair of Jewish players on one team? What other teams have had two (or more) top-tier Jewish players at once? Going backwards in history:

    • Third-baseman Alex Bregman and catcher Garrett Stubbs have been teammates on the Astros for most of the past three seasons. Bregman is a star and MVP runner-up in 2019, but has been hurt much of the past two seasons. Stubbs is a back-up and rarely plays.

    • Outfielder Danny Valencia and pitcher Richard Bleier were teammates on the 2018 Orioles. Bleier was an effective situational reliever, going 3-0, striking out 4 batters per nine innings. Valencia played in 78 games in his final season in the Majors. And the Orioles went 47-115.

    • Kevin Youkilis and Gabe Kapler were teammates on the Red Sox from 2004-06. Both were bench players for the first two seasons. Youkilis became a starter in 2006, but Kapler played in only 72 games.

    • Ken Holtzman and Elliott Maddox (African American, converted to Judaism) were teammates with the Yankees for part of 1976, a season in which the team reached the World Series.  Holtzman was part of the starting rotation and won 9 games, but was on the downside of his career; Maddox was a spot outfielder.

    • On the 1972 World Champion A's, Holtzman won 19 games and made the All Star team, while Mike Epstein was the starting first baseman who hit 26 home runs and garnered some MVP votes. In 1973, Holtzman won 21 games and made the All Star team, but Epstein was run out of town after playing in 118 games.

    • The Dodgers had pitcher Larry Sherry from 1958-63; his brother Norm, a catcher, from 1959-'62; and a lefty named Koufax. Norm was a career backup. Sherry was primarily a reliever, although an effective one; he won 14 games in 1960 and 7 games and World Series MVP in 1959. Koufax did not become KOUFAX until 1961, at which point both Sherry brothers were less key players.

So I think the Holtzman/Epstein duo, although it lasted only one year, is the one to beat, accounting for team and individual performance. Pederson has not hit well this season, but he still has power and will be the everyday right-fielder for a team trying to get back into the pennant race. Fried has been inconsistent this season, but has won his last two games and is the best pitcher on the staff. Can they (and the team) get hot in the second half and pass them?

Did I miss other good examples?

Posted by Howard Wasserman on July 18, 2021 at 02:21 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Saturday, July 17, 2021

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

Continue reading "Random free speech items in the news (Update)"

Posted by Howard Wasserman on July 17, 2021 at 12:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 16, 2021

Congress and universal injunctions

My latest, published at Cardozo Law Review De Novo. The essay analyzes the role of Congress in ending the controversy over universal/non-particularized injunctions. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

Posted by Howard Wasserman on July 16, 2021 at 04:04 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Hiring Notice: University of Alabama School of Law

I am pleased to forward the following hiring notice from the University of Alabama School of Law:

The University of Alabama School of Law seeks to fill up to three tenure-track positions for the 2022-23 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Contracts, Environmental Law & Regulatory Compliance, and Family Law; however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Interested candidates should apply online at https://facultyjobs.ua.edu/postings/48458. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Adam Steinman, Chair of the Faculty Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on July 16, 2021 at 10:26 AM | Permalink | Comments (0)

Cosby, justice, and what we teach our students

The following is by my FIU colleague Scott Fingerhut, who is Assistant Director of the Trial Advocacy Program and practices criminal defense.

 

 

Continue reading "Cosby, justice, and what we teach our students"

Posted by Howard Wasserman on July 16, 2021 at 09:31 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Thursday, July 15, 2021

Who gets to cancel?

Four people have been arrested (and more arrests appear likely) over online racist abuse directed at the three members of the English soccer team who missed penalty kicks in Sunday's Euro finals.

Such arrests would be impossible in the U.S>, because racist speech is protected. (Or likely protected--we would need to know more about what exactly these people said and did and whether the context pushes it into an unprotected category such as harassment or fighting words). Instead, these speakers would have been subject to a range of private consequences. Their identities might have been exposed and they might have been ridiculed, criticized, shunned, and dismissed from jobs and other positions. That is, private people would have expressed their disagreement with and criticism of the original speakers and their racist speech, in the face of more limited government power to do so.

So two points. First, this illustrates the problem with the derisive label "cancel culture." What I described above is counter-speech, the Brandeisian remedy for evil counsels; to write it off is to leave some able to speak but not others or to control how speech is exercised. Second, this illustrates the divide between the U.S. and Europe over hate speech and presents the question of which approach is superior--privately administered consequences or government-imposed consequences.

Posted by Howard Wasserman on July 15, 2021 at 12:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 14, 2021

Constitutional rhetoric meets constitutional litigation

In an email exchange, someone highlights ¶¶ 17-19 of the SB8 Complaint:

17. At bottom, the question in this case is whether Texas may adopt a law that sets about to “do precisely that which the [Constitution] forbids.” Terry v. Adams, 345 U.S. 461, 469–70 (1953) (striking down a Texas law attempting to insulate white-only political primaries from federal court review). 

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect. 

19.Plaintiffs urgently need this Court to put a stop to Texas’s brazen defiance of the rule of law and the federal constitutional rights to which Texans are entitled.

That sounds nice in the abstract. But it does not describe how constitutional litigation works. Federal courts do not stand ready to strike down invalid laws (because they do not, in fact, "strike down" anything) whenever a plaintiff asks. Nor are federal courts the only forum in which constitutional litigation occurs. There is a process, beginning with someone enforcing the law. Where that enforcer is a state actor and enforcement is imminent, rights-holders can go to federal court in what is (in this case) essentially an anti-suit injunction. When enforcement is not imminent or when the enforcer is not a state actor, it must follow a different process of defensive litigation in state court. The plaintiffs' argument is that the former process is constitutionally required as a matter of due process; that has never been the case.

Here is the analogy I have been using: A state enacts a defamation statute that is inconsistent with New York Times v. Sullivan (e.g., allows liability for any plaintiff on simple negligence). That law is invalid under prevailing First Amendment doctrine. But pre-enforcement litigation would be impossible, because there is no one under color charged with enforcing that law. The First Amendment would be available as a defense if and when a speaker is sued for his protected speech. And that is true of the parade of horribles in ¶ 18. The Constitution does not require anything more.

Posted by Howard Wasserman on July 14, 2021 at 03:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SB8 lawsuit

I am in the early days of a co-authored piece on Texas' fetal-heartbeat law, including why pre-enforcement federal litigation may be impossible. Complicating that argument, reproductive-health providers in Texas on Tuesday filed suit in federal court. Much of this will become part of the article. But some analysis after the jump.

Continue reading "SB8 lawsuit"

Posted by Howard Wasserman on July 14, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Ron DeSantis says the quiet part out loud, undermines anti-protest laws

Protesters opposing the Cuban government blocked several Miami-area roadways Tuesday, including a major highway. Police responded by shutting down the highway, creating buffers a great distance from the protesters in either direction and routing cars off the road, allowing protesters to do their thing. They "negotiated" an end to the protests and reopened the roads around 11 p.m. last night, almost twelve hours after the protests began.

Florida Governor Ron DeSantis famously signed an "anti-riot" bill. A protester can be cited for "willfully obstructing the free, convenient, and normal use of a public street, highway or road." Penalties are enhanced if someone blocks a roadway during a protest that comes to destroy property. And the bill provides immunity for anyone who runs over a protester in the street. But  police attempted to negotiate and keep the protesters safe, but never issued a dispersal order. No one was cited yesterday and police made sure no drivers got anywhere near the protesters by blocking the roadway.

DeSantis was asked about this; the Miami Herald describes his answer:


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

“What is going on in Cuba in particular, those are not simply normal, run-of-the-mill protests like we see here in the United States. They don’t have freedoms respected there, whereas in the United States, you have a panoply of freedoms that are respected,” DeSantis said. “They are seeking an end to the regime itself.”

He added: “They are trying to end the regime. So that is fundamentally different from what we saw last summer where people were burning down buildings — and this was fortunately not happening in Florida to a large extent — burning down buildings, looting, breaking windows and targeting law enforcement and all those things.”

This is incoherent. The extraordinary measures that people in Cuba are taking to end the regime and their lack of a "panoply of freedoms" has nothing to do with protesters in Miami, who have that panoply and are able to engage in "normal, run-of-the-mill protests." They chose this method of protesting, apparently to draw maximum attention to the cause (which, logic suggests, is what every group wants to do). Many BLM protests got out of hand when police confronted protesters, issued dispersal orders (often very quickly and simply because the gathering was large), and attempted to clear the protesters--that never happened yesterday. Finally, the BLM protests "target[ed] law enforcement" only in the sense that their protests criticized and sought to change the behavior of law enforcement, just as Tuesday's protests criticized and sought to change the Cuban regime. So the difference, according to DeSantis, is the subject of the protest--targeting law enforcement is bad and grounds for mass arrests for blocking highways, targeting the Cuban regime good and grounds for law-enforcement to allow a major roadway to be shut down for half a day.

The anti-riot law, which is the subject of several ongoing First Amendment lawsuits, is an example of a law written in content-neutral terms but has a content-based motivation and is likely to be enforced in a content-based manner. Yesterday's events illustrated that point. We saw how police responded to similar actions during the 2020 protests, before the new law was enacted. And we saw how police responded yesterday, with the new law in place. Combined with DeSantis' statements distinguishing anti-Cuba protests from anti-police protests, the lawyers challenging these laws have a new piece of evidence for arguing these laws are content- (if not viewpoint-) discriminatory.

Just to be clear: I am not criticizing the protesters; breaking laws to protest injustice is a storied free-speech tradition. And police should give protesters a certain amount of leeway for spillover. But the response of police and the governor illustrate First Amendment problems with Florida's vaunted laws enacted less than three months ago.


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

Posted by Howard Wasserman on July 14, 2021 at 07:44 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 13, 2021

Will Jacob Steinmetz play on Yom Kippur?

Jacob Steinmetz, an Orthodox Jew and recent high-school graduate, was drafted in the third round (77th overall) by the Arizona Diamondbacks, putting him on path to possibly/maybe/perhaps/if-everything-breaks-right being the first Orthodox Jew to play in the Major Leagues.

Here is the rub: Steinmetz keeps Kosher and observes Shabbat. But he plays on Shabbat (although he walks to the ballpark) and on Jewish holy days. I would love to hear Steinmetz explain this as a matter of Jewish law. (Update: An emailer says that some Orthodox rabbis allow recreational sports on Shabbat, which justifies his playing as an amateur; it becomes work if he gets paid. Of course, rabbis told Hank Greenberg that he could "play," but not "work" on Rosh Hashanah).

But does that mean, if he were to make the Show, that the most-observant Jewish player in MLB history would play on Yom Kippur, while less-observant players sit or make public displays of deciding to sit? It would be consistent with the sense that we focus on Yom Kippur because the more-secular/less-traditional American Jews, for whom that day (especially the fast) marks the pinnacle of the Hebrew calendar, drive the conversation around Jews in baseball. For Orthodox Jews, other parts of the calendar and other practices form the core of worship. If he does make the Show, it will be interesting how he approaches that one holy day (as opposed to the many, many other Jewish holy days and festival days throughout the year that he observes but that do not make a blip for most American Jews).

Steinmetz has a baseball scholarship to Fordham, so it is not clear if he will play college ball or sign with the D-Backs and accept a minor-league assignment. Stay tuned.

Update: The Washington Nationals drafted Elie Kligman, a Nevada high-schooler who does not play on Shabbat or holy days, in the 20th (final) round. Kligman was a pitcher and infielder in high school who plans to convert to catcher to allow himself days off for Shabbat. The Times wrote about Kligman in March, but I cannot get a sense of how good a player he is or where he is going to land.

Posted by Howard Wasserman on July 13, 2021 at 05:50 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Biden Issues Exec Order on Competition (with focus on non-competes!)

This week, President Biden issued an executive order on promoting competition in the American Economy. The first item of action is a call to ban or limit non-compete agreements and unnecessary, cumbersome occupational licensing requirements that impede economic mobility. This, including Biden's call on the FTC to take action, follows what Mark Lemley and I recommended in our 2021 Day One Report. 

This has been a long time coming. In January 2020 I spoke at the FTC about the need to intervene in the labor market to protect competition, and in 2016 I served on President Obama's working group that resulted in a presidential call to action to the states to curtail the spread of noncompetes. A federal rule will be a gamechanger.

I spoke to the LA Times and the Wall Street Journal about the order. Here's some of the Times article:

Orly Lobel, a professor at the University of San Diego School of Law who has studied the effects of noncompete clauses for years, said that this shift in policy is “very significant” for the U.S. labor market. Based on California’s record on attracting top talent, “we have all the evidence empirically that this comparative advantage contributes not only to higher wages and worker mobility, but also a win-win for firms,” Lobel said.

“When there’s more competition, there’s more of an incentive to innovate, better fit between talent and jobs, and people don’t stagnate in the same position,” Lobel added.

Lobel, the University of San Diego law professor, said that Friday’s approach of calling on the FTC to create a federal rule is a stronger step, and one that she believes falls within the FTC’s powers.

“It’s squarely within the charge of the FTC to regulate unfair practices,” Lobel said, and that includes the labor market. “Wage fixing is just as unfair as price fixing — all of those are unlawful, and we should tackle them.”

 

Posted by Orly Lobel on July 13, 2021 at 06:04 AM | Permalink | Comments (2)

Monday, July 12, 2021

A textual defense of the diversity theory of the 11th Amendment

Eric Segall discusses everything wrong with the Court's 11th Amendment/sovereign immunity jurisprudence, discussing its evolution and incoherence. I agree with just about everything, particularly the point that states should not have sovereign immunity from federal-question actions because states are not sovereign as to federal law.

I depart on one point: Eric argues that the only truly "textualist" interpretation is that the 11th Amendment prohibits all suits against a state by a citizen of another state, regardless of the nature of the case, but is silent as to suits against a state by its own citizens, regardless of the nature of the case. He argues that the diversity theory--a state cannot be sued by a citizen of another state on diversity, but could be sued on some other basis, such as federal question--is not textualist. This makes Gorsuch, who adopted that view in PennEast, is a "fake textualist."

I disagree with Eric at my peril. But I want to try to make a textualist defense of the diversity theory.

Continue reading "A textual defense of the diversity theory of the 11th Amendment"

Posted by Howard Wasserman on July 12, 2021 at 10:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sports and politics

England lost the European championship to Italy on Sunday, losing 3-2 in a penalty shootout. England's three misses were by Black players. English fans did not take the loss well; fans vandalized a mural dedicated to one player (for his philanthropic work) and took to social media to criticize the three players in the way you would expect to happen on social media.

Calling sports apolitical is nonsense, given the trappings of patriotism and politics, especially (as here) in an international competition when one plays for one's country. But without those trappings, this highlights the unavoidable politics. A loss is expressed in political terms--racist language and ideas about them as people (not merely as footballers) or denying that they are true Englishmen. If the players know how they will be criticized for poor performance, they cannot be blamed for making their own political statements, whether in anticipation or response.

Posted by Howard Wasserman on July 12, 2021 at 09:22 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

Texas and Florida are locked in a bizarre race to the bottom in enacting the most stupid and constitutionally problematic laws. Florida jumped into the censor-social-media-in-the-name-of-stopping-censorship and was smacked down in federal court.

Texas decided to follow suit, proposing its own absurd law (nice summary here). It includes some new features, including record-keeping, notification, public-disclosure, and process requirements surrounding how sites moderate content that I expect the state will justify in the name of consumer protection but which might be vulnerable to challenge. It tries to learn from Florida's mistakes--no Disney exception and targeted sites are not defined by size. And Texas does not prohibit sites from appending statements, comments, criticisms, or warnings to posts; it does not attempt to stop sites from engaging in counter-speech in response to user content.

But the same problems remain The definitions exclude news sites and others that "preselect" content and for which user content (such as comments) is incidental to presentation of that preselected material; the news-organization exception was one of the content-based defects Judge Hinkle noted in Florida. It defines censorship as to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression," which limits the order and manner in which sites can have material presented--any listing of sites puts one thing over another, which treats some material better than other; chronological or alphabetical would be the only options. And it prohibits that "censorship" on the basis of viewpoint, which means sites cannot  prohibit any expression--Nazis, racists, anyone--because of disagreement with an otherwise constitutionally protected message.

Expect a carbon-copy opinion from a court in Texas soon.

 

Posted by Howard Wasserman on July 9, 2021 at 05:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, July 08, 2021

Scope of discovery

A recurring theme with Donald Trump lawsuits is a stated hope that he will sue and the case will go forward, subjecting him to discovery and the exposure of all the things he has been trying to hide all these years about his taxes, his private conduct, his dishonesty and corruption, etc. This is especially true for his many threats to sue for defamation, where the need to prove the falsity of the allegedly defamatory statements makes relevant inquiry into his conduct underlying those statements.

Some have floated that same idea with respect to his latest lawsuits, expressing the hope that Facebook, Twitter, and YouTube will not get the actions dismissed, but will let the case proceed into discovery and a deep-dive into Trump's secrets. But filing a lawsuit does not open a plaintiff to discovery about anything and everything in his life; it has to be relevant (meaning calculated to lead to the discovery of admissible evidence) to the claims and defenses in the case. The only issues in this case will be whether the companies act under color based on their relationship to the government and whether the speech that Trump engaged in was constitutionally protected. Whether Trump paid taxes, sexually assaulted women, or self-dealt as President is not relevant to those claims or defenses.

So this will not happen, not because Facebook has no incentive to do it, but because it has nothing to do with the case.

Posted by Howard Wasserman on July 8, 2021 at 03:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 07, 2021

Today in dumb lawsuits

Coming to my neck of the woods in the Southern District of Florida: Class action lawsuits by Trump against Twitter and Jack Dorsey; YouTube and Sundar Pichai; and Facebook and Mark Zuckerberg; all allege violations of the First Amendment and the constitutional invalidity of § 230 (I guess because by protecting private actors, it incentivized their censorship or improperly delegated censorial power).

I think we can agree that this is stupid, for many of the reasons that this lawsuit was stupid. But wait, this one gives us more:

• There may not be personal jurisdiction here. Some of the named defendants are not Florida citizens. Trump was still President and residing (if nor domiciled) and tweeting from D.C. when Twitter and Facebook banned him. So the act of banning him was not "aimed at" Florida.

• Venue may not be proper. My understanding is that terms of service agreements include forum-selection clauses that funnel these cases to California. I have to look into that further. Update: Yep. Brad Heath of Reuters reports that Twitter and Facebook both require that federal lawsuits be in the Northern District of California]

• I do not know how you get a declaratory judgment that a law is invalid without suing the person charged with enforcing that law. Facebook, Twitter, et al., do not "enforce" § 230. They enforce their private terms of agreement and the rules for their sites. If § 230 has the effect of converting them into state actors (it does not, but work with me) in banning Trump and others, they still are enforcing their own private terms of service; but those terms of service have been converted into public regulations subject to First Amendment limits. The companies are not enforcing § 230. Enforcement of § 230 rests with someone in the executive branch. But no government officials have been sued. Update: Another problem with this issue that has been raised: Challenges to the constitutional validity of all provisions of the CDA of 1996, including § 230, must be heard by a three-judge district court.

• The purported class is everyone banned since June 1, 2018 within the United States, which includes a whole of people engaged in unprotected speech (as opposed to Trump's protected-but-false-and-offensive speech), That may be too broad to certify.

• The captions list the first plaintiff as "DONALD J. TRUMP, the Forty-Fifth President of the United States," which might be one of the saddest things in any pleading. And I teach the case brought by "NARUTO, a Crested Macaque." This is worse.

• Yes, the lawyers who filed this nonsense should be held up to public ridicule and potential clients should take this into account in deciding whether to retain them.  Also, referring to "Democrat lawmakers" works on Twitter and the Republican echo chamber; in real life, it is disrespectful. This tells us one of two things: 1) The lawyers are talking to the public rather than the court or 2) The lawyers assume the judge will be as hacky as they are; neither is likely to play well with the judge. Whether that warrants sanctions or PR consequences is another story.

Update: A point I saw raised: Trump spent four years arguing that he was not a state actor when blocking people from his Twitter and Facebook pages, while now arguing that those who created the site he was using are state actors. Are those positions reconcilable? If Twitter and Facebook are state actors, how does that affect the people who use those sites in their relationships to other users? If the site is state-run, does that make every piece of the site state-run, such that the individual user also is a state actor?

Another Update: How does the invalidity of § 230 affect the under-color argument? The defendants act under color (allegedly) because § 230 gives them immunity from suit and delegates censorial power and because the threatened repeal coerced/compelled/induced them to censor certain messages. But if § 230 is invalid (facially, according to the complaint), would it not be a good thing that Congress sought to amend or repeal? Alternatively, if the court declares § 230 invalid, does that eliminate the close nexus, so the defendants no longer are under color?

Posted by Howard Wasserman on July 7, 2021 at 12:28 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, July 06, 2021

Submission Angsting Update

This blog will not be posting a law review submission angsting thread going forward. Comments to the previous thread are closed, and there won't be a thread for the fall cycle.

Posted by Sarah Lawsky on July 6, 2021 at 10:38 AM in Law Review Review | Permalink | Comments (0)

Hiring Plans and Hiring Committees 2021-2022

Update, 7/11/2021: For some reason the comments were briefly showing up as closed. I don't know how that happened; I did not close them. I'm still definitely collecting this information--comments should be working now, or you can email me at sarah*dot* lawsky at law *dot* northwestern *dot* edu and I will add your information to the spreadsheet.

I am collecting information about (1) whether a particular school plans to hire in 2021-2022, and (2) if so, information about the school's hiring committee and hiring interests.

Please share in the comments the following information related to the 2021-2022 law school faculty hiring season. (A spreadsheet is below. You cannot edit the spreadsheet directly.)

First:
 
(a) your school;
 
(b) whether your school is pursuing entry-level hiring in 2021-2022 (this could be yes, no, maybe, or something else);
 
(c) whether your school is pursuing lateral hiring in 2021-2022 (this could be yes, no, maybe, or something else).
 
If your school does plan on pursuing hiring in 2021-2022:
 
(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(f) any particular subject areas in which your school is looking to hire.

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

(g) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(h) your committee's preferred way to be contacted (email, snail-mail, or phone); 
 
(i) the website, if any, that candidates should use to obtain information about the position or to apply;
 
(j) the number of available faculty positions at your school; and
 
(k) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

Posted by Sarah Lawsky on July 6, 2021 at 10:30 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (34)

Friday, July 02, 2021

Reconsidering doctrine

From the final Orders List: Justice Thomas again calls for reconsidering qualified immunity (p.30 of List), including that it makes no sense to us the same standard for police officers making split-second decisions as for a college administrator making deliberate and calculated choices about enacting and enforcing policies (here, creating free-speech zones  on campus). Thomas again calls for reconsidering New York Times (p.41 of doc) and Justice Gorsuch has joined as a wingman (p.44), which suggests this campaign might begin to have legs.

The assault on NYT is notable because it runs opposite to the trend among  free-speech advocates and scholars--their view is that NYT, while great, is insufficient and requires additional protection through anti-SLAPP statutes to stop the filing of bad lawsuits (those that fail under NYT) to bankrupt and silence defendants. Gorsuch adds an odd bit about how few defamation cases go to trial, ignoring that few cases go to trial on any topic because of how 12(b)(6) and summary judgment have been interpreted and applied.

The danger of the emerging Thomas/Gorsuch position is figuring out what it means to "reconsider" NYT. Does it mean eliminating the entire First Amendment edifice (standard of proof, burden of persuasion, protection for parody and satire, protection for anything other than provable statements of fact) and leaving everything to state law? Or does it mean eliminating actual malice as the state-of-mind requirement but leaving the rest in place? And how much of the difficulties that Gorusch decries for defamation plaintiffs derives from actual malice as opposed to the rest of that constitutional edifice? Neither Thomas nor Gorsuch says.

Posted by Howard Wasserman on July 2, 2021 at 01:12 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

On Americans for Prosperity

SCOTUS on Thursday declared invalid a California law requiring not-for-profits to file with the state their Schedule B's revealing major donors. It was another largely 6-3, with Roberts writing for the majority, Thomas joining in all but a few parts, Alito and Gorsuch joining in all but a few parts, and Sotomayor writing the dissent. A couple of points aside from the First Amendment merits

First, the majority declared the California law facially invalid because of its overbreadth, while Thomas questions overbreadth and facial unconstitutionality. Thomas seems to use that departure to fight about universality, making two points. First, while speaking of facial invalidity, "the Court does not say that it is 'provid[ing] relief beyond the parties to the case'"--that is, it is not expressly making the judgment universal. Second, Thomas argues that the judgment does not depend on facial invalidity, only the opinion--"One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners."

This is the right way to understand facial invalidity, within the distinction between judgments and opinions. The Court's judgment/injunction remains particularized to the parties. The reasoning in the opinion explaining the judgment establishes judicial precedent that the law is invalid when applied to anyone else. That precedent binds courts in future cases, compelling the court declare the law invalid and to reject new enforcement efforts against others.  If California attempts future enforcement, the new targets must go to court for a new or expanded injunction. They will get it, because SCOTUS precedent establishes that the law is invalid as to all persons. But they must take that step. And California does not violate the injunction in this case by attempting future enforcement against others.

Second, I am intrigued by Zachary Price's model of "symmetrical constitutionalism, which I discuss in a forthcoming essay. Price proposes that justices should favor "when possible, outcomes, doctrines, and rationales that distribute benefits across major partisan divides, as opposed to those that frame constitutional law as a matter of zero-sum competition between competing partisan visions." The idea is to focus on the principle at issue, rather than on who won the immediate case, where the principle will protect politically distinct people and entities

On its own, AFP fits Price's  model, as shown by the range of groups--ACLU, NAACP, PBS--that filed amicus briefs in favor of the plaintiffs. But the Court divided across ideological/partisan lines and the case is being reported and analyzed as a victory for wealthy conservative groups and their wealthy conservative donors. One reason for many is a belief that the "other side" does not follow the principle as much as the outcome--Justice Alito would be less solicitous of the First Amendment concerns if, say, Texas tried to do a deep-dive into Planned Parenthood's donor base. Another is the fear of this case as a stalking horse for further limits on campaign-finance regulation by imposing the same protections for contributions as for expenditures, which plays into a zero-sum competition between competing partisan visions.

Posted by Howard Wasserman on July 2, 2021 at 09:22 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, July 01, 2021

Erroneous political statement of the day

I have seen a version from multiple sources: Thursday's decisions in AFP and Brnovich are a direct result of Mitch McConnell's ploy with Merrick Garland, that but for that, the Court would have a 5-4 liberal majority rather than a 6-3 conservative majority.

This is wrong because Donald Trump still would have filled two seats (Kennedy and Ginsburg). Had Garland been confirmed, there would have been a 5-4 liberal majority until October 2020, when the majority flipped when Barrett replaced Ginsburg. So some cases during the Trump years probably come out differently--the travel ban, for example. The Court might have done more to stop the worst of Trump's abuses in starker terms. But not Thursday's cases or any of the 6-3 cases of this Term--they are closer (5-4 rather than 6-3), but the outcomes do not change.

The other question in this counter-factual is who the Trump appointees would have been: Gorsuch and Kavanaugh, Gorusch and Barrett, Kavanaugh and Barrett?

Posted by Howard Wasserman on July 1, 2021 at 11:36 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Some thoughts on Cosby

I do not do criminal procedure, so I cannot pass on the Pennsylvania Supreme Court decision in Cosby. I want to raise some issues that touch on what I do study.

• Could Pennsylvania seek review in SCOTUS? That is, did the majority rely on federal or Pennsylvania principles of due process and estoppel? It cites state and federal cases and discusses both sources of law, moving between them. In an unclear case, Michigan v. Long requires the conclusion that the state court relied on federal law rather than independent-and-adequate state grounds, giving SCOTUS jurisdiction (although I doubt SCOTUS will touch this case). I think the better reading is that this is a decision on federal due process, but it requires parsing.

• Accepting that a constitutional violation occurred, I agree with the two-justice concurring-and-dissenting opinion that the proper remedy is a retrial without his deposition statements rather than dismissal of the case and a bar on a new trial. The former DA promised not to prosecute and the breach of the promise was the violation, but Cosby was injured only because he answered deposition questions rather than asserting his Fifth Amendment privilege (which the court accepts as the purpose behind the promise) and those statements were used against him. Imagine the former DA had made the promise and the current DA ignored the promise, but Cosby had never testified in the civil action or the new prosecution had not used his statements--in other words, had Cosby not relied. Would the court have found a violation? Reading the opinion, it does not appear so, specially since the former DA likely lacked authority to make this binding promise in this form. If a prosecution would have been allowed ab initio, then the remedy for the violation should be to allow a re-prosecution as if Cosby had not testified (i.e., without his statements).

• The majority is unclear as to who violated Cosby's rights--the former DA who made the promise or the current DA who brought the prosecution? The court is inconsistent about that, although at the end of the day seems to define it as the promise that induced Cosby to waive his Fifth Amendment privilege in the civil action (which would seem to suggest that Castor committed the violation).

If that is the violation, how does that affect the underlying civil case against Cosby? It settled for more than $ 3 million and was dismissed, after Cosby sat for multiple depositions and made inculpatory statements. It does not appear that any judgment was entered. Could Cosby attempt to open the settlement, arguing that it was a product of the DA's constitutional violation--he settled because negative information came out in his depositions, but he would not have made those inculpatory statements (and thus would not have settled) had he not been stripped of his Fifth Amendment rights by Castor's promise? That might be an equitable "other reason" to reopen a judgment; not sure it does the same for a settlement.

• Might Cosby sue the current and/or former prosecutors, claiming a due process violation and seeking to recover some or all of the $ 3 million settlement that resulted from the violation? We will not find out because it seems pretty clear that decisions to prosecutor or not are protected by prosecutorial immunity.

Posted by Howard Wasserman on July 1, 2021 at 03:49 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Florida social-media law (unsurprisingly) violates the First Amendment

Judge Hinkle of the Northern District of Florida declared that the law violates the First Amendment and preliminarily enjoined its enforcement. This result was over-determined from the start. The court adopts the views  that speech-protective commentators had been arguing from the beginning, which seemed clear from the argument on Monday.

    • Social-media sites are not state actors and cannot violate the First Amendment. So the law cannot be justified as a way to vindicate users' First Amendment rights.

    • Social-media platforms look more like the newspaper in Tornillo and the parade in Hurley and the state has no interest in "balancing the debate." They look less like the shopping mail in Pruneyard or the interviewing classrooms at Harvard Law School; allowing speakers onto your property is different from controlling the owner's speech or dictating how the owner must provide that access.

    • The law is "as content-based as it gets" and subject to strict scrutiny (which Florida conceded at argument it could not survive). This seemed obvious. It treats political candidates and speech by or about candidates different from other speakers and speech. It regulates large platforms but not smaller ones. It is viewpoint discriminatory, motivated by a desire to protect conservative speech and speakers. And that is before the court reached the Disney carve-out.

All-in-all, a slam dunk. And it is hard to envision a different outcome in the 11th Circuit. It would be cheaper for Florida to go back to cut bait and start over. But it will not, because Ron DeSantis has judges to run against in 2024.

Posted by Howard Wasserman on July 1, 2021 at 03:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

University of San Diego School of Law is Hiring Faculty!

Hi all, here at USD (well, I am physically in Tel-Aviv right now but still) we are looking to hire several faculty this year - we are considering both laterals and entry. We have a particular interest in hiring in the areas of corporate and tax but we are open to other fields as well. Here is the announcement. We are also looking to hire one faculty member with a joint appointment with USD's center for ethics, here is the announcement for that.

Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move! 

 

Posted by Orly Lobel on July 1, 2021 at 08:08 AM | Permalink | Comments (1)

Wednesday, June 30, 2021

A Different Take on Faculty Intervention in Law Journals

Jonathan Adler has an interesting post about a purported controversy involving Duke's Journal of Law and Contemporary Problems. I can't vouch for the accuracy of the details, since the source for his post is an item in Above the Law. As he notes, insofar as the apparent controversy involves student editors at the journal protesting the editorial decisions of a journal which is and describes itself as faculty-edited, it's not really much of a controversy. What interests me is Jonathan's take. He writes:

The ATL story certainly sounds bad, as most law journals are led and managed by students, with minimal faculty supervision (let alone control). Forcing student editors to publish an article would be quite a breach of journal norms....

Let me suggest another view. I do not disagree with him descriptively. It is true, if embarrassing, that most American law journals are student-run. (That is not true of most law journals elsewhere. In those places, a) most law journals are run by faculty, b) students may get involved in some capacity but doing so is not at all a key to future jobs or professional advancement, and c) law is more genuinely and seriously an academic discipline--and articles don't run for tens of thousands of unnecessary words or place marketing on an equal level with substance.) It is also true that direct faculty intervention would be contrary to the usual norms. But it's not so clear to me that those norms are always salutary or that we shouldn't take another, more positive look at the possibility of faculty intervention in the decisions of law journals. 

The Harvard Law Review is a formally independent entity. I'm not sure that's true for the overwhelming majority of law journals, which are student-run but substantially funded and operated by their law schools. Whatever their degree of formal dependence or independence, they exist to fill a function. That is, in theory, first and foremost to publish scholarship. If a journal's board decided to spend the year publishing MFA theses or recipes for moussaka or hot takes on contemporary politics, it would be derelict in its duties and any sensible faculty would intervene. And quite properly so, regardless of whether the decision to abandon its obligations was ratified by even a unanimous vote of the current editors or not.  

I take it as a given that academic disciplines are subject to change and internal debate, and that a reasonable range of reasonable disagreement about the boundaries and best practices of that discipline is always available, especially in an undisciplined academic discipline like law. But as the examples above suggest, there are limits, and in cases where the limits are exceeded it seems to me that a faculty and/or administration's obligations--to the discipline as a whole and to itself as an institution--require it to intervene.

I am inclined to think that they ought to do so more often than they currently do. I have already suggested in past posts that there seems to be a larger number of mainline journals engaging in questionable scholarly practices, including running symposia that are clearly unbalanced and clearly make no effort to be balanced, despite being mainline journals. (I leave aside secondary journals that espouse a particular point of view. One might question their very existence. But they are secondary journals, and they at least advertise their biases openly.) One may ask reasonable critical questions about the behavior of the Washington University Law Review last year. Two sets of questions might be raised about a recent symposium in the Roger Williams University Law Review, which both took funds from a group which takes a partisan position on a set of legal issues and advocates for those issues in court (and thus has every reason to support one-sided scholarship on those questions), and openly disclaimed any interest in seeking out contrary views. (I cannot say what influence the subsidization had on the symposium, because the conditions, if any, of that subsidy were not spelled out. But that is exactly why people are suspicious of subsidized scholarship. And nothing in any event prevents a journal from turning down offered money, or taking it and then doing what it wants to and what is right.)

I cannot say empirically that law journals have suddenly or dramatically become more one-sided, more opinionated, less driven by well-established norms of scholarship, less interested in norms of scholarship as such, more interested in issues that are orthogonal to their actual mission and responsibility. But that does seem to me the direction in which things are headed. In such cases, it seems to me the "minimal" faculty supervision or control should become less minimal. In such circumstances, faculty that persist in maintaining a hands-off position are actually disserving their own discipline and abandoning their own professional obligations.

Given the strange existing structure we have in our discipline in this country, a norm against faculty intervention is not a bad one. But it depends on a prior and more fundamental norm--that the law journal act as a law journal, acting according to academic norms and values for academic purposes. Where it fails in that, intervention is fully warranted. Perhaps we ought to be thinking about doing just that more often than we do. It's worth remembering that student editors of academic journals serve for one or two years. Some of them have a sense of institutional history and an inclination to think about their fiduciary responsibilities to the discipline over a longer time period. Some, understandably, will not. (If journal membership had nothing to do with jobs or prestige, I assure you from experience that the interests and commitments of those who still chose to participate in them would be very different.) As faculty and administrators, our commitment to and responsibility for the discipline is longer and deeper, and more important than the possibility of upsetting a subset of a given year's worth of editors. (Surely a subset; journal editors are no more unanimous than any other group of individuals.)

I cannot help but add, as something of a footnote but perhaps an important or telling one, that I suspect the reality is less hands-off than Jonathan's post suggests. How often do faculty or administrators lean on or use their influence with ostensibly independent law journals--to encourage the publication of a friend's tenure piece or their own, to steer the direction of a symposium for partisan or other non-scholarly purposes, or for some other non-scholarly and non-disinterested reason? Less often than gossips would have it, perhaps, but certainly far from "never." But that sort of behavior is more or less accepted as part of the system, in part precisely because it is tacit and quiet--a vice, but at least one that pays tribute to virtue. A direct, open faculty intervention--for the right reasons, to be sure--might be more of a seeming violation of existing norms and occasion more reaction. But it would be public, clear, deliberate, and properly justified. We might hope that the latter sort of intervention might never be necessary. But in many ways I think it's preferable to the former sort, and more virtuous in fact.

Posted by Paul Horwitz on June 30, 2021 at 11:03 PM in Paul Horwitz | Permalink | Comments (0)

Blogging Hiatus

Granted, it's odd to interrupt a de facto hiatus to declare a de jure hiatus. But a combination of family trips and the return of my Bushrod Washington draft for edits will keep me on the sidelines until the summer ends. 

Posted by Gerard Magliocca on June 30, 2021 at 08:37 PM | Permalink | Comments (0)

New CNN Survey of Presidents

Here. Top 10: Lincoln, Washington, FDR, TR, Ike, Truman, Jefferson, JFK, Reagan, Obama (this is unchanged from the prior survey in 2017 except for Obama, who moves up from 12). Bottom 5: William Henry Harrison, Trump, Pierce, Andrew Johnson, Buchanan.

How about monosyllabic presidents? They had a rough four years: Polk (18, down from 14), Grant (20, up from 22), Papa Bush (21, down from 20), Taft (23, up from 24), Ford (28, down from 25), W (29, up from 33), Hayes (33, down from 31), Trump (debuting at 41), Pierce (42, down from 41). I expected Grant to show improvement. I am shocked that three Presidents are deemed worse than Trump, given everything that has happened the past six months and everything we learn daily; could participants have over-corrected for recency bias?

Update: Jeremy Stahl at Slate argues that what it takes to be worse than Trump is to botch the run-up (Piece and Buchanan) or aftermath (Johnson) of the Civil War. Outside those three who failed to deal with extraordinary times, Trump is the worst. And the guy immediately ahead of Trump was in office for 31 days.

Posted by Howard Wasserman on June 30, 2021 at 06:02 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Understanding "cancel culture" and "offense"

It is obvious beyond peradventure (as Justice Brennan used to say) that conservative cries of "cancel culture," "liberal snowflakes," and "offended at everything" are bullshit projection. But nothing illustrates the point better than this Fifth Circuit case.

According to the complaint, a public-school teacher got pissed off that a student was excused from reciting the Pledge; he assigned the class to write the pledge (which the plaintiff refused to do); made in-class speeches offering to pay her to live in a better country and railing about Sharia law, sex offenders, etc.; and generally treated the plaintiff less favorably than her classmates. The district court denied summary judgment, finding issues of fact about the teacher's motive and actions (he insists that writing the pledge was a class assignment rather than a way to require a statement of loyalty). The teacher immediately appealed under the collateral order doctrine to challenge those findings but not to argue that the law was not clearly established. The Fifth Circuit dismissed the appeal for lack of jurisdiction; only legal issues are immediately reviewable under the COD, not factual findings or the finding of factual disputes.

Judge Duncan dissented, with a strange conclusion that emphasized that "[w]e live in an easily offended age. Even Dr. Seuss is controversial," while imagining cases in which students are compelled to pledge written ideas contrary to their religious beliefs and students refuse to recite the words of the Declaration and King's "I Have a Dream" speech (or the one line from the speech Judge Duncan knows).

But Duncan's outrage is laughable for several reasons, showing the lack of real commitment to the First Amendment. First, it seems odd to complain about how easily offended everyone is in a case that alleges that a teacher was offended by a student's constitutionally protected right to refuse to salute the flag and retaliated against that student in a number of (unhinged, unprofessional, and arguably unconstitutional) ways. When one objects to Dr. Seuss or a Confederate monument or the Pledge, one is an easily offended snowflake; when one objects to Critical Race Theory or wokeness or other liberal-but-protected speech, it is standing up for principle or some other noble cause. Second, Duncan would be the first person to support the long-standing conservative project to allow students to opt-out of an assignment requiring a student to write "Praise be Quetzalcoatl." So it is odd to see that as a slippery-slope example while dissenting in a case allowing a student to opt-out of an assignment.

There is an interesting qualified immunity question that the teacher did not properly tee-up on appeal: Assuming he gave the written assignment as a form of pledge (the disputed fact in question), is it clearly established that this violates the First Amendment? The dissent says no, pointing out that no case has ever found a violation from a written pledge. The majority quotes Barnette: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (emphasis in case). What wins out--the absence of a factually identical case or the clear statement of general principle in the controlling SCOTUS opinion?

Posted by Howard Wasserman on June 30, 2021 at 12:58 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Hiring Announcement: Washington University School of Law

WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2022. We will consider candidates in all subject areas, but we are particularly interested in private law, including property, torts, and contracts, as well as evidence, civil procedure, and other areas of teaching need.

Continue reading "Hiring Announcement: Washington University School of Law"

Posted by Howard Wasserman on June 30, 2021 at 12:12 PM in Teaching Law | Permalink | Comments (0)

Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

Facebook cannot be sued because entities, as opposed to individuals, are not proper targets of Bivens actions. The stupidity of this case aside, this is problematic, because it creates another way in which Bivens is not parallel to § 1983--the company could be sued if a state or local government coerced or conspired with it to do something, but not if the federal government does that.

The claims against Zuckerberg failed in part because the complaint did not plead facts showing direct involvement by Zuckerberg with respect to the plaintiff organization's page, as opposed to running Facebook generally. The court refused to infer direct involvement from allegations of Zuckerberg being a "hands-on CEO" making it "highly likely" that he was. Any coercion or encouragement government officials gave Facebook to limit vaccine misinformation did not connect to any specific actions against the plaintiff. And § 230 immunity did not encourage or coerce this conduct, because that immunity does require Facebook or Zuckerberg to do anything and immunity does not hinge on Facebook doing anything.

The court dismissed without prejudice and denied leave to amend. The plaintiffs moved to "supplement" the controlling complaint with new information about the Biden Administration's efforts to stop online vaccine misinformation. The court treated this as a preview of what new allegations plaintiffs would put in a new pleading and concluded they would be insufficient for the same reason the current allegations are insufficient. So the case is over and the next stop is the Ninth Circuit.

Posted by Howard Wasserman on June 30, 2021 at 12:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 29, 2021

Executive v. Legislative and Twitter blocking

Judge Domenico of the District of Colorado held that Rep. Broebert did not act under color and thus did not violate the First Amendment in blocking a viewer from her @laurenboebert account on January 6 (but not from her official @RepBoebert House account). According to the court, Broebert started this account before she was elected to Congress and uses this account to discuss political issues, her legislative agenda, and bills she has introduced. This case is analogous to a Tenth Circuit decision from January finding no state action in blocking people from an account started during an initial campaign and containing more campaign-related material than office-related.

The court did a few things I believe are incorrect and problematic along the way and may confound these cases going forward, even if the result is probably correct.

Continue reading "Executive v. Legislative and Twitter blocking"

Posted by Howard Wasserman on June 29, 2021 at 06:58 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, June 28, 2021

Faculty Hiring Announcement - Gonzaga

From Gonzaga University School of Law:

GONZAGA UNIVERSITY SCHOOL OF LAW in Spokane, WA seeks applicants for up to three entry-level full-time tenure-track positions as Assistant Professor beginning in the Fall 2022. Our curricular needs include a variety of first-year, required, and elective courses, including Civil Procedure, Complex Litigation, and E-Discovery; Constitutional Law, Employment Discrimination, Federal Courts, Health Law, and Indian Law; Contracts, Antitrust, and other Business Law courses with an emphasis on Corporate Social Responsibility; and academic support or bar preparation courses taught in conjunction with doctrinal courses.

Continue reading "Faculty Hiring Announcement - Gonzaga"

Posted by Sarah Lawsky on June 28, 2021 at 07:14 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, June 27, 2021

SCOTUS, standing, and HB8

SCOTUS decided two significant standing cases this Term, both with implications for challenges to Texas's HB8 fetal-heartbeat law.

California v. Texas (ACA) reaffirms that it will be impossible to bring a pre-enforcement suit against state officials. California held that individuals had no standing to challenge the zeroed-out mandate, because the government had nothing to enforce, there is "no one, and nothing, to enjoin." "[N]o unlawful Government action 'fairly traceable' to §5000A(a) caused the plaintiffs’ pocketbook harm. Here, there is no action—actual or threatened—whatsoever. There is only the statute’s textually unenforceable language." Similarly, "no unlawful government action is fairly traceable" to HB8 that injures the plaintiffs. The reason differs. In California, the provision of ACA was unenforceable. HB8 is enforceable--it provides for damages and injunctive relief against those who provide or facilitate abortions--but not by the government. The end point--no government enforcement and no government official to enjoin--is the same.

TransUnion v. Ramirez sparked some conversations about HB8, which accords a private statutory right to people who can point to no historically recognized "real" and "concrete" injury. Likely HB8 plaintiffs have suffered less of an actual or threatened injury than the class members in TransUnion. But TransUnion controls standing in federal court under Article III; it says nothing about standing in Texas courts under the Texas Constitution. So it has no direct effect on the validity of the procedures in HB8. The question is whether it could have indirect or persuasive effect. As I wrote (citing an expert on the Texas Constitution), Texas courts follow Article III but accord greater deference to legislative authorizations of suit. The defendant in the first HB8 suit will raise lack of standing and argue that Texas courts should (but are not required to) follow TransUnion and impose the same limits on the legislative power to create new rights. Stay tuned.

Posted by Howard Wasserman on June 27, 2021 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 25, 2021

Standing up to standing

SCOTUS held Friday in TransUnion LLC v. Ramirez  that most of a class lacked standing to sue over inaccurate information under the Fair Credit Report Act. Justice Kavanaugh wrote for five; Justice Thomas dissented for Breyer, Sotomayor, and Kagan; and Kagan wrote a shorter dissent for Breyer and Sotomayor. This marks another case (the third, I believe) in which Barrett replacing Ginsburg presumably changed the outcome of the case.

The result is not surprising, given the direction of standing cases, but it is the most explicit the Court has been. The majority makes explicit that "under Article III, an injury in law is not an injury in fact," a violation of a statutory right is not sufficient for standing, and Congress cannot create new private statutory rights that provide a basis to sue unless they are the same or analogous to historically recognized legal rights (physical injury, monetary loss, or recognized intangible harms) as determined by the Court. Purely procedural rights, even for an individual, are not sufficient.

Thus, the 1800+ class members whose false information was disseminated (including the named plaintiff) and included information about being on a list of "specially designated nationals" who might be drug dealers or terrorists had standing to sue. The 6000+ remaining class members, whose reports contained false information but were not disseminated, did not have standing; although the false information in the report violated the statute, it was speculative whether or when the information would be disseminated. The entire class lacked standing to challenge the failure to provide them with accurate information and information on how to correct inaccurate information, because the information was provided but in the wrong manner (split into two incomplete mailings); while violative of the statute, it caused no concrete harm.

Continue reading "Standing up to standing"

Posted by Howard Wasserman on June 25, 2021 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thoughts on Mahanoy

SCOTUS decided Mahanoy Area Sch. Dist. v. B.L. on Wednesday. Justice Breyer wrote for eight, holding that the school violated the plaintiff's First Amendment rights in suspending her from the J.V. cheerleading team. Justice Alito concurred for Justice Gorsuch. Justice Thomas dissented, unsurprisingly. Some thoughts after the jump.

Continue reading "Thoughts on Mahanoy"

Posted by Howard Wasserman on June 25, 2021 at 10:06 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, June 24, 2021

Another bad universal injunction decision

A new exhibit in the MUIGA (Make Universal Injunctions Great Again) campaign: Judge Howard (a GWB appointee) of the Middle District of Florida universally enjoined (even though she says nationwide, because judges cannot get this right) the socially disadvantaged farmers and ranchers provision of the American Rescue Plan Act. That provision sets money aside for loan forgiveness and other aide for farmers and ranchers from historically disadvantaged groups. The lawsuit was brought by one white farmer in Florida.

The scope portion followed the usual pattern: Hand-wringing about the "great caution" required before issuing a universal injunction, plus citations to Thomas and Gorsuch questioning the authority to do so. Then this is the complete analysis:

Plaintiff has shown a likelihood of success on the merits of his claim that Section 1005 is unconstitutional and, if implemented, would deprive him of his right to equal protection under the law. The implementation of Section 1005 will be swift and irreversible, meaning the only way to avoid Plaintiff’s irreparable harm is to enjoin the program.

Once again, the justifications offered for universality cover every case--what program, that appears to violate someone's equal protection rights, is not implemented in a "swift and irreversible" manner? This would mean that any program that would deprive a plaintiff of his rights must be universally enjoined, unless the program someone will not be swiftly implemented. Is there something uniquely swift and irreversible here, where other programs will be implemented slowly and reversibly? The court never explains.

The bigger problem is that there is an obvious non-universal remedy that would accord complete relief: Give the plaintiff--and only the plaintiff--access to the program. That remedies the constitutional violation of treating him differently because of his race and the injury of his exclusion from the program. Nothing more need be done to protect or vindicate the plaintiff's rights.

There might be an argument that universality is necessary because the pool of money is limited and affected by the number of applicants; there is $ X to be distributed, divided by the number of applicants, so universality is necessary until we can determine the number of constitutionally eligible applicants. If money continues to be distributed, that will reduce the amount plaintiff can recover. This was the theory behind universality in the sanctuary-cities cases: Requiring that San Francisco receive funds but allowing Chicago to continue to be denied funds does not allow a proper determination of amount and would mean that, upon final resolution, there might be no funds left for Chicago. But that does not appear to be the case here--the pool is not limited and funds are means-tested, so the amount recovered is determined by each applicant's circumstances, not the number of applicants. In any event, the court never discusses this or offers this as the explanation.

Compounding what appears to be the judge's misunderstanding of universality, she adds a footnote saying she "reaches this conclusion without regard to any incidental benefit to other similarly situated White farmers." This is nonsense. By making the injunction universal, she accords more than incidental benefit to other white farmers--she has made them direct beneficiaries of the injunction, on par with the plaintiff.

There is another way of looking at this case: The plaintiff does not seek the debt relief available under this section, but seeks to stop the government from giving that relief to anyone else. On that understanding, complete relief comes not from making the plaintiff eligible for the funds, but from stopping the award of funds to anyone.

But the plaintiff should not have standing to seek that remedy--he is not injured by some people receiving a benefit that he is not interested in receiving. The court cites Gratz  to identify the equal-protection injury as "the inability to compete on an equal footing." But if the plaintiff's injury here is the inability to compete for the funds on an equal footing, it can be remedied by allowing him to compete for funds; an injunction stopping everyone else from receiving funds is not commensurate with the violation. This case looks like a lawsuit by someone who has no interest in attending the University of Michigan seeking to enjoin the University of Michigan from considering race of people who are interested in attending the University of Michigan. Equal protection standing should not extend that far.

Posted by Howard Wasserman on June 24, 2021 at 09:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 23, 2021

JOTWELL: Wasserman on Crocker entity liablity

I have the new Courts Law essay reviewing two articles by Katherine Mims Crocker on establishing entity liability in constitutional litigation: Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, Fla. L. Rev. (forthcoming any day), and Qualified Immunity, Sovereign Immunity, and Systemic Reform, Duke L.J.  (forthcoming 2022). Too bad I was unable to include this disaster to illustrate why Crocker's proposals are important.

Posted by Howard Wasserman on June 23, 2021 at 09:53 AM | Permalink | Comments (0)

CFP: AALS Sections on Remedies (with Fed Courts): Nominal Damages

The AALS Section on Remedies invites paper submissions for a panel on nominal damages at the January 5-9, 2022 Annual Meeting to be held virtually. This panel will be cosponsored by the AALS Section on Federal Courts. This call for papers is open to all full-time faculty members at AALS member or affiliate schools. Pre-tenured professors and junior scholars are strongly encouraged to submit papers. To be considered, please submit a title and abstract, and if available an introduction, to Samuel Bray ([email protected]) by July 15, 2021.

Posted by Howard Wasserman on June 23, 2021 at 09:07 AM in Teaching Law | Permalink | Comments (0)

The Real Jews in Baseball

The Forward on the Israeli Olympic Baseball Team, which competes in Tokyo next month.

Posted by Howard Wasserman on June 23, 2021 at 08:58 AM in Sports | Permalink | Comments (0)

Tuesday, June 22, 2021

Webinar: Teaching Tips for New Law Professors

Teaching Tips for New Law Professors Webinar

 

Join West Academic casebook authors for the upcoming Teaching Tips for New Law Professors panel on Thursday, June 24th from 2pm to 3:30pm CDT. The discussion will be centered around pedagogy across subject areas, course creation, promoting student engagement, traps to avoid, and more. The panel of award-winning law faculty will offer advice on building and teaching a law school course. There will be time at the end for participants to ask questions.

 

Date: Thursday, June 24, 2021

Time: 2:00pm CDT

 

Moderator: Steve I. Friedland, Elon University School of Law

 

Panel:

Miriam A. Cherry, Saint Louis University School of Law

Martha M. Ertman, University of Maryland School of Law

Noah R. Feldman, Harvard University Law School

Deborah S. Gordon, Drexel University School of Law

Deborah Jones Merritt, Ohio State University College of Law

A. Benjamin Spencer, William and Mary Law School

 

Register here: https://us02web.zoom.us/webinar/register/WN_CBIc8juETTGVYW-RZ_XMnA

Posted by Howard Wasserman on June 22, 2021 at 03:10 PM in Teaching Law | Permalink | Comments (0)

Sports and law in the news

Two items on sports in court:

• As Orly mentioned, SCOTUS on Monday unanimously held that the NCAA violated antitrust laws by restricting the "educational benefits" athletes can receive. The immediate judgment is narrow, because the plaintiffs did not cross-appeal on other compensation limits. But the case does appear as a shot across the NCAA's bow. Justice Gorsuch spent the first eight pages describing the enormous amounts of money the NCAA generates for coaches and administrators compared with the modest sums for athletes. Justice Kavanaugh concurred to all-but-hold ("serious questions" is code) that the NCAA is one giant antitrust violation. In particular, he describes as "circular and unpersuasive" the NCAA's main argument that "colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid." If four Justices agree with that premise, that is the ballgame on college athletics as they exist. The question will be what replaces it.

The Job Creators Network voluntarily dismissed its absurd lawsuit challenging MLB's decision to move the All Star Game from Georgia in protest of the state's new voting laws and seeking millions in damages and an injunctive compelling MLB to move the game back to Atlanta (and compel the players to participate in the game). JCN attorney Howard Kleinhendler (late of the Kraken Team) was raked over the coals in an oral argument last week before the court dismissed the action from the bench; dropping the suit rather than appealing seems a wise move. I did not write about the argument, but it included an argument that by moving the game in response to Georgia's voting laws, MLB violated Shelby County by stepping into the shoes of the federal government subjecting Georgia's laws to preclearance. JCN promised to continue the fight in and out of court. Good luck with that.

Posted by Howard Wasserman on June 22, 2021 at 09:54 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

More on Lafayette Square Lawsuits

The district court dismissed some, but not all, of the claims arising from the clearing of Lafayette Square in June 2020. Despite news reports, the case is not over.

The plaintiffs have standing to proceed against federal defendants for injunctive relief over continued restrictions on access to Lafayette Square. And their claims against local law enforcement officials for First Amendment violations were well-pleaded and not barred by qualified immunity. The latter point is surprising and perhaps not long for this world. The court defined the rights at issue (restriction on speech, retaliation for disfavored message) at a high level of generality, without demanding prior case law or a prior similar context. This contrasted with a demand for an identical prior case in according qualified immunity on Fourth Amendment claims.

The piece getting the most attention is the rejection of the Bivens claims against Donald Trump, Bill Barr, Mark Esper, and other high-level federal officials, in addition to the federal officers on the ground. But the outcome of those claims was obvious before the lawsuit was filed. Courts have read SCOTUS's recent cases to all-but preclude Bivens actions, especially for new rights (SCOTUS has never allowed a Bivens action in a First Amendment case) in a situation remotely touching on national security and presidential security, which has become a buzzword for rejecting Bivens. I look at this case less as a bad decision than as a decision faithfully applying impossible SCOTUS rules.

We are nearing the point that plaintiffs will be unable to seek damages for constitutional violations unless Congress acts. Unfortunately, Congress either cannot or will not act.

Posted by Howard Wasserman on June 22, 2021 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

NCAA v. Alston ruling

Today, in a 9-0 decision, the Supreme Court ruled in favor of the student-athletes and against the NCAA, upholding the lower courts’ finding that the restriction of education-related benefits violated antitrust law. The Court cited a professors' amicus brief (which I was part of) led by Michael Carrier and Chris Sagers.

Posted by Orly Lobel on June 22, 2021 at 05:16 AM | Permalink | Comments (0)

Monday, June 21, 2021

A tough season for Jews in MLB

In my article on Jewish baseball players on Yom Kippur, I wrote that we were enjoying a new gilten alter (golden age) of Jews in baseball. Several Jewish players seemed on the verge of stardom or being solid contributors. Approaching the midpoint of the season, it has not played out as well as we hoped.

Jewish Baseball News has the basic stats for the six non-pitchers and five pitchers who have appeared in MLB this season. Alex Bregman has been solid but not at his 2019 near-MVP level, plus he is on the Injured List and no date is set for his return. Joc Pederson started the season slowly but has come around of late as the lead-off man for the Cubs. Kevin Pillar missed time after suffering a broken nose from a pitch to his face. Rowdy Tellez has been up and down to the minors and was removed from the starting line-up this weekend after going 0-for-8 with two strikeouts in his four prior appearances.

Life has been worse for pitchers. Max Fried, seemingly set to become the next great Jewish lefty, has an ERA in the mid-4.oo and has been inconsistent. Israel-born Dean Kremer, who made several promising starts for the Orioles as a late-season call-up, is 0-6, has an ERA over 6.00, and has surrendered 13 home runs in 49 innings. Fried and Kramer pitched well over the weekend, so hopefully they each can turn the corner. Richard Bleier continues to do well as an innings-eating reliever, a position in which Jewish pitchers have thrived. Ryan Sherriff, another innings-eater who pitched well for the Rays in the 2020 World Series, stepped away from the game for personal reasons in April; he is back in the Majors as of two weeks ago.

Posted by Howard Wasserman on June 21, 2021 at 11:21 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, June 16, 2021

Universal injunctions are good again

So says a Trump-appointed judge on the Western District of Louisiana in a challenge by a red state (Louisiana) to a Biden Administration's pause in issuing new oil and gas leases. Here is the total analysis on scope: "This Court does not favor nationwide injunctions unless absolutely necessary. However, it is necessary here because of the need for uniformity. Texas, 809 F.3d at 18788. The Agency Defendants’ lease sales are located on public lands and in offshore waters across the nation. Uniformity is needed despite this Court’s reluctance to issue a nationwide injunction."

This is another example of why there is no meaningful limitation on universality, a judge's pearl-clutching "reluctance" not withstanding. All federal law applies "across the nation." If there is a need for uniformity, it is not limited to oil and gas leases, but applies to all challenges to all federal law. So all injunctions, at least as to enforcement of federal law, must be universal or there is no logical basis for making some universal and others not.

Posted by Howard Wasserman on June 16, 2021 at 02:22 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 15, 2021

Jack Weinstein

Judge Weinstein passed away today at the age of 99. There will be many tributes to him, especially for his work on Brown. Let me just share a brief personal story about him.

I never met the Judge. But after my first book came out, I found in my mail one day a handwritten note from him saying that he read the book and enjoyed it. I was astonished because I'd never met him, never communicated with him, and my book wasn't exactly a best seller.

I sent him a thank-you note, and when my second book came out I sent him a copy. He read that too and wrote me about that. At that point I concluded that he might be a good luck charm of sorts, so I sent my third and fourth books to him as well. And he wrote back each time with some thoughts, though of course by now he was in his 90s. Alas, I cannot send him my next book. RIP

Posted by Gerard Magliocca on June 15, 2021 at 03:49 PM | Permalink | Comments (6)

Chair Search at Alabama Law

I'm delighted to pass this chair search along:

The University of Alabama School of Law announces a search for the D. Paul Jones, Jr. & Charlene Jones Chairholder of Law. We seek a person who is a nationally or internationally recognized scholar and teacher of business law, who will continue to make substantial and meaningful scholarly contributions, participate actively in the life of the Law School, and enhance the School of Law’s visibility and stature in law and regulation related to enterprise. The Chairholder will have the opportunity to establish and direct a new Program in Law and Business, which will include an endowed lecture series, an endowed professor of practice, and other innovative elements that will contribute to teaching and scholarship at the highest levels.

The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff, and we seek to build on our standing as one of the leading public law schools in the United States. The Search Committee welcomes both applications and nominations. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). The search is open as to areas of specialization, but we encourage applications from candidates who have expertise in corporate transactions, mergers and acquisitions, corporate governance, capital markets, or corporate finance. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods.

The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law encourages applications from and nominations of persons who would add to the diversity of our academic community. The School of Law embraces EEO principles in our faculty recruiting efforts. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to requirements of state and federal law.

Interested candidates should apply online at https://facultyjobs.ua.edu/postings/47608. Nominations, applications, and questions may also be transmitted by e-mail to Professor Julie Hill, Chair of the D. Paul Jones Chair Search Committee ([email protected]). Applications will be reviewed as received.

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on June 15, 2021 at 02:17 PM | Permalink | Comments (0)

Monday, June 14, 2021

Duly Noted

In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."

It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.

Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.     

Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink | Comments (0)

The Attorney General on Voting Rights

I want to draw attention to Attorney General Garland's statement on Friday about voting rights. Leave aside what you think of his proposals or how they fit within the broader picture on voting rights. His account of the history of voting rights is splendid. Among the highlights:

1. "Representative John Bingham--the principal author of the Fourteenth Amendment--called the right to vote the source of all institutions of democratic government."

2. Garland explains that the DOJ was created in part to enforce the First Ku Klux Klan Act and singles out Attorney General Amos Akerman, who was a champion of voting rights enforcement his all-too-brief tenure in the early 1870s. 

3. Garland also singles out by name DOJ stalwarts like John Doar, Burke Marshall, and Drew Days in their work on behalf of voting rights as part of a discussion of the case law.

The speech is well worth your time.

Posted by Gerard Magliocca on June 14, 2021 at 08:14 AM | Permalink | Comments (5)

Thursday, June 10, 2021

The Myth of Black Robes

A common belief is that John Marshall initiated the practice of Supreme Court Justices wearing black robes. The story goes that the Justices wore scarlet robes before 1801, but Marshall chose to wear a simple black robe. This was an expression of his modesty and an exercise of leadership, as the other Justices soon followed his example.

A new article in the Journal of Supreme Court History debunks this claim. (I cannot link to the article.) Matthew Hofstedt, the Associate Curator of the Court, proves to my satisfaction that some of the Justices did wear black robes before Marshall's arrival. Hofstedt reaches no conclusion about why all of the Justices eventually adopted black robes, but what seems clear is that Marshall was not the cause.

This finding is consistent with my own research. In 1799, Elizabeth Powel told Bushrod Washington that she was buying him a "black satin robe" that he could use. (Washington was appointed to the Court in December 1798). I had wondered about that until I heard of Hofstedt's paper, but now Powel's letter makes sense. Some Justices did wear black robes before Marshall's arrival.

Just another John Marshall myth.

Posted by Gerard Magliocca on June 10, 2021 at 04:16 PM | Permalink | Comments (1)